Neutral Citation: 1996 ONICDRG 196

OIC A96-000210

ONTARIO INSURANCE COMMISSION

BETWEEN:

IAN A. CATT

Applicant

and

PAFCO INSURANCE COMPANY LIMITED

Insurer

DECISION

Issues:

The Applicant, Ian A. Catt, was injured in a motor vehicle accident on November 11, 1992. He applied for and received statutory accident benefits from Pafco Insurance Company Limited ("Pafco"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Pafco on February 2, 1994. The parties were unable to resolve their disputes through mediation and Mr. Catt 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. Catt entitled to weekly income benefits pursuant to section 12 of the Schedule for any period between February 2, 1994 and June 19, 1995?

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

Result:

1. Mr. Catt is entitled to weekly income benefits pursuant to section 12 of the Schedule from July 21, 1994 to June 19, 1995.

2. Mr. Catt is entitled to his reasonable expenses of the arbitration, less expenses for three hours at the hourly rate established under the Legal Aid Act for professional services in civil matters before the Ontario Court (General Division).

3. Mr. Catt is entitled to interest on overdue payments in accordance with section 24 of the Schedule.

Hearing:

The hearing was held in London, Ontario, on October 22 and 23, 1996.

Present at the Hearing:

Applicant:

Ian A. Catt

Mr. Catt's Representative:

Gordon Good

Barrister and Solicitor

Pafco's Representative:

Eric Grossman

Barrister and Solicitor

Pafco's Officer:

Brian Globe

Claims Supervisor

Before:

William J. Renahan

Arbitrator

On November 11, 1992 Mr. Catt was driving in the passing lane of the 401 highway when he was cut off by another vehicle. His dog was in the front passenger seat. Mr. Cart's vehicle collided first with the left rear of the other vehicle and then struck the concrete median obliquely. Photographs show that Mr. Catt's vehicle sustained most of its damage on the front fenders. The estimate of $1,700 to repair Mr. Catt's 1980 Plymouth Volare was more than the value of the vehicle.

The medical evidence indicates that Mr. Catt had a pre-existing instability in his left shoulder due to two dislocations when he was an adolescent. He said that he had "no difficulty" with his shoulder before the accident and that the instability did not prevent him from doing his work as an apprentice construction millwright. I heard no evidence that Mr. Catt knew his left shoulder joint was unstable prior to the accident.

At the hearing Mr. Catt explained how he injured his left shoulder in the collision. He said that when the collision became inevitable he put his right arm around his border collie dog to protect him and then braced himself with his outstretched left arm against the steering wheel. The force of the glancing collision with the median was transmitted through to his previously weakened shoulder joint. He said that the force of his left hand pushing forward bent the steering wheel.

He was initially off work seven months. His complaints were mostly of neck pain radiating into the shoulders, and headaches. The Insurer paid weekly income benefits until Mr. Catt returned to work on June 10, 1993. Mr. Catt worked for about seven months until February 2, 1994 when he asked to be laid off because of shoulder pain. He underwent surgery to repair his shoulder on February 10, 1995, and returned to work on June 19, 1995. He seeks weekly income benefits for the period February 2, 1994 to June 19, 1995.

Law:

The disability test for the relevant period is set out in section 12 of the Schedule:

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...

"Accident" is defined in section 2.

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury...

The first issue is whether the accident caused Mr. Catt's shoulder injury. The Insurer concedes that Mr. Catt was disabled from performing the essential tasks of his employment from September 1, 1994 to June 19, 1995. If I find that the accident caused Mr. Catt's shoulder injury, the second issue is whether Mr. Catt was disabled from performing the essential tasks of his employment for any part of the period February 2, 1994 to September 1, 1994 on account of an injury to his left shoulder.

Background and Essential Tasks of Employment:

At the time of the accident Mr. Catt was 29 years old and employed as an apprentice construction millwright. In order to qualify as a journeyman he had to complete 8,000 hours of work and finish three eight-week periods of classroom instruction. At the time of the accident Mr. Catt had completed 3,700 hours of work and one instruction period. The local branch of the Millwrights & Machine Erectors Union contacted Mr. Catt for work and kept track of his hours. For the first 2,000 hours of work his pay was 60 per cent of a journeyman construction millwright's pay. Every 2,000 hours his pay was increased so that after 8,000 hours he was earning the full pay of a journeyman construction millwright. The district council of the union arranged for the apprentice to take three periods of classroom instruction at George Brown College in Toronto and usually gave the student about one month's notice of when the next period of classroom instruction would begin.

A construction millwright does a variety of work involved in the moving and installation of machinery and equipment. The union supplies workers for contractors who have contracts to install or repair machinery or equipment. The worker works for the contractor at the job site until the work is done, and is then laid off. If he is not called for new work immediately, he applies for unemployment insurance.

Mr. Catt described some of his work. Before the accident he lifted heavy wire cables and attached them to hooks and lifting equipment. After the accident he helped install a conveyor system which was suspended from "I" beams. Mr. Catt welded the "I" beams to the building. On another job he used small wrenches to adjust nozzles on coal-fired boilers. On other jobs he moved equipment using fork lifts and chain falls and overhead pulley systems. On another job he removed seals from doorways. Much of the work was done at waist level. At times the work was more physically demanding and required Mr. Catt to climb ladders and machines, crawl through small spaces and work with both hands above shoulder level.

The Shoulder Injury:

In order to understand the doctors' opinions and to determine whether the motor vehicle accident caused Mr. Catt's shoulder injury, it is necessary to have a basic understanding of the condition of Mr. Catt's shoulder joint. The Applicant filed the notes and records of Dr. Saplys, the orthopaedic surgeon who performed the surgery on Mr. Catt's shoulder in February 1995. Dr. Goldenberg examined Mr. Catt for the Insurer and testified at the hearing. Dr. Goldenberg is a general surgeon and gave a basic explanation of the shoulder joint and the surgical procedure Mr. Catt underwent.

The shoulder is a ball and socket joint. The ball at the end of the humerus fits into a socket in the clavicle. The socket is called the glenoid. It is shallow and therefore less stable than the hip joint. The rim of the glenoid is edged by a fibro-cartilage tissue which extends from the bone. This rim is called the labrum and makes the socket slightly deeper. The three tendons which connect to the humerus and move the upper arm are referred to as the rotator cuff. The dense fibrous tissue which surrounds the joint and holds it together is the capsule. The humerus can dislocate more easily than the hip joint, and when it does dislocate, it is more likely to dislocate forward.

Dr. Saplys found that Mr. Catt's joint was "markedly" unstable in the front and that he could easily dislocate it. He also found that it was unstable in the back. He found two tears in the labrum, one in the front and one in the back. He repaired the joint by stretching one torn piece of labrum over the capsule and sewing it into the capsule. He also folded over the capsule tissue and overstitched it to make it smaller and hold the joint together more tightly.

Mr. Catt had dislocated his shoulder on two occasions prior to the motor vehicle accident. He dislocated it once as an adolescent, while playing hockey. I heard no evidence concerning the second dislocation. The Insurer argued that Mr. Catt did not complain about his shoulder until he had returned to work for six months and more than a year had passed since the accident. The Insurer argued that prior dislocations and other physical trauma not related to the motor vehicle accident caused Mr. Catt's shoulder problems and that it would be speculative to find that the motor vehicle accident of November 11, 1992 caused the shoulder injury and disability. Mr. Catt argued that the trauma of the motor vehicle collision significantly contributed to his shoulder problems to the point where he was unable to continue work and required surgery.

History of Work and Medical Treatment:

The day after the accident, Mr. Catt saw his family doctor, Dr. Washburn, complaining of neck pain. Although Mr. Catt had seen a doctor in Sarnia the month before for a lumbar strain, this was his first visit to his family doctor in two years. Mr. Catt testified that he was sore all over. Dr. Washburn did not report shoulder pain until the fifth visit, on December 10, 1992. At that time he noted that Mr. Catt had shoulder pain in the top of both shoulders. Dr. Washburn treated Mr. Catt for an flexion-extension neck injury and did not identify shoulder pain as a separate problem for another year.

On March 16, 1993 and March 5, 1994 the Insurer arranged for Mr. Catt to see Dr. Goldenberg, a general surgeon. Dr. Goldenberg noted that Mr. Catt felt incapable of lifting because of discomfort in his shoulders and difficulty keeping his arms elevated above shoulder level for any length of time. He found full range of movement except in the shoulders, with the left shoulder having less range of movement than the right. He found that the old shoulder injury caused by dislocations was quite evident and commented that he believed Mr. Catt's symptoms were genuine. Dr. Goldenberg attributed Mr. Catt's restriction of shoulder movement to his old injury.

At the hearing Dr. Goldenberg explained that it was unlikely that Mr. Catt tore his labrum in the motor vehicle accident because he did not have significant left shoulder pain at that time. However, he also testified that if the collision took place as Mr. Catt described it, that is, he braced himself and his dog by extending his left arm outward against the steering wheel, such that the force of the collision was transmitted through his wrist, elbow and shoulder joints, it was "quite conceivable" that the collision would aggravate Mr. Catt's pre-existing left shoulder instability. He also agreed that detection of the decreased stability in the shoulder and resultant pain might not be evident until Mr. Catt engaged in heavy physical work.

Mr. Catt returned to work on June 10, 1993, whereupon the Insurer terminated his weekly income benefits. The union assigned Mr. Catt to a number of jobs and Mr. Catt testified that he was lucky that for the first few months the jobs were light duty, mostly involving the use of a fork lift truck. I received conflicting evidence as to when Mr. Catt was first bothered by his shoulder. He testified that because he had light duty work, his shoulder only bothered him once during the summer of 1993 when he felt a sharp pain as he pulled a pin out of a fork lift truck hitch. The pain passed quickly. However, in May 1996 Dr. Harth, a rheumatologist, reported that by August or September 1993, the pain in the left shoulder had become quite severe. Mr. Catt was not asked to explain this discrepancy.

It was not clear what work Mr. Catt was doing when he asked to be laid off because of shoulder pain. Mr. Catt testified that his shoulder started to bother him at Kellogg's, where he was installing an overhead conveyor system, welding above his head, and using chain falls.

Mr. Catt testified that Dielco Industries had the contract to install the conveyor system at Kellogg's. The union local recorded Mr. Catt's hours of work and that record indicates that Mr. Catt worked 109 hours for Dielco Industries in December 1993, and a further 92 hours in January 1994. Mr. Catt said that his shoulder got worse as the job progressed and that he could not return to work at Kellogg's because there was a lot of overhead work. He said that he asked for a layoff. Mr. Catt seemed to suggest that his last job was for Dielco Industries at Kellogg's. However, the union local records indicate that after Dielco Industries, Mr. Catt worked 36 hours for Nicholls-Radtke in January 1994 and 8 hours in February 1994.

It is therefore not clear what work Mr. Catt asked to be laid off from.

Mr. Catt testified that in December 1993 he experienced two separate incidents of severe shoulder pain, one when he tried to lift a 20-inch television, and another when he tried to remove a spare tire from the trunk of his car. The pain was severe and passed quickly, but it prevented him from lifting the television and tire. It appears that Mr. Catt complained to Dr. Washburn about his left shoulder around this time, for on February 2, 1994 an x-ray of the left shoulder was performed at the request of Dr. Washburn. The radiology report indicates: "There are marked changes involving the glenoid fossa which becomes very shallow and elongated and the articular surfaces are roughened. There are also minor changes affecting the humeral head."

It appears that for the first time, Dr. Washburn recognized the shoulder problem as separate from the extension-flexion injury to the neck. He referred Mr. Catt to Dr. Murnaghan, an orthopaedic surgeon. On February 28, 1994 Dr. Murnaghan concluded that the x-ray showed a "developmental defect" secondary to the adolescent shoulder dislocation. He suggested physiotherapy. Mr. Catt had previously undergone physiotherapy without success and was not content with this advice.

Mr. Catt's sister recommended that he see Dr. Galea, a sports injury specialist. In April 1994 Dr. Galea tried cortisone injections which gave Mr. Catt temporary relief. On June 13, 1994 Dr. Galea reported that Mr. Catt was unable to work due to the injury of his left shoulder. He referred him to Dr. Saplys, an orthopaedic surgeon, on July 21, 1994.

On September 1, 1994 Dr. Saplys performed an arthroscopic surgery to investigate the joint. After the operation he reported that the labrum tear and developmental glenoid extension were consistent with the dislocation and glenoid fracture Mr. Catt sustained while an adolescent. He also reported that the shoulder instability

. . . was likely aggravated at the time of the motor vehicle accident and he has been left with residual anterior instability. The motor vehicle accident then did not cause his instability but aggravated his instability to the point where he now has significant pain and requires surgery for repair of his shoulder. In my opinion he is significantly disabled from this, disabled enough to prevent him from returning to a job in a manual capacity particularly if it requires heavy lifting or moving of his shoulder or any other type of reaching movements.

Dr. Saplys also reported that in his opinion Mr. Catt was disabled from July 21, 1994, the date he first saw him. He could not comment on whether Mr. Catt was disabled before then.

On February 10, 1995 Dr. Saplys surgically repaired the labrum tears and tightened the capsule. On June 19, 1995 Mr. Catt returned to work.

Analysis:

The test of whether an accident caused an injury is whether the accident made a significant contribution to the injury² or contributed to the development or continuation of the condition, to a material degree.³

Mr. Catt had a pre-existing shoulder instability due to labrum tears, a misshapen glenoid and a loose capsule.

I heard evidence that Mr. Catt was involved in a prior motor vehicle accident and a fall from a motorcycle, and that he performed physically demanding work. However, I heard no evidence to show that before the accident, his left shoulder condition affected his work as an apprentice construction millwright.

After the accident Mr. Catt returned to work. Although the nature of the work he did was unclear, I heard no evidence to suggest that something happened at work which aggravated his shoulder injury. No argument was made that pulling a pin from a forklift hitch would cause his disabling shoulder injury. Although the work performed at Kellogg's was strenuous and painful, I heard no evidence that it aggravated or contributed to the shoulder instability.

Nor did I hear any evidence that Mr. Catt suffered trauma after the accident which might have caused his shoulder injury. No evidence was adduced that lifting a television or tire aggravated or contributed to the shoulder instability.

Although the doctors' various descriptions of the accident are not identical and include a description of Mr. Catt jamming his shoulder under the steering wheel, I find that the collision took place as Mr. Catt described it, with his left arm outstretched and braced against the steering wheel, and with his right arm around his dog. Dr. Goldenberg testified that it was "quite conceivable" that such a trauma could aggravate the shoulder instability. Dr. Saplys operated on the shoulder and opined that the instability was significantly aggravated by the motor vehicle accident.

I heard no other evidence to explain what lead to the aggravation of Mr. Catt's shoulder instability to the point that it disabled him and required surgical repair. The opinions of Dr. Goldenberg and Dr. Saplys that the collision likely aggravated the shoulder instability appear reasonable.

Accordingly, I find that the motor vehicle collision significantly contributed to Mr. Catt's shoulder instability and therefore caused his injury, within the meaning of the definition of "accident" in section 2 of the Schedule.

The Insurer conceded that if I determined that the accident caused the shoulder injury, Mr. Catt was disabled from performing the essential tasks of his employment from September 1994 to June 1995. The question remains whether Mr. Catt has satisfied his burden of proving that he was disabled for any period between February 2, 1994 and September 1, 1994.

Duration of Disability:

Mr. Catt testified that the work for Dielco Industries at Kellogg's in December 1993 and January 1994 aggravated his shoulder, and that he found it difficult to weld. However, it appears from the union local records that he completed his work for Dielco Industries and went on to work for Nicholls-Radtke in January and February 1994. I heard no evidence why he asked to be laid off from that job. It is possible that Mr. Catt intended to say that the work for Nicholls-Radtke was at Kellogg's. In any event, Mr. Catt's ability to work at the time he asked to be laid off is not clear.

The matter is further complicated because Mr. Catt applied for unemployment insurance benefits after he was laid off from Nicholls-Radtke and represented to the Unemployment Insurance Commission that he was willing, able and ready to return to work. Mr. Catt explained that he misrepresented his ability to work because he needed the money and because his UIC file was already open. He attempted to justify this misrepresentation by saying that he would not have received much less money if he had applied for UIC disability benefits.

In these circumstances, where it is unclear what work Mr. Catt was doing when he asked to be laid off, where it is unclear whether he could do that work and where Mr. Catt has misrepresented his ability to work in order to obtain other insurance money, I do not accept Mr. Catt's testimony that he was disabled from performing the essential tasks of a construction millwright when he asked to be laid off work on February 2, 1994.

On February 25, 1994 Dr. Washburn wrote a note excusing Mr. Catt from taking a welding course because of his neck problems. I place little weight on this evidence. It appears that Dr. Washburn was still focused on Mr. Catt's flexion-extension injury even though it appears that Mr. Catt had recovered from that injury and was now suffering from a separate shoulder pain.

Dr. Galea wrote a brief note on June 13, 1994 indicating that Mr. Catt was unable to work due to an injury to his left shoulder. I received no evidence that Dr. Galea understood the nature of Mr. Catt's work and place little weight on this opinion.

Dr. Saplys understood that Mr. Catt was a construction millwright and that his work involved heavy lifting, moving of his shoulder and reaching movements. In his letter of July 15, 1996 he opined that Mr. Catt was disabled from returning to work when he first saw him July 21, 1994. Dr. Saplys would not express an opinion as to whether he was disabled before this date. Dr. Saplys understood the nature of Mr. Catt's work and his injury and in my view, his opinion that Mr. Catt could not work after July 21, 1994 is reliable and I accept it. Mr. Catt has not established that he was disabled from performing the essential tasks of a construction millwright between February 2, 1994 and July 21, 1994. I find therefore that Mr. Catt was disabled from performing the essential tasks of his occupation from July 21, 1994 to June 19, 1995.

Expenses:

The Insurer asked that I reduce expenses payable to the Applicant on the grounds that the Applicant failed to comply with Dispute Resolution Practice Code Rules 30.2 and 36.4 and Practice Note Number 5.

Rule 30.2 provides:

At least 7 days before the pre-hearing conference, each party must:

(a) exchange the documents in the party's possession that the party intends to rely on;

(b) identify any additional documents that the party intends to obtain prior to the hearing;

(c) identify documents that the party requests from any other party; and

(d) establish reasonable time frames for the production and exchange of documents referred to in (b) and (c). [emphasis in original]

Rule 36.4 provides:

If a party intends to introduce documents that have not been filed, the party must file the document and the information required by these Rules and serve a copy on the other parties as soon as possible, but not less than 10 days before the first day of hearing, or on such terms as the adjudicator considers appropriate. [emphasis in original]

Practice Note number 5 encourages parties to participate at the pre-hearing discussion.

The Insurer sent its document brief and a list of document requests to the Applicant on February 15, 1996. A pre-hearing telephone conference call took place on May 27, 1996. The Applicant provided the Insurer with three of its document briefs in June 1996. It did not provide the Insurer with the employment documents until October 15, 1996, seven days before the hearing. The Insurer argued that it was frustrated by lack of timely production.

It appears that the Applicant did not disclose any documents before the pre-hearing conference. However, I heard no submission that the Applicant had documents in his possession which he intended to rely on and which he neglected to produce. In the absence of such information I cannot say that the Applicant failed to comply with Rule 30.2.

The only evidence of late production concerned the employment brief, which was served on the Insurer seven days before the hearing, a medical report of Dr. Murnaghan which was dated four days before the hearing and served on the Insurer that day, a note from Dr. Washburn that Mr. Catt was not to take a welding course because of his neck problems which was given to the Insurer at the hearing and a consulting note from Dr. Saplys to Dr. Galea which was given to the Insurer at the hearing. I heard no explanation why the employment brief was served late. The employment brief contained relevant documents including the names of companies Mr. Catt worked for before and after the accident, and the dates and hours worked. The Insurer did not ask for an adjournment and I do not feel that the Insurer was prejudiced by the late production except to the extent that counsel may have been inconvenienced. I did not find that the other three documents were particularly helpful to the Applicant or that late production was prejudicial to the Insurer. I admitted these documents at the hearing pursuant to my discretion under Rule 36.4.

I agree that the rules lose their meaning if they are not enforced. In these circumstances, where the Applicant produced most of his documents on time but produced some relevant documents three days late without explanation, I find that the Applicant's assessed expenses should be reduced by three hours.

The Insurer also argued that Mr. Catt's failure to participate in the pre-hearing amounted to an abuse of process which should be reflected in the expenses. Mr. Catt's counsel admitted that it was his mistake that Mr. Catt was not involved in the pre-hearing discussion. Parties are encouraged to participate in the pre-hearing discussion because, among other things, participation facilitates settlement. The arbitrator's letter reporting on the pre-hearing discussion in this case indicates that the only participants were the parties' lawyers. I do not know if counsel for the Insurer had full authority to settle or if a representative of the Insurer was available by telephone if needed. Since it appears that both parties failed to comply with the policy to participate in the pre-hearing discussion, I do not think it is appropriate to take the Applicant's failure to participate at the pre-hearing into account in assessing expenses.

Order:

1. Mr. Catt is entitled to weekly income benefits pursuant to section 12 of the Schedule from July 21, 1994 to June 19, 1995.

2. Mr. Catt is entitled to his reasonable expenses of the arbitration, less expenses for three hours at the hourly rate established under the Legal Aid Act for professional services in civil matters before the Ontario Court (General Division).

3. Mr. Catt is entitled to interest on overdue payments in accordance with section 24 of the Schedule.

November 21, 1996

William J. Renahan Arbitrator

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. 2Shelley P. and Royal Insurance Company of Canada (OIC A-002235), February 9, 1994
3. 3P.S. and Toronto Transit Commission (Markel Insurance), (OIC A-001116), May 4, 1994