Neutral Citation: 1995 ONICDRG 153
ONTARIO INSURANCE COMMISSION
BETWEEN:
JEFFREY C. YORK
Applicant
and
JEVCO INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Jeffrey C. York, was injured in a motor vehicle accident on August 28, 1992. He applied for and received statutory accident benefits from the Insurer, Jevco Insurance Company, payable under Ontario Regulation 672,1 in the amount of $480.00 per week until October 28, 1993, at which point the benefits were terminated. Mr. York disputed the termination of the benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. York entitled to weekly income benefits pursuant to Section 12(1) of the Schedule from October 28, 1993, and if so, to what date?
Mr. York also claims interest on any outstanding amounts owing and his expenses incurred in the arbitration.
Result:
Mr. York is entitled to weekly income benefits from October 28, 1993 to May 23, 1995.
Mr. York is entitled to interest on the amount found owing and his expenses incurred in the arbitration.
Hearing:
The hearing was held in Toronto, Ontario, on September 21, 1995 before me, M. Guy Jones, Arbitrator.
Present at the Hearing:
Applicant:
Jeffrey C. York
Applicant's Representative:
David Share Barrister and Solicitor
Insurer's Representative:
Barney Brucker Barrister and Solicitor
Witnesses:
Mr. Jeffrey C. York
Exhibits:
Ten exhibits were filed.
The Facts:
Injuries
On August 28, 1992, the Applicant, Jeffrey York, was riding his motorcycle when he was struck by another motor vehicle. It would appear that the motor vehicle actually hit the Applicant's right leg. He then fell to his left with the motorcycle landing on top of him. He was subsequently taken to the Scarborough General Hospital where doctors diagnosed a fractured right tibia and fibula. A closed reduction of the fractures was performed and Mr. York was released from hospital after three days.
Unfortunately, the closed reduction was unsuccessful and Mr. York was re-admitted to hospital where he underwent an open reduction and internal fixation operation using an intermediary locked rod, which was carried out on September 9, 1992 by Dr. Christine Young.
Mr. York has had a much slower rate of recovery than the norm, with a number of medical interventions occurring since the time of the initial surgery. On December 9, 1993, the screws were removed from above Mr. York's right ankle. On September 15, 1994, the rod was removed from Mr. York's right leg.
In addition to his problems with the right leg, in June 1993 Mr. York complained of left knee pain. On September 16, 1993 he underwent an arthroscopy of the left knee, and a degenerative tear of the lateral meniscus was identified. This was resected by Dr. Young who noted that there was mild articular cartilage damage on the head of the femur. Mr. York testified that he noted considerable relief after this operation.
Mr. York also testified that he continued to have significant pain in his right knee from immediately after the accident to the time of the arbitration hearing. He testified that on May 1, 1995, he had arthroscopies of both the right and left knees. In the left knee there was found to be some scar tissue anteriorly in the synovium. This was debrided. The left knee was found to have a rough torn area towards the anterior mid-section. This was trimmed and debrided.
Employment
Prior to the accident, on October 22, 1991, Mr York was offered a job as a landscaper with a small company called 'Four Seasons Landscaping," which was owned by his fiancee's brother. He was to commence work on August 31, 1992, which was, of course, three days after the motor vehicle accident in question. This job offer was not disputed by the Insurer in this arbitration.
The evidence of Mr. York was that his job included the following tasks:
sod laying
grass cutting and raking
tree removal
snow removal (in the winter)
fencing
construction of small decks and patios
laying interlocking brick
I find that these items form the essential tasks of his occupation or employment for the purposes of section 12(1) of the Schedule.
As of the date of the hearing, September 21, 1995, Mr. York, who was approximately 24 years of age at the time of the accident, had not yet returned to work. His claim, for the purposes of this arbitration, was limited to his entitlement for the period up to 156 weeks post-accident, being September 5, 1995.
Analysis and Findings
Mr. York undoubtedly suffered a substantial injury to his right leg in the motor vehicle accident of August 28, 1992. Dr. Young, in her initial reports to the Insurer dated September 16, 1992, and February 28, 1993, indicated that the anticipated duration of disability would be six months from the date of the accident. Nonetheless, Mr. York has remained off work for three years. The question to be addressed in this arbitration is whether the injuries he suffered in the motor vehicle accident have kept him substantially unable to perform the essential tasks of his occupation or employment as required by section 12(1) of the Schedule.
Mr. York did not strike me as a highly motivated individual. He has done very little to actively rehabilitate himself or challenge his situation, other than take some physiotherapy. Since the accident he has not tried to go back to work. He has taken two computer courses but has not even followed this up with attempts to find a job in that area. A number of doctors have noted this lack of motivation, including Dr. Barry Malcolm2, Dr. Young3 and Dr. Sai4.
While accepting that Mr. York was not highly motivated in terms of his rehabilitation, I am of the opinion that he did generally follow his doctor's advice and his recovery was not substantially affected by his lack of motivation.
During his testimony, Mr. York had a tendency to exaggerate the extent of his disability. For example, he indicated that for seven months after the accident he was totally unable to put any weight on his right leg. He maintained this position despite being read a number of entries from the clinical notes of Dr. Young which indicated he began bearing weight on the injured leg approximately two and a half months after the accident. Only after repeated questioning did he admit that Dr. Young's notes might be correct and that he had started bearing weight less than seven months after the accident. Another example of his attempts to minimize his rate of recovery involved his testimony regarding his extent of recovery by June 1993. Under cross-examination by Mr. Brucker, he finally admitted to taking a trip to Scotland in June 1993. He indicated that he had forgotten about this trip.
In light of Mr. York's exaggeration of the slowness of his recovery and his poor memory, I am forced to put more weight on the medical evidence than I would perhaps otherwise do in attempting to determine whether Mr. York's time off work subsequent to the initial six months was reasonable and related to the motor vehicle accident.
The Left Knee
One of the major reasons put forward by the Applicant for not returning to work within the normal time frame was a problem that developed with his left knee. The Applicant indicated that he did not notice a problem with the left knee until he began to use crutches while recovering from the broken right tibia and fibula. This would have been in the spring of 1993. The Applicant speculated that he was hobbling around on the left leg on crutches and that this may have caused sufficient pressure to create the problem with the left knee.
An arthroscopy was performed on the left knee by Dr. Young on September 16, 1993. She found a degenerative tear of the lateral meniscus. This was found to be a complex horizontal cleavage tear which was resected. In addition, she found mild articular cartilage damage on the femoral condyle.
In her report of March 28, 19945, Dr. Young indicated that Mr. York first complained of the left knee problem on March 10, 1993. A review of her clinical notes, however, clearly indicates that the first complaint was on June 10, 1993. Nonetheless, Dr. Young, in her report of March 28, 1994, does connect the left knee problem to the Applicant's walking pattern which he developed while he was using the crutches for his right leg. I note that Dr. Urovitz was aware of the problem with the left knee when he prepared his report on behalf of the Insurer; however, at no point did he take issue with Dr. Young's position.
Counsel for the Insurer pointed out that on November 12, 1991, the Applicant had injured his left knee while at work. During the arbitration hearing, Mr. York attempted to minimize the November 12, 1991, injury to his knee. Nonetheless, it is clear that Mr. York did suffer a substantial blow to his knee in the November 12, 1991 accident. In the Worker's Compensation Board's "Worker's Report of Injury or Disease"6, Mr. York wrote: 'I mashed my knee with a end table glass top - 50 pounds and I was thrown against the side of the truck."
It is possible that the meniscus was damaged in the November 1991 accident; however, the clinical notes and records of Dr. Chan, the family doctor, do not suggest further problems with the knee until after the motor vehicle accident.
As noted above, Dr. Young, the treating orthopaedic surgeon, has connected Mr. York's problem with his left knee to his recovery from the right leg injury. As also noted, Dr. Urovitz did not take issue with this. In light of the above, I find that the Applicant did suffer at least a flare up of the left knee injury as the result of exerting extra pressure on the left knee, while recuperating from the motor vehicle accident. As such, he is entitled to section 12(1) benefits while unable to perform the essential tasks of his employment because of the left knee problem.
Further Medical Problems
Subsequent to the operation on the left knee, on December 9, 1993, Mr. York underwent surgery to have the screws removed from above his right ankle. In addition, in September 1994 the rod was removed from his right lower leg.
The only further operative procedures were arthroscopic examinations to both the right and left knees performed by Dr. Young on May 1, 1995. This was because of continuing complaints of pain by Mr. York. During testimony at the hearing, Mr. York indicated that his right knee had been bothering him since the motor vehicle accident. While this may be so, very few complaints were made to the doctors with regard to the right knee prior to the 1995 arthroscopic examination.
In any event, during the May, 1995 operation, Dr. Young found scarring and synovial impingement in the front of the right knee. She noted that the rod had been inserted and then removed through an anterior knee incision which was extra-articular but could have caused the knee scarring. Accordingly, she felt this could be related to the motor vehicle accident. Her examination of the left knee showed that there was some further deterioration of the lateral meniscus which was debrided.
Time off Work
In light of the above, the question remains as to how long Mr. York should reasonably have remained off work because of this initial injury and the resulting complications.
Dr. Urovitz, who performed the medical examination of the Applicant on behalf of the Insurer on June 3, 1993, first indicated nothing would prevent Mr. York from being able to go back to his job as a landscaper as of the time of his initial examination. It is to be noted, however, that shortly after this the meniscus tear was found by Dr. Young. In light of this, Dr. Urovitz wisely decided that he should see the Applicant again before expressing a further opinion as to his ability to work. Accordingly, Dr. Urovitz saw the Applicant for a second time on October 27, 1994. At that time, Dr. Urovitz felt "a program of proactive rehabilitation exercises would be sufficient to allow him to achieve a level of physical comfort and strength, to allow him to go back to all of his pre-accident activities and occupations."7
Dr. Young, the treating orthopaedic surgeon, saw the Applicant on numerous occasions for both the right leg fracture and the knee problems. Counsel for the Insurer relied heavily on the third last paragraph of Dr. Young's report of March 28, 1994, wherein she stated:
"Overall, I think that he will be able to return to work as a landscaper and as a lift operator in a warehouse. He has no limitation now from walking, lifting, bending. He may tire easily at this point but should build up his stamina over several months."
Counsel for the Insurer urged me to find that when this paragraph is read in the context of the entire report it indicates that the Applicant could have returned to work at that time. I agree that Dr. Young's quote is not crystal clear; however, on balance, I believe that Dr. Young was responding to a letter from the Applicant's lawyer dated February 3, 19948 which asks:
'Will he have difficulty returning to this occupation or his former occupation as a lift operator in a warehouse?"
Accordingly, I do not read Dr. Young's report as saying that he could necessarily return to work at that time.
I do note, however, Dr. Young, in her report of May 9, 19959 indicates that 'within the next few weeks he would be back to his pre-MVA status." This statement was made, of course, approximately one week after she performed orthoscopic examinations of both his right and left knees. In light of the opinion of Dr. Young, I am of the view that Mr. York was able to resume his employment as of May 23, 1995. Accordingly, weekly income benefits should be paid for the period from October 28, 1993 to May 23, 1995. In addition, interest should be paid on the amount owing in accordance with the regulations.
Expenses:
Mr. York was successful in the arbitration and, accordingly, I am prepared to exercise my discretion and award him his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, either party may apply for an assessment of the expenses.
Order:
Mr. York is entitled to weekly income benefits from October 28, 1993 to May 23, 1995.
Mr. York is entitled to interest on the amount owing.
Mr. York is entitled to his expenses incurred with respect to the arbitration.
October 26, 1995
Guy Jones Arbitrator
Date
Footnotes
- Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term 'Schedule" will be used to refer to Regulation 672.
- Exhibit 3, Tab 11, Page 14
- Exhibit 3, Tab 8, Page 2
- Exhibit 3, Tab 11, Page 20
- Exhibit 3, Tab 5, Page 3
- Exhibit 4
- Exhibit 3, Tab 7, Page 2
- Exhibit 9
- Exhibit 3, Tab 8