Neutral Citation: 1995 ONICDRG 189

File No.: A-006192

ONTARIO INSURANCE COMMISSION

BETWEEN:

ZORAN ZAGORAC

Applicant

and

CANADIAN GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mr. Zoran Zagorac, was injured in a motor vehicle accident on June 27, 1990. He applied for and received statutory accident benefits from Canadian General Insurance Company ("the Insurer"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on July 3, 1993. Mr. Zagorac seeks further weekly income benefits payable after the three year anniversary date of his accident, under section 12(5)(b) of the Schedule. The parties were unable to resolve their disputes through mediation and Mr. Zagorac applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Whether Mr. Zagorac is entitled to weekly income benefits under section 12(5)(b) of the Schedule, after July 3, 1993?

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

The quantum of weekly income benefit was not an issue in this hearing. Payment of rehabilitation benefits was not an issue in this hearing.

Result:

1. Mr. Zagorac is entitled to weekly income benefits under section 12(5)(b) of the Schedule, from July 3, 1993 to the conclusion of the pre-examination preparatory community college course in technical terminology, which he started on September 12, 1994.

2. Mr. Zagorac is entitled to interest on overdue payments of weekly income benefits in accordance with the provisions of section 24(4) of the Schedule.

3. Mr. Zagorac is entitled to his expenses of the arbitration.

Hearing :

The hearing was held in Hamilton, Ontario, on November 14, 15, 16, 17, 1994 and January 13 and 19, 1995, before me, Janice Mackintosh, arbitrator.

Present at the Hearing:

Applicant:

Mr. Zoran Zagorac

Applicant's Representative:

Ms. Rhona L. Waxman Barrister and Solicitor

Insurer's Representative:

Mr. James Dunn Barrister and Solicitor

Proceedings were recorded by Ms. Olivia Couper, Ms. Natalie Mancini, and Ms. Diane Leblanc all of the Official Examiner's Office for Hamilton Wentworth, Ms. Marian St. Gelais of Mark Nimigan's Office, and Ms. Pascale Kuehnhold of Network Court Reporting Ltd.

Proceedings were translated into Serbo-Croatian by Zvezdana Curlic and Ms. Anna Arsenob of Anat Interpreters.

Witnesses:

Ten witnesses are listed in Appendix A to the decision.

Exhibits:

29 exhibits, other documents before the arbitrator, including cases referred to by counsel for the Applicant and by counsel for the Insurer are listed in Appendix B to the decision.

Evidence and Findings:

On June 27, 1990, Mr. Zagorac was the front seat passenger of a pick-up truck when it was struck by an oncoming vehicle making an unexpected left hand turn in front of the truck. The pick-up truck was totally demolished in the accident. Mr. Zagorac was taken by ambulance to Mississauga Hospital. The Ambulance Call Report records that Mr. Zagorac was found "supine at the side of the road" but was alert and oriented. The ambulance report also records that Mr. Zagorac complained of pain to his head, neck, right arm, and back.² Mr. Zagorac was examined in the emergency department of Mississauga Hospital. Contusions (bruise or injury without break of the skin) to his right forehead and right arm were noted as well as a three centimetre laceration (torn wound) to his left knee.³ X-rays of his skull, right arm and left knee were taken. No bone abnormalities or fractures were found. The emergency treatment record noted that Mr. Zagorac received stitches to his left knee, was given a tetanus shot and was discharged with a prescription for pain medication.⁴ The next day Mr. Zagorac saw his regular family physician, Dr. Ratka Timarac.

Mr. Zagorac testified that he received a cut to his forehead which required stitches and that he slipped into unconsciousness, regaining consciousness only as the ambulance attendants lifted him onto the stretcher. Dr. Walter F. Kean, a rheumatologist consulted by the Applicant, was under the impression that Mr. Zagorac was unconscious for some time.⁵ Dr. Kean diagnosed a post-traumatic brain injury partly on that basis. Neither the ambulance report nor the emergency hospital record refers to a period of unconsciousness or an open wound to the head requiring stitches. The family doctor's note of the next day refers to small abrasions on the forehead, and a laceration to the left knee.⁶ At the hearing, Mr. Zagorac pointed out a small mark on his right forehead, however I find that Mr. Zagorac did not suffer an open laceration to his right forehead requiring stitches, nor the degree of initial head injury he alleged.

Mr. Zagorac's injuries showed gradual improvement during the first year following his accident.⁷ However, Mr. Zagorac alleges that four years after his accident, his condition has plateaued below the functional level required to perform either the heavy physical tasks of his former job as a brick mason/labourer, or to engage in any occupation or employment for which he is reasonably suited by education, training or experience. He claims that he requires extensive retraining and upgrading of his English language and technical skills, including a formal two to three year community college program, to re-enter the job market at a highly skilled, supervisory level, which he submits is appropriate to his education, training, experience, and reduced physical capacity. Mr. Zagorac seeks weekly income benefits throughout his vocational rehabilitation and retraining.

The Insurer claims that Mr. Zagorac is consciously magnifying his disability and is capable of returning to his previous work as a brick mason or to other occupations for which he is reasonably suited, and that he requires no further retraining or vocational rehabilitation.

Background and Work Experience:

Mr. Zagorac was 31 years old at the time of the accident in June 1990. He is married and is the father of three young children.

Mr. Zagorac obtained technical training equivalent to high school and received a general machinist's diploma in the former Yugoslavia. He was halfway through a three year machinist training program equivalent to community college level when economic pressures precipitated his entry into the workforce. In Yugoslavia he gained work experience operating, maintaining, assembling, installing, repairing, and rebuilding both small and large machinery, in various settings including a hydro-electric power station, a machine shop, and a factory. Mr. Zagorac worked as a machinist for approximately eight years, prior to immigrating to Canada in October 1987.

Ms. Julianna Durham, an occupational therapist with the Vocational Assessment Unit of the Chedoke-McMaster Hospitals, affiliated with the Faculty of Health Sciences, McMaster University, described the work of a machinist as it is classified by The Canadian Classification and Dictionary of Occupations ("CCDO").⁸ She stated that although she was not aware of the specific nature of the machinist work performed by Mr. Zagorac in Yugoslavia, machinists in Canada are responsible for reading and interpreting blueprints in order to set up and operate a variety of cutting or machine tools (lathes, bores, mills, drills, planes, grinders), to produce, fit and assemble the machine parts and subassemblies. In Canada, machinists achieve trade certification following a four year apprenticeship or a combination of some college or industry courses and over four years of experience in the trade.⁹ The CCDO classifies the physical demands of the job of machinist (8313-153) as "medium." Medium work involves frequent lifting and handling of objects under 20 pounds and some lifting of objects to a maximum of 50 pounds.¹⁰

When Mr. Zagorac arrived in Canada as a landed immigrant, he knew almost no English and his machinist's diploma was not recognized by the Province of Ontario. Fortunately, Mr. Zagorac's uncle and immigration sponsor, Mr. Milenko Krinkovic, ("Danny"), provided Mr. Zagorac with seasonal work in his masonry business, known as Danny's Masonry. Mr. Zagorac started at an entry-level position as a general labourer in October 1987, and gradually learned the work of a brick mason on the job. He generally worked approximately seven months each year and collected unemployment insurance benefits during the winter layoffs. Mr. Zagorac testified that he was unable to find work in the off season due to his limited English and the lack of official recognition of his machinist diploma. He did not pursue English language instruction or further technical education during the three winters he was laid off. He had been recalled to work as a brick mason with Danny's Masonry several weeks before the accident. He had earned sufficient income to maintain a claim for weekly income benefits in the amount of $500.00. The quantum of weekly income benefit is not an issue in this hearing.

Mr. Zagorac was working as a brick mason at the time of the accident. A brick mason is required to read and interpret blueprints and drawings, to apply mortar and lay brick, stone and building blocks in mortar with a trowel, and to remove any excess mortar. Bricks and blocks are cut with hand and power tools when necessary. The work also involves climbing ladders and/or scaffolding, stooping, kneeling, crouching, and/or crawling. The occupational therapist, Ms. Durham, classified bricklaying as a medium job.¹¹ Danny's Masonry also employed brick mason's assistants and general labourers who performed the heaviest work. The brick mason's assistant set up the scaffolding, moved and stacked the bricks onto the scaffolding for the brick mason to use, mixed the mortar and lifted it to the scaffolding.

Mr. Zagorac's uncontroverted testimony was that brick masons at Danny's Masonry were required to do some of the work of a bricklayer's assistant because there was too much work for the assistant to do alone. Occupational therapist, Ms. Susan Darzins, also with the Chedoke-McMaster Hospitals, described Mr. Zagorac's employment with Danny's Masonry as brick mason/labourer.¹² I accept this description of his employment and conclude that Mr. Zagorac's pre-accident essential tasks included some of the heavy physical activities of a general labourer and bricklayer's assistant, as well as the more skilled tasks of a brick mason. Mr. Zagorac testified that he found his work at Danny's Masonry heavy and physically demanding. He stated that his right wrist became painful and swollen due to constant lifting of bricks and mortar. He sought medical treatment and underwent physiotherapy in February 1989, for this problem. Through his testimony, Mr. Zagorac conveyed the impression that his work at Danny's Masonry was heavier and more physically punishing than the medium level work he was accustomed to performing as a machinist in Yugoslavia. I conclude that Mr. Zagorac's work with Danny's Masonry was in the medium to heavy range.

Post-accident Medical Condition:

During the first year following his accident (June 1990), Mr. Zagorac continued to see his family doctor, Dr. Timarac, every two weeks. Dr. Timarac initially diagnosed cervical strain.¹³ Mr. Zagorac attended physiotherapy in July and August 1990 and received treatment for cervical strain and neck pain.¹⁴ By September 6, 1990, Dr. Timarac also noted lumbar strain. The Insurer maintains that the delayed onset of low back pain complaints by Mr. Zagorac supports its view that his low back pain is unrelated to the motor vehicle accident. I do not accept this view. It is clear from the ambulance report that Mr. Zagorac complained of back injury immediately following the accident. During testimony, Dr. Timarac opined that Mr. Zagorac's low back pain complaints flowed from injuries sustained in the accident and explained why the focus of his pain complaints shifted from his neck to his low back and legs. Dr. Timarac is the only doctor who treated Mr. Zagorac during the early months and I accept her explanation and opinion concerning the causal relation between Mr. Zagorac's low back pain and the accident. Mr. Zagorac was a relatively young man at the time of the accident. He denied any earlier problems with his back and had no medical history of pre-existing low back pain. The Insurer offered no other plausible explanation for the onset of Mr. Zagorac's back pain.

In the first year following the accident, Dr. Timarac reported slow, but steady improvement in Mr. Zagorac's condition. By May 1991, Dr. Timarac opined that Mr. Zagorac would be ready to return to work within the month, however this did not occur.¹⁵

On January 17, 1991, Mr. Zagorac had been examined by Dr. Michael H. Kronby, neurologist, at the request of the Insurer. Dr. Kronby noted neck pain at a 5/10 level and low back pain at a 6/10 level from a peak of 10/10. Dr. Kronby recorded that Mr. Zagorac could sit for about a half hour, stand about half an hour and walk about a half an hour to an hour before he felt uncomfortable. Dr. Kronby considered Mr. Zagorac to be temporarily, totally disabled from his previous work as a bricklayer and suggested a return to work in three to four months — ie. in April or May 1991.¹⁶ Dr. Kronby re-examined Mr. Zagorac in January 1992. He noted little change in Mr. Zagorac's condition and concluded that Mr. Zagorac's symptoms were genuine. He recommended further rehabilitation through the Canadian Back Institute ("C.B.I."), and possibly vocational re-training.¹⁷

On January 13, 1992, Mr. Zagorac was assessed by Mr. Peter Stymiest, a registered physiotherapist with the C.B.I. Mr. Stymiest concluded that Mr. Zagorac would be an appropriate candidate for a comprehensive rehabilitation program. Mr. Zagorac identified low back pain as his dominant complaint, along with headaches. Mr. Stymiest identified chronic pain in combination with symptom magnification and English language difficulties, as barriers to Mr. Zagorac's return to the workforce. He recommended that Mr. Zagorac's rehabilitation should focus on functional reconditioning and restoration rather than symptom relief.¹⁸ At the conclusion of the 30-day C.B.I, program, Ms. Deb Jeffries, a registered physiotherapist, reported that Mr. Zagorac demonstrated objective progress. She concluded that his strength, flexibility and functional abilities, such as repetitive lifting, had improved to a level that would permit him to return to his work as a brick mason, (i.e. "medium level").¹⁹ Dr. F.M. Killian, a physiatrist associated with the C.B.I., also concluded that Mr. Zagorac would be ready to return to the workforce upon completion of the C.B.I, conditioning program.²⁰ The C.B.I, testers and examiners do not appear to have considered the heavier labouring aspects of Mr. Zagorac's work with Danny's Masonry in reaching their conclusions.

Mr. Zagorac testified that despite the functional gains made by him in the C.B.I, program, his pain increased to intolerable levels. He felt incapable of working through his pain and was afraid to resume his former tasks as a brick mason/labourer for fear of worsening his injuries. He testified that after the C.B.I, program he became inactive and depressed. He felt he lost whatever functional gains he had made. In October 1992, Mr.Zagorac informed his rehabilitation consultant that he felt pain after bending once, after sitting for approximately one hour and after standing for only a few minutes.²¹ Ms. Renee Levesque, a rehabilitation consultant with Progressive Rehabilitation Consultants Inc. jointly retained by the parties, testified that, in her opinion, Mr. Zagorac was unable to maintain the functional gains made in the C.B.I, program because the program failed to integrate an increased level of physical activity into Mr. Zagorac's daily life. When the C.B.I, program ended, so did Mr. Zagorac's level of activity, which was tied to his daily attendance at, and use of, the C.B.I, clinic facilities. Ms. Levesque testified that in her experience, the most successful pain rehabilitation programs gradually modify the injured person's daily behaviour to include increasing levels of exercise and activity centered in that person's own community, and focussed on their personal goals.

The Insurer terminated weekly income benefits to Mr. Zagorac but reinstated them retroactively in August 1992, following mediation at the Commission.²²

In October 1992, Mr. Zagorac's counsel and the Insurer agreed to retain the services of a rehabilitation consultant, Ms. Levesque. Ms. Levesque identified several rehabilitation goals for Mr. Zagorac, including:

1. A situational assessment to determine Mr. Zagorac's physical tolerance for sedentary, light, medium, or heavy work. Depending on the outcome of the situational assessment, to develop realistic and appropriate alternate vocational goals for him.

2. Neuro-psychological assessment to determine whether Mr. Zagorac sustained a closed head injury in the motor vehicle accident and whether cognitive deficits would limit future retraining or vocational alternatives.

3. English language instruction with an emphasis on technical and vocational language.

4. Verification of Mr. Zagorac's Yugoslavian machinist diploma through the Ministry of Skills Development to maximize Mr. Zagorac's transferable skills to related career options.²³

On Ms. Levesque's recommendation, Mr. Zagorac successfully completed an 11 week Labour Market Language Training program at Mohawk College. Classes ran daily from 9:00 a.m. to 3:30 p.m., with an hour for lunch, from November 23, 1992 to February 12, 1993.²⁴ Mr. Zagorac claimed that he went to bed as soon as he returned from classes and was prescribed extra strength pain medication (Tylenol Two) by his family doctor to cope with his increased pain levels. Dr. Timarac's clinical notes and records do not reflect the prescribed pain medication during this time period.²⁵

In March 1993, Mr. Zagorac completed a two-week situational assessment at the Chedoke-McMaster Vocational Assessment Unit. Mr. Zagorac attended daily from 9:00 a.m. to 2:00 p.m. However, he reported that he experienced increasing pain levels throughout the program and required prescription pain medication to cope. Based on the assessment results, the occupational therapist concluded that Mr. Zagorac demonstrated limited physical tolerance for work, primarily as the result of low back pain. He was unable to handle even light work.

Cognitive deficits did not appear to be a limiting factor, however, some difficulties in following instructions were noted to be language based. The occupational therapist recommended a personalized fitness reactivation and pain management program, as well as a psychiatric assessment to determine whether clinical depression was inhibiting Mr. Zagorac's recovery.²⁶

Over a period of four days in June 1993, Mr. Zagorac was assessed by a multi-disciplinary team from The Medical Rehabilitation Service (M.R.S.). This multi-disciplinary team included a psychiatrist, psychologist, general internist, rheumatologist, specialist in behavioural medicine, as well as field consultants trained in rehabilitation. Members of the team are connected to the teaching staff of the medical faculty of McMaster University and are the heads of various departments of medicine within St. Joseph's Hospital. This medical team determined that Mr. Zagorac's present difficulties were primarily soft tissue in nature, that no existing disease or pathology would pose any irreducible limitations to the level of function that Mr. Zagorac could be expected to achieve and no specific activities were truly contradicted.

However, Mr. Zagorac was diagnosed as demonstrating a number of features of clinical depression which required pharmacological intervention.²⁷ In addition, it was observed that Mr. Zagorac sincerely believed that his recovery was threatened by activity which resulted in pain. Mr. Zagorac expressed fear that he would ultimately end up in a wheelchair if he pushed through his pain. The medical team was of the view that this belief accounted for Mr. Zagorac's avoidance of certain activities, his marked guarding of movement and his invalid-like status. For example, Mr. Zagorac was observed holding onto walls for support, and holding onto his back during exercises.²⁸

The medical team concluded that Mr. Zagorac was extremely disabled, and would be unable to return to the labour market without some rehabilitative intervention. It was determined that Mr. Zagorac's disability was largely due to behavioural and psychiatric factors and that Mr. Zagorac was a good candidate for the comprehensive behaviour modification-psychiatric approach to the management of chronic pain offered through M.R.S.²⁹ However, before the M.R.S. program could begin, Mr. Zagorac's benefits were terminated by the Insurer in July 1993. Mr. Zagorac's rehabilitation benefits only were reinstated by the Insurer in October 1993, following mediation at the Commission.³⁰

At the request of the Insurer, Mr. Zagorac was also assessed by Dr. J.D. Imrie, for several hours in the afternoon of June 28, 1993. Dr. Imrie has developed a private practice as an occupational physician with an emphasis on musculoskeletal assessment, as well as functional assessment for return to work and job placement.³¹ As a result of his assessment, Dr. Imrie reached many of the same conclusions as the team from M.R.S., although he did not have access to their report. Dr. Imrie noted significant deterioration in Mr. Zagorac's level of function from the C.B.I, assessment done in January 1992. He also found no evidence of outstanding disease or pathology that could account for Mr. Zagorac's reduced level of function. He concluded that Mr. Zagorac was functioning well below his physical potential and noted examples of marked guarding of movement, such as walking like a robot, and a reluctance on Mr. Zagorac's part to push himself during some of the tests.

Whereas the M.R.S. assessment concluded that Mr. Zagorac's disability was largely due to behavioural and psychiatric factors, Dr. Imrie concluded that Mr. Zagorac was magnifying his symptoms, either consciously or unconsciously, for reward or gain. In a supplemental report dated August 1993, Dr. Imrie reviewed some video surveillance of Mr. Zagorac provided by the Insurer. Dr. Imrie described a video which "depicted the client [Mr. Zagorac] playing football with his son."³² On the basis of this and other surveillance of Mr. Zagorac provided by the Insurer, Dr. Imrie concluded that Mr. Zagorac demonstrated significantly higher levels of function on the videotapes than he had demonstrated during the assessment. As a result of this perceived discrepancy, Dr. Imrie amended his earlier opinion to conclude that Mr. Zagorac was most likely intentionally exaggerating his symptoms and pain behaviour for conscious gain. In his conclusion, Dr. Imrie cautioned against "entering the psychological realm" which is dominated by patients' perceptions and feelings.³³

Dr. Walter F. Kean, a rheumatologist, and professor of medicine at McMaster University with expertise in the area of chronic pain, and Dr. H. Anchel, a psychologist, and assistant professor of medicine at McMaster University who is associated with the M.R.S. program, both testified at the hearing. Their opinion of the video surveillance obtained by the Insurer differed from Dr. Imrie's. In their view, none of the activities depicted in the video surveillance were particularly difficult or physically demanding. None approached the level of sustained activity required for a return to the workforce. In their opinion, the lengthy, detailed situational assessments conducted over March 1 to 12, 1993, and May 2 to 13, 1994, by trained professionals,³⁴ were generally a more accurate gauge of Mr. Zagorac's sustainable functional abilities and work tolerances, than snippets of video surveillance. I accept the view expressed by Dr. Kean and Dr. Anchel. The "football game" described by Dr. Imrie struck me as a desultory half hour of ball toss. None of the actions depicted in the video surveillance were so compelling as to displace the opinions reached by the occupational therapists as a result of their situational assessments.

Both Dr. Imrie and Mr. Stymiest, a physiotherapist with the C.B.I., noted symptom magnification on the part of Mr. Zagorac. In his testimony, Dr. Anchel agreed that Mr. Zagorac exhibited a degree of symptom magnification, tended to overstate the extent of his disability and underestimate his level of function. However, Dr. Anchel observed that this was common to many chronic pain sufferers and was part of the psychological and behavioural aspects of chronic pain. Dr. Anchel expressed the view that psychological, psychiatric, emotional and behavioural factors often play a significant role in the development of chronic pain and were pertinent to an understanding of Mr. Zagorac's case.

Dr. Imrie is neither a psychologist nor psychiatrist and it is difficult for him to thoroughly assess the psychological and/or psychiatric aspects of Mr. Zagorac's situation. Mr. Zagorac was assessed by both a psychiatrist and a psychologist during the four day M.R.S. assessment.³⁵ I therefore prefer the opinion of Dr. Anchel and the M.R.S. group concerning the emotional and psychological aspects of Mr. Zagorac's reaction to pain.

Dr. Imrie is the only medical practitioner to conclude that Mr. Zagorac was exaggerating his symptoms to the extent of feigning disability for personal gain. Several doctors and treatment providers had long associations with Mr. Zagorac during the four years following his accident and had repeated opportunities to review and assess his condition. Dr. Anchel pointed out that the M.R.S. behavioural modification program is very intrusive and virtually takes over the insured person's life during the approximately ten months that it runs. The M.R.S. field consultant assigned to Mr. Zagorac and the rehabilitation consultant, Ms. Levesque, had numerous opportunities to observe Mr. Zagorac in his home and in the course of his various programs and activities. Dr. Anchel pointed out that it would be very difficult for anyone to sustain a deception over the long run.

Both Dr. Anchel and Ms. Levesque noted that Mr. Zagorac demonstrated commitment and compliance throughout his rehabilitation program. Furthermore, Mr. Zagorac made real gains in his functional abilities. Dr. Anchel observed that all these factors are inconsistent with deliberate malingering as suggested by Dr. Imrie. However, I accept that some level of symptom magnification is occuring in Mr. Zagorac's case. Mr. Zagorac's activities on the surveillance videos did not reflect the level of invalid-like behaviours described by Dr. Imrie — robot-like walk, or the behaviour of holding onto walls for support described by the M.R.S. group. I accept that Mr. Zagorac's overall physical tolerances for sustainable work activity are more likely in the higher ranges identified by the vocational assessment unit of the Chedoke-McMaster Hospitals rather than the lower ranges. I also accept that at times Mr. Zagorac is capable of functioning at the medium level as noted during the C.B.I, assessment of March 1992, however, not on a consistent or sustainable basis. I am satisfied that Mr. Zagorac's realistic work tolerances continue to fall below the medium to heavy range of physical strength required in his pre-accident job as a brick mason/labourer.

Mr. Zagorac began the M.R.S. reactivation program in November 1993. It consisted of an individualized exercise and activity program centered in Mr. Zagorac's community and focused on his personal goals. Mr. Zagorac was frequently monitored by an M.R.S. field consultant who gradually increased the components of the program to modify Mr. Zagorac's daily behaviour. Mr. Zagorac regularly attended a local fitness facility, he continued English classes to upgrade his language skills, he received psychiatric treatment for depression, and a neuropsychological evaluation which confirmed his intellectual potential for retraining, but cast doubt on his academic potential to pursue a university level degree.³⁶ By March 1994, Mr. Zagorac was out of the house and active from 8:30 a.m. to approximately 4:00 p.m., five days a week.³⁷ Towards the end of the M.R.S program in June 1994, Mr. Zagorac was attending school five days a week for five or six hours a day and was attending the gym three to four times a week, as part of a self-directed exercise program. Mr. Zagorac reported feeling well.³⁸

Mr. Zagorac was referred back to the Vocational Assessment Unit of the Chedoke-McMaster Hospitals between May and August 1994, for further evaluation of his physical tolerances for work activity and an identification of realistic vocational goals and choices for him. Observations during the situational assessment indicated that Mr. Zagorac's overall physical tolerances for work activity had improved since the earlier situational assessment in March 1993. Ms. Susan Darzins, occupational therapist, noted that Mr. Zagorac demonstrated materials handling abilities that would place his tolerances in the "light" category for work activity, however, other demonstrated limitations in certain positions such as static sitting or standing over 30 minutes and kneeling, suggested that he would likely sustain work activity best if it was in the "sedentary" to "light" range. Sedentary work is defined by the CCDO as work with objects of less than 10 pounds while sitting the majority of the time, some walking or standing may also be required. Light work is defined as working frequently with objects weighing less than 10 pounds and sometimes lifting objects of a maximum of 20 pounds.³⁹

The medical experts universally supported the rehabilitative strategy of the pain management program offered through M.R.S. While Dr. Imrie questioned the necessity of the program in Mr. Zagorac's case, he had no dispute with the approach or methodology of M.R.S. I accept the conclusions of the M.R.S. multi-disciplinary team that Mr. Zagorac's ability to re-enter the workforce on any meaningful level was delayed by unaddressed psychiatric and behavioural issues, prior to the M.R.S. program. Mr. Zagorac testified that he now has better insight into the nature of his medical problems. He no longer fears he will end up in a wheelchair because of pain caused by increased activity levels. Unlike his experience with the C.B.I, program, Mr. Zagorac has maintained his functional gains and continues a schedule of exercise, study, and activity.

I accept the necessity for the M.R.S. program and conclude that Mr. Zagorac was continuously prevented from engaging in any employment for which he was reasonably suited by education, training or experience prior to the conclusion of the intensive portion of the M.R.S. program and second situational assessment on May 13, 1994.⁴⁰ Mr. Zagorac is therefore entitled to weekly income benefits under section 12(5)(b) of the Schedule from July 3, 1993 to May 13, 1994. Mr. Zagorac's situation beyond this date (i.e. following the completion of the intensive portion of the M.R.S. program and second situational assessment) is more ambiguous.

The Applicant submits that despite gains made in the M.R.S. program, his limited English skills and lack of recognized technical qualifications restrict him to entry-level jobs which emphasize physical labour beyond his sustainable tolerances. Mr. Zagorac's minimal English language skills and lack of technical qualifications were undoubtedly factors in his acceptance of the lower skilled, entry-level position of general labourer (with potential for skills training), when he first arrived in Canada three years before his accident. As such, low skilled, entry-level positions, (with apprenticeship or on the job training potential), are not out of keeping with Mr. Zagorac's recent employment history. According to the occupational therapist, Ms. Durham, many entry-level jobs are found in the construction, manufacturing, processing, primary industry, sales and service sectors of the work economy. However, they generally demand better language skills and a wider variety of physical demands and activities than Mr. Zagorac was capable of performing during his first situational assessment in March 1993.⁴¹

Since that time however, through continuing education and hard work, Mr. Zagorac has significantly improved his English language skills from minimal in October 1992,⁴² to grade eight reading levels and grade four spelling levels in June of 1993⁴³ and grade 10 reading levels and grade six spelling levels by March 1994.⁴⁴ At the time of this hearing, Mr. Zagorac was continuing his English language studies, thereby significantly broadening the spectrum of employment opportunities available to him.

Ms. Darzins targeted realistic job goals for Mr. Zagorac which reflected his improved physical tolerances, interest, education, training, experience and transferable skills and matched them to the physical demands of various jobs, taking into consideration job availability and market factors. The occupational therapist examined Mr. Zagorac's work experience in Yugoslavia and concluded that his experience seemed more aligned to the duties of an industrial engineering technologist/maintenance mechanic rather than a general machinist. Overlapping occupations include fourth class stationary engineer (maintenance).

Mr. Zagorac expressed particular interest in working as an industrial maintenance mechanic (assembly and repair). This work is generally classified as "light work" including "sedentary" occupations.⁴⁵ However, the physical demands could vary according to the industry type and the type of materials and processes used. The occupational therapist suggested that Mr. Zagorac seek work in an industry that manufactures using automation and process control, where the maintenance role would place more emphasis upon technical skills rather than physical labouring. She also suggested that compared to other parts of Canada, southern Ontario has a relatively high proportion of such industries.⁴⁶

The National Occupational Classification ("N.O.C."), describes the work of an industrial mechanic as installing, maintaining, and repairing stationary industrial machinery and mechanical equipment. Entry into this occupation requires some secondary school education and completion of a three to four year apprenticeship program or a combination of over five years work experience in the trade and some high school, college, or industry courses in industrial machinery repair to be eligible for voluntary trade certification in Ontario.⁴⁷

Mr. Zagorac's secondary schooling and post-secondary technical education in Yugoslavia appear to fulfil the educational requirements of an industrial maintenance mechanic. Mr. Zagorac's eight years of work experience in Yugoslavia, which were more aligned to the duties of an industrial maintenance mechanic than a general machinist, appear to satisfy the requirement for five years of work experience.⁴⁸ The occupational therapist suggested that it would be necessary for Mr. Zagorac to pass a multiple choice examination designed to examine his knowledge in a skilled trade in order for his Yugoslavian qualifications to be recognized in Ontario. He can take this examination with the assistance of a Serbo-Croatian interpreter. However, to maximize his chances for success, Mr. Zagorac was advised to enroll in a pre-examination preparatory community college course available to assist applicants with technical terminology specific to Ontario. At the time of this hearing, Mr. Zagorac had enrolled in this course.

In my view, the combination of Mr. Zagorac's greatly enhanced English language skills along with his efforts to obtain Ontario recognition of the technical skills he acquired in Yugoslavia, have opened new and possibly more appealing employment opportunities, to offset those employment opportunities involving heavier physical labour which are now lost to him as a result of his more limited physical capabilities. Mr. Zagorac has diligently pursued his vocational rehabilitation and is entitled to further weekly income benefits to the conclusion of the 14 week pre-examination preparatory community college course in technical terminology which he started on September 12, 1994 .

Mr. Zagorac submits that he requires a further two to three years of community college education leading to a diploma which would qualify him for supervisory or controller j obs in industry. The occupational therapist, Ms. Darzins, suggested that such technical upgrading would maximize Mr. Zagorac's opportunities in the labour market for a technical job within the most limited range of his physical tolerances.⁴⁹ I have previously concluded that Mr. Zagorac's realistic work tolerances likely fall in the higher ranges identified by the situational assessment conducted in May 1994. I am therefore satisfied that a reasonably wide range of job opportunities has been opened to Mr. Zagorac by his rehabilitation efforts to date. I am not convinced of the need for an additional two to three year diploma course.

Mr. Zagorac submits that he sustained a closed head injury in the accident and suffers from pounding headaches and serious cognitive deficits as a result. It is impossible to determine from the medical evidence filed, what portion of Mr. Zagorac's cognitive deficits are attributable to brain injury, pain, depression, or limited English language skills.⁵⁰ Whatever the source of Mr. Zagorac's headaches and cognitive deficits, there is no evidence to suggest that they substantially interfere with his ability to perform the intellectual aspects of his pre-accident employment as a brick mason/labourer. He continues to be able to read international standard blueprints with little difficulty.⁵¹ In Yugoslavia, Mr. Zagorac completed the equivalent of high school and some community college level technical training prior to entering the workforce. Since the accident, Mr. Zagorac has successfully completed several English language courses. He has also completed a Labour Market Language Training program at Mohawk College which required independent study and regular attendance at classes and has enrolled in a technical language course at the community college level. I conclude that Mr. Zagorac has established his ability to perform at the high school and community college level, and that headaches and cognitive deficits do not preclude him from engaging in any occupation for which he is reasonably suited by education, training or experience.

Expenses:

The Applicant seeks an award of expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

The Applicant is entitled to 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 to be paid, either party may apply to the Commission for an assessment of the expenses of this arbitration.

Order:

1. Mr. Zagorac is entitled to weekly income benefits under section 12(5)(b) of the Schedule, from July 3, 1993 to the conclusion of the pre-examination community college course in technical terminology which he started on September 12, 1994.

2. Mr. Zagorac is entitled to interest on overdue payments of weekly income benefits in accordance with the provisions of section 24(4) of the Schedule.

3. Mr. Zagorac is entitled to his expenses of the arbitration.

December 15, 1995

Janice Mackintosh Arbitrator

Date

APPENDIX A

Witnesses:

Mr. Zoran Zagorac

Dr. Walter F. Kean

Ms. Renee Levesque

Dr. Harvey Anchel

Ms. Susan Darzins

Dr. Ratka Timarac

Dr. John D. Imrie

Mr. Brad F. Ramey

Mr. Gary A. Mackenzie

Mr. Kevin J. Dooley

APPENDIX B

List of Exhibits:

Applicant's Experts' Brief

Tab 1

Reports (17) of Ms. Renee Levesque, from Progressive Rehabilitation Consultants Inc., for the period October 20, 1992 to October 4, 1994.

Tab 2

Reports (eight) of Dr. H. Anchel and Dr. W.M. Goldberg, from The Medical Rehabilitation Service, for the period June 7, 1993 to June 29, 1994.

Tab 3

Curriculum vitae and reports (two) of Ms. Julianna Durham, occupational therapist, dated April 28, 1993 and May 26, 1994.

Tab 4

Vocational assessment report of Ms. Susan Darzins, occupational therapist with Chedoke-McMaster Hospital, dated September 22, 1994.

Tab 5

Report of Dr. D.E. Savelli, neurologist, dated December 1, 1992.

Tab 6

Reports (two) of Dr. M. Kronby, neurologist, dated January 17, 1991 and January 7, 1992.

Tab 7

Reports (two) of Dr. R. Kaplan, neuropsychologist, dated January 31, 1994 and March 3, 1994.

Tab 8

Report of Dr. W.F. Kean, rheumatologist, dated February 21, 1994.

Emergency treatment record of Mississauga Hospital and ambulance call report, dated June 27, 1990.

Surveillance videotape of January 7, 1992.

Photo dated January 7, 1992 of Applicant bending into trunk of car.

Photo dated January 7, 1992 of Applicant with relative.

Photo dated January 7, 1992 of Applicant with relative.

Report dated July 24, 1992 from Pearce/Cohen, private investigator.

Videotape dated July 22, 1992 from Pearce/Cohen, private investigator.

Seven contact sheets of photos taken during filming of videotape marked exhibit eight.

Excerpts from investigative reports of King Reed & Associates, dated June 29, 1993.

Videotape dated June 29, 1993 and July 14, 1993 from King Reed & Associates.

Photos (11) taken during same period as videotape marked exhibit 11.

Form 4 reports (19), prepared by Dr. Timarac.

Curriculum vitae of Dr. W.F. Kean.

Report dated June 30, 1993 by Dr. Imrie.

Report dated August 12, 1993 by Dr. Imrie.

Curriculum vitae of Ms. Renee Levesque, rehabilitation consultant.

Curriculum vitae of Dr. H. Anchel.

Letter dated June 24, 1994 from Dr. Anchel and Dr. Goldberg to Ms. Renee Levesque, rehabilitation consultant.

Curriculum vitae of Ms. Susan Darzins, occupational therapist.

Canadian Back Institute reports (five), dated January 13, January 29, February 7, February 21 and March 2, 1992.

Dr. Killian's report from the Canadian Back Institute to Dr. Timarac, dated March 5, 1992.

Clinical notes and records (seven pages) of Dr. Timarac.

Note dated July 23, 1990 from Physiotherapy Services.

Curriculum vitae of Dr. Imrie.

Clinical notes (eight pages) from Physiotherapy Services.

Curriculum vitae of Dr. Killian.

Clinical notes (17 pages) from the Canadian Back Institute.

Clinical notes and records (10 pages) of Dr. Imrie.

Other Documents before the Arbitrator:

Report of Mediator dated August 31, 1992.

Report of Mediator dated October 18, 1993

Application for Arbitration dated October 1993.

Response by Insurer dated November 10, 1993.

Pre-hearing letter dated February 22, 1994.

Factum of Canadian General Insurance Company dated January 10, 1995.

Submissions of Zoran Zagorac dated January 13, 1995.

Cases Referred to by Applicant's Counsel:

1. Campbell v. Canada Life Assurance Company (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man.C.A.)

2. Constitution Insurance Company of Canada v. Coombe, 1993 CanLII 5461 (ON CTGD), [1993] I.L.R. 1-2983 (Ont. Gen. Div.)

3. Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-271 (Ont. H.C.)

4. Lefebrvre v. C.N.A. Assurance Company (1978), 1978 CanLII 1353 (ON HCJ), 20 O.R. (2nd) 37 (Ont. H.C.)

5. McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-412 (Ont. H.C.)

Other Documents Referred to by Applicant's Counsel:

Life Insurance Law in Canada, (Richard DeBuo, 1987), David Norwood, pages 288-290.

Norwood on Life Insurance Law in Canada, (Carswell, 1983) David Norwood, John P. Weir, pages 380-381.

Cases Referred to by Insurer's Counsel:

1. Brooks v. London Life Insurance Company, [1979] I.L.R. 1-1063 (Alb. S.C.)

2. Brooks v. London Life Insurance Company, 1979 ALTASCAD 155, [1979] I.L.R. 1-1115 (Alb. S.C. (App. Div.))

3. Campbell v. Canada Life Assurance Company, 1989 CanLII 10409 (MB QB), [1989] 39 C.C.L.I. 40 (Man. Q.B.)

4. Campbell v. Canada Life Assurance Company (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man. C.A.)

5. Coombe v. Constitution Insurance Company, [1978] I.L.R. 1-1034 (Ont. S.C.)

6. Coombe v. Constitution Insurance Company, 1980 CanLII 1715 (ON CA), [1980] I.L.R. 1-1278 (Ont. C.A.)

7. Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271 (Ont. C.A.)

8. Dale v. Commercial Union Assurance Company of Canada (1981), 32 O.R. (2d) (Ont. C.A.)

9. DePape v. Manitoba Public Insurance Corporation, 1980 CanLII 3092 (MB QB), [1981] I.L.R. 1-1351 (Man. Q.B.)

10. Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198

11. Foden v. Co-operators Insurance Association (Guelph) (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728 (Ont. H.C.J.)

12. McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412 (Ont. S.C.)

13. Morgan v. Dominion Insurance Corporation (1980), 1980 CanLII 1632 (ON HCJ), 31 O.R. (2d) 285 (Ont. H.C.J.)

14. Newton v. The General Accident Assurance Company, 1988 CanLII 10341 (ON HCJ), [1988] I.L.R. 1-2296 (Ont. S.C.)

15. Roberts v. Safeco Insurance Company, [1988] O.J. No. 691 (Ont. H.C.J.)

16. Shepley v. Royal Insurance Company, [1985] I.L.R. 1-1880 (Ont. CA.)

17. Snell v. Farrell (1990), 1990 CanLII 70 (SCC), 4 C.C.L.T. (2d) 229 (S.C.C.)

18. Sutherland v. Insurance Corporation of British Columbia, [1980] I.L.R. 1-1283 (B.C.S.C.)

19. Wilson's Truck Lines Ltd. v. Pilot Insurance Company, [1991] I.L.R. 1-2695 Ont. Ct. (G.D.)

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. 2Exhibit 2, Ambulance Call Report, dated June 27, 1990.
3. 3Dorland's Illustrated Medical Dictionary, Edition 28, 1994.
4. 4Exhibit 2, emergency treatment record, Mississauga Hospital.
5. 5Exhibit 1, tab 8, page 3, report of Dr. Kean, dated February 21, 1994.
6. 6Exhibit 13, Form 4 reports prepared by Dr. Timarac and exhibit 23, Dr. Timarac's clinical notes and records.
7. 7Exhibit 13, series of reports of Dr. Timarac.
8. 8Exhibit 1, tab 3, page 6, supplementary report of Ms. Julianna Durham, dated May 26, 1994, states that the CCDO is the most commonly used vocational work classification system in Canada and includes information regarding the physical demands of jobs.
9. 9National Occupational Classification ("N.O.C") - Machinists 7231.
10. 10Exhibit 1, tab 3, page 6, supplementary report of Ms. Julianna Durham, occupational therapist, dated May 26, 1994.
11. 11Exhibit 1, tab 3, page 6, supplementary report of Ms. Julianna Durham, occupational therapist, dated May 26, 1994 and exhibit 29, addendum to clinical notes and records of Dr. Imrie.
12. 12Exhibit 1, tab 4, page 1, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.
13. 13Exhibit 13, form 4 reports of Dr. Timarac, dated July 5, 1990 and September 5, 1990.
14. 14Exhibit 26, clinical notes and records of Physiotherapy Services.
15. 15Exhibit 13, report of Dr. Timarac, dated May 21, 1991.
16. 16Exhibit 1, tab 6, page 4, report of Dr. Kronby, dated January 17, 1991.
17. 17Exhibit 1, tab 6, page 7, report of Dr. Kronby, dated January 7, 1992.
18. 18Exhibit 21, report of the C.B.I., dated January 13, 1992.
19. 19Exhibit 21, final report of Ms. Deb Jeffries, registered physiotherapist, dated March 2, 1992..
20. 20Exhibit 22, report of Dr. Killian, dated March 5, 1992.
21. 21Exhibit 1, tab 1, page 5, report of Ms. Renee Levesque, rehabilitation consultant, dated October 20, 1992.
22. 22Report of Mediator, dated August 31, 1992.
23. 23Exhibit 1, tab 1, page 11, report of Ms. Renee Levesque, rehabilitation consultant, dated October 20, 1992.
24. 24Exhibit 1, tab 1, page 15, report of Ms. Renee Levesque, rehabilitation consultant, dated November 24, 1992 and exhibit 1, tab 1, page 17, report of Ms. Renee Levesque, rehabilitation consultant, dated February 22, 1993.
25. 25Exhibit 23, page 5, clinical notes and records of Dr. Timarac, Februrary 15, 1993 entry.
26. 26Exhibit 1, tab 3, report of Ms. Julianna Durham, occupational therapist, dated April 28, 1993.
27. 27Exhibit 1, tab 2, page 6, report of M.R.S., dated June 7, 1993.
28. 28Exhibit 1, tab 2, page 10, report of M.R.S., dated January 10, 1994.
29. 29Exhibit 1, tab 2, page 2, report of M.R.S., dated June 28, 1993.
30. 30Report of Mediator, dated October 18, 1993.
31. 31Exhibit 15, report of Dr. Imrie, dated June 30, 1993.
32. 32Exhibit 16, page 2, report of Dr. Imrie, dated August 12, 1993.
33. 33Exhibit 16, page 5, report of Dr. Imrie, dated August 12, 1993.
34. 34Exhibit 1, tab 3, page 2, report of Ms. Julianna Durham, occupational therapist, dated April 28, 1993 and tab 4, page 2, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.
35. 35Exhibit 1, tab 2, page 1, report of Dr. H. Anchel and Dr. W.M. Goldberg, dated June 7, 1993.
36. 36Exhibit 1, tab 4, page 6, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994 and exhibit 1, tab 7, pages 5 and 8, report of Dr. Kaplan, dated March 3, 1994.
37. 37Exhibit 1, tab 1, page 42, report of Ms. Renee Levesque, rehabilitation consultant, dated March 1, 1994 and exhibit 1, tab 1, page 5, initial report of Ms. Renee Levesque, rehabilitation consultant, dated October 20, 1992.
38. 38Exhibit 1, tab 1, report of Ms. Renee Levesque, rehabilitation consultant, dated March 1, 1994 and exhibit 1, tab 2, M.R.S. report, dated June 29, 1994.
39. 39Exhibit 1, tab 4, pages 2, 3 and 4, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.
40. 40Exhibit 1, tab 4, page 2, vocational assessment report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.
41. 41Exhibit 1, tab 3, pages 6 and 7, report of Ms. Julianna Durham, occupational therapist, dated May 26, 1994.
42. 42Exhibit 1, tab 1, page 8, Ms. Renee Levesque, rehabilitation consultant, report dated October 20, 1992.
43. 43Exhibit 1, tab 1, page 29, Ms. Renee Levesque, rehabilitation consultant, report dated July 13, 1993.
44. 44Exhibit 1, tab 7, page 8, report of Dr. Kaplan, dated March 3, 1994.
45. 45Exhibit 1, tab 4, page 7, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994..
46. 46Exhibit 1, tab 4, page 8, report of Ms. Susan Darzins, occupational therapist, report dated September 22, 1994.
47. 47The N.O.C. is a general reference to containing a systematic taxonomy of occupations in the Canadian labour market which replaces Canada's previous occupational classification systems, the CCDO and 1980 Standard Occupational Classification ("S.O.C.") of Statistics Canada.
48. 48Exhibit 1, tab 4, page 7, opinion of Ms. Susan Darzins, occupational therapist, in her report dated September 22, 1994.
49. 49Exhibit 1, tab 4, page 8, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.
50. 50Exhibit 1, tab 1, page 44, report dated March 28, 1994.
51. 51Exhibit 1, tab 4, page 8, report of Ms. Susan Darzins, occupational therapist, dated September 22, 1994.