Neutral Citation: 1996 ONICDRG 115
OIC A-950585
ONTARIO INSURANCE COMMISSION
BETWEEN:
FRANCESCO VILLI
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Francesco Villi, was injured in two motor vehicle accidents on November 26, 1993. 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 January 22, 1995. 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 hearing originally proceeded in respect of the issues of entitlement, quantum and repayment. However, before the matter reconvened in January 1996, the issues of quantum and repayment were resolved.
The issue remaining in this hearing is:
- Is Mr. Villi entitled to weekly income benefits from January 23, 1995 to the present pursuant to section 12 of the Schedule?
The Applicant also claims interest on any amounts owing, and his expenses of the arbitration.
Result:
Mr. Villi is not entitled to weekly income benefits from January 23, 1995 to the present.
Mr. Villi is entitled to one-half of his expenses of the arbitration.
Hearing:
The hearing was held in North York, Ontario on October 23, 1995 and January 15, 1996.
Present at the Hearing:
Applicant:
Francesco Villi
Applicant's Representative:
David Longley Barrister and Solicitor
Insurer's Representative:
Stephen M. Malach Barrister and Solicitor
Witnesses:
Francesco Villi Dr. P. C. Yau
Exhibits:
The parties filed 21 exhibits.
Evidence and Findings:
Background
Mr. Villi was involved in two motor vehicle accidents on November 26, 1993. He was 44 years old at the time. The first accident occurred in the parking lot of a shopping mall at approximately 12:30 p.m. Mr. Villi was driving his van in the parking lot when a car suddenly hit him on the driver's side of the van. The second accident occurred about an hour and a half later. Mr. Villi was rear-ended while sitting in his van waiting for the police to arrive to investigate the first accident. Apparently, the police were delayed in responding to the first accident as a result of a work stoppage.
Mr. Villi testified that he was badly shaken up in the accidents, although he did not hit any part of his body on the inside of the van as a result of the collisions. He was wearing his seat belt at the time of the first accident, which was more severe than the second. He complained of neck stiffness, back ache and a shaking sensation immediately following the accidents. He stated that he saw his family physician, Dr. P.C. Yau, the day following the accident because he was too sick to see him on the day of the accident.
Mr. Villi claims to have suffered a neck and back injury as a result of the accident, as well as depression. He claims that these injuries have disabled him from returning to his pre-accident occupation as a general contractor. The Insurer maintains that Mr. Villi has not discharged the onus on him under section 12(1) of the Schedule, namely, to establish the essential tasks of his pre-accident employment, that the injuries disable him from returning to that employment and that his injuries were caused by the motor vehicle accidents of November 26, 1993.
Essential Tasks
Mr. Villi testified that he is the sole shareholder of Villi Construction Company Ltd., a general contracting company incorporated in approximately 1973. The company has been involved in relatively small construction projects, bricklaying, stone work, cement work, additions and renovations. Mr. Villi stated that he did most of the work himself, but hired casual labour to assist him from time to time. His work involved laying bricks and floors, removing existing walls with crowbars, drywalling, general carpentry, erecting scaffolding, pouring cement, plastering, some electrical and plumbing work, climbing up and down ladders, hammering, sawing, drilling and the like. At the time of the accident, Mr. Villi was working on a contract to repair fire damage at a house in Mississauga. This involved removing and replacing various parts of the kitchen such as floors, cabinets and plumbing fixtures. The contract was completed after the accident with the assistance of tradesmen who had already done some work on site.
Mr. Villi stated that he worked full time from approximately May 1993 to the time of the accident. Prior to that, he had missed significant periods of work and had worked part time due to a variety of workplace and motor vehicle accidents. He was in receipt of a 15% workers' compensation pension for a low back disability at the time of the accident. However, he stated that although he worked with pain every day, he never missed work and never left work early due to his pre-existing physical restrictions. This was qualified on cross-examination, when he suggested that he occasionally missed work because he was not sufficiently fit to work. However, he stated that he was still working continuously before the accident and that working full time meant working three to five days a week. He said that some days were worse than others and he did have some restrictions, but he was still able to perform all work-related activities on a full-time basis prior to the accident.
Pre-Existing Medical Condition and Work Capacity
Prior to the accident in November 1993, Mr. Villi had been involved in a number of workplace and motor vehicle accidents. In November 1973, a lid of mortar fell on Mr. Villi's right knee and he twisted his back. He was off work for a few months. A year later, while picking up a heavy plank, he slipped and fell, injuring his back. He returned to work in March 1976. In May 1982, Mr. Villi was off work for six to nine months due to a cervical sprain and left shoulder contusion from a motor vehicle accident. In July 1986, Mr. Villi suffered soft-tissue injuries to his neck and back when his car was rear-ended. He was off work until April 1987. In November 1988, while lifting a 16-foot plank, Mr. Villi injured his back and did not return to work until May 1989. He was rear-ended twice in 1990 (in February and May) and sustained soft-tissue injuries to his neck and back. He returned to work in October 1990. In November 1990, he fell from a ladder at work and suffered a lumbar strain and right elbow contusion. He returned to part-time work in August 1991 still experiencing pains. He also suffered from depression and insomnia from March to June 1992. Mr. Villi testified that he returned to full-time employment in May 1993, approximately six months prior to the motor vehicle accidents involved in this case.
On February 5, 1992, Mr. Villi's family physician, Dr. Yau, reported that Mr. Villi had sustained a severe myofascial strain of the cervical spine, left shoulder and lumbar spine as a result of the automobile accident in February 1990 and that this was aggravated by the second car accident of May 1990. He further stated that these two accidents aggravated previously asymptomatic degenerative disc disease of the lumbar spine causing a prolonged duration of symptoms. Dr. Yau anticipated that Mr. Villi's back symptoms would be significant for a 'period of 4-5 years from now" (the date of the report being February 1992) and that when the symptoms were severe, they would render Mr. Villi totally disabled for temporary periods. Dr. Yau further anticipated that Mr. Villi's cervical spine and shoulder symptoms would recur for a "period of 3-4 years from now." Dr. Yau felt that if the symptoms were sustained for prolonged periods, Mr. Villi might have to modify his employment and engage in a more sedentary type of work. He stated, however, that the symptoms could be adequately managed using conservative measures, including anti-inflammatory medication, neck, back and shoulder hygiene and physiotherapy and/or chiropractic treatment.
Dr. Martin W. Roscoe, an orthopaedic surgeon, saw Mr. Villi on August 11, 1992 after he complained of a significant increase in discomfort in his lumbar spine and right leg. However, Dr. Roscoe found no objective signs of neurological dysfunction or problems with his x-rays. Mr. Villi was told that he would need to learn to deal with his long-term pain and adapt to the situation as best he could. On January 18, 1993, Dr. James Kirk Houston, another orthopaedic surgeon, reported that no objective findings suggested that Mr. Villi suffered a substantial inability to carry out the essential tasks of his occupation. Dr. Houston observed that Mr. Villi could perform certain physical tasks during and following the examination, which Mr. Villi claimed he could not do. Dr. Houston found that further physiotherapy was not required.
On February 19, 1993, Dr. Yau reported that Mr. Villi was suffering from a right rotator cuff tendonitis, a lateral epicondylitis of the right elbow and an aggravation of a lumbo-sacral strain, superimposed on degenerative disc disease of the spine. He found Mr. Villi incapable of repetitive bending, heavy lifting, and prolonged standing and walking. Dr. Yau stated that the prognosis for Mr. Villi's return to work was favourable but could only be considered after several months.
On June 15, 1993, Dr. Yau reported that Mr. Villi could not work between November 1992 and May 1993 due to disabilities involving the right shoulder and lumbar spine. Dr. Yau also stated that Mr. Villi still suffered right elbow symptoms and noted the "chronicity and prolonged pain and suffering."
Mr. Villi was again seen by Dr. Roscoe on July 13, 1993 concerning his right elbow, shoulder and lower back. Dr. Roscoe notes that Mr. Villi had tried to return to work at the end of May, but that after working just four to five days, experienced an increase in discomfort in the noted areas. Mr. Villi told Dr. Roscoe that he could not carry on consistently over several days of work. Dr. Roscoe stated that Mr. Villi continued to have difficulty returning to the workforce and that the likelihood of his returning to his current occupation on a long-term basis was poor.
Dr. Yau's clinical notes and records from February 1992 to the very day of the accident show almost continuous visits and complaints by Mr. Villi about his lower back. The notes frequently refer to Mr. Villi's difficulties in sitting, bending, standing and lifting more than a few pounds. Dr. Yau testified that Mr. Villi was unable to continue working at certain points during the six months preceding the accident and, in fact, he believed that Mr. Villi was not working except for the odd week during this period. He felt Mr. Villi was capable of modified work in the month preceding the accident and that he might be able to do heavy construction for brief periods of time. Dr. Yau's June 15, 1993 report states that Mr. Villi returned to part-time duties in mid-May 1993. His note of Mr. Villi's visit on November 16, 1993 (ten days before the accident) states that Mr. Villi was working part time. On November 26, 1993 (the day of the accident), Dr. Yau's notes show a visit by Mr. Villi and complaints of severe low back pain for the past five to six days. The pains apparently prevented Mr. Villi from bending, lifting, sitting and standing for more than half an hour.
Mr. Villi's Credibility
Mr. Villi's evidence about his pre-accident medical condition and work status is inconsistent. Mr. Villi testified in direct examination that he had had no major problems with his neck or back prior to the accident. However, in cross-examination, he testified that his condition was severe before the accident. Dr. Yau's notes are also replete with references to the severity of Mr. Villi's neck, back, shoulder and elbow problems in the months leading up to the accident.
Mr. Villi testified that he had never missed work or left work early in the six months preceding the accident; in his Application for Appointment of a Mediator, Mr. Villi writes that he was working full time prior to the accident, earning approximately $2,000.00 a week. However, in cross-examination, Mr. Villi conceded that he did at times take a day off of work during the six months before the accident because he was not well enough to work. As well, both Dr. Yau and Dr. Roscoe document Mr. Villi's (apparent) inability to work on a continuous, full-time basis in the months immediately preceding the accident.
Mr. Villi claims to have worked four hours just before the first motor vehicle accident at 12:30 p.m. on November 26, 1993. He stated that he did not visit Dr. Yau at any time that day. He testified that he called Dr. Yau's office after the accident and told his secretary that he would be in the following day concerning his injuries. However, Dr. Yau's clinical notes clearly document a visit by Mr. Villi on November 26, 1993. Dr. Yau testified that his notes show that he examined Mr. Villi on November 26, 1993 concerning severe low back pains for the past five to six days. The entry for November 27, 1993 shows that Mr. Villi was seen again, this time about the accident.
Mr. Villi also claims that he was able to perform all work-related activities on a full-time basis prior to the accident, even though the documentation contains numerous references to his working part time, and to persistent, severe pain in his neck, back, shoulder and elbow. In particular, he claimed to have worked the five days before the accident and the four hours just prior to the accident, even though on that same day, he reported to Dr. Yau that he had been incapable of sitting, standing, bending and lifting more than a half an hour in the five to six days before the accident due to severe low back pain. Mr. Villi did not answer directly when asked numerous times in cross-examination how he could have engaged in the heavy physical tasks of his business at these times. He merely stated that he was in pain, that some days were worse than others and that he was not 100%. Super-imposed on this are the prognoses of Dr. Yau and Dr. Roscoe that Mr. Villi would not be capable of sustained, long-term employment in his work as a general contractor. This is in conflict with the opinion of Dr. Houston that Mr. Villi was not disabled at all from performing the essential tasks of his occupation.
Based on this evidence, I am unable to find Mr. Villi a credible witness and am unable to determine what his pre-accident medical condition and employment status was. Contrary to his claim, Mr. Villi appears to have been experiencing persistent and severe physical pain prior to the accident and incapable of performing all of the physical tasks of his job on a full-time basis. I therefore find that Mr.Villi has not established the essential tasks of his pre-accident employment.
Post-Accident Medical Condition and Causation
However, whether or not Mr. Villi was performing all of the tasks of his pre-accident job, I would still be unable to find that Mr. Villi was disabled from continuing with his work as a result of the motor vehicle accidents of November 26, 1993.
Mr. Villi claims to have suffered a neck and back injury as a result of the accident, as well as depression. He claims that these injuries have disabled him from returning to his pre-accident occupation as a general contractor. Dr. Yau reports that he has had occasional thoughts of suicide.
He attempted to return to work in June 1994, but only lasted three weeks. He also tried to return to work in January 1995, but again only lasted a short time. Dr. Yau reports that Mr. Villi was referred to a vocational rehabilitation programme in January 1994 and had a functional abilities evaluation in September 1994, but that in both cases, submaximal effort was observed. No reports from these activities were filed, nor did any of the individuals involved testify. Dr. Yau also reported that in August 1994, Mr. Villi was referred to Dr. Feldman, a psychiatrist, who made a diagnosis of adjustment disorder with depression; suicidal ideation was also documented. Dr. Feldman's report was not filed, nor was he called to testify.
Dr. Yau also reported the view of a Dr. Galea that Mr. Villi had sustained a mild exacerbation of his significant pre-existing low back condition with "some exaggeration of Mr. Villi's findings and non-settlement of the litigation process of the 1990 motor vehicle accident." Dr. Galea's report was not filed and he did not testify. Dr. Yau stated in his report of October 19, 1995 that Mr. Villi has a somatoform pain disorder or chronic pain syndrome. He referred Mr. Villi to Dr. Hanick, another psychiatrist, and the Eleanor Smythe Pain Clinic (apparently at some time in fall, 1995), but no reports from these referrals were filed.
In his October 19, 1995 report, Dr. Yau states that "it is my firm opinion that Mr. Villi is incapable of performing the essential tasks of his pre-accident occupation." He had earlier released Mr. Villi for work in January 1995. He took issue with an IME report, prepared by Dr. Arthur Ameis for the Insurer, which suggested that Mr. Villi was malingering. Although I have concerns about the general tone of Dr. Ameis' report, I am unable to find that Mr. Villi's current difficulties are causally related to the motor vehicle accident of November 26, 1993. According to Dr. Yau's clinical notes, Mr. Villi was in severe distress regarding his neck and low back immediately prior to the accident. He indicated that "Mr. Villi was still symptomatic from the November 1990 work related accident, when he was involved in the automobile accident on November 26, 1993." Dr. Yau observed a degenerative process occurring in Mr. Villi's lumbar spine well before the accident in November 1993 (although, oddly, none of the other physicians speak to this). Mr. Villi was also in receipt of a 15% permanent pension from the Workers' Compensation Board for a low back disability.
Dr. Yau's report of October 19, 1995 (which summarizes Mr. Villi's medical history and concludes that he is disabled from returning to his pre-accident job) notes the "date of loss" as November 26, 1993. However, it does not explicitly state that his current medical symptoms were caused by the accident of November 1993. It does not indicate when any injuries Mr. Villi received in the accident would be expected to resolve, nor does it state that his pre-existing condition was aggravated by the accident of November 1993. It does not engage in any analysis of the relationship between Mr. Villi's current medical condition and the November accident, in light of his clear pre-existing problems.
In the report, Dr. Yau acknowledged the pertinence of Mr. Villi's pre-accident medical history in discussing his current condition, but did not indicate how they are related. In this regard, he noted that Mr. Villi complained of depression in March 1992 concerning his ex-wife. Mr. Villi also complained at times of financial worries. Mr. Villi was diagnosed by Dr. Feldman as suffering from adjustment disorder with depression. Dr. Yau concurred in this diagnosis and also stated that Mr. Villi suffered from either somatoform pain disorder or chronic pain syndrome. However, no explanation was provided as to whether or how these problems might be related to the November 1993 accident. No documentary or viva voce evidence was received from physicians other than Dr. Yau concerning the nature or source of Mr. Villi's emotional problems. I note that on two occasions post-accident, Mr. Villi was observed to use submaximal effort in rehabilitation testing.
Based on this evidence, I am unable to find that Mr. Villi's current medical difficulties are causally related to the motor vehicle accident on November 26, 1993. Mr. Villi has not established that any pre-existing problems he might have had were aggravated by the November 1993 accident, so as to disable him from returning to his previous work of general contracting. The evidence also does not show that Mr. Villi's current physical or emotional difficulties resulted from the November 1993 accident, as opposed to problems he was experiencing prior to the accident. And, as noted earlier, Mr. Villi has not established the essential tasks of his pre-accident employment.
I, therefore, find that Mr. Villi has not discharged the burden of establishing that the injuries he received in the November 1993 accident disabled him from performing the essential tasks of his pre-accident occupation after January 22, 1995. He is, therefore, not entitled to further weekly income benefits.
Expenses:
Although I have found Mr. Villi's application to have been deficient in several respects (including, in particular, his credibility), a good portion of the evidence in the hearing addressed the issue of quantum. As indicated at the outset, this matter was resolved prior to the reconvening in January. In these circumstances, and pursuant to my discretion under section 282(11) of the Insurance Act, I am prepared to award Mr. Villi one-half of his expenses of the arbitration. If the parties are unable to agree on the amount owing, they may apply to the Registrar for an assessment.
Order:
Mr. Villi is not entitled to weekly income benefits pursuant to section 12(1) of the Schedule from January 23, 1995 to the present.
Mr. Villi is entitled to one-half of his expenses of the arbitration.
July 3, 1996
Eban Bayefsky Arbitrator
Date