Neutral Citation: 1995 ONICDRG 59
File No. A-006045
ONTARIO INSURANCE COMMISSION
BETWEEN:
DOUGLAS C. ALLISON
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Douglas C. Allison, was injured in a motor vehicle accident on May 19, 1992. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot") payable under Ontario Regulation 6721. Pilot terminated Mr. Allison's weekly income benefits on March 24, 1993. Mr. Allison disputed the termination of his benefits, and the parties also disagreed about the amount of benefits payable.
The parties were unable to resolve their disputes through mediation and Mr. Allison applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Allison entitled to weekly income benefits from March 24, 1993 onwards?
Is a payment of $1,500 made to the Applicant by his father deductible from the benefits paid, as income received from employment subsequent to the accident, pursuant to section 15 of the Schedule?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Allison is entitled to weekly income benefits from March 24, 1993 onwards, plus interest as set out in section 24 of the Schedule.
The payment of $1,500 made to Mr. Allison by his father is not deductible from benefits paid as income received from employment pursuant to section 15 of the Schedule.
Hearing:
The hearing was held in Chatham, Ontario, on April 25 and 26, 1994, before me, Frederika Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant:
Douglas C. Allison
Applicant's Representative:
James Allin
Barrister and Solicitor
Insurer's Representative:
Harry J. Daniel
Barrister and Solicitor
Insurer's Officer:
George Hamilton
Witnesses:
Douglas Allison, the Applicant
Tom Hope, Applicant's uncle
Marjorie Allison, Applicant's mother
Dr. David Gordon Chess
Dr. R. A. Haliburton
Documents before the Arbitrator
The exhibits are listed in Appendix A.
Evidence and Findings:
(a) Claim for ongoing weekly income benefits
Douglas Allison is a farmer in his mid-forties. He lives on a farm near Blenheim, Ontario, with his elderly parents, Marjorie and Clare Allison. He is single, and has lived on the farm with his parents all his life.
Mr. Allison completed grade 13 in 1968. After that, he attended teachers' college for five months and quit. He worked at various factory and clerical jobs until March 1983. In 1984 he started working with his father full-time on the family farm, where he has worked ever since.
Mr. Allison testified that the farm, which his father owns, is a relatively small operation by Kent County standards - only 95.7 acres in size. Cash crops - soybeans and wheat - are grown. Mr. Allison testified that from 1984 until 1988 he helped his father on the farm. In February 1988, his father suffered a cardiac arrest, which left him with a permanent heart condition. Since that time, Mr. Allison's father has not been able to do any farm work, and Douglas Allison has basically operated the farm alone. Mr. Allison testified that his father paid him for his work.
Mr. Allison was involved in a motor vehicle accident in Chatham, Ontario, on May 19, 1992. He was stopped at a traffic light, when his vehicle was rear-ended: the fourth and last car to be hit in a multi-vehicle accident. Mr. Allison testified that since the collision, he has not been able to do his essential tasks as a farmer, due to ongoing neck and shoulder pain. His evidence is that, for the most part, the farm work is heavy and puts particular stress and pressure on his neck and shoulder area.
Mr. Allison is claiming ongoing benefits under section 12(1) of the Schedule, which provides as follows:
12.-(1) 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).
Mr. Allison is entitled to ongoing benefits if he can prove, on the balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his employment as a farmer from March 24, 1993 onwards.
As has been previously held in numerous arbitration decisions, the determination of a claim for ongoing benefits requires that the individual's essential tasks be identified, and that his or her ability to perform those tasks be assessed.
From the evidence before me, I conclude that Mr. Allison's essential tasks included maintaining and operating heavy farm equipment. Mr. Allison's evidence about his essential tasks, which I accept, and which is outlined below, was supported by the evidence of his uncle and his mother, and was not seriously challenged by Pilot.
Mr. Allison gave very detailed evidence about his work on the farm. He described the machinery he operated, and the tasks that were done throughout the year. Mr. Allison had to maintain and operate a number of different heavy implements, almost all of which are connected to motorized tractors. There were three tractors on the farm, one large and two smaller ones.
Mr. Allison testified that he used a large cultivator, an implement weighing 1500 -2000 lbs., to till the ground for his soybean crop. The large cultivator has 29 steel teeth, which dig into and work up the ground. Before using the cultivator, the teeth must be checked and replaced if necessary. Mr. Allison testified that he put one full set of teeth on the cultivator every year, and had to replace about half of them during the course of the growing season, due to wear and tear. The cultivator teeth are attached to the shank of the unit by a nut and bolt.
To change the cultivator teeth the cultivator had to be attached to a tractor by means of a three-point hitch. Mr. Allison would have to back up the tractor, in line with the cultivator. To hook it up he had to bend over, pull on it, and align and hook up the attachment pin. Then, using the hydraulic lift on the tractor, he would raise the cultivator to a certain height, with the teeth up. Using a ratchet, he had to apply force to loosen each tooth and remove the nut. New teeth would then have to be bolted in.
Mr. Allison also had a smaller bean cultivator, with two rows of 12 teeth, which was used to till the soil between the rows of soybeans. Mr. Allison had to maintain and change the teeth on this implement, as on the big cultivator. He testified that since the accident, he has not been able to perform the manoeuvres required to change the teeth on the cultivators.
Mr. Allison described tilling the land before planting. The cultivator must be hitched to the tractor, and driven in a straight line. The driver must constantly watch behind and in front - to make sure a stone does not get caught in a cultivator tooth, and to check if teeth are broken. To drive like this requires constant twisting and turning of the body.
The tractor has no suspension system to cushion the ride, and the property is very rough and stony. The tractor has no cab - just a standard seat, with no springs.
Mr. Allison testified that it probably took him about ten days to complete tilling the farm in the spring, working 10 to 11 hours per day. Part of the job of tilling was picking up the biggest stones lying on the fields, because stones damage the machinery and make the land less arable. So from time to time, Mr. Allison would get off the tractor, pick up stones and place them on the cultivator, and then put them down at his fence line. The stones would be removed after the crops were planted.
After using the cultivator, the clods of earth would be broken up further with a drag-harrow. This iron implement has three sections, weighing about 60 pounds each. The harrows were stored in the barn, and had to be lifted and carried over to the tractor, where they were attached to a long pipe pulled by the cultivator. The ground is worked using the tractor-cultivator-harrows combination.
After harrowing, the ground is rolled with a large roller. The roller is attached to the cultivator by means of a pin on the end of an 11-foot tongue-like fastener. Fastening it to the roller is heavy work - equivalent to lifting about 70 pounds. Mr. Allison testified that the roller itself weighs about 2000 pounds.
Mr. Allison explained that he maintained the roller by putting oil on the bearings - in the centre, where the two roller drums come together. The drums had to be pried apart with a crowbar in order to get the oil into the system. Mr. Allison testified that he has not been able to do this since the accident.
After tilling the earth, fertilizer was applied. Mr. Allison testified that this was usually "custom done," meaning that a private contractor was hired to apply the fertilizer. After this, Mr. Allison himself would till the fertilizer into the ground.
Finally, the soybeans would be planted. Bags of bean seed were stored on a wooden rack-wagon in the barn. Each rack of bean seed - weighing about 150 pounds - would have to be removed from where it was hooked onto the wagon, and the racks themselves had to be carried out of the way. The bags of bean seed (each weighing 55 pounds) would have to be placed back into the wagon, and then loaded into the planter.
The bean seed would be planted using a planter hooked up to the tractor. This planter also has a "tongue" attachment which, Mr. Allison testified, weighs about 100 pounds. It must be lifted about two feet to be hooked onto the draw bar of the tractor.
The planter is a six-row planter, with six boxes on it, five feet from the ground. The lids on the boxes are held down with springs. The lids must be bent back in order to fill the boxes with bean seed. Mr. Allison testified that each fill-up took about six bags of bean seed. One fill-up was sufficient to plant about five acres of beans.
Mr. Allison testified that the planting itself required repetitive, watchful motion on the tractor - constant looking behind and in front, to make sure the rows were being seeded straight. After the planting, all the planter boxes had to be cleaned out, which required prying the tops off. Mr. Allison would then check all his equipment, hook it up to drive it to the barn, and unhook it again to store it.
Mr. Allison testified that he used to have problems driving the planter straight, and setting the correct depth for soybeans. Therefore, his uncle, Tom Hope, who operated a neighbouring farm, would drive the planter. Mr. Allison himself would do all the other chores, including obtaining the bean seed, getting the planter ready, taking it to the field, filling it, emptying and cleaning it.
After the planting, more cultivating is done with the bean cultivator, between the rows. One must be careful, to make sure none of the planted rows are pulled out by accident. Cultivating is done twice during the growing season, to get rid of weeds and to "hill up" the beans.
The beans must also be hoed to get rid of weeds. Mr. Allison testified that in the summer of 1992 - immediately after the accident - he was not able to do the hoeing at all. In July 1993, he did about 15 hours of hoeing - about three hours a day, for five days consecutively. He testified that this caused his shoulder to become more painful.
Mr. Allison testified that his father did not own a combine and so hired others to harvest the crop. However, after the harvest, the land had to be ploughed again. The plough - which weighs 2500-3000 pounds - must be hitched up to the tractor and driven out to the fields. Ploughing must be done slowly and carefully, and all stones must be removed. After the ploughing, the machinery must be returned to the barn and disassembled.
Mr. Allison also gave detailed evidence about the process of planting wheat. He testified that he had not planted wheat on the farm for two years prior to the accident, because of poor weather conditions. However, in the fall of 1993, he did have his uncle plant about 40 acres of wheat. Wheat is planted in the fall, using a drill, attached to the tractor. The drilling must be done quickly - the tractor must be driven faster than for ploughing - and this causes more vibrations and bouncing.
If wheat is planted, the wheat fields must be seeded with clover in early spring. The clover seeder is a small machine, weighing about 10 pounds, worn on the body, attached by a strap around the neck. The machine is filled with about 20 pounds of clover seed, and is operated by means of a handle or crank on the right-hand side. The operator must walk up and down the field to sow the clover, turning the handle to release the seed. Mr. Allison testified that he could not use the clover seeder in spring 1994, because of its weight on his neck and shoulders.
Mr. Allison testified that in winter, he attaches a snowplough blade to the rear of the tractor, for snow removal. The snow is pushed backwards, and it is necessary to constantly look behind while operating the tractor. Mr. Allison testified that he has not been able to do snow removal since the accident, and that his uncle, Tom Hope, has done this for him.
Mr. Allison stated he can no longer operate the tractor and has not tilled or ploughed his fields since the accident. He testified that he tried to drive the tractor once, in June 1993, for three hours. He experienced severe pain, which caused his forearm to swell up, and he also developed severe stiffness in his neck. He testified that riding on the tractor is very bumpy, and that the tractor is constantly vibrating and jarring the body. This jarring and vibration hurts his neck.
Mr. Allison testified that in the spring of 1993 he asked his uncle to cultivate the Allison land and plant beans, because he himself could not do it. Mr. Allison testified that his uncle planted 50 acres of beans for him - and, he testified, he would never have asked his uncle to do this if he could have done the work himself.
However, his uncle - who had his own farm to look after - had no time to plant the remaining 40 acres of farm land on the Allison property. This was the first time that some of the farm land had nothing planted on it.
Mr. Allison's uncle testified at the hearing. Mr. Hope is in his mid-sixties, and has been farming for 50 years. He owns a farm about five miles away from the Allison property. Mr. Hope corroborated Mr. Allison's evidence about the essential tasks on the Allison farm.
He also confirmed that in the spring of 1993, Mr. Allison was unable to plant a crop. He testified that he himself did all the planting in 1993, but was only able to get half of the farm planted.
He stated that he has not seen his nephew do any heavy work since the accident, apart from hoeing for about one hour. He described Mr. Allison as wet with sweat and in apparent pain while hoeing. After hoeing, he immediately put ice on his neck, took a pain pill, and went to lie down.
Mr. Hope testified that he has known Douglas Allison since his birth. He described him as a good worker, who always did his share and never backed off anything. Mr. Hope was sure that Mr. Allison could not do the heavy farm work, and would not try to trick anyone.
Mr. Allison's 68 year old mother, Marjorie Allison, also testified at the hearing. She stated that "it's been hell" since the motor vehicle accident. She commented that she and her husband paid taxes for 40 acres of land that "just laid there" with nothing planted on it. She confirmed that this had never happened before on the farm. Mrs. Allison stated that Douglas Allison had been a hardworking farmer before the accident, "young and well." Now, "he doesn't do a whole lot."
Mr. Allison testified that he does not consider himself an invalid, and can now do many of the general chores around the farm. However, he stated that he still has constant pain in his neck and shoulders from the accident, and for this reason, he cannot do the tractor driving and other heavy work that make up the majority of his essential tasks on the farm.
Mr. Allison's claim that he was unable to do his essential tasks on the farm was supported by the medical evidence before me. Mr. Allison testified that prior to the motor vehicle accident, he did not have a family doctor and had not seen a doctor for about four years. He had never before injured his head, neck or upper body. At 6'1", and 280 pounds, he was a strong and healthy man.
On the day of the accident, he drove to the emergency ward of St. Joseph's Hospital in Chatham. Two days later, on May 21, 1992, Mr. Allison attended at the office of Dr. Peter Green, in Blenheim. Dr. Green's patients were being temporarily looked after by a locum physician, Dr. Kathy Foulds.
Mr. Allison complained to Dr. Foulds that his neck was swollen and very painful. Dr. Foulds prescribed Dolobid, an anti-inflammatory medication. On June 2, 1992, as documented in Exhibit 1, Dr. Foulds referred Mr. Allison to physiotherapy at the Woodall Physiotherapy Clinic in Chatham.
Mr. Allison started physiotherapy on June 8, 1992. He was seen by Mr. Brian Drew, a physiotherapist at the clinic, for about 15 months, until the end of August 1993. Mr. Allison testified that when he first started physiotherapy, his neck was stiff and sore and he had pain in his shoulders that went down his right arm to his elbow. He could barely move his neck at all and had particular difficulty moving his head to the left. He was also suffering from severe headaches.
Mr. Allison testified that by the time he was discharged from physiotherapy, he had regained practically full neck movement, and his headaches had improved, but, he testified, he still experienced pain with movement of his neck.
Mr. Allison continued to see Dr. Green about his neck pain. Dr. Green prescribed anti-inflammatory and analgesic medications. He eventually referred Mr. Allison to Dr. David London Chess, an orthopaedic specialist at St. Joseph's Hospital in London, Ontario.
Dr. Chess saw Mr. Allison on January 8, 1993, advised that he continue with the physiotherapy, and also suggested that he might benefit from chiropractic treatment.
Mr. Allison testified that after he was discharged from physiotherapy, in August 1993, he started regular chiropractic treatment, pursuant to the suggestion of Dr. Chess. Mr. Allison testified that the chiropractic treatments give him temporary relief from the pain which he still experiences constantly.
Dr. Chess testified on behalf of Mr. Allison. He confirmed that he first saw Mr. Allison on January 8, 1993, and that Mr. Allison was complaining of persistent pain in the back of his neck on the right side of his shoulders. Dr. Chess confirmed that Mr. Allison's complaints of pain were consistent (even when he was distracted) and reproducible on certain defined motions of the neck. He diagnosed cervical strain, and indicated that Mr. Allison is not a candidate for surgery.
Dr. Chess saw Mr. Allison again a year later, on March 23, 1994, and made similar findings. He considers Mr. Allison suffers from an impingement disease in the right shoulder. He testified that Mr. Allison would have pain and difficulty if he tried to do repetitive and extreme rotations of the neck. He also testified that the vibrations from driving a tractor would be very bothersome to Mr. Allison, as would be repetitive checking behind while driving.
Dr. Chess felt that Mr. Allison could not tolerate even one day on the tractor, doing repetitive backwards checking -- he thought this would put Mr. Allison "over the edge." He also doubted that Mr. Allison would be able to assemble his farm machinery as he used to do. He testified that any repetitive lifting would be bothersome to Mr. Allison.
In cross-examination, Dr. Chess confirmed that although Mr. Allison was "normal" according to the report from the physiotherapist, and his injuries were classified as "mild" (i.e., no neurological sequelae), that does not mean that he can do everything he needs to do as a farmer. He conceded that it was unusual for someone involved in an accident which was not very serious to develop long-term problems, but, he testified "it happens." Dr. Chess felt Mr. Allison's complaints of pain were genuine, and were not exaggerated.
Mr. Allison was also seen by orthopaedic specialist, Dr. Robert Alexander Haliburton, on March 12, 1993, at the request of Pilot. Pilot terminated Mr. Allison's weekly income benefits after it received Dr. Haliburton's report.
Dr. Haliburton testified on behalf of Pilot. He is an orthopaedic surgeon, now retired. He stopped doing operations in the spring of 1991, but continued with his practice as a consultant until August 1993.
Dr. Haliburton testified that upon examining Mr. Allison, he found him "essentially normal," although he confirmed finding tenderness in the neck and shoulder areas where Mr. Allison complained of pain. He concluded that Mr. Allison had sustained a benign, or non-serious soft tissue injury in his neck and shoulder area, and that the prognosis should certainly be good. Dr. Haliburton described Mr. Allison as a strong, muscular young man whom he would expect to recover from this sort of injury in a matter of weeks or at most months -- six months at the outset.
Dr. Haliburton stated that there might be some things in normal daily farm work that Mr. Allison could not do, but he felt that Mr. Allison was not substantially disabled from doing the majority of his functions. He conceded that his report to Pilot (Exhibit 9) did not specifically deal with the physical requirements of such tasks as driving a tractor, cultivating and planting land, and repairing machinery.
Dr. Haliburton testified that he believes Mr. Allison is a credible individual, and that his report of his pain was accurate and honest. In cross-examination, he indicated that Mr. Allison could not do repetitive, heavy work, and probably could not drive a tractor for long periods. Repetitive lifting would also be a problem for Mr. Allison, he stated.
To summarize, Mr. Allison's evidence, which was supported by all the witnesses including Dr. Haliburton, is that he cannot tolerate driving a tractor for long periods, because of the jarring and vibrations. He has difficulty with twisting his head back to look behind him, which he must do to properly operate the tractor with the various farm implements attached to it. He also cannot do repetitive heavy lifting, such as lifting and manipulating heavy machinery and heavy bags of seed. These are all tasks which he has described and which I find constitute the essential tasks of his employment on the farm.
Mr. Allison, his mother, Mrs. Marjorie Allison, and his uncle, Tom Hope, all impressed me as entirely sincere, credible witnesses. I have no hesitation in accepting their evidence.
I was especially struck by the distress of all three witnesses about the, for them, unprecedented fact that in the summer of 1993, 40 acres of farm land had been left fallow. Mrs. Allison in particular voiced her bitterness and upset about paying taxes on idle land. I am persuaded, from the evidence, that Mr. Allison would have planted his land had he been able to. I do not accept the suggestion of counsel for Pilot, that Mr. Allison was exaggerating or misrepresenting his disability, or that he left his fields to lie fallow simply because he preferred to collect weekly income benefits. I note also that Dr. Haliburton, Pilot's own medical expert, accepted Mr. Allison's complaints of pain as genuine, and conceded that Mr. Allison would have difficulty with tractor driving and heavy lifting.
I conclude therefore, that as a result of his injuries from the accident, Mr. Allison was substantially disabled from performing the essential tasks of his employment on the family farm. He is accordingly entitled to weekly income benefits from March 24, 1993 onwards.
Amount of benefits
The parties disagreed about the amount of benefits payable to Mr. Allison, and about how those benefits should be calculated. Prior to the hearing, they resolved all of their differences about the amount of benefits, except for one item: the treatment of certain income received by Mr. Allison from his father, after the accident.
The parties agreed that, for the purposes of calculating his entitlement to benefits, Mr. Allison should be treated as a salaried employee, paid by his father for his work on the farm.
Mr. Allison testified that at some point after the accident, in 1992, his father paid him $1,500 as an "advance" for work he was expected to do that summer. However, due to his injuries from the accident, Mr. Allison was not able to work at all during the summer of 1992.
Pilot claims that the $1,500 should be treated as income from employment, received after the accident, 80% of which is deductible from Mr. Allison's weekly income benefits, pursuant to section 15 of the Schedule.
Mr. Allison claims he did no work to earn the money. Accordingly, he submits that the $1,500 should not be viewed as income, but rather as a gift from his father. Therefore, his weekly income benefits should not be reduced on this account.
I accept Mr. Allison's testimony that he did not work to earn the $1,500 he received from his father subsequent to the accident. Indeed, Pilot did not lead any evidence to show that Mr. Allison earned this income from his employment. On the contrary, it paid Mr. Allison benefits, since it accepted that at this time Mr. Allison was incapable of doing his essential tasks on the farm.
Therefore, I conclude that this money should not be characterized as income from Mr. Allison's occupation or employment, deductible from his benefits. On the particular facts of this case, and given the nature of the family relationship between employer and employee, I believe the money is more fairly characterized as a gift or an interest-free loan.
Expenses
The Applicant has requested his expenses of the hearing. An insured person may be awarded expenses incurred as a result of an arbitration proceeding under section 282(11) of the Insurance Act.
Arbitrators have consistently awarded expenses to insured persons unless their claims were manifestly frivolous or vexatious, or their conduct unreasonably pronged the arbitration proceedings. In this case, I am satisfied that Mr. Allison is entitled to his expenses as set out in Ontario Regulation 664. The parties may apply to me for an assessment of the expenses in the event that they are unable to agree about the amount payable.
Order:
Mr. Allison is entitled to weekly income benefits from March 24, 1993 onwards, plus interest as set out in section 24 of the Schedule.
The payment of $1,500 to Mr. Allison received from his father is not deductible from benefits paid as income received from employment pursuant to section 15 of the Schedule.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
May 31, 1995
Frederika Rotter
Senior Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1 Treatment Chronology
Exhibit 2 Applicant's Medical Brief
Exhibit 3 1991 Federal and Ontario Individual Income Tax Return
Exhibit 4 1992 Federal and Ontario Individual Income Tax Return
Exhibit 5 Curriculum Vitae of Dr. David Gordon Chess
Exhibit 6 Letter from Dr. Chess to Dr. Green dated January 8, 1993
Exhibit 7 Letter from James Allin to Dr. Chess dated February 7, 1994
Exhibit 8 Curriculum Vitae of Dr. R. A. Haliburton
Exhibit 9 Report of Dr. Haliburton dated March 12, 1993