Neutral Citation: 1995 ONICDRG 29
File No. A-009670
ONTARIO INSURANCE COMMISSION
BETWEEN:
NORMAN LUCAS
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON INTERIM BENEFITS
The Applicant, Norman Lucas, was injured in a motor vehicle accident on October 6, 1990. He received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. The Insurer paid weekly income benefits of $600 until October 6, 1993, when benefits were terminated. The Applicant seeks ongoing weekly income benefits after that date. The Applicant also seeks rehabilitation benefits for academic retraining and reimbursement of certain travel expenses (mileage allowance). 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. These matters are scheduled to be heard by me on May 23, 24 and 25, 1995.
The only issue in this hearing was:
Is the Applicant entitled to weekly income benefits of $600 per week, from October 6, 1993, to be paid on an interim basis pending my final decision in this matter?
Result:
The Applicant is not entitled to interim weekly income benefits.
Hearing:
The hearing was held in Lindsay, Ontario, on March 8, 1995, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
Norman Lucas
Applicant's
Tyler P. Higgins
Representative:
Barrister and Solicitor
Insurer's
Joan Takahashi
Representative:
Barrister and Solicitor
The only witness was Mr. Lucas, the Applicant. Exhibits and other documents before the arbitrator are listed in an appendix to this decision. The parties referred me to the following authorities:
Canadian Radio-television & Telecommunications Commission v. Bell Canada; Attorney-General of Canada et al., Interveners (1989), 1989 CanLII 67 (SCC), 60 D.L.R. (4th) 682 (S.C.C.).
Thirty-six Toronto Street Ltd. et al. v. 517988 Ontario Ltd. (1984), 46 C.P.C. 73 (Ont. S.C. H.C.J.)
Ticketnet Corporation v. Air Canada; Air Canada v. A.M.R. Corporation et al. (1987), 21 C.P.C.(2d) 38 (Ont. S.C. H.CJ.)
Background facts and issues:
Mr. Lucas described the motor vehicle accident in his signed statement made to the Insurer's representative, Nick van Kooten, on October 25, 1990 (Exhibit 11). On the night of Saturday, October 6, 1990, Mr. Lucas was driving his motorcycle at about 80 km/hr when he was struck on the chin part of his helmet, and on his chest, by a bottle thrown out of the car ahead of him. In his words, "I lost control and went into the south ditch area, back across the roadway into the north ditch and then across the roadway again coming to a stop in [a] parking lot After stopping for a short time, he chased after the car on his motorcycle, in order to get its licence plate number, then drove home and called the police. He felt sore and tired. The only damage to the motorcycle was that the turn signal was bent when Mr. Lucas dropped the bike in the parking lot. There was also a small tear in his clothing.
Mr. Lucas was 29 years old at the time of the accident. He is married, and has three children. At the time of the accident, he had been working for about six months at Minden Home Hardware as a full-time lumber yard clerk, earning $10 an hour. The Employer's Confirmation of Income form described his duties as "loading and unloading of lumber supplies to customers and for delivery" (Exhibit 12).
The day after the accident, Mr. Lucas started to have "severe headaches" (Exhibit 11). The next day was a holiday Monday. On the Tuesday, he went into work, but when he tried to move two boxes of ceiling tile, he felt sick to his stomach. He went to Minden Hospital, where x-rays were taken, and he was advised to obtain a neck collar. He then visited his family doctor. Mr. Lucas has not returned to work since that day.
The Insurer paid benefits of $600 a week on the basis of information that at the time of the accident, the Applicant had been offered a job as a construction supervisor, at a salary of $52,800 a year, starting on October 15, 1990. The Insurer now contends that benefits should have been based on Mr. Lucas' income from Minden Home Hardware.
Criteria for ordering payment of interim benefits:
Amendments to the Insurance Act, effective January 1, 1994, gave arbitrators power to award interim benefits in appropriate cases, as follows:
279.--(4.1) The Director and every arbitrator may make interim orders pending the final order in any matter before the Director or arbitrator.
This power has been considered in only one OIC decision to date: Nadine Osbourne and Allstate Insurance Company and York Fire & Casualty Company (Decision on Preliminary Motion), November 18, 1994, OIC File Nos. A-009110 and A-009111. That case concerned a coverage dispute between two insurers, Allstate and York Fire. The applicant had been seriously injured, and Allstate had paid her medical and rehabilitation claims pending the outcome of the coverage dispute. York Fire had not contributed to the benefits received by the applicant. The arbitrator found that there was a prima facie case that York Fire was the Insurer liable to pay the applicant's benefits, and that the applicant was entitled to medical and rehabilitation services. She ordered the insurers to share the cost of benefits equally, pending the outcome of the arbitration.
In Osbourne, Arbitrator Palmer considered George Bernicky and Guardian Insurance Company of Canada (Decision on Interim Expenses), July 6, 1994, OIC File No. A-006268. The issue in Bernicky was whether the Applicant was entitled to interim payment of his arbitration expenses incurred in obtaining copies of hospital records and a medical-legal report. Arbitrator Manji held that an interim award of expenses is appropriate where: (i) the application raises a bona fide issue; (ii) the expenses claimed are reasonable and necessary for the conduct of the arbitration; and (iii) the applicant is unable to carry the expenses claimed pending the hearing.
Senior Arbitrator Susan Naylor considered Bernicky and Osbourne in Michaelu Haile and Old Republic Insurance Company, January 6, 1995, OIC File No. A-008657, a decision on interim expenses. She made the following comments:
In my view, the starting point of any application for interim expenses is that an applicant must demonstrate, on the basis of material properly before the arbitrator, that the Application for Appointment of an Arbitrator has some substantive merit.
Arbitrator Manji expressed this requirement in terms of the Application for Appointment of an Arbitrator raising a "bona fide issue". It is clear, however, that in her review of the content of the medical report in issue, Arbitrator Manji addressed the merits of the application and not merely the good faith of the applicant in bringing it. This was also the approach of Arbitrator Julaine Palmer in Osbourne, who referred interchangeably to a requirement that the applicant establish a "prima faciecase".
In this case, the issue before me is whether Mr. Lucas is entitled to interim benefits, not interim expenses. Both counsel applied the prima facie test in their submissions, and in my view, it is the appropriate test.
In Osbourne, Arbitrator Palmer held that financial need is not necessarily a criterion for awarding interim benefits. I agree. In this case, I have little difficulty finding that Mr. Lucas is in financial need. However, I find that he has not established a prima facie case that he is entitled to weekly income benefits after October 6, 1993.
Has the Applicant made a prima facie case?
In order to establish entitlement to weekly income benefits after 156 weeks under section 12(5)(b) of the Schedule, Mr. Lucas must prove that his injuries continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience.
Mr. Lucas contends that as a result of the accident, he suffers from severe headaches, and pain in his neck and right shoulder, radiating into his right arm. As a result, he cannot work with his right arm. He can only lift 15-20 pounds without pain, and he cannot do that repetitively. He also complains of low back pain radiating into his left hip, difficulty swallowing, light sensitivity, and fatigue. He has been treated with Tylenol 3, Amitriptyline, Ativan, and Sumatriptan. He continues to receive chiropractic treatment, physiotherapy, and massage therapy. He also receives "trigger point" injections into his neck, shoulder and arm. He relies on reports of Dr. A. E. Lauwers, his family doctor (February 6, 1995, Exhibit 2), Dr. J. Kay, anesthesiologist and pain management consultant (January 25, 1993, Exhibit 2, and September 22, 1993, Exhibit 10), Gail L. Sherrington, registered massage therapist (January 11, 1995, Exhibit 2), Sharol King, kinesiologist (January 10, 1995, Exhibit 3), and Dr. P. Begg, chiropractor (January 13, 1995, Exhibit 3).
According to Dr. Kay, Mr. Lucas suffers from chronic cervical myofascial pain syndrome and related headaches. Dr. Kay put the following restrictions on Mr. Lucas when he saw him in January 1993: no lifting over 10 kg, no repetitive actions with right arm; no reaching above shoulder level; no sudden motion, e.g. acceleration/deceleration/jolting; neck range of motion limited to 20 degrees in all directions; and exertion limited to 30 minute periods with adequate rest in between.
In a report dated September 22, 1993, Dr. Kay reported that Mr. Lucas was having fewer and less intense headaches. However, there was little change in the neck and right shoulder pain, and function was still limited. He opined that Mr. Lucas would likely never have better symptom control than he already had.
Dr. Lauwers endorsed Dr. Kay's views, and added that Mr. Lucas suffers from depression and post-traumatic stress disorder relating to the accident. He recommended various treatment options. His opinion was that Mr. Lucas would not begin to recover until his litigation is resolved.
The Insurer relies on the July 22, 1992 report of Dr. Greg L. D'Angelo, orthopaedic surgeon (Exhibit 4) and the August 10, 1993 report of Vocational Pathways Inc. (Exhibit 5). On physical examination, Dr. D'Angelo found that Mr. Lucas had restricted range of motion in the neck, some tenderness, neck pain with shoulder movement, and "an insignificant number" of trigger points. It was Dr. D'Angelo's impression that Mr. Lucas had sustained a soft tissue strain of his cervical spine and possibly a strain of the right shoulder. He believed there was considerable psychological or functional overlay. He recommended that Mr. Lucas participate in an active rehabilitation program.
At the time of the accident, Mr. Lucas' job involved loading and unloading lumber and other heavy supplies. This is undoubtedly heavy work, and I find that the Applicant has established a prima facie case that he cannot do it.
However, the Applicant contends that his benefits should be based on an offer of employment as a construction supervisor. Considering the evidence presented at the hearing, I am unable to determine whether his duties as a construction supervisor would have been primarily supervisory or operational.
Mr. Lucas claims that his ongoing problems prevent him from doing anything but part-time sedentary work and that he is not reasonably suited for such work because of his education, training and experience. He claims that he will need academic retraining before he can find suitable work. He testified that he is "120 days short of grade 12" credit. However, the welfare file indicates that he told his caseworker he had completed grade 13. This discrepancy was not explained at the hearing. Mr. Lucas also testified that he took several technical courses while with the Canadian Armed Forces.
Mr. Lucas participated in a five-day vocational evaluation program with Vocational Pathways between July 19 and July 23, 1993. A Functional Abilities Evaluation indicated that Mr. Lucas could perform light industrial work, and should return to work gradually over a two month period. Options for sedentary or light work were canvassed, including construction project manager and construction instructor. Mr. Lucas testified about the jobs he had held before working at the hardware store. He has worked for a number of years in various capacities in the construction industry, and I find that he has considerable experience and skill in this field. However, the assessors reported that Mr. Lucas was determined to pursue a career in funeral services (requiring community college training) or secondary school teaching (requiring university education), and was unwilling to consider "more directly accessible options which allow for his currently existing skills and abilities to be capitalized upon".
Considering this matter on a prima faciebasis, I place some significance on the relatively minor nature of the accident. Mr. Lucas was able to continue driving, although with difficulty. After stopping, he drove off again in pursuit of the other vehicle. He then drove himself home. Although the medical evidence supports Mr. Lucas' claim that he suffers ongoing pain and some restriction of function, investigations have revealed only minor degenerative changes at C4-5 and C5-6, and there is some indication that functional or motivational factors may be playing a significant role. Based only on the evidence presented to me on this application for interim benefits, I am not persuaded that Mr. Lucas' injuries continue to prevent him, some four and one-half years later, from working full-time in supervisory or semi-skilled light construction work or other similar occupation.
Expenses:
I heard no submissions as to expenses in this motion. I may be spoken to about any dispute in this regard. Alternatively, this issue will be determined in my final decision in the matter.
Order:
The Applicant is not entitled to interim benefits.
March 23, 1995
Nancy Makepeace
Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1
Letter from Tyler P. Higgins to OIC, dated October 18, 1994
Exhibit 2
Letter from Tyler P. Higgins, dated March 7, 1995 with report of Dr. A.E. Lauwers, dated February 6, 1995, attached
Exhibit 3
Supplemental Medical Information re Norman Lucas
Exhibit 4
Report of Dr. Greg L. D'Angelo, dated July 22, 1992
Exhibit 5
Vocational Pathways Evaluation Report, dated August 10, 1993
Exhibit 6
Ministry of Community and Social Services file
Exhibit 7
Record of Peterborough Civic Hospital, Dept. of Diagnostic Imaging, dated November 28, 1990
Exhibit 8
Letter from Richard Schlosser, Verly Construction Group Inc., dated January 29, 1991
Exhibit 9
Statement of Assistance, dated March 1, 1995
Exhibit 10
Letter from Dr. Kay to Dr. Lauwers, dated September 22, 1993
Exhibit 11
Statement of Applicant, dated October 25, 1990
Exhibit 12
Employer's Confirmation of Income, dated November 6, 1990