Neutral Citation: 1995 ONICDRG 41
File No. A-007894
ONTARIO INSURANCE COMMISSION
BETWEEN:
TERRI CAPAROWICH
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Terri Caparowich, was injured in a motor vehicle accident on October 30, 1991. She applied for and received statutory accident benefits from the Insurer ("State Farm"), payable under Ontario Regulation 6721. Weekly income benefits were terminated by State Farm on July 3, 1993. Ms. Caparowich claimed ongoing entitlement to weekly income benefits, from the date of termination. The parties were unable to resolve their disputes through mediation and Ms. Caparowich applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Caparowich entitled to weekly income benefits under section 12 of the Schedule after July 3, 1993?
Is Ms. Caparowich entitled to a special award under section 282(10) of the Insurance Act?
Ms. Caparowich also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration.
Result:
Ms. Caparowich is not entitled to weekly income benefits after July 3, 1993.
Ms. Caparowich is not entitled to a special award.
Ms. Caparowich is entitled to her expenses incurred in respect of the arbitration.
Hearing:
The hearing was held in Windsor, Ontario, on September 28 and 29, 1994, before me, Asfaw Seife, arbitrator.
Present at the Hearing:
Applicant:
Terri Caparowich
Applicant's Representative:
Stephen L. Shanfield Barrister and Solicitor
Insurer's Representative:
Larry McRae Barrister and Solicitor
Witnesses:
Terri Caparowich Applicant
Dr. S. W. Bartol Orthopaedic Surgeon
Barbara McMurdie Restaurant Manager
Ken Lebert Restaurant Manager
Patricia Morand Occupational Therapist
Exhibits and other documents before the arbitrator are listed in Appendix "A" to this decision.
Background:
At the time of the accident, Ms. Caparowich was attending school at an adult learning centre. Prior to this, from 1989 up to approximately one month before the accident, Ms. Caparowich had been employed as an assistant manager at a Wendy's restaurant in Windsor. Ms. Caparowich is now 30 years old and a single parent of two children, aged six and seven.
The motor vehicle accident occurred in the City of Windsor at a street intersection on October 30, 1991, around 3:30 p.m.. Ms. Caparowich was walking, crossing the street, when she was struck by a car making a turn. She was thrown up on the hood of the car, and fell to the pavement, face down. She sustained injuries to her knees, and lost a top front tooth.
She was taken by ambulance to a nearby hospital where x-rays of her knees were taken and a laceration of her chin was sutured. She was given Tylenol 3 for pain and was released two hours later, to the care of her dentist and family doctor.
When she went home that day, the pain in her knees worsened. She also began to experience pain in her legs, shoulder and back.
Weekly Income Benefits:
Ms. Caparowich has not returned to her work at Wendy's or any other employment since the accident. She claims that she is unable to return to her pre-accident employment as an assistant manager at Wendy's or a similar restaurant because of her knee injuries. Her back and neck injuries no longer interfere with her ability to work.
Ms. Caparowich states that the only components of her former employment that she is unable to perform because of her injuries are those that require "heavy lifting and carrying", "squatting of any significance" or "kneeling of any amount". Ms. Caparowich testified that she is able to perform without difficulty all other physical functions of the job, including lifting and carrying objects that weigh less than 20 pounds, and occasional squatting and kneeling.
Ms. Caparowich will be entitled to weekly income benefits under section 12(1) of the Schedule, after July 3, 1993, if she can prove, on the balance of probabilities, that as a result of her knee injuries she continues to suffer from a substantial inability to perform the essential tasks of an assistant manager at Wendy's.
Medical Evidence:
Prior to the accident, Ms. Caparowich was a healthy young woman who had never had any serious illness or a major operation. She had no history of a knee injury.
The day following the accident, Ms. Caparowich saw a dentist and her family doctor, Dr. Dusan Sijan. Dr. Sijan did not testify at the hearing; however, his report dated March 22, 1993, and his clinical notes and records were filed as exhibits. The report, which consists of two paragraphs, states that Ms. Caparowich has "continued complaining of pain and easy fatigue of the neck and shoulder area ever since the motor vehicle accident". In his report, Dr. Sijan does not mention knee pain; however, his clinical notes of November 27, 1991, indicate that he diagnosed Ms. Caparowich as suffering from "post traumatic chondromalacia [softening of the cartilage of the knee]" and "soft tissue strain" of the right ankle.
Dr. Sijan recommended rest and prescribed pain medication for Ms. Caparowich. He subsequently referred her to a physiotherapy clinic where she received treatment for her knees, neck and back. Dr. Sijan has not seen Ms. Caparowich for any complaints related to the accident since April 1993.
On May 20, 1992, while Ms. Caparowich was receiving weekly income benefits, she was examined by Dr. R.A. Haliburton, orthopaedic consultant, at State Farm's request.
Dr. Haliburton states in his report that Ms. Caparowich complained of pain in both knees and generally around the kneecaps; that she experienced pain when squatting and when lifting heavy objects. On examination Dr. Haliburton found that Ms. Caparowich sat, stood and walked normally; she could squat fully and repetitively, with "mild patello-femoral crepitus" (grating or crackling sound made by movement of the knee) in both knees as she did so. He concluded that her knees were "entirely normal other than for tenderness and minimal patello-femoral crepitus. In his opinion, there was no need for invasive examination along arthroscopic lines. He recommended no treatment.
Dr. Haliburton felt that if Ms. Caparowich "chose to do so, [she] would be capable of returning to work as an assistant manger in a Wendy's-type restaurant". The report does not indicate that Dr. Haliburton discussed with Ms. Caparowich the details of her essential tasks and the physical requirements of her job.
Approximately three months after she saw Dr. Haliburton, Ms. Caparowich was examined by Dr. D. A. Fleming, her own orthopaedic surgeon.
In his report dated August 14, 1992, Dr. Fleming states that Ms. Caparowich told him that she was incapacitated to do any type of employment, due to the pain in her knees. As Dr. Sijan and Dr. Haliburton did before him, he diagnosed her condition as post-traumatic chondromalacia patella. However, Dr. Fleming qualified his diagnosis by stating that "as [Ms. Caparowich] has not had arthroscopic examination of her knee we cannot specifically define this as such, as chondromalacia itself is a pathological diagnosis made at surgery, not a clinical diagnosis."
Dr. Fleming suggested that Ms. Caparowich "probably should not be looking at a prolonged labouring type of job which requires squatting or heavy lifting from the floor on a repetitive basis". He stated that "this is the most common activity which will aggravate knee cap problems. Prolonged sitting or static positions can also aggravate this condition, but these can be modified by simply repositioning of the legs."
Dr. Fleming recommended that Ms. Caparowich "probably is better off out of a labouring position on a chronic basis. A mixed type of job is probably more appropriate."
On March 25, 1993, a physiotherapy assessment was conducted by Windsor Western Hospital. The assessment concluded that "since the injury [patello-femoral syndrome] was one and a half years old already, regular physiotherapy and modality treatment is not necessary or beneficial any more."
On April 6, 1993, a functional abilities evaluation was conducted by Patricia Morand, an occupational therapist, and on July 3, 1993, approximately one year and eight months after the accident, State Farm terminated Ms. Caparowich's weekly income benefits on the grounds that she was no longer substantially unable to perform the essential tasks of her pre-accident employment. Since that date, Ms. Caparowich has not had any treatment or therapy for her knee, neck or back pain.
On May 30, 1994, after Ms. Caparowich filed for arbitration of the dispute, she was examined by Dr. Bartol, at the request of the State Farm. Dr. Bartol's report dated June 7, 1994, was filed in evidence by the Insurer; he was cross-examined by Ms. Caparowich's counsel.
Dr. Bartol confirmed the earlier diagnosis of post-traumatic chondromalacia in both knees. He testified that, in his opinion, repetitive crouching/squatting, prolonged kneeling and carrying heavy objects could cause Ms. Caparowich knee pain; however, after reviewing her pre-accident tasks, he was of the view that the weight and frequency of lifting and carrying, and the amount of crouching and kneeling involved in her duties at Wendy's "are not outside the realm of her capabilities".
Dr. Bartol was of the view that Ms. Caparowich's inability to tolerate full-time work was created by her failure to adequately recondition herself from her injuries. This opinion was the subject of most of his cross-examination.
Essential Tasks:
In Edgar Cowie and the Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal), Arbitrator Janice Mackintosh considered the meaning of the words "essential" and "task", in the context of section 13(1) of the Schedule. She referred to the Concise Oxford Dictionary, Eighth Edition (1990), for the ordinary meaning of these words. According to the Concise Oxford Dictionary, "essential" means:
- absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing.
And, "task" means:
a piece of work to be done or undertaken.
I accept these definitions for the purposes of determining Ms. Caparowich's entitlement to weekly income benefits.
Ms. Caparowich, Ms. Barbara McMurdie and Mr. Ken Lebert testified about the job of assistant manager at Wendy's. Ms. McMurdie was hired as an assistant manager at Wendy's in 1986. She moved to the rank of co-manager in 1991 and left the company in 1994. Mr. Lebert has been working for Wendy's since 1984. He was an assistant manager for a period of time and currently holds the position of manager. Both Ms. McMurdie and Mr. Lebert have worked at Wendy's on Oulette Avenue in Windsor, where Ms. Caparowich was last employed. Mr. Lebert was Ms. Caparowich's supervisor for two months at this location.
Based on the evidence at the hearing, I find the essential tasks of Ms. Caparowich's employment as an assistant manager at Wendy's to be as follows:
conducting visual inspection of the premises of the restaurant at various times of her shift, including inspection of the parking lot and garbage dump areas when she arrives for work in the morning;
conducting a walk-through of the restaurant, at various times of the day, to check that the restaurant is fully prepared for business, work stations are properly re-stocked, and condiments are replenished;
scheduling employees and ensuring that the restaurant is fully staffed for the day;
at various times of the day, counting cash floats, changing cash drawers, counting money, ensuring money balances and depositing it in a safe;
ensuring that the restaurant's on-line items and prepared foods meet quality standards by inspecting them;
ensuring that customers are served within the time requirements and that the company's Labour Guide is complied with;
supervising employees, co-ordinating their work, and dealing with staff issues;
conducting inventory by doing a physical count of restaurant supplies and products and ordering products;
ensuring that the restaurant is clean and organized after the "rush" periods, including participating in the cleaning of the restaurant;
replenishing stock for daily use by retrieving products from storage areas located at the back of the restaurant, carrying them to the kitchen and front of the restaurant and placing them in the appropriate locations;
"working the line", during rush periods. This may involve performing individual employee tasks such as making sandwiches, pouring chili;
if a product is out of stock and is needed for the day's business, driving to the nearest Wendy's store where the product is available, carrying it to and from the car and placing it in the appropriate location;
when new raw products are delivered to the restaurant, placing them in their appropriate locations in the stockroom, and rotating stock in the storage areas.
Ms. Caparowich worked an eight-hour shift, five days a week. She was entitled to a half hour break, which she said she rarely took because she was too busy.
Physical Demands of the Job:
I heard testimony from Ms. Caparowich, Ms. McMurdie, and Mr. Lebert about the physical demands of the position of assistant manager. I also heard evidence from Ms. Morand who completed a Physical Demands Analysis of the duties of the assistant manager at Wendy's, conducted at a Wendy's Restaurant, in the presence of Ms. Caparowich and the store manager. Based on the evidence of the witnesses, I find that the job of assistant manager at Wendy's entails fast-paced, hands-on, physically demanding work which combines responsible administrative functions with working directly with front-line staff.
Standing, walking, sitting, crouching, kneeling, bending, stooping, lifting, carrying, pushing, pulling and reaching are required to carry out the responsibilities of assistant manager.
Ms. Caparowich states that the only physical activities that she is unable to perform because of her injuries are those that require "heavy lifting and carrying", "squatting of any significance" or "kneeling of any amount". Ms. Caparowich is able to perform without difficulty all other physical functions required for the job, including lifting up to 20 pounds and carrying up to 15 pounds.
Lifting and Carrying:
Lifting and carrying products of various weights is required throughout the work day, on a frequent basis. Based on Ms. Caparowich's testimony which was corroborated by the other three witnesses, I find that most of the heavy lifting and carrying in which the assistant manager is involved occurs: 1. when putting away new stock delivered to the restaurant twice a week; 2. when taking inventory, once a week; 3. when carrying items such as Frostee mix, meat products and chili from the back of the restaurant to the front; 4. pouring chili while working in the kitchen; and 5. when 'borrowing" out of stock products from another store. The weight of these items ranges from 15 to 60 pounds.
Ms. Caparowich is not always on duty when each delivery of new stock is made, and the evidence I heard from Mr. Lebert and Ms. McMurdie indicates that two to three people always share in the tasks of lifting and carrying, re-stocking and inventory taking. The completion of these tasks takes, on the average, 45 to 60 minutes at a time. "Borrowing" products from other stores occurs occasionally, and usually the assistant manager alone loads and unloads the product.
Based on the evidence of the independent witnesses, I find that the assistant manager is required to lift weights of over 20 pounds, and carry weights over 15 pounds, about 10 times per shift, in addition to the occasional lifting and carrying that occurs in the context of restocking inventory and borrowing raw products.
Crouching/Squatting:
The assistant manager can either stoop (a movement that does not require the bending of the knees) or crouch (a term synonymous with squatting), to retrieve items stored below the counter level in the front and side of the restaurant; however, when the assistant manager is engaged in preparing sandwiches, he/she is required to assume a crouching position in order to retrieve items located in the reach-in cooler below the sandwich station. This cooler is more than a foot deep and cannot be accessed by stooping. Therefore, I find that crouching or squatting is required when Ms. Caparowich assumes the position of sandwich maker, during the rush period of her day shift, between 11:00 a.m. and 2:00 p.m.
Kneeling:
Ms. Caparowich testified that she must kneel on the floor in order to access the safe, which, at the particular store on Oulette Avenue, in Windsor, was located in the floor. Based on what I heard from Ms. McMurdie and Ms. Morand, I conclude that kneeling is required to reach into the safe; however, this task is performed on an occasional basis. Safes in other Wendy's stores are not always located in the floor.
Functional Abilities Evaluation:
A comparison of the results of the Physical Demands Analysis with the previously completed Functional Abilities Evaluation is contained in a report dated November 4, 1993, issued by Ms. Morand.
Based on Ms. Caparowich's performance during the Functional Abilities Evaluation, Ms. Morand felt that Ms. Caparowich would be able to handle the majority of the lifting throughout the work day. She found that Ms. Caparowich was able to lift safely to a maximum of 20 pounds with no difficulty. However, she reported that lifting weights in excess of 20 pounds resulted in increased discomfort to both knees as well as increased effort. She noted that lifting of any raw products would be difficult for Ms. Caparowich as many of these products weigh from 20 to 60 pounds.
Based on Ms. Caparowich's performance during the Functional Capacities Evaluation, Ms. Morand felt that Ms. Caparowich would be able to carry safely and without any discomfort products that weighed less than 15 pounds. She found carrying weights in excess of 15 pounds resulted in increased discomfort to Ms. Caparowich's knees.
Ms. Morand testified that Ms. Caparowich was able to repetitively crouch, but with increased discomfort to both knees. She stated that although both crouching and stooping positions could be performed when retrieving food products from lower levels, a crouch position is a more correct position to assume. However, because Ms. Caparowich would experience increased discomfort when crouching on a repetitive basis, she cautioned her against this physical function.
Ms. Morand concluded that Ms. Caparowich's only limitations are lifting over 20 pounds, carrying over 15 pounds and repetitive crouching. She stated that Ms. Caparowich would be able to perform all of the other components of the job of assistant manager at Wendy's with no difficulty.
Conclusion:
As stated earlier in this decision, in order to be entitled to weekly income benefits, Ms. Caparowich must establish, on the balance of probabilities, that because of her knee injuries, she suffers from substantial inability to perform the essential tasks of her pre-accident employment.
It has been held in numerous arbitration decisions that "substantial inability" means not some disability, and not total disability, but a significant inability which prevents an applicant from carrying out essential tasks to a significant extent.
Based on the evidence, I find that Ms. Caparowich can perform, without pain or any difficulty, all of her pre-accident tasks, with the exception of those which involve "heavy" lifting and carrying, crouching and kneeling, if performed on a repetitive basis.
I do not find the frequency of "heavy" lifting and carrying, crouching and kneeling involved in performing the tasks of the assistant manager to be repetitive. "Heavy" lifting and carrying, is restricted to 10 times per shift on the average, and crouching is required up to six times per hour, on some occasions when helping in making sandwiches in the rush period. Prolonged kneeling is not required.
However, even if I were to conclude that such physical activities are required on a repetitive basis and Ms. Caparowich's ability to perform them is impaired because of pain from her knee injury, I do not find that she suffers from substantial inability to perform her essential tasks, as described earlier in this decision. In my view, Ms. Caparowich can perform the great majority of her essential tasks, without any pain or difficulty.
I agree that the injuries Ms. Caparowich has sustained in the accident would result in a diminution of her ability to function as an assistant manager at Wendy's or a similar fast-food restaurant, to the fullest degree required by the company. However, only a substantial inability, not a mere diminution of ability, is compensable under the Schedule.
Accordingly, I find that Ms. Caparowich is not entitled to weekly income benefits after July 3, 1993.
I exercise my discretion to award Ms. Caparowich her expenses incurred in respect of this arbitration.
Order:
Ms. Caparowich is not entitled to weekly income benefits after July 3, 1993.
Ms. Caparowich is not entitled to a special award.
Ms. Caparowich is entitled to her expenses incurred in respect to the arbitration.
April 27, 1995
Asfaw Seife Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1 Clinical notes and records of Dr. Sijan
Exhibit 2 Dr. Haliburton's report, May 20, 1992
Exhibit 3 Dr. Fleming's reports, August 14, 1992 and July 20, 1994
Exhibit 4 Dr. Bartol's report, June 7, 1994
Exhibit 5 Physiotherapy assessment from Windsor Western Hospital, March 25, 1993
Exhibit 6 Functional Abilities Evaluation, April 6, 1993
Exhibit 7 Physical Demands Analysis, November 4, 1993
Exhibit 8 Physiotherapy statements
Exhibit 9 Job description
Exhibit 10 Medical reports authorized by Dr. Bartol, not related to this case
Exhibit 11 Notes of Patricia Morand, occupational therapist
Exhibit 12 Mr. Shanfield's letter to State Farm, November 16, 1993
Exhibit 13 State Farm's response to Mr. Shanfield's letter, November 24, 1993
Exhibit 14 Mr. Shanfield's letter to State Farm, November 26, 1993
Other Documents Before the Arbitrator:
Report of Mediator, February 1, 1994
Application for Appointment of an Arbitrator, March 7, 1994
Response by Insurer, April 20, 1994
Pre-hearing letter, May 30, 1994