Neutral Citation: 1995 ONICDRG 54
File No. A-007379
ONTARIO INSURANCE COMMISSION
BETWEEN:
ROGER BELLINA
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Robert Bellina, was injured in a motor vehicle accident on April 25, 1992. He received statutory accident benefits from the Insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 6721. State Farm terminated weekly income benefits under section 12 of the Schedule on October 31, 1993.
Mr. Bellina applied for mediation in respect of the cancellation of his weekly income benefits. The parties were unable to resolve their dispute 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 Mr. Bellina entitled to weekly income benefits under section 12 of the Schedule from October 31, 1993?
Is the Insurer entitled to any repayment of benefits under section 27(1) of the Schedule?
Mr. Bellina also claims interest on any outstanding amounts owing and his expenses incurred in the hearing.
Results:
Mr. Bellina is not entitled to weekly income benefits after October 31, 1993.
Mr. Bellina is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in Windsor, Ontario, on April 5, 6 and 7, 1995, before me, Roger F.X. Marentette, arbitrator.
Present at the Hearing:
Applicant:
Roger Bellina
Applicant's
Marc S. Katzman
Representative:
Insurer's
Frederick W. Knight, Q. C.
Representative:
Insurer's
John Courtney
Officer:
Witnesses:
Roger Bellina
John Courtney
Donna Bowers
Ten exhibits were filed, including a book of medical documents. The exhibits are listed in Appendix "A". Other documents before the arbitrator are listed in Appendix "B".
The Facts and Evidence:
Mr. Bellina testified that he was born in Windsor, Ontario in 1958 and attended W. D. Lowe High School. He worked at Chrysler Canada Ltd., and Teal Industries for a short time, then became an employee at Prestressed Systems Inc., for nine years. Prestressed Systems Inc. is a Windsor company engaged in the manufacturing of concrete prestressed beams, used in the construction industry. Mr. Bellina worked at Prestressed Systems as a yard labourer and crane operator. He worked with a crew of three, unloading heavy concrete prestressed beams from the manufacturing plant into the company yards for storage awaiting shipment. Mr. Bellina and his crew would also load these heavy beams onto trucks for shipment out of the company yards. Mr. Bellina described his job as dirty, unpleasant work. He worked under all types of weather conditions and was required to lift a heavy steel mesh belt weighing about 70 pounds, to place it under the beams to unload and load them onto trailer trucks. Mr. Bellina testified that his job required bending, twisting, and lifting over his head with full range of movement. Mr. Bellina testified that he did not like his job and regarded it as a paycheque only. He did not want to return to his job. Mr. Bellina testified that he had low back pain for about five years, but continued to work, despite this. He testified that on November 6, 1991, while lifting a railroad tie, he injured his back. Because of the work-place injury, Mr. Bellina commenced receiving workers' compensation benefits.
On April 13, 1992, Mr. Bellina testified that the Workers' Compensation Board directed him to return to modified clerical work at Prestressed Systems. Mr. Bellina testified that the clerical work offered to him required checking time cards, chasing down the foremen in the yard, and lifting boxes that sometimes weighed 10 to 15 pounds, in the stockroom. Mr. Bellina testified that he left the clerical job after two and a half days because of pain.
On April 16, 1992, the Workers' Compensation Board stopped paying benefits to Mr. Bellina and Mr. Bellina has not worked for his employer since that date.
Mr. Bellina testified that, on April 25, 1992, he was involved in an automobile accident in the city of Detroit, Michigan, at about 3:00 a.m. He testified that he was on his way to a restaurant in Greektown and was being followed by a friend, after having some drinks at a bar. His friend's vehicle rear-ended his vehicle, causing about $1,400 worth of damage. He was not aware of symptoms as a result of the accident, until the following morning, when he awakened with a sore, stiff neck and right shoulder pain. Mr. Bellina testified that he then went to the Hotel Dieu Hospital emergency and was advised by the examining doctor — who diagnosed the symptoms after making x-rays — that it was a whiplash injury.
Mr. Bellina testified that he saw his family doctor, Dr. M. E. Irwin, about one week after the accident. Dr. Irwin prescribed medicine. Mr. Bellina testified that the automobile accident did not affect his low back pain condition, but did result in a stiff neck and right shoulder pain, which prevented him from returning to his pre-accident or modified work.
Mr. Bellina testified under cross-examination that he did not wear a neck collar or neck brace after the automobile accident. He stated that the stiff neck condition would disappear and return, but he usually had full range of neck motion. He had full shoulder movement, but with pain. He had no restriction in the full movement of his arms overhead, except after long periods of time. This restriction was a result of the automobile accident.
Mr. Bellina testified that he exercised on a weekly basis at local health centres. His exercises consisted of riding a bicycle, bench presses and other forms of body building. Mr. Bellina testified that his doctor recommended that he seek retraining for other work because he would not be able to return to his former employment. He testified that he is attending St. Clair College to finish high school and will be pursuing further studies.
Counsel for State Farm introduced into evidence, with the consent of the Applicant, some videotapes made by an investigator, Donna Bowers. The videotapes showed Mr. Bellina freely walking and jogging for short periods, without restrictions. They showed Mr. Bellina washing his automobile for about 15 minutes and functioning fully and without restriction, particularly in the overhead movement of his arms. The videotapes showed Mr. Bellina working out at Gold's Gym, where, in addition to riding an exercise bicycle, he also was lifting weights of up to 130 pounds.
Ms. Donna Bowers entered into evidence her daily investigative notes made in conducting her surveillance of the Applicant, and in making the videotapes produced and shown. She testified that, during the 11 months of surveillance, Mr. Bellina showed no limitation or restriction in the physical movements of his body, and no sign of any injury or impairment.
Mr. John Courtney, the superintendent for State Farm, gave evidence that he was involved in a fitness training program and had witnessed Mr. Bellina attending fitness centres. Mr. Courtney testified that he only stops the payment of benefits to claimants when he feels it is warranted. He testified that he stopped the payment of benefits to Mr. Bellina on October 31, 1993, after having reviewed the medical reports of Dr. R. A. Haliburton, dated June 23, 1992 and the report of Dr. Michael Hall, dated October 7, 1993. He testified that the State Farm employee handling the Bellina file was Mrs. Lina Miller. Mrs. Miller did not testify nor did Dr. Irwin, Mr. Bellina's family doctor.
Medical Evidence:
Mr. Bellina testified that on September 28, 1992, Dr. Irwin, his family doctor, referred him to Dr. Joseph Berkeley, a specialist in physical medicine. Dr. Berkeley, in his report dated October 6, 1992, described Mr. Bellina as a tall man of powerful build. Dr. Berkeley diagnosed the November 6, 1991 injury and the April 25, 1992 vehicle injury in his report. He found, with reference to the automobile accident, that Mr. Bellina's injury was to the right cervical region with restricted neck and right shoulder movements at five months after the injury. He recommended physiotherapy treatment.
Mr. Bellina testified that Dr. Irwin referred him to Dr. R. W. Teasell, a specialist in physical medicine and rehabilitation at University Hospital, London, Ontario. Dr. Teasell examined Mr. Bellina on March 2, 1993. Dr. Teasell diagnosed the November 6, 1991 injury and the April 25, 1992 automobile injury. His assessment was of a right anterior neck sprain and lower back strain (chronic). His prognosis was poor for further recovery of the lower back, but he anticipated some improvement in terms of his neck pain. He recommended an exercise program and retraining because of Mr. Bellina's back condition.
Mr. Bellina referred to a medical report from the Canadian Back Institute dated March 4, 1993, which assessed the April 25, 1992 motor vehicle accident injury.
Ms. Christine McCormick, a registered physiotherapist, signed the report and assessed the November 6, 1991 injury as well as the April 25, 1992 automobile accident injury. Ms. McCormick suspects that Mr. Bellina's major problem is pain magnification with an underlying problem of job satisfaction. Her prognosis was:
Roger has a very poor prognosis of returning to work. He has been off work for greater than one year which gives him a less than 25 per cent chance of returning to work statistically. He has made no firm plans of retraining or finding alternative employment. I explained to him that returning to a normal lifestyle would require a lot of hard work on his part and he gave me no indication that he was prepared to do this. He states he is waiting for the pain to go away before he is going to be able to return to a normal lifestyle.
Mr. Bellina, under cross-examination, substantially agreed with the contents of Ms. McCormick's report.
Mrs. Lina Miller, Senior Claims Representative with State Farm, wrote a letter to Dr. Irwin on May 27, 1992, stating: "At this time, we are wondering whether the injury to Mr. Bellina's neck and shoulder would still render him incapable of returning to his employment, had he not had the injury to his back."
Mrs. Miller also wrote to Dr. Irwin on September 11, 1992, "We are still awaiting the comprehensive medical report from you and your comments in regards to Dr. Haliburton's report which we sent to you." Dr. Irwin replied to Mrs. Miller in a hand-written letter, which was very difficult to read, on September 25, 1992,
... I doubt Mr. Bellina could have worked as a construction worker following the accident in the absence of pre-existing low back condition. He tried modified work in the past before April 25, 1992, and was unable to continue. I doubt he could cope with modified work since the neck and shoulder injuries are still active requiring ongoing physiotherapy as well as medication.
In a medical report dated October 18, 1993, to Health and Welfare Canada, Dr. Irwin diagnosed four medical problems of Mr. Bellina. One was the strain of the April 25, 1992 automobile accident and continuing pain to his right shoulder.
On June 23, 1992, Dr. R. A. Haliburton, an orthopaedic consultant, provided a medical report assessing the medical condition of Mr. Bellina to Mrs. Miller. The report provided a detailed medical history of Mr. Bellina, including the injury of November 6, 1991, and the injuries complained of in the automobile accident of April 25, 1992. Dr. Haliburton stated, "He reports that his neck is improved but the shoulder has stayed about the same. His back is the same as it was in the six months following the industrial injury prior to the car accident. In other words, his back is no different now than it was before the accident."
Dr. Haliburton gives his opinion with reference to the automobile accident as follows:
On the basis of my clinical review of Mr. Bellina today it is quite clear that he did not sustain serious injury to his neck or right shoulder in the motor vehicle accident last April. He has had soft tissue injuries of a benign or non-serious nature. There is no need for further investigation and clearly no need for serious treatment.
Obviously he has little in the way of disability relating to his neck and shoulder and in my opinion there is no reason whatever why he could not return to the modified duties that he had when he returned to work with Pre Stressed Systems two weeks before the motor vehicle accident.
In cross-examination, Mr. Bellina agreed with Dr. Haliburton's report, except for the statement that he was ready to return to the modified work.
Dr. Michael Hall, a specialist in orthopaedic surgery for the firm Indemed Ltd., examined Mr. Bellina and reported, on October 7, 1993, as follows:
[Mr. Bellina] was involved in an accident at work in November, 1991. This was covered by WCB. There was a five year history of some back complaint, which had not prevented him from working, prior to that time. After a course of strengthening exercises he was considered fit to return to work by the therapists, [Mr. Bellina] did not think he was fit to return to work and did not do so.
[Mr. Bellina's] company were [sic] willing to take him back, and offered him an occupation which required him to do no more than be present, to walk to a slight extent, to work with filing cards etc. and could not possibly have been more demanding on him physically than he would have experienced working around his own home. He did not wish to return to his work as far as I can determine...
In terms of whether the patient is fit to return to his occupation at the time of the motor vehicle accident, I believe that he is. He had in fact discontinued his work because of various excuses, it is really not clear why, and was unemployed because of back pain at the time of the accident. Two weeks prior to the accident he had been put on a rehabilitation program which required him to do no more than he would do at home, that is to walk around as he pleased, and sit as he pleased at extremely light activities. I believe that he certainly is fit to return to that and believe that any refusal to return to that is based on social reasons, not based on physical reasons or emotional depression.
I can believe that the job that he was doing when he was initially hurt in November 1991 is a heavy and a demanding one. There is however, nothing about his physical examination that would suggest to me that he would ultimately be unable to return to that work. He quite clearly is doing weight-lifting.
I believe that the real block is that suggested initially by the Canadian Back Institute Therapist, that [Mr. Bellina] simply does not wish to return to the type of work in which he was formerly employed. ... I think his problem needs to be addressed on the basis that [Mr. Bellina] does not have a significant physical disability as a result of either of these accidents/incidents, that he manifests a disinclination to show improvement, and in those circumstances no amount of attempt to help him to improve is going to be successful.
Conclusion:
Counsel for Mr. Bellina argued that the injuries sustained as a result of the automobile accident rendered him substantially unable to perform the essential tasks of his employment at the date of the accident or thereafter. He argued that State Farm paid the weekly income benefits based on the legitimacy and seriousness of the injuries, and that there was sufficient evidence before me to show that as a result of the the automobile accident injuries, Mr. Bellina was unable to perform the essential tasks of his employment.
He argued that the Haliburton and Hall medical reports were biased. They were made for State Farm and do not reflect an accurate medical diagnosis and prognosis of Mr. Bellina. He argued that Dr. Irwin best described the diagnosis and prognosis of Mr. Bellina and is supported by Drs. Fung and Teasell. He submitted that Mr. Bellina is entitled to continue receiving weekly benefits under section 12 of the Schedule up to 156 weeks, interest on overdue payments and his expenses of the hearing.
Counsel for State Farm argued that Mr. Bellina is not entitled to any benefits under section 12 of the Schedule because the injuries sustained as a result of the automobile accident did not substantially prevent him from performing the essential tasks of his employment. Counsel argued that the burden of proof is upon Mr. Bellina to show that he was substantially unable to perform the essential tasks of his employment, which he did not do. Counsel argued that Mr. Bellina produced much evidence to support his November 6, 1991 injury, but very little evidence to support his April 25, 1992 injury.
Counsel submitted that the videotapes clearly showed that Mr. Bellina had no restrictions in body movements and that Mr. Bellina should never have been paid benefits. Mr. Bellina fooled the company into making payments until it was shown by Drs. Haliburton and Hall that the payments were unjustified. Counsel asked for an order to direct Mr. Bellina to repay to State Farm all benefits paid to him since the automobile accident of April 25, 1992. Counsel asked that the expenses for this hearing be denied to Mr. Bellina because the application was manifestly frivolous and fell within the criteria of the Ralph McCormick and Economic Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, underlying principle for awarding expenses to applicants in similar circumstances.
In dealing with the facts, issues and arguments before me, I must first examine the section of the Schedule from which the Applicant seeks continued weekly benefits. The Applicant states that he is entitled to continued weekly income benefits under section 12 of the Schedule. Section 12(1) of the Schedule states:
- The Insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).
(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):
- He or she must have been at the time of the accident,
i) employed or self employed
ii) on a temporary lay-off, or iii)entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.
He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.
A person who was unemployed and who was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident.
I will not discuss the contents of subsections (2) and (3) because neither State Farm nor counsel for State Farm questioned the employment of Mr. Bellina. I assume that he was on proper lay-off due to an industrial accident, since I have no evidence that Mr. Bellina quit his employment or was no longer an employee of Prestressed Systems Inc.
The main issue to be determined, therefore, is Mr. Bellina's eligibility for benefits under section 12(1). The second factor that I must consider is the onus and burden of proof. Arbitrators have held that the onus of proof rests squarely upon the applicant. They have said that the degree of proof required is in accordance with the normal civil burden of proof, being upon a balance of probability.
I found Mr. Bellina to be a credible person possessing a pleasant, confident, outgoing, healthy appearance. However, his demeanour tended to be argumentative and evasive, rather than cooperative, when confronted with sensitive questions.
It is not disputed that Mr. Bellina had a history of low back pain and was injured in an industrial accident on November 6, 1991. Mr. Bellina testified that this injury, coupled with the injury sustained from the automobile accident on April 25, 1992, substantially prevented him from performing the essential tasks of his employment, including the modified work that he was assigned on April 13, 1992.
Arbitrators have held that the applicant has the onus of proving that he has a substantial inability to perform his essential tasks as a result of the accident. Evidence of pain and suffering is not sufficient, unless it is shown to cause the applicant to be unable to carry out the essential tasks of his employment.
There is no question, that injured persons may have real pain in the absence of neurological or orthopaedic injury. On the other hand, the Schedule does not compensate for "pain and suffering" unless the pain substantially disables the injured person from returning to work. In effect, the Schedule requires the injured person to return to work, despite their pain, if they are not substantially disabled from performing the essential tasks of their occupation, says Arbitrator Makepeace in Rajbir Singh and Wellington Insurance Company, June 24, 1994, OIC File No. A-004139.
I conclude from the evidence before me that the injury which Mr. Bellina suffered as a result of the car accident was unrelated to the pre-existing back injury. However, it contributed to Mr. Bellina's substantial inability to perform the essential tasks of his employment in that it restricted his overhead arm motion until October 31, 1993.
Dr. Irwin, Mr. Bellina's family doctor, confirmed the neck and right shoulder injuries sustained by Mr. Bellina as a result of the April 25, 1992 automobile accident and provided medical treatment and therapy for the injuries.
I conclude that Mr. Bellina sustained physical injury to his neck and right shoulder which restricted the free movement of his neck and right shoulder causing pain, and preventing him from substantially performing his essential tasks up to October 31, 1993. I base my conclusion on the oral evidence given by Mr. Bellina, who appeared to be a credible person, supported by the reports of the medical and therapy specialists who examined and treated Mr. Bellina for the automobile injuries. Unfortunately, Dr. Irwin did not appear as a witness to clarify the contents of some of his handwritten reports.
Dr. Irwin described in these handwritten reports, some details about the November 6, 1991 industrial accident, but was very sketchy in his diagnosis and prognosis of the automobile injuries. The other medical and therapy evidence submitted to me in support of Dr. Irwin's position was detailed with respect to the industrial accident injury, but again sketchy with reference to the automobile accident injuries. I found the medical reports of Drs. Haliburton and Hall to be very detailed in their assessment of the industrial injury and automobile injuries. Dr. Hall's report may have included some biased remarks, but as a whole, I found his medical report helpful in reaching my decision.
Ms. McCormick's report was critical of the position adopted by Mr. Bellina with reference to the automobile injuries and offered very little help to support his claim.
Without the oral evidence of Dr. Irwin, it was difficult to determine from his medical reports and the reports from other medical and therapy consultants supporting the position of Mr. Bellina, the approximate dates when they felt Mr. Bellina would be able to resume the essential tasks of his employment.
I also conclude that Mr. Bellina's automobile injuries improved significantly after August 1993, based on the evidence of the videotapes which showed Mr. Bellina washing his automobile for about 15 minutes, using both arms in free overhead motions without restrictions. Mr. Bellina testified that he would not be able to carry out the washing overhead motions seen in the video for eight hours and could only do so for short periods. The videotapes also showed Mr. Bellina exercising and lifting heavy weights without apparent restriction.
The medical reports of Drs. R. A. Haliburton and Michael Hall were valuable in helping to assess Mr. Bellina's functional impairments and to determine the approximate date when Mr. Bellina would be able to resume and perform the essential tasks of his employment. I make no finding as to the back injury sustained in the industrial accident prior to the automobile accident, other than to note its existence.
Therefore, based on all the evidence before me, I conclude that Mr. Bellina's injuries sustained in the automobile accident on April 25, 1992 were sufficiently healed to permit him to perform the essential tasks of his employment after October 31, 1993. I agree with Dr. Hall and Ms. McCormick that Mr. Bellina does not wish to return to the type of work in which he was employed. This was acknowledged by Mr. Bellina in his evidence. Mr. Bellina testified that he wished to enter some field which is less dirty, physically demanding and sweaty. However, he has done nothing to change jobs or to upgrade himself until recently, when he stated that he was taking courses at St. Clair College to upgrade his skills.
Ms. McCormick advised Mr. Bellina of this problem in March 1993. She stated in her report to Dr. Irwin that Mr. Bellina is waiting for the pain to go away before returning to a normal lifestyle. As stated above, arbitrators have ruled and I agree, that evidence of pain and suffering itself is not sufficient unless it is shown to cause the applicant to be unable to carry out the essential tasks of his employment.
I need not deal with the repayment of benefits issue under section 27 of the Schedule because State Farm made no payment of benefits after October 31, 1993.
Expenses
Counsel for the Applicant requested an order for the expenses of the hearing pursuant to 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.
Counsel for State Farm requested that I deny the Applicant his expenses of the hearing because it was manifestly frivolous, vexatious and without merit. He quoted the decision in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, as the criteria to follow in determining the expense issue of the hearing. Senior Arbitrator Naylor, in the Ralph McCormick case commented as follows:
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 that the applicant's conduct unreasonably prolonged the proceedings.
In reviewing all of the evidence submitted to me, I do not agree with counsel for State Farm. I exercise my discretion under section 282(11) of the Insurance Act to award the Applicant the expenses of this hearing, calculated according to schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990. The parties are encouraged to reach an agreement as to the amount of the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
The Applicant is not entitled to receive weekly income benefits under section 12 of the Schedule for any period after October 31, 1993.
The Applicant is entitled to his expenses of the arbitration.
May 18, 1995
Roger F. X. Marentette
Arbitrator
Date
APPENDIX A
Exhibits
Exhibit 1
Job Analysis
Exhibit 2
WCB Report
Exhibit 3
WCB letter dated January 17, 1992
Exhibit 4
WCB letter dated March 10, 1992
Exhibit 5
WCB Job Description Report
Exhibit 6
Letter from Dr. J. F. Rodrigues dated January 11, 1992 to Dr. Irwin
Exhibit 7
Document Brief Book drafted by Marc Katzman
Exhibit 8
Donna Bowers' investigative reports
Exhibit 9
Letter From Dr. Haliburton dated June 28, 1994
Exhibit 10
Preliminary Report from Dr. Michael Hall dated October 6, 1993
APPENDIX B
Other documents before the arbitrator:
Report of Mediator dated February 3, 1994
Application of Appointment of Arbitrator dated April 5, 1994
Response by Insurer — undated
Pre-hearing letter dated November 22, 1994