Neutral Citation: 1996 ONICDRG 102

OIC A-014645

ONTARIO INSURANCE COMMISSION

BETWEEN:

MAURICE KRAIEM

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Maurice Kraiem, was injured in a motor vehicle accident on January 25, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on March 28, 1994. 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:

1. Is Mr. Kraiem entitled to receive weekly income benefits pursuant to section 12(5)(b) of the Schedule from March 28, 1994 and onwards?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Kraiem is entitled to weekly income benefits from March 28, 1994.

2. Mr. Kraiem is entitled to interest on the amount owing and his expenses of the arbitration.

Hearing:

The hearing was held in Ottawa, Ontario, on May 6, 7, 8, 9, and 10, 1996, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Maurice Kraiem

Applicant's

Thomas V. Ozere

Representatives:

Barrister and Solicitor

Jesse I. Goldman

Barrister and Solicitor

Insurer's

Catherine L. Coplea

Representative:

Barrister and Solicitor

Insurer's

Karen Houldsworth

Officer:

Witnesses:

For the Applicant:

Maurice Kraiem

Dr. John Saad

Shawn Whitty

Terry Dale

Dr. Martin Gillen

Michael McCann

For the Insurer:

Rachelle Desbiens

Dr. Lynn MacGregor

Theresa Davis

Caroline Workman

Susan Fraser

Andre Charron

James Rawlings

Exhibits:

17 exhibits were filed. The Applicant filed a case brief.

Evidence and Findings:

Mr. Kraiem, who is 36 and married with three children, was born in Lebanon. He was educated in Lebanon and Germany and emigrated to Canada in 1989.

In Lebanon, Mr. Kraiem finished grade 10 and then attended a technical school for four years. In 1981, he received a school certificate, equivalent to grade 13 in Ontario, which enabled him to work on the wiring of machinery. Until 1984 Mr. Kraiem worked for a company in Lebanon, doing general repairs on its cars and trucks.²

Starting in 1984, Mr. Kraiem studied in Germany for two years, taking courses in teaching car electronics. As well, he studied car mechanics, concentrating on "fuel ejection" and "electronic ignition systems. He received a certificate which qualified him to work in Germany.³

In 1986, Mr. Kraiem returned to Lebanon where he began to work at a BOSCH dealership as a technician specializing in tune-ups and fuel injection systems. In February 1988, he opened his own garage and worked as a car mechanic.⁴

In February 1989, Mr. Kraiem emigrated to Canada, and shortly thereafter, in March 1989, he got a job as an apprentice mechanic at M.G.D. Auto Repairs Ltd. ("MGD"). He earned $10.00 an hour. Several months before his car accident, Mr. Kraiem applied for his Ontario license as an automobile mechanic. He received this license, along with his interprovincial license, retroactive to December 1990,⁵ after the car accident.

The accident occurred on Friday, January 25, 1991. Mr. Kraiem was on his way to work, travelling east on highway 417 in Ottawa, when a car cut him off and forced him to crash into the concrete divider which separated the east and west lanes. His head hit the roof of the car, and the left side of his knee hit the window handle. He testified that he instantly felt as though someone had hit him across the back with a baseball bat.

Mr. Kraiem remained in his car until an ambulance took him to the Ottawa Civic Hospital. He was examined and then released.

Mr. Kraiem rested on the weekend and went to work on Monday morning. However he was unable to continue working because of back pain. The next day he attended at the Family Medicine Unit at the Ottawa Civic Hospital. He was prescribed medication and referred to an orthopaedic surgeon, Dr. Chow, and to Dr. Smith, a physiatrist.

Despite his back pain, Mr. Kraiem attempted to return to work and worked on and off until the middle of March 1991.⁶ Mr. Kraiem testified that one day at work, in the middle of March, his back seized up on him. He had been working under a car and when he started to get up, he found he could not move. When he tried to move, he could not catch his breath. He had to lie perfectly still on the ground for about 30 minutes. After this incident, he did not return to work except for two days in July 1991.

Shortly after Mr. Kraiem stopped working, he suffered a severe pain spasm in his lower back which required him to be taken to the hospital emergency by ambulance. At the hospital he was given pain killers and a CAT scan was ordered.

The CAT scan revealed that Mr. Kraiem had a "large disc herniation" at the L4/L5 level.⁷ Dr. Chow told Mr. Kraiem that he had two options: he could either change his line of work, or he could undergo an operation. If the operation was successful, Mr. Kraiem could eventually return to work as an auto mechanic. Although there were risks involved which were explained to Mr. Kraiem, he chose surgery.⁸

In July 1991 (prior to the surgery), Mr. Kraiem participated in a work trial at the Canadian Back Institute (CBI). Mr. Rob Karas, a physiotherapist, reported that "There was significant increase of symptoms after this period, and worsening of objective findings."⁹

On August 28, 1991, Mr. Kraiem underwent surgery. No complications were noted on his discharge from the hospital, and he was given a corset to wear.¹⁰

Mr. Kraiem testified that after the surgery, he felt a "big relief." He stated that before the surgery, he was in constant pain, but that after the surgery, he began to experience pain-free periods. This continued for about four to five months, and then he gradually began to experience increased back pain on a more regular basis. In March 1992, he attempted to return to work, but was unable to continue because of back pain.

On August 10, 1992, Mr. Kraiem saw Dr. Chow about recurrent low back and leg pain. In his report, Dr. Chow notes that Mr. Kraiem's "... range of motion is markedly decreased and is much worse than when I saw him in March of this year." He opines that Mr. Kraiem "... may have some irritation of the scar tissue at his previous L4/5 discotomy site or he may be having some recurrent bulging of the L4/5 disc."¹¹ He recommended further x-rays of Mr. Kraiem's back.

In a report of August 12, 1992, Mr. Chow discussed the result of Mr. Kraiem's x-rays and stated that he did not see the need for further surgery. He recommended that Mr. Kraiem have an epidural injection to deal with his pain.¹² He also stated that "More than likely [Mr. Kraiem] will require vocational rehabilitation as he will be unable to go back to heavy lifting, repetitive bending or twisting nor prolonged sitting or standing."¹³

In November 1992, Guardian retained Rachelle Desbiens, a vocational rehabilitation counsellor, to assist Mr. Kraiem in his return to work.

In her first report,¹⁴ Ms. Desbiens noted that when she met Mr. Kraiem, she found him to be sincere and genuine about wishing to return to work. However, she also found him to be quite depressed about his pain and the idea of having to change his occupation as an auto mechanic for which he had a passion. She recommended that he see Dr. Reesor, a psychologist specializing in pain management.

In December 1992, Mr. Kraiem was seen by Dr. Reesor and started participating in a pain management program. He learned some coping skills to deal with his pain. His pain medication was increased, and he joined the YMCA to work out.

From the start of Ms. Desbiens' involvement, it was accepted that Mr. Kraiem would not be able to return to his former employment as an auto mechanic because auto mechanics was too physically demanding.

As an alternative to working as an auto mechanic, Mr. Kraiem expressed an interest in teaching auto mechanics. Ms. Desbiens researched this job and established that it required demonstrating the work and would therefore not be physically suitable for Mr. Kraiem. She also investigated the position of a car appraiser and again found that it was a physically demanding job.

Ms. Desbiens suggested that Mr. Kraiem's transferable skills could be suitable for the position of a service advisor. In a report to the adjuster, she notes that her research "... indicated this position requires someone with good mechanical background, good interpersonal skills and limited keyboarding abilities...which Maurice possesses..."¹⁵

Mr. Kraiem's first trial work placement at Adams Industrial Rentals in October 1993 proved not to be successful. Originally the job description was to input data on a computer. The job, in fact, turned out to be much more physically demanding than its description. Mr. Kraiem was required to do inventory and to pick up small pieces of equipment from shelves and pack them. The job required walking, lifting, bending, and standing. He also went out on the road and did some auto repair work. Once when he was replacing some spark plugs, he strained his back, which resulted in his requiring medical attention.¹⁶

Mr. Kraiem left this job placement because he found the work too physically demanding. The work had exacerbated his low back pain, which was now diagnosed as chronic.¹⁷

Six days after he left this job placement, Mr. Kraiem answered an ad in the newspaper for a service advisor at a Canadian Tire store. He was interviewed and hired on a part-time basis, at 15 hours a week. He started work on November 22, 1993, but after a few weeks, he had to quit this job also, because his low back pain had become quite severe.

The clinical notes and records of Dr. Saad for December 6, 1993 indicate that Mr. Kraiem had consulted him about his back pain. Mr. Kraiem had told Dr. Saad he could not lift or hold his 15 month old son. He could not carry groceries for his wife. He got no pleasure from his life, except from his son.¹⁸

Ms. Desbiens spoke to Mr. Kraiem on December 10, 1993, after he had stopped working. She testified that she believed Mr. Kraiem when he said that he was in pain.

In December, Mr. Kraiem began physiotherapy treatments at the Kilborn Physiotherapy Clinic. The clinical notes and records for February 1994 show that Mr. Kraiem's pain was improving with physiotherapy and medication.¹⁹ Dr. Saad testified that any improvement noted in the clinical notes and records for January and February refer to Mr. Kraiem being able to cope with his daily activities.

In February 1994, Ms. Desbiens visited Dr. Chow, whom Mr. Kraiem had not seen for about a year, to discuss Mr. Kraiem's case. She prepared a report of that meeting which Dr. Chow signed. In that report she notes the following:

We discussed Mr. Krayem's [sic] occupation prior to his accident as automotive mechanic and you confirmed that he is no longer able to perform this type of physically demanding occupation as it would involve too much repetitive bending, twisting, pulling, etc. Mr. Krayem [sic] should also not be involved with any heavy lifting and should avoid prolonged sitting, standing and walking and he should alternate these activities. You did feel however that Mr. Krayem [sic] should be able to manage light duty or sedentary employment on a full time basis effective immediately.²⁰

Ms. Desbiens testified that when she went to see Dr. Chow, she was aware that Mr. Kraiem had not seen him for about a year. She was also aware that he was regularly being seen by a family physician. She could give no explanation why she chose not to consult with Mr. Kraiem's family doctor about his condition, and what he was capable of doing. She stated that she chose to see Dr. Chow because he had operated on Mr. Kraiem in August 1991.

On the basis of the report drawn up by Ms. Desbiens and signed by Dr. Chow, on March 28, 1994 Mr. Kraiem's weekly income benefits were terminated.

Ms. Desbiens testified that she did not realize that this report would result in the termination of Mr. Kraiem's weekly income benefits. She stated that she did not personally agree with Dr. Chow's view that Mr. Kraiem could start full-time work immediately. However, she did not include her personal view in her report to the adjuster, Mr. Marshall.²¹

On April 13, 1994, Mr. Kraiem visited his family physician. In his clinical notes and records, Dr. Saad noted that Mr. Kraiem was suffering from depression, back pain and life disruption due to pain. He could not carry groceries, he slept less and there was a decrease in his interests and appetite. Along with pain medication, Dr. Saad prescribed Luvox, an anti-depressant.

In May 1994, Mr. Kraiem underwent a Functional Capacity Evaluation (FCE) at the CBI. The CBI assessor reported that the functional testing of Mr. Kraiem suggested a "submaximal level of effort."²²

Ms. Workman, who performed the functional test, testified that she found Mr. Kraiem to be credible. She stated that perceived pain can reduce a person's demonstrated function.

The CBI report noted that "... there is no physical reason that would prevent Mr. Krayem [sic] from immediately returning to a sedentary type job."²³ It recommended:

...that Mr. Krayem [sic]return to a job at 4 hours per day, 5 days per week, and increase his hours as tolerated. The job allowing for positional changes (standing, sitting, walking) approximately every half hour. Mr. Krayem should be monitored closely during his return to work by his treating therapist, to provide Mr. Krayem pain management education.²⁴

To facilitate Mr. Kraiem's return to work, the CBI recommended that Mr. Kraiem take part in a physical and work conditioning program for about four to six weeks. It noted that "The work conditioning program should focus on pain control strategies while in work situations."²⁵

In June 1994, at the recommendation of Ms. Desbiens, Mr. Kraiem saw Dr. Fayek, a psychologist. In a report to Ms. Desbiens on June 12, 1994, Dr. Fayek notes that "Basically this man is honest in his complaints, but unfortunately has started the sad process of chronic pain syndrome, and the chronic depression that usually accompanies it." He goes on to state that Mr. Kraiem could benefit from an active rehabilitation programme.

On July 18, 1994 Mr. Kraiem began a Vocational Evaluation Assessment at the March of Dimes. This assessment lasted until August 12, 1994, when Mr. Kraiem was released to a work hardening program which began August 15, 1994.

Mr. Kraiem finished the work hardening program on September 23, 1994. The March of Dimes report notes that Mr. Kraiem "participated with much enthusiasm and cooperation."²⁶ The report noted that although Mr. Kraiem had reached many of the goals set out for him, he was still unable to participate in the program full-time, which was six hours a day.²⁷

The March of Dimes recommended that Mr. Kraiem return to work gradually at 20 hours per week.²⁸

Ms. Susan Fraser, who had observed Mr. Kraiem daily at the March of Dimes, testified that in her view, Mr. Kraiem liked what he was doing and he was trying hard. She noted that he appeared tired at the end of the day and that he could not reach the modified goal of five hours a day. His average day of work was about four hours.

Ms. Fraser estimated that it would take about four to five months after the work hardening program before Mr. Kraiem could work full-time. She expressed surprise when shown the "Work Hardening/Training Program Agreement" which set out a work schedule returning Mr. Kraiem to working full-time within five weeks.²⁹

Ms. Fraser testified that she had not seen that agreement before and did not agree with it. She stated that she did not follow Mr. Kraiem's progress after he completed the program at the March of Dimes.

After his March of Dimes program, Mr. Kraiem began to work at MGD, his former employer, as part of a graduated return to work. He started to work as a service advisor on September 26, 1994, however he was again unable to continue working because of pain in his back and he stopped after a few weeks.

Mr. Whitty, Mr. Kraiem's immediate supervisor at MGD, testified that Mr. Kraiem was a reliable worker. He stated that it was his job to train Mr. Kraiem on how to enter data on the computer and how to deal with customers. He was aware of Mr. Kraiem's limitations which included no heavy lifting.

Mr. Whitty testified that Mr. Kraiem would sit and enter data into the computer and after an hour he would have to get up. He also observed that Mr. Kraiem could not stand for any length of time and would have to leave work after two to four hours because he was in pain. Mr. Kraiem would always call if he could not come in. He stated that Mr. Kraiem eventually left the job because his back was bothering him too much.

The evidence shows that Mr. Kraiem's emotional state deteriorated after he started the work hardening program. Dr. Saad's clinical notes and records state that on August 9, 1994, Mr. Kraiem was "... very happy, doing well, feels like normal life again, back pain improving..." and that he had decreased his intake of the anti-depressant, Luvox.³⁰

On September 12, 1994, according to the clinical notes and records, Mr. Kraiem "Finds back pain continues. Sometimes can't sleep. Sometimes has electrical pulses shoot down legs to heels. ... Patient very frustrated. Gets very agitated when thinks of future. Can't work, can't pick-up baby boy, can't do things around house." Dr. Saad diagnosed that Mr. Kraiem's depression was secondary to his chronic back pain and prescribed Luvox. He also prescribed a pain medication, as well as Ativan for stress.³¹

On September 19, 1994, Dr. Saad, in his clinical notes and records, states that Mr. Kraiem is feeling "much better than last week." At this visit, Dr. Saad's notes show that the "stressors" in Mr. Kraiem's life include:" 1. Back pain - chronic; 2. Low self-esteem [secondary] to not able to work; 3. Finances poor without work and disability insurance discontinued; 4. [no] clear future, [no] clear plan."³²

Dr. Saad goes on to note that Mr. Kraiem feels very angry about the surgery. Dr. Chow had given him two choices, change his job or have surgery: "He chose surgery and since expected to be better got his mechanics licenses and bought ++ tools. Now can't work."³³

Dr. Saad diagnosed his condition as "depression [secondary] to chronic back pain leading to other stresses." He prescribed that Mr. Kraiem continue with Luvox and that he may take Ativan which he had not yet tried."³⁴

In a report sent to Ms. Desbiens on September 30, 1994, Dr. Fayek, the psychologist treating Mr. Kraiem, notes that Mr. Kraiem is still suffering from back pain which not only affects his work ability, but also his daily life. Dr. Fayek thinks Mr. Kraiem's pain seems to be genuine. He further notes that Mr. Kraiem's "... financial difficulty is a very significant factor in his psychological condition. He is unable to support his family, and his young wife is carrying the total load. From a cultural point of view, this is a very painful situation."³⁵

Dr. Fayek concluded by stating that it was imperative that Mr. Kraiem be reassessed and it was "... important to look at his right to get back his benefits in a trustful way, and as soon as possible."³⁶

On October 18, 1994, Dr. Saad saw Mr. Kraiem again. He noted that Mr. Kraiem was still suffering from depression and chronic pain.

Ms. Desbiens testified that during Mr. Kraiem's time at MGD, she did not contact him. She did speak to him on October 18, 1994, and was under the impression that Mr. Kraiem had not returned to work because he had a cold.

Ms. Desbiens testified that she called Mr. Kraiem on November 3, 1994. When he did not return her call, she decided to close her file. She informed Mr. Kraiem of this by letter on November 14, 1994.

Ms. Desbiens testified that she closed the file because she felt Mr. Kraiem had abandoned the program. She stated that she did not at any time form the impression that Mr. Kraiem was a malingerer. However, she was not totally convinced that Mr. Kraiem had stopped working at MGD because of back pain. When asked if she was aware of Mr. Kraiem's physical state on October 18, 1994, other than having a cold, she stated she believed he had back pain and depression at that time.

In 1995, after Guardian closed its file, Mr. Kraiem continued to see his family physician and also attempted to find work. During the month of March, he visited about 13 work places.³⁷

The clinical notes and records for January 17, 1995 indicate that Mr. Kraiem found the fluctuating nature of his pain frustrating. He was not accepting his condition. Dr. Saad diagnosed him as suffering from chronic back pain, denial and depression. He raised the dosage of Mr. Kraiem's anti-depressant.³⁸

On January 23, 1995, Dr. Saad notes a "new concern" in that Mr. Kraiem's back pain is slightly worse with tingling shooting down in both legs to his toes. However Mr. Kraiem is in a better mood. His Luvox is decreased.³⁹

On February 14, 1995, Dr. Saad notes that Mr. Kraiem is depressed and quotes him as saying he "can't take it anymore." His notes show that Mr. Kraiem feels he cannot be a service advisor, because in looking after customers, he does not have the freedom to sit and stand as needed. He is now considering taking a computer course which is more self-directed and can give him freedom of movement.⁴⁰ Dr. Saad's diagnosis at this time was depression, chronic back pain and learned helplessness.⁴¹

In March 1995, Dr. Saad referred Mr. Kraiem to be assessed by Dr. Gillen, a physiatrist who had been head of the pain clinic at the Royal Ottawa Hospital for four and a half years.

The rest of the clinical notes and records for 1995 show continual fluctuation in Mr. Kraiem's mood and back pain. In a note dated August 1, 1995, Dr. Saad states "I am convinced his back pain is genuine and debilitating."⁴²

It was not until August 8, 1995 that Mr. Kraiem was finally seen by Dr. Gillen and assessed at the pain clinic. The assessment consisted of a team which included Dr. Gillen, a psychologist, a nurse-practitioner, and a physiotherapist.

In his assessment report, Dr. Gillen stated that Mr. Kraiem "... appears to have a significant level of disability associated with chronic pain syndrome secondary to mechanical back and failed back phenomenon."⁴³ He also found that Mr. Kraiem "... is very keen to be more functional. He appears to be very work focused and reports that he wants to develop strategies that will allow him to retrain and get back into the work force. He does report marked memory loss when his pain levels are high."⁴⁴

Dr. Gillen testified that at the time of his assessment, he found that Mr. Kraiem was functioning at a low level that would prevent him from returning to work.

Dr. Gillen testified that chronic pain syndrome included chronic pain, which is pain that has lasted for more than six months. He stated that what distinguishes chronic pain from chronic pain syndrome are the accompanying emotional factors, such as depression, as well as personality changes.

A person with chronic pain syndrome suffers from sleep disturbance, memory and concentration problems and de-conditioning. The person also displays pain behaviour such as grimacing, guarding his/her back, fatigue, overuse of the medical system and overuse of medication. Environmental factors, for example, financial problems, could significantly affect the syndrome.

Dr. Gillen testified that chronic pain syndrome is generally very difficult to treat. An important aspect is educating patients into accepting the fact that the pain will be with them for the rest of their lives.

Mr. Kraiem was admitted into the Outpatient Chronic Pain Rehabilitation Program on December 11, 1995, and discharged on January 26, 1996. He testified that he benefited from this program. He learned pain coping mechanisms. He also found it helpful that his wife had participated and that they were able to open up lines of communication. He stated that they had experienced marital tension because of his pain and frustration, and his tendency to keep his feelings to himself.

In February 1996, at the request of Guardian, Mr. Kraiem underwent an Independent Medical Examination (IME) with Dr. Lynn MacGregor, a physiatrist.

Dr. MacGregor diagnosed chronic pain syndrome, as did Dr. Gillen. However, although she noted that Mr. Kraiem had a "fairly flat facial expression," she did not find him clinically depressed.

In her conclusion, Dr. MacGregor queried why Mr. Kraiem did not continue with his job placement in September 1994. Under cross-examination, Dr. MacGregor admitted that Mr. Kraiem had told her that he had stopped working because of pain. Regarding Mr. Kraiem's ability to work, Dr. MacGregor notes in her report "... that of the positions mentioned for his work trials including the ones outlined in detail by the March of Dimes program would certainly be well within his present capabilities, most probably on a full-time basis but starting out on a part time basis with a gradual increase in hours."⁴⁵

In March 1996, Mr. Kraiem experienced a significant flare-up of his pain, recorded in the clinical notes of Dr. Saad. The notes of March 19, 1996 show that Mr. Kraiem had a "bad flare up of back pain 10 days ago" which keeps recurring every two days.⁴⁶

The last medical notation in the clinical notes and records is on April 9, 1996. Dr. Saad notes that Mr. Kraiem is feeling better, but that he is "still not back to activities of normal daily living."⁴⁷

Analysis and Findings

The issue in this arbitration is whether Mr. Kraiem is disabled within the meaning of section 12(5)(b) of the Schedule. The section provides as follows:

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

The onus rests with Mr. Kraiem to prove, on a balance of probabilities, that the injury to his back continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

In the case of Wigle,⁴⁸ Arbitrator Seife notes that in discharging the onus of proof,

...the applicant is not required to prove the impossible; i.e. that the applicant is unable to perform every employment or occupation for which he/she is reasonably suited. However, at the very least the applicant must identify some sort of "suitable" employment, describe the physical demands of the work and demonstrate with credible evidence that his/her injuries continuously prevent him/her from engaging in such employment.

Arbitrator Seife in his decision also outlined a number of guidelines adopted from other arbitration decisions dealing with the determination of disability under section 12(5)(b) which I also adopt. They are as follows:

The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.⁴⁹

The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.⁵⁰

Work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.⁵¹

The primary focus is on an applicant's disability or functional limitations and not on the broader availability of work in the job market however, the disability cannot be seen in a vacuum, but should be viewed in the context of the applicant's competitiveness in the existing marketplace.⁵²

For the following reasons I am satisfied that Mr. Kraiem has discharged his burden of proof.

As noted above, in August 1992, Dr. Chow recommended that Mr. Kraiem undergo vocational rehabilitation as he would no longer be able to do heavy lifting, repetitive bending or twisting or prolonged sitting or standing.

Under the guidance of Ms. Desbiens, after exploring various alternative employment positions, the position of a service advisor was identified by Ms. Desbiens as suitable alternative employment that Mr. Kraiem should pursue. This position was in the field of auto mechanics in which Mr. Kraiem had previously been working. As well, the remuneration was similar to what he had been earning as an apprentice mechanic.

At the end of 1993, Mr. Kraiem, under the supervision of Ms. Desbiens, attempted two returns to work which were unsuccessful. In 1994, after a six week program at the March of Dimes, Mr. Kraiem was placed at his former employer, MGD, to work as a service advisor.

Mr. Kraiem claims that although he attempted to perform the job of a service advisor, he is not capable of doing it. He finds the job too physically demanding. The position of Guardian is that the essential tasks of a service advisor are within Mr. Kraiem's physical capabilities.

Mr. Kraiem called three service advisors to testify: Mr. Shawn Whitty,⁵³ Mr. Terry Dale⁵⁴ and Mr. Michael McCann.⁵⁵ Guardian called two: Mr. James Rawlings⁵⁶ and Mr. Andre Charron.⁵⁷

In its essence, the job of a service advisor is to act as a liaison between a customer and an auto mechanic regarding the problems that a customer has with his or her automobile.

According to Mr. Kraiem's witnesses, Mr. Whitty, Mr. Dale and Mr. McCann, the job of a service advisor is physically demanding. There is a lot of standing and walking. Often the service advisor is required to carry parts such as batteries, tires, brake disks, and brake drums. In smaller shops, he may be required to do minor repairs.⁵⁸ Both Mr. Dale and Mr. McCann testified that the service advisors do not have stools to sit on. Mr. Dale testified that service advisors at his centre work a 10 hour shift and are on their feet 100 per cent of the time.

According to Guardian's witnesses, Mr. Rawlings and Mr. Charron, the work of a service advisor is not physically demanding. Mr. Rawlings testified that there was "no real lifting involved" and that there was "quite a mixture of sitting and standing." Mr. Charron stated that the job consisted mostly of writing up service orders. Sometimes the service advisors carried parts as a courtesy to customers, but they did not do this all the time because they did not want to get their hands dirty or dirty their paper work. Mr. Charron testified that when Mr. Kraiem was working at Canadian Tire, he and the other service advisors could use the chair in Mr. Charron's office whenever Mr. Charron was not there.

Whether one accepts that the position of a service advisor is as physically demanding as Mr. Whitty, Mr. Dale and Mr. McCann testified, or as light and sedentary as described by Mr. Rawlings and Mr. Charron, it is clear from the evidence that Mr. Kraiem could perform this job at its most basic level in his work trials at Canadian Tire and at MGD. I agree with counsel's submission that given the range of duties of a service advisor, it was not incumbent on Mr. Kraiem to keep searching for the one service advisor's position that is very easy to perform.

I found Mr. Kraiem a credible witness. His testimony was given in a straightforward and honest manner. Although at times he could not answer questions put to him by either his own counsel or the counsel for the Insurer because he could not remember, I did not find that he was trying to evade the questions.

The evidence, in my view, shows that the physical and psychological problems that Mr. Kraiem suffers from are as a result of his car accident and that, presently, his injuries from this accident continuously prevent him from engaging in any employment for which he is reasonably suited by virtue of his education, training and experience. I note that Dr. MacGregor, in her report and testimony, raised the possibility that Mr. Kraiem's present back problem is as a result of his pre-accident condition. In my view, this speculation is not substantiated by the evidence.

The evidence reveals that on one occasion prior to the accident, on October 20, 1990, Mr. Kraiem visited his doctor to complain of a "backache" which he had suffered from over a period of two months.⁵⁹ Mr. Kraiem testified that the doctor prescribed some medication and a few days of rest. X-rays were taken and Mr. Kraiem was told that there was some disc degeneration which was normal for a man his age. He had no further treatment and made no further complaints. Except for the few days of rest, Mr. Kraiem did not miss any work because of back problems until immediately after the accident. Thereafter, Mr. Kraiem began to suffer severe constant and consistent pain so that by March 1991, he could no longer work.

From the evidence presented, I find that it is more likely than not that Mr. Kraiem's severe back pain after the accident directly results from the accident.

In my view, the evidence reveals that from the beginning, Mr. Kraiem showed that he genuinely wished to return to work after the accident. When told he could no longer work as an auto mechanic unless he had surgery, Mr. Kraiem chose to have surgery. Although the surgery appeared to have been successful, by August 1992 his condition had deteriorated and Dr. Chow recommended that he engage in vocational rehabilitation.

In my view, the evidence shows that Mr. Kraiem conscientiously participated in vocational testing and rehabilitation efforts. Although Dr. MacGregor questioned Mr. Kraiem's motivation, all the other health practitioners, who saw Mr. Kraiem on a regular basis, have found that his complaints about his back pain were genuine and his desire to work was sincere.

I find that Mr. Kraiem has demonstrated that his injuries continuously prevent him from engaging in any employment for which he is reasonably suited by virtue of his education, training and experience. I am, however, confident that Mr. Kraiem is a highly motivated individual. Further rehabilitation efforts, including training and educational upgrading, would enable him to find work which he is capable of performing.

Accordingly, I find that Mr. Kraiem is entitled to weekly income benefits under section 12(5)(b), with interest, from March 29, 1994.

Expenses

Mr. Kraiem seeks an award of expenses he has incurred in this arbitration. In accordance with section 282(11) of the Insurance Act and the case law that has evolved, I find that Mr. Kraiem is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code - 1995. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Registrar of the Commission for an assessment of the expenses.

Order:

1. Guardian shall pay to Mr. Kraiem weekly income benefits pursuant to section 12(5)(b) of the Schedule from March 29, 1994.

2. Guardian shall pay to Mr. Kraiem interest on overdue amounts in accordance with the provisions of section 24(4) of the Schedule.

3. Guardian shall pay to Mr. Kraiem his expenses of the arbitration pursuant to section 282(11) of the Insurance Act.

June 17, 1996

Joyce Miller Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 5, Tab 1, Curriculum Vitae of Maurice Kraiem
3. 3Ibid
4. 4Ibid
5. 5Exhibit 5, Tab 6, "Certificate of Qualification"
6. 6Exhibit 5, Tab 9, statement of Manuel Domingues, owner of MGD
7. 7Exhibit 1, Tab 11, letter dated September 20, 1991 from Dr. Chow to Mr. Gordon Marshall, an insurance adjuster.
8. 8Exhibit 1, Tab 9, letter from Dr. Chow to Dr. Coulombe at the Family Medicine Centre, dated August 1, 1991.
9. 9Exhibit 6, Tab 3, letter dated July 23, 1991
10. 10Exhibit 1, Tab 10, Discharge summary of the Ottawa Civic Hospital dated August 31, 1991
11. 11Exhibit 1, Tab 17, letter dated August 10, 1992 to Dr. Young at the Melrose Family Medicine Centre
12. 12Mr. Kraiem did have this epidural which was administered by Dr. Lewis at the Pain Clinic at the Civic Hospital. Mr. Kraiem testified that he did not get any pain relief from this injection.
13. 13Exhibit 1, Tab 18, letter dated August 12, 1992 to Dr. Young.
14. 14Exhibit 6, Tab 12, November 23, 1992, at p. 4.
15. 15Exhibit 6, Tab 14, at p. 1, report to Gordon Marshall.
16. 16Exhibit 4, Tab 2, medical note dated November 2, 1993.
17. 17Exhibit 4, Tab 2, medical note dated December 6, 1993.
18. 18Ibid.
19. 19Exhibit 4, Tab 2, clinical note of Dr. Saad, dated February 16, 1994.
20. 20Exhibit 6, Tab 22, letter to Dr. Chow dated February 22, 1994.
21. 21Exhibit 6, Tab 21, report to Mr. Marshall, dated February 22, 1994.
22. 22Exhibit 6, Tab 8, Report of the CBI, dated May 27, 1994 at p. 3.
23. 23Ibid at p. 5.
24. 24Ibid.
25. 25Ibid at p. 6.
26. 26Exhibit 6, Tab 11, Work Hardening Summary Report dated October 7, 1994 at p. 11.
27. 27Ibid.
28. 28Ibid.
29. 29Exhibit 6, Tab 28, Work Hardening/Training Program Agreement.
30. 30Exhibit 4, Tab 2, clinical notes and records dated August 9, 1994.
31. 31Ibid.
32. 32Ibid, September 19, 1994.
33. 33Ibid.
34. 34Ibid.
35. 35Exhibit 1, Tab 29, Report to Ms. Desbiens from Dr. Fayek dated, September 30, 1994.
36. 36Ibid.
37. 37Exhibit 5, Tab 19, Job Search Log-On Sheet, dated March 15 - 30, 1995.
38. 38Exhibit 4, Tab 2, Clinical notes and records dated January 17, 1995.
39. 39Ibid, January 23, 1995.
40. 40At the hearing on May 6, 1996, Mr. Kraiem testified that he was beginning a computer course that evening on a part-time basis at Algonquin College. It was his hope that when he finished, he would be able to work in the computer field from his home where he would have more control over his movement.
41. 41Ibid, February 14, 1995.
42. 42In his testimony at the hearing Dr. Saad stated that he found Mr. Kraiem to be credible.
43. 43Exhibit 1, Tab 35, The Rehabilitation Centre Consultation Report of Dr. Gillen dated August 8, 1995 at p. 3.
44. 44Ibid.
45. 45Exhibit 6, Tab 31, Medical Legal Report of Dr. Lynn MacGregor, dated February 20, 1996 at p. 6.
46. 46Exhibit 8, updated clinical notes and records of the Family Practice Unit, dated March 19, 1996.
47. 47Exhibit 8, updated clinical notes and records of the Family Practice Unit, dated April 9, 1996.
48. 48Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312.
49. 49Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995), OIC A-005714.
50. 50Spicer and State Farm Mutual Automobile Insurance Company (May 24, 1995), OIC A-010158.
51. 51Rodway and Royal Insurance Company of Canada (June 12, 1995), OIC A-007593.
52. 52Mills and Canadian General Insurance Company (July 6, 1995), OIC A-005599 (under appeal), Reid and Continental Insurance Company (July 27, 1995), OIC A-006022 (under appeal).
53. 53Mr. Whitty has been working in auto mechanics for eight years and is presently the service advisor and manager of MGD.
54. 54Mr. Dale has been working in the field of auto mechanics for 26 years. For the past 17 years he has been with Canadian Tire in Orleans. He is presently the service manager there.
55. 55Mr. McCann has been a service advisor for three years. He presently works at Canadian Tire on Clyde Avenue in Nepean. He previously worked at a Canadian Tire franchise on Richond Road in Ottawa.
56. 56Mr. Rawlings has worked in the automotive business for about four years. He presently works as a service advisor for a Dodge/Chrysler dealer in Orleans.
57. 57Mr. Charron has been in the automotive trade since 1981. Although he is presently working at Campbell Ford as a service advisor, he was the manager at Canadian Tire when Mr. Kraiem had a work placement there in 1993.
58. 58Mr. Whitty testified that he did minor (two-to-three minute) auto repairs, such as change light bulbs and blown fuses, or unsticking latches. He did this work on a regular daily basis and it required bending and twisting the body.
59. 59Exhibit 4, Tab 2, clinical notes and records for October 1990.