Neutral Citation: 1995 ONICDRG 159

File No.: A-010252

ONTARIO INSURANCE COMMISSION

BETWEEN:

RONALD A. HENRY

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Ronald A. Henry, was injured in a motor vehicle accident on August 31, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on November 17, 1992. The parties were unable to resolve their disputes 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:

1. Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule after November 17, 1992?

2. What is the amount of weekly income benefits?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. The Applicant is not entitled to weekly income benefits pursuant to section 12 of the Schedule after November 17, 1992.

2. The amount of weekly income benefits prior to November 17, 1992 is $185.60.

Hearing:

The hearing was held in Oshawa, Ontario, on September 11 and 12, 1995.

Present at the Hearing:

Applicant:

Ronald A. Henry

Applicant's Representative:

Barry L. Evans Barrister and Solicitor

Insurer's Representative:

Ian D. Kirby Barrister and Solicitor

Insurer’s Officer:

Philip Langford

Evidence and Findings:

Background:

In about 1984 or 1985, the Applicant, Ronald Henry, started his own construction business under the name Sonny's Sealcoating. Mr. Henry stopped this work in 1989 or 1990 due to the recession. He resumed the business in July 1992.

On August 31, 1992, Mr. Henry was moving at about 15 to 20 m.p.h. through an intersection when his vehicle was struck from the rear by a truck. He claims that as a result of the accident he suffers pain in his back, neck and hip to such an extent that he cannot resume his work.

Section 12(1) of the Schedule provides that the Insurer will pay the insured person who suffers injury "a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his occupation or employment." The Insurer claims that Mr. Henry does not suffer a substantial inability to perform the essential tasks of his employment.

Section 12(4) of the Schedule provides in general that the weekly income benefit will be 80 per cent of the insured person’s gross weekly income to a maximum of $600 per week. The minimum benefit is $185.60 per week. The Insurer claims that Mr. Henry has failed to prove that he is entitled to more than the minimum benefit of $185.60 per week.

Essential tasks of employment:

Mr. Henry obtained jobs by driving around and soliciting business. He did three types of work, all of which involved applying an asphalt sealant. He worked at repairing flat roofs, waterproofing foundation walls and sealcoating driveways and parking lots. At the time of the accident he had two trucks equipped with tanks. The evidence was not clear, but I assume the sealant was pumped into the tanks and then heated at the job sites so that it could be applied. It was delivered from the truck to the job site by a hose attached to the tank.

When repairing flat roofs Mr. Henry would climb up a ladder, locate the area of the leak and scrape away the gravel and other roofing material. The area was repaired using a plastic cement and the asphalt sealant. The gravel and other roofing materials were then reapplied. Mr. Henry said he had to lift 50 to 100 pounds at a time and that he had to carry his tools and materials up the ladder. As well, he had to be prepared to descend the ladder on short notice if problems developed with his pumps.

Foundation sealing involved spraying the foundation walls of houses under construction with sealant. Sometimes Mr. Henry had to work in difficult positions in the trench beside the wall, or on top of adjacent foundation walls where the houses were built close together.

Parking lot sealing and driveway sealing involved dragging the hose from his truck and applying the sealant to the pavement.

Entitlement to benefits:

Immediately after the accident of August 31, 1992, Mr. Henry felt pain in his neck, back and leg. He drove from Toronto, where the accident occurred, to his home in Oshawa, and attended the clinic of his family doctor. He thinks he was given some tablets. The next day he saw his family doctor, Dr. Leung, complaining of pain all over. On September 21, 1992, Dr. Leung diagnosed a lumbar strain and a cervical strain and estimated that the period of disability would be two to three months. Dr. Leung has monitored Mr. Henry since the accident and has consistently reported that Mr. Henry cannot return to his work. Dr. Leung arranged for x-rays, which were normal. He also arranged for a bone scan, which showed increased activity compatible with arthritic degenerative disease in both shoulders and the lower back. Dr. Leung’s notes also indicate that before the accident, between 1989 and March 1992, Mr. Henry complained of a lower back problem.

Dr. Kellerstein, a chiropractor, said that he first started treating Mr. Henry in 1988 for a variety of aches and pains. Prior to the motor vehicle accident he thought that Mr. Henry suffered mechanical sacroiliac dysfunction. He said that he had extreme difficulty adjusting Mr. Henry’s spine. Mr. Henry underwent chiropractic treatments about twice a month in the years prior to the motor vehicle accident. However, he stopped treatments about seven months before the motor vehicle accident. He resumed the treatments with Dr. Kellerstein in the days following the accident about three times a month until February 1993. The type of treatment he received after the accident was the same as before the accident.

The Insurer arranged a medical examination for November 17, 1992, pursuant to section 23(2) of the Schedule. Mr. Henry did not attend. He said that he was in too much pain to attend and that his daughter telephoned the Insurer to cancel the appointment. Mr. Langford, the Insurer's claims manager, testified that there was no note in the file that anyone called to cancel the appointment. His notes indicate that some time after November 17, 1992, Mr. Henry said that he felt that the Insurer's medical examination had been scheduled too soon after the accident. Dr. Kellerstein's notes indicated that Mr. Henry attended at his office for treatment on November 16 and November 18, 1992.

On November 20, 1992, Mr. Henry asked Ren Jones, a physiotherapist, to conduct an assessment. She opined that he had a left sacroiliac joint strain. Ms. Jones treated Mr. Henry three times per week. Initially, the treatment was passive. Ms. Jones reports that after much persuasion Mr. Henry agreed to start on a general strengthening program in her gym. Ms. Jones also gave Mr. Henry an exercise program to do at home. Mr. Henry gradually improved and in July 1993 he told Ms. Jones that he was 85 per cent better. Ms. Jones decided to stop the treatments since Mr. Henry was no longer improving.

Another medical examination was arranged by the Insurer for December 8, 1993. Dr. Martin, an orthopaedic specialist, examined Mr. Henry and found no signs of physical impairment. At the same time a functional abilities evaluation was performed. A functional abilities evaluation, according to Dr. Martin, is an attempt to define a client's physical capabilities. The client is given tasks to do with different weights and, if the client complies with the requests, the results define the client's abilities.

The functional abilities evaluation indicated that Mr. Henry did not meet the requirements of an asphalt roofer. However, Dr. Martin and the physiotherapist who conducted the evaluation reported that the results of the functional testing were an indication of Mr. Henry’s performance rather than a valid indication of his actual ability. They attributed the result to Mr. Henry’s apparent lack of co-operation and effort. The physiotherapist reported that Mr. Henry did not cooperate, required prompting and discontinued many activities due to "fatigue." She found no objective signs of fatigue and she noted that Mr. Henry refused to accept an offer to rest.

In April 1994 Dr. Leung referred Mr. Henry to Dr. Kim, a specialist in physical medicine and rehabilitation. Dr. Kim’s physical examination revealed that Mr. Henry’s condition was fairly normal. He also reported that Mr. Henry had diffuse neck and back pain. He recommended that Mr. Henry exercise and condition himself by doing some heavy work. In June 1994 Dr. Kim reported that Mr. Henry should be doing some kind of work but that he seemed more interested in a prolonged disability rather than going back to work. In August 1994 Dr. Kim reported that Mr. Henry was not ready to return to any kind of work, and that he had advised Mr. Henry to condition himself by doing heavy work and many other manual activities to prepare for work. I heard no explanation as to why Dr. Kim was recommending heavy work but opining that Mr. Henry was not ready to return to any kind of work.

Mr. Henry’s own testimony was vague and often contradicted other evidence I heard. He testified that his major complaint was a constant stinging pain in the centre of his back and he pointed to that area. However, most of the medical evidence referred to a lower lumbar or sacroiliac problem. Mr. Henry denied having had medical problems with his back and neck before the accident, even though Dr. Leung and Dr. Kellerstein treated him for back and neck problems in the three years prior to the motor vehicle accident. He said he did prescribed exercises one and a half to two hours every other day, but was unable to describe those exercises other than by saying he tries to turn his neck and he tries to do pushups. He said the physiotherapist 'misinterpreted" him when she reported that he had said that he was 80 per cent and then 85 per cent better. He said Dr. Martin examined him for eight to 12 minutes with his coat on and without touching him. Dr. Martin testified that he was shocked to hear this. He said that the patient would normally be in his shorts for the examination and that he would have to touch him to perform some of the tests.

On the other hand, after the accident Mr. Henry returned to chiropractic treatment after a seven month absence. He sought out physiotherapy treatment and continued the exercise program at Ms. Jones' clinic on a regular basis.

Mr. Henry did physically demanding work which involved lifting, moving, carrying and climbing with heavy weights. I am satisfied that he sustained an injury to his back and neck which aggravated a pre-existing sacroiliac problem and that as a result of the diffuse pain in his back, neck and hip, he suffered a substantial inability to perform the essential tasks of his employment as a result of the accident of August 31, 1992.

Duration of benefits:

Mr. Henry has an ongoing burden of proving on a balance of probabilities that he suffers substantial inability to perform the essential tasks of his work. I find that he has not discharged that burden after November 17, 1992, the date of the first medical examination arranged by the Insurer.

Mr. Henry was vague and reluctant to explain himself. The physiotherapist, Ms. Jones, noted the frustration both she and Mr. Henry experienced in their attempts to communicate. I accept that Mr. Henry had difficulty expressing himself and I take this into account in assessing his credibility.

I do not accept Mr. Henry’s explanation that he did not attend the November 17, 1992, medical examination arranged by the Insurer because he was too sick. He was able to attend the chiropractor the day before and the day after November 17, 1992. He was able to arrange for Ms. Jones to examine him on November 20, 1992. I believe that Mr. Henry is astute enough to realize that it was in his best interests for Dr. Martin to examine him when his condition was particularly bad. I think the reason Mr. Henry gave to the Insurer’s adjuster for not attending the examination was more accurate: that is, he thought it was too soon to be examined by the Insurer’s doctor.

As well, I do not accept Mr. Henry’s assertion that Ms. Jones misinterpreted him when she recorded that he said he was 85 per cent better in July 1993. Ms. Jones seemed concerned about Mr. Henry’s welfare and that she understand him. She decided to stop Mr. Henry’s treatment because she did not think further treatment was helpful, even though Mr. Henry wanted to continue treatment. I accept her evidence as accurate that in July 1993 Mr. Henry reported that he was 85 per cent better.

I do not accept the evidence of the family doctor, Dr. Leung, that Mr. Henry cannot work. Dr. Leung’s role was largely that of recording Mr. Henry’s complaints and monitoring his condition. In April 1994 Dr. Leung referred Mr. Henry to Dr. Kim, a specialist in physical medicine and rehabilitation. Dr. Kim recommended that Mr. Henry start some kind of employment and that he condition himself by doing some heavy work like using his wheelbarrow. Dr. Leung admitted in cross-examination that he never followed up with Mr. Henry to find out if he was doing heavy work. I find this failure significant and I attach little weight to Dr. Leung's opinion that Mr. Henry is disabled from working.

I accept that Mr. Henry had a physically demanding job and that he was unable to do that job immediately after the accident. The only evidence that he continued to be disabled from working is that of Dr. Leung and that of Mr. Henry himself. I have discounted Dr. Leung's evidence because of his failure to follow up on Dr. Kim's advice and I have expressed my doubts about Mr. Henry's credibility.

I am not satisfied that Mr. Henry discharges the burden of proving that he suffered substantial inability to perform the essential tasks of his employment beyond November 17, 1992, the date he failed to appear for the medical examination arranged by the Insurer.

The Insurer was entitled to such an examination pursuant to section 23(2) of the Schedule. According to Senior Arbitrator Naylor, section 23(2) is meant 'to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition."² Arbitrator Draper concluded that the importance of the independent medical examination is such that 'an applicant cannot proceed through the dispute resolution process unless he or she makes himself or herself reasonably available for a medical examination."³

In November 1992 Mr. Henry failed to attend his first scheduled independent medical examination in circumstances which indicate to me that he was able to attend but felt that it was too soon. In July 1993 he admitted to his physiotherapist, Ms. Jones, that he was 85 per cent better. I accept this evidence over Mr. Henry’s evidence that Ms. Jones misinterpreted him. I accept the opinions of Dr. Martin and the therapists who conducted the functional abilities evaluation of December 9, 1993, that Mr. Henry did not co-operate or make a reasonable effort at the evaluation and that the results are therefore inaccurate. I am satisfied that Mr. Henry is unwilling to admit his ability to work.

The importance of the independent medical examination to the insurer is such that an applicant cannot proceed through the dispute resolution process unless he or she makes himself or herself reasonably available for medical examination. I do not accept Mr. Henry’s explanation that he did not attend the medical examination arranged by the Insurer for November 17, 1992, because he was too ill. In the absence of any credible explanation why he did not attend, I infer that he did not attend because he did not think it would help his claim. In view of my finding that Mr. Henry is unwilling to admit his ability to perform the essential tasks of his employment and in the absence of any credible evidence that he is unable to return to work, it is my opinion that Mr. Henry has not satisfied the burden on him of proving on a balance of probabilities that he suffered substantial inability to perform the essential tasks of his employment beyond November 17, 1992, the date of the first medical examination arranged by the Insurer.

Amount of weekly income benefit:

Mr. Henry chose to calculate the amount of his weekly income benefit on his average gross weekly income from his employment in the four weeks preceding the accident, from August 3 to August 31, 1992. I found large gaps in this evidence.

At the hearing he presented documentary evidence to prove five contracts he performed over the period July 2, 1992 to August 10, 1992 for total revenue of $8,771. He included income earned in the period July 2 to August 3, 1992, even though it was outside the four-week period, to show that his entire revenue from the date he resumed his business to the date of the accident was consistent.

The documentary evidence of gross revenues presented at the hearing was as follows:

July 2, 1992

Whitby Mall cheque no. 09932 for $3,572.59 for parking lot sealing and coating;

July 23, 1992

Whitby Mall cheque no. 10030 for $354 for sealing of parking lot;

August 1, 1992

Agreement with Mr. Polimis for repair of roof and foundation walls $650;

August 8, 1992

Agreement with Garritano Brothers Ltd. for repair of roof $695.50;

August 10, 1992

Agreement with Motor City Trailer for repair of roof $3,500.

The "Agreement" is a half-page printed form used by Sonny's Sealcoating with blanks to be filled in.

On February 2, 1994, Mr. Henry wrote to the Insurer's adjuster and enclosed copies of the July 2, 1992 and July 23, 1992 Whitby Mall cheques and copies of the respective Agreements in support of his claim. He did not submit the Agreements for August 1, 8, and 10, 1992 to the adjuster, although he did submit these Agreements at the hearing.

The copies of the two Whitby Mall operating account cheques appear to be reliable evidence of gross revenues. They are dated 21 days apart and the cheque numbers are 98 numbers apart. One cheque has a notation for GST paid and one cheque appears to have a bank certification stamp on it. As well, the work appears to be supported by two invoices dated July 2, 1992 and July 16, 1992 for 810 litres of asphalt sealer purchased.

The documentary evidence for the work done in the four weeks prior to the accident does not appear reliable.

Although Mr. Henry claims he had gross revenues of over $8,700 in July and August 1992, he did not produce any bank statements to indicate deposits. He said that he did not have a bank account. His only explanation for not having a bank account was that he operated a cash business. He explained that an employee of the Whitby Mall took his two cheques for $3,572.59 and $354 to the bank and returned with cash and photocopies of the cheques. Mr. Henry provided invoices for asphalt sealer purchased in July 1992 which was used for the Whitby Mall parking lot job he did in July 1992. I gather that some of the asphalt sealant would have been used to seal residential driveways and I accept handwritten sheets of addresses with a collection of scrawls, check marks, circles and figures as credible evidence of about $900 in gross revenues from sealing a number of residential driveways in July and August 1992. Although some of the asphalt sealant may have been used for roof repair work, Mr. Henry did not produce invoices for the plastic cement, roof coating and plastiglas used exclusively for the roofing work done in the four-week pre-accident period.

Paul Reed, the owner of Motor City Trailer, testified that Mr. Henry did the work he said he did on August 10, 1992 and that he paid him $3,500 cash. However, each man's evidence of what work was done was inconsistent. Mr. Reed indicated that most of Mr. Henry's efforts went into repairing a leaking area 16 feet in diameter. Mr. Henry emphasized that the work was expensive because it involved sealing the entire roof area of 8,000 square feet.

There were too may unexplained gaps in Mr. Henry's evidence.

He claims that he resumed working in July and August 1992 and that he had gross revenues of more than $8,700 during that period for five jobs he did. He submitted copies of two cheques and three Agreements to prove this. However, on February 2, 1994, when he wrote to the adjuster to prove his claim, he only referred to the two jobs he did in July 1992. I am puzzled why he did not refer to the three August 1992 contracts in that letter. Two of those contracts fall within the four week pre-accident period. I also note that in the letter Mr. Henry claimed to have had an annual income of $60,000 for many years up to the accident. Yet, in testimony he admitted that he did not work from 1989 or 1990 to July 1992.

Mr. Henry testified that he intended to give his documents to his bookkeeper to prepare his records but that he did not have time. He saved the invoices for the asphalt sealer. I would have expected that he would have saved the invoices for the material that was used exclusively on roof repairs if in fact he made the purchases. Again, there was no explanation why these invoices were not produced.

Lastly, I am puzzled as to how Mr. Henry can operate a business with gross revenues exceeding $8,700 in two months without a bank account. His answer that he operated a cash business does not explain why he would chose to inconvenience his customers, like the Whitby Mall, by asking them to go to the bank for cash in amounts exceeding $3,500.

In Michael McNamara and Zurich Insurance Company, April 26, 1994, OIC A-000881 (under appeal), Arbitrator Makepeace said:

While it is not necessary in every case for the Applicant to produce source documents or third-party documents in support of his claim, the unexplained gaps and discrepancies in the accounting evidence presented by the Applicant in this case are troublesome. I recognize that a self-employed owner of a small business may not enjoy the accounting expertise to which a large company has access. However, it is not unreasonable to require self-employed applicants to put forward a coherent account of their financial affairs, supported by evidence of sufficient quantity and quality. The onus of proof rests on the Applicant.

. . . In the absence of reliable evidence of pre- and post-accident income, the minimum benefit of $185.60 per week is a fair and reasonable benefit.

Mr. Henry has not satisfied me on the balance of probabilities of the amount of his gross weekly income in the four weeks prior to the accident. There are too many unexplained gaps in the evidence.

In the absence of a coherent account of his affairs, Mr. Henry is entitled to the minimum benefit of $185.60 per week.

The application was not manifestly frivolous or vexatious. Pursuant to section 282(10) of the Act the Applicant is entitled to his expenses.

Order:

1. Mr. Henry is not entitled to weekly income benefits pursuant to section 12 of the Schedule after November 17, 1992.

2. Mr. Henry is entitled to his expenses.

November 3, 1995

William J. Renahan Arbitrator

Date

Footnotes

1. 1Prior 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.
2. 2Patricia Scott and Toronto Transit Commission (Markel Insurance), September 4, 1992, OIC File A-001116.
3. 3Kevin Hanna and Royal Insurance Company of Canada, December 2, 1994, OIC File A-005409.