Neutral Citation: 1995 ONICDRG 30
File No. A-005119
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOAO CABRAL
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
The Applicant, Joao (John) Cabral, was injured in a motor vehicle accident on December 12, 1991. He applied for statutory accident benefits from the Insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 6721. State Farm paid weekly benefits of $185 until November 20, 1992, when benefits were terminated. Mr. Cabral claims ongoing benefits after that date. 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:
Is the Applicant entitled to weekly benefits under section 13 of the Schedule after November 20, 1992?
Is the Applicant entitled to be reimbursed for his expenses incurred in the arbitration proceeding?
The Applicant also claims interest on any amounts owing.
Result:
The Applicant is not entitled to any additional weekly benefits.
The Applicant is entitled to his expenses incurred in the arbitration proceeding.
Hearing:
The hearing was held in Hamilton, Ontario, on August 3, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
Joao Cabral
Applicant's
Paul Barrafato
Representative:
Barrister and Solicitor
Insurer's
Joseph J. Sullivan
Representative:
Barrister and Solicitor
Cathy Buntain
Articling student
Insurer's
Peter Robinson
Officer:
Claims Supervisor
Witnesses:
Joao Cabral, the Applicant
Exhibits:
Exhibit 1 Joint Medical Brief
Exhibit 2 Insurer's Documents Brief
Exhibit 3 Investigation Report and Photographs
Exhibit 4 Surveillance Videotape
Other documents before the Arbitrator:
Report of Mediator, dated August 14, 1993
Application for Appointment of an Arbitrator, dated December 10, 1993
Response by Insurer, dated January 28, 1994
Pre-hearing letter, dated April 5, 1994
The Insurer also filed a Case Brief.
Background:
Mr. Cabral was 26 years old at the time of the accident. He is single, and lives with his parents and two sisters in the family home. At the time of the accident, Mr. Cabral was receiving general welfare benefits. He had not worked for at least eight months. His last job was working as a labourer for Jaddco Construction, a company which demolishes and rebuilds the furnaces at Stelco. Since leaving high school, he has also worked as an unskilled labourer in house construction.
The test for entitlement:
The Applicant concedes that he is not entitled to weekly income benefits under section 12 of the Schedule.
Under subsection 13(1), Mr. Cabral is entitled to weekly benefits of $185 for every week in which he is substantially unable to perform the essential tasks in which he would normally engage, because of injuries sustained in the motor vehicle accident. The test changes after 156 weeks (subsection 13(8) of the Schedule). The hearing in this matter pre-dated the three year mark and the parties presented no evidence or submissions about post-156 week benefits.
Essential tasks:
Mr. Cabral testified that on a typical day, he would wake up at about 11 o'clock, have a shower and get dressed, eat lunch, and maybe see his girlfriend. He would visit friends 'basically every day". According to Mr. Cabral, he did no housework inside the house. However, he would mow the lawn, trim the trees, and regularly wash and maintain his car. In the spring and fall, he would turn over the soil in the yard, but it was his father who looked after the garden. He recalled once laying cement slabs at the side and back of the house. Recreational activities were dirt bike riding, and playing "pick up' soccer games.
Mr. Cabral's signed statement to the Insurer's representative suggested that his activities were even more minimal than his testimony suggested:
Prior to the loss, I was not doing too much, driving around, visiting friends and talking with them. I am still collecting welfare. I have no hobbies. (Statement dated January 29, 1992, Exhibit 2, Tab 1)
At the hearing, Mr. Cabral testified that this statement did not record "precisely" what he said. However, he admitted that he read the statement before signing it, and could not remember telling the Insurer's representative about any other activities. Further, the statement is consistent with Mr. Cabral's reported statements to his doctors. According to Dr. Gleeson, Mr. Cabral told him on August 18, 1992 that he "is not active in sports except occasional dirt bike riding. He lives at home and has no specific household responsibilities in terms of any labour activity" (report of June 15, 1993, Exhibit 1, Tab 2). According to Dr. Darracott, who examined him at the Insurer's request, Mr. Cabral reported that he had "no significant recreational interests" and "no responsibility for any household duties" (report of October 1, 1992, Exhibit 1, Tab 4). Dr. McKnight reported that Mr. Cabral gave him the same information when he saw him on March 4, 1993 (Exhibit 1, Tab 3).
I find it significant that Mr. Cabral did not mention yard work in these earlier statements. In Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024, Arbitrator K. Julaine Palmer stated that "[T]he word 'normally' suggests a usual or regular pattern of activity I agree. I am not persuaded that yard work was an essential task in which Mr. Cabral "would normally engage" before the accident.
In Edgar Cowie and The Non-Marine Underwriters, March 9, 1993, OIC File No. A-001159, Arbitrator Janice Mackintosh held that "spontaneous, casual social activities" are not "essential tasks" under section 13. In Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894, Arbitrator Mackintosh made the following comments about "essential tasks":
I interpret the words "essential tasks" in subsection 13(1) to refer to those activities connected to the ongoing business of living. I include the routine tasks a person performs to maintain themselves, their dependants, and their home. The words "essential tasks" also import an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants.
I agree with these comments. I do not accept that Mr. Cabral's essential tasks before the accident included social or recreational activities.
Mr. Cabral also testified that he was looking for work before the accident. His job search activities consisted of visiting a job site if he heard that there might be work available, visiting a Canada Employment office "a couple of times", checking the paper and phoning about any available work, and stopping at any construction sites that he happened to pass on the road. He testified that he made about three enquiries every week, and that looking for a job was "always on [his] mind".
I heard little detail about Mr. Cabral's job search activities. Neither in his statement to the Insurer's representative, nor in his discussions with doctors did he include looking for work in his list of pre-accident activities. I am not satisfied that he was looking for work before the accident.
Mr. Cabral contends that since he can no longer perform the heavy construction labour he performed before the accident, he is, in effect, prevented from looking for work and is therefore entitled to weekly benefits. I do not accept this interpretation of section 13. The test under section 13 looks back to an insured person's activities before the accident, and not forward to the activities he or she might have been able to pursue if not for the accident. The Schedule does not provide damages for future economic loss or loss of opportunity, although an injured person may be able to recover such damages in a tort claim. The interpretation of section 13 proposed by the Applicant would also tend to obliterate the distinction between sections 12 and 13 wherever the insured person was not employed at the time of the accident, but had a prior work history.
I find that Mr. Cabral's essential tasks were self-care activities: washing, grooming, dressing, eating, and sleeping. Given that the Insurer's surveillance evidence clearly shows that Mr. Cabral is able to drive and maintain his car after the accident, I do not need to consider whether these were essential tasks in which he would normally engage before the accident.
The accident and its consequences:
Mr. Cabral is unable to remember how the accident happened. He was driving his own car, alone, on the night of December 12, 1991. He does not recall whether he was wearing a seat belt. The Ambulance Report (Exhibit 1, Tab 8, p. 170) states that the car hit a fire hydrant at high speed. Mr. Cabral was found lying under his car. He was conscious at the scene, and able to move all limbs. He was taken to Hamilton General Hospital Emergency Department, where he was resuscitated. He had multiple abrasions and lacerations to his head, chest and abdomen. His most serious injury was a bladder tear, which was surgically repaired by Dr. Greenspan later that day. The hospital records also indicate that he suffered a closed head injury, and there was a question of a cervical spine injury. Mr. Cabral remained in Intensive Care until December 16, when he was transferred to a ward. He was discharged on December 23, 1991.
On December 28, 1991, Mr. Cabral saw Dr. J.P. Ranalli, who had been his family doctor for several years before the accident. Dr. Ranalli recorded his complaints of chest pain, neck pain and lower back pain, radiating into both legs. In January 1992, Dr. Ranalli referred him to Upper Ottawa Physiotherapy Centre. Mr. Cabral attended there 14 times between January 25 and March 2, when he discontinued the treatment because he felt it was not helping him.
Mr. Cabral was also having ongoing bladder problems in early 1992, and had further surgery to correct this in March.
After the January 16 visit, Mr. Cabral saw Dr. Ranalli again on March 5, May 8, June 3, June 4, and June 29, 1992. In his letter to State Farm dated July 10, 1992, Dr. Ranalli reported that Mr. Cabral continued to complain of pain in his neck, lower back and knees. X-rays of the cervical spine, lumbar spine and pelvis were negative (March 5, 1992). Knee x-rays revealed early osteoarthritis in both knees (June 4, 1992). It was Dr. Ranalli's opinion that Mr. Cabral had not recovered to his pre-accident condition, "but with encouragement, especially increased ambulation and walking, he should gradually improve" and reach his pre-accident level by September 1, 1992 (Exhibit 1, Tab 5). Dr. Ranalli prescribed non-steroidal anti-inflammatory medication, noting that he had not done so previously because of Mr. Cabral's history of ulcer. The final note in Dr. Ranalli's file is that Mr. Cabral had left the practice and would now be treated by Dr. T. Gleeson.
On his first visit to Dr. Gleeson on August 18, 1992, Mr. Cabral complained of pain and numbness in the left forearm, neck pain, low back pain, right-sided chest pain, chronic anxiety, chronic right hip pain, bilateral knee discomfort, and left lower leg pain and paraesthesia. Dr. Gleeson opined that Mr. Cabral's problems were caused by the motor vehicle accident. He predicted that Mr. Cabral would have "residual aches and pains for many years to come" and would not be able to return to construction work. He recommended that Mr. Cabral continue with physiotherapy and "expand his therapy profile After his initial visit, Mr. Cabral also saw Dr. Gleeson on August 31, September 4 and October 2, 1992.
At the Insurer's request, Mr. Cabral was examined by Dr. J. Darracott, a physiatrist, on October 1, 1992 (report found at Exhibit 1, Tab 4). Dr. Darracott gave the following opinion:
With regards to his locomotor complaints of back pain, and discomfort in both knees, he would benefit from early referral to a treatment centre where he could be treated daily, with a good reconditioning exercise routine. There is no clinical evidence that he suffered any injury more significant than a ligamentous injury to the lumbar region, with perhaps some mild ligamentous strain to the cervical spine. This would have healed by normal physiological repair over the course of 2 to 3 months and residual symptoms relate rather to deconditioning and disuse, than to the direct effect of injury.
The symptom of numbness in the left leg, does not follow an anatomical distribution of nerve root or peripheral nerve, there are no findings associated with this, and I think it is of little if any significance. I would expect that with compliance with an exercise routine, he would be able to return to full normal labouring activities over a period of 8 weeks. This period takes into account the fact that it is now 10 months, since his injury and that it had been a year prior to that since he had in fact been involved in any labouring activities.
Dr. Darracott also suggested that an EMG be arranged to determine whether there was an injury to the left ulnar nerve. Subsequent EMG studies of the left arm and leg were negative. State Farm terminated benefits effective November 29, 1992, on the basis of Dr. Darracott's report. On March 4, 1993, Mr. Cabral saw Dr. R.A. McKnight, a physiatrist, at Dr. Gleeson's recommendation. It was Dr. McKnight's impression that Mr. Cabral continued to suffer symptoms relating to the bladder rupture and repair, cervical myo-ligamentous injury, lumbo-sacral strain, bilateral knee contusions, probable mild ulnar neuropathy or C8 radiculopathy, and "compounding and perpetuating factors of deconditioning and questionable motivation". Dr. McKnight recommended pain education, a return to activity, posture education, home exercises, and a self-directed pool program. Dr. McKnight also recommended that the Wellington rehabilitation program be limited to 10-12 weeks at most, and that towards the end of that time, Mr. Cabral "should be encouraged to seek out appropriate work which can consist of moderate construction duties or other moderate laboring lines of endeavour". (Exhibit 1, Tab 3)
Mr. Cabral saw Dr. Gleeson again on April 7, 1993, when Dr. Gleeson found that he now had full movement of the lumbar spine, with only slight muscle tenderness.
In August 1993, Mr. Cabral began an eight-week rehabilitation program at the Wellington Wellness Clinic on August 31, 1993. The program consisted of swimming and pool exercises twice a week, exercise five times a week, massage therapy twice a week, pain education, and chiropractic treatment three times a week. Mr. Cabral reported no decrease in pain levels, and the program was terminated on October 29, 1993. Fran Morgan, a rehabilitation therapist with the clinic, reported to Dr. Gleeson that Mr. Cabral showed inconsistent effort, "remains physically inactive and does not feel motivated to increase his funcitoning [sic] due to the ongoing levels of pain" (Report of November 2, 1993, Exhibit 1, Tab 2, pp. 32-3).
In early 1994, Dr. Gleeson referred Mr. Cabral to another physiatrist, Dr. K.A. Bowler. On examination, Dr. Bowler noted reduced pinprick, vibration and cold sensation in the left leg. Mr. Cabral reported pain on lumbar movement, which Dr. Bowler stated was "in keeping with mechanical low back pain of facet origin", involving L4-5 and L5-S1. Dr. Bowler recommended facet injections or facet rhizolysis. Mr. Cabral received one facet injection, but it helped for only one day. Mr. Cabral stated at the hearing that he was considering having the laser (rhizolysis) treatment.
Analysis and Findings:
I am satisfied that Mr. Cabral continues to have problems with his low back, left leg, both knees, and left arm. The accident was serious, and his complaints to his doctors have been consistent, detailed and plausible.
I have little doubt that Mr. Cabral's accident-related disabilities would prevent him from returning to the heavy labouring work he has done in the past. However, for the reasons given above, I find that the Schedule requires me to consider whether his symptoms substantially disable him from performing his essential tasks in the year before the accident, when he was unemployed. Since I do not accept that looking for work was an essential task in which he would normally engage before the accident, I do not need to consider the Applicant's claim that he was unable to look for work in 1993 because of his involvement in therapy.
Mr. Cabral complains of a number of ongoing problems in performing his self-care activities. He testified that because he cannot stand for long, he can no longer shower, but takes a bath. He has trouble tying his shoes because he has pain on bending from the waist. He has difficulty falling asleep, and wakes up during the night.
He also claims that he does not drive now, and that he cannot maintain his car because he cannot get under it and cannot work under the hood. For this reason, when his transmission broke down in 1992, he had to have it repaired in a garage.
However, on admission to Hamilton General Hospital on March 6, 1992, Mr. Cabral stated that he was able to look after his own mobility, elimination, dressing/hygiene and feeding (page 2 of Nursing Assessment, Exhibit 1, Tab 8, p. 47).
Moreover, surveillance undertaken in August 1992 indicates that Mr. Cabral was able to engage in his normal activities by that time (September 1, 1992 report of Kim M. Bumelis, investigator, Exhibit 3).
On August 12, Mr. Cabral was observed for about haf an hour as he drove to and from a shopping mall. The Insurer filed three photographs showing him leaving his car and walking towards the mall (Exhibit 3, Photographs 22, 23 and 24).
On August 27, he was observed driving to a house where he picked up what appeared to be a VCR box and put it into his car, first placing it on the hood, then opening the door and bending to place it inside the car. Mr. Cabral confirmed in his testimony that the box contained a VCR. According to him, it weighed about ten pounds. He testified that he was taking it in for repairs. He then drove to another house, removed a gasoline container from his trunk and took it into the house (Photographs 17, 18 and 19). He was unable to recall at the hearing whether the container was empty or full. After leaving this house, a friend accompanied him to a gas station, where Mr. Cabral filled the tank, bending at the waist (Photographs 14, 15 and 16). The investigator's report indicates that after filling the tank, he squatted to check it. Mr. Cabral then drove to another house, where he dropped off his friend. He then drove to an apartment building, where he delivered the VCR machine, again bending at the waist to get it out of the car (Photographs 23 and 24). Then he went home. In cross-examination, he admitted that the time elapsed was about two hours, with several short stops.
About 30 minutes later, the investigator videotaped Mr. Cabral for about five minutes as he worked under the hood of his car (Exhibit 4). Mr. Cabral agreed that it was him on the video. He agreed that he appeared to be checking the oil. He also agreed that the videotape shows him bending to pick up a pail of water and pouring the water over the hood of the car. He explained that he had repaired a leak in the window, and was now checking it. He is then seen carrying the pail into the garage.
About 20 minutes later, the investigator observed Mr. Cabral driving his car a short distance to a townhouse, which he entered. One and a half hours later, he drove away from the townhouse with a friend.
The surveillance evidence directly contradicts Mr. Cabral's testimony that he is unable to drive as a result of the accident. The photographs and videotape also show Mr. Cabral walking, turning his head, bending forward from the waist, using his arms and lifting and carrying light loads, all without any apparent difficulty. I find it significant that Mr. Cabral was active on this day for about three and a half hours before the investigator lost sight of his car.
In my view, the surveillance evidence is inconsistent with Mr. Cabral's complaint to Dr. Darracott, only a month later, that his low back pain rated 8/10 on the pain scale, and his knee pain rated 6.5/10. Dr. Darracott expected that with an exercise routine, Mr. Cabral should be able to return to "full normal labouring activities over a period of 8 weeks." Dr. Ranalli had said in July that Mr. Cabral "should make a full recovery" in about six to eight weeks. Mr. Cabral saw Dr. Ranalli for the last time on August 20, 1992, and they discussed the letter. In his clinical notes, Dr. Ranalli stated: "He read my letter to State Farm and felt I did not mention numbness and ongoing symptoms. I told him I felt same re return to work as of September 1. No change in my opinion even if he does not agree". In March 1993, Dr. McKnight, a treating physiatrist, advised Mr. Cabral to resume his pre-accident activities. By April, Dr. Gleeson found that Mr. Cabral had full lumbar movement, and only slight tenderness.
As has often been said in arbitration decisions, the statutory accident benefits scheme does not compensate for pain or loss of function, unless the insured person is substantially unable to perform his essential pre-accident tasks. In this case, I find that Mr. Cabral had resumed his pre-accident tasks, which were minimal, by the time benefits were terminated in November 1992.
Expenses:
The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance 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.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or thatm the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Although Mr. Cabral was not successful in his application, I accept that he suffers ongoing symptoms as a result of the accident. The hearing was conducted in an appropriate and expeditious manner. I found it appropriate to exercise my discretion to award the Applicant his expenses in this case. If the parties cannot agree as to the amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
The Applicant is not entitled to weekly benefits after November 21, 1992.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
March 24, 1995
Nancy Makepeace Arbitrator
Date