Neutral Citation: 1996 ONICDRG 203

OIC A95-000122

ONTARIO INSURANCE COMMISSION

BETWEEN:

PARAYOLICAL THOMAS

Applicant

and

MOTORS INSURANCE CORPORATION

Insurer

DECISION

Issues:

The Applicant, Parayolical Thomas, was injured in a motor vehicle accident on May 4, 1993. He applied for and received statutory accident benefits from Motors Insurance Corporation ("Motors"), payable under Ontario Regulation 672.¹ Mr. Thomas claimed weekly income benefits after Motors terminated payments on October 1, 1994. The parties were unable to resolve their dispute through mediation and Mr. Thomas 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. Thomas entitled to weekly income benefits after October 1, 1994?

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

Result:

1. Mr. Thomas is not entitled to further weekly income benefits.

Hearing:

The hearing was held in Windsor, Ontario, on January 15, 16, 1996, with submissions by telephone on February 21, 1996.

Present at the Hearing:

Applicant:

Parayolical Thomas

Mr. Thomas's

Richard A. Dinham

Representative:

Barrister and Solicitor

Motors's

James J. Mays

Representative:

Barrister and Solicitor

Motors's Officer:

Charlie W. Hastings

Witnesses:

Parayolical Thomas-Applicant

Ron Roy-Supervisor

Dr. Kim Chung-family physician

Dr. George Koppert-orthopaedic surgeon William Doyle-claims representative

Exhibits:

The parties filed nineteen exhibits.

Evidence and Findings:

Mr. Thomas is 53 years old, married with two children. Since his arrival in Canada, Mr. Thomas worked at various factory jobs in Windsor. Before the accident, Mr. Thomas had the equivalent of a grade 12 education and a two-year degree as a machinist. Shortly before the May 4, 1993 accident, Mr. Thomas was laid off as a machinist at Complax Corporation ("Complax"), a manufacturer of auto parts.

Mr. Thomas sustained soft tissue neck and back injuries when his car was rear-ended in the accident. He maintains that as a result of his injuries, he is entitled to continuing weekly income benefits under section 12 of the Statutory Accident Benefits Schedule.

During the first three years of a claim for weekly income benefits under section 12 of the Schedule, this benefit is available to insureds for the time the person suffers a substantial inability to perform the essential tasks of their pre-accident job. Motors argues that Mr. Thomas could have returned to work at Complax after the October 1, 1994, the date the company terminated payment of weekly income benefits.

Job Description

Mr. Thomas had been steadily working at Complax Corporation for almost four years before the accident. Between July 1989 and March 1993, Mr. Thomas made automobile bumpers and trunk lids at Complax. Employees rotated through six different operations in the factory: molder, finisher, inspector, assembler, mold setup and drying. Throughout these operations, Mr. Thomas lifted and maneuvered the plastic and metal pieces, which weighed between 10 and 30 pounds, from the racks and trays onto the machines or along the assembly line. The work was continuous and required moderate strength and dexterity.

In March 1993, just weeks before the accident, Mr. Thomas was laid off by Complax. He was not recalled either before or after the accident.

Pre-Accident Medical Condition

Mr. Thomas had back and neck pain before the accident, as well as a persistent right knee problem. His family physician, Dr. Chung, testified that Mr. Thomas consulted him in 1983 concerning his back pain. In 1984, Mr. Thomas again complained of back pain from his job. During the first five months of 1987, Mr. Thomas complained to Dr. Chung of strained back muscles.

Mr. Thomas sustained a whiplash and right knee injury in a May 1989 car accident. Dr. Chung's clinical notes indicate that Mr. Thomas' pain was confined to the right side of his low back, right neck, right shoulder, along with periodic headaches and nagging pain in his right knee.

Mr. Thomas' headaches decreased over time. His right-sided back and neck complaints subsided and then flared up again in June 1992. From June 1992 until the 1993 accident, Dr. Chung's notes do not indicate that he saw Mr. Thomas for back or neck problems.

While Mr. Thomas' whiplash symptoms subsided, right knee problems remained. Dr. Chung's notes show that during the entire period between the 1989 accident and the 1993 accident, Mr. Thomas' right knee was symptomatic. In 1991 arthroscopic surgery was performed on Mr. Thomas' right knee to alleviate the pain. Despite the surgery, Dr. Chung's clinical notes in 1992 and 1993 indicate that Mr. Thomas had poor knee flexion and continued knee joint pain. Mr. Thomas also slipped and fell several times while walking and climbing stairs when his knee gave out. As a consequence of the swelling and pain in his right knee, Mr. Thomas was still seeing his family physician quite regularly during the months before the 1993 accident.

Dr. George Koppert, an orthopaedic surgeon, examined Mr. Thomas in December 1992, about five months before the May 1993 accident. He diagnosed that Mr. Thomas suffered chronic mild intermittent low back pain as a result of the 1989 accident, although Mr. Thomas told Dr. Koppert that he had not experienced back pain for several months before the examination. Dr. Koppert did not recommend further treatment. He was skeptical whether the 1989 accident caused Mr. Thomas' knee injury.

Mr. Thomas had been working at Complax throughtout the period between the July 1989 accident and his layoff. This evidence indicates to me that Mr. Thomas' periodic back pain and right knee problem were not sufficiently debilitating to prevent his standing eight hours a day at a machine or working on the assembly line at Complax. On the basis of Dr. Chung's notes and Dr. Koppert's evidence, I find that at the time of the May 1993 accident Mr. Thomas' back and neck were asymptomatic, and that his right knee was painful, stiff and periodically weak.

Post-Accident Medical Condition

Mr. Thomas visited Dr. Chung immediately after the May 1993 accident. Dr. Chung's clinical notes immediately after the accident indicate complaints of left-sided back and neck pain, with aggravation of Mr. Thomas' pre-existing right knee injury.

Dr. Chung testified from his notes and records, and had no independent recall of particulars. He initially prescribed anti-inflammatory medication for Mr. Thomas and referred him for physiotherapy treatment. Following weeks of unsuccessful physiotherapy, Dr. Chung referred Mr. Thomas to Dr. Durnin, a specialist in rehabilitation and physical medicine. At his initial examination in August 1993, Dr. Durnin found marked bilateral paraspinal muscle spasms, with some referred pain into the neck, shoulder and upper back. The x-rays indicated degenerative changes in the lumbar and thoracic discs of the low back, but no disc herniation. Dr. Durnin prescribed exercises and medication. Traction and another short regime of physiotherapy were unsuccessful. Dr. Durnin's supervision and treatment of Mr. Thomas ended abruptly after two months.

Dr. Chung's notes show that while Mr. Thomas' neck pain began to subside in November 1993, his low back pain had not improved. On January 13, 1994, Dr. Chung wrote that Mr. Thomas continued to experience low back pain, but that he had found a job that entailed no lifting or bending.

Between January 17, 1994 and February 25, 1994 Mr. Thomas worked as a machine operator at Kendan Manufacturing Company. In his evidence, Mr. Thomas said that his accident injuries caused his poor job performance, and lay off from Kendan after six weeks on the job. However, the records from Kendan state that Mr. Thomas lacked experience and could not operate a Kingsbury machine, one of the job requirements. At the hearing, Mr. Thomas' supervisor at Complax (the pre-accident employer), could not recall if Mr. Thomas had ever used a Kingsbury machine. The evidence from Kendan and Complax convinces me that Mr. Thomas did not have the required experience using a Kingsbury machine. I find that Mr. Thomas' accident injuries were not the cause of his lay off from Kendan.

I am also persuaded by the fact that Mr. Thomas did not seek medical attention for his back/neck condition during his employment with Kendan. Dr. Chung's notes do not show any visits from Mr. Thomas during the six weeks. On February 28, 1994, just three days after leaving Kendan, Mr. Thomas saw Dr. Chung and complained that he had been bending during his work at Kendan. Mr. Thomas said that the low back pain had become constant. According to Dr. Chung, Mr. Thomas resumed looking for work.

In September 1994, Mr. Thomas began a course in electrical repairs at St. Clair College. He completed this 38-week course during the latter part of 1994 and the first half of 1995. Shortly before his studies commenced at St. Clair College, Mr. Thomas was examined by Dr. Koppert, at Motors' request. Mr. Thomas described pain running down the entire left side of his back, from the shoulder to the buttock. Sneezing, twisting, lifting or bending aggravated the pain, according to Mr. Thomas. During Mr. Thomas' examination by Dr. Koppert, he denied pain on the right side of his back.

Dr. Koppert found Mr. Thomas' physical condition unremarkable, without any evidence of an organic problem which would explain his pain behaviour. Dr. Koppert found some discrepancies in the physical tests of Mr. Thomas' abilities, and concluded that he was exaggerating the pain of his soft tissue injury. Dr. Koppert suggested that Mr. Thomas might benefit from an active exercise program, but essentially found that he was otherwise fit to resume factory work as a machine operator. Motors terminated Mr. Thomas' weekly disability payments based upon Dr. Koppert's opinion.

Mr. Thomas reported to Dr. Koppert that his pain level had not changed during the six months preceding the examination. Interestingly, Mr. Thomas worked at Kendan for six weeks during that period. Moreover, it is clear that while Mr. Thomas was working at Kendan, he did not seek medical attention from either his family doctor or any other health practitioner. Dr. Koppert opined that if Mr. Thomas was able to endure the full-time work at Kendan, without any medical attention, he was probably able to resume similar work. I accept this opinion.

Mr. Thomas admitted that he was able to stand and work full-time at Kendan. He was bending to lift products and run them through the milling machines. Mr. Thomas' claim of low productivity at Kendan was not born out by his employment records, and I cannot accept his assertion on this point.

Based upon Mr. Thomas' complaints, as recorded in Dr. Chung's notes for the remainder of 1994, I can accept that he suffered some continuing back, shoulder and knee discomfort. However, as has been oft-stated in this forum, pain and suffering does not per se result in eligibility for weekly income benefits, unless the pain and suffering results in a substantial inability to perform essential tasks.² And it is trite law that it is Mr. Thomas' burden to prove, on a balance of probabilities, that he suffers the requisite disability in order to qualify for weekly income benefits.

Considering Mr. Thomas' post-accident work at Kendan, together with Dr. Koppert's findings and Dr. Chung's notes, I am not satisfied that Mr. Thomas has proven, on balance, that he suffered a substantial inability to perform the essential tasks of his machinist job after the October 1, 1994 termination date. Thus, I find that Mr. Thomas is not eligible for further weekly income benefits.

Expenses:

Albeit unsuccessful, Mr. Thomas' claim had merit and was presented in good faith. The evidence and arguments were well organized and expeditiously handled by his counsel. I therefore exercise my discretion to grant Mr. Thomas his expenses of the arbitration process in accordance with the Dispute Resolution Practice Code.

Order:

1. Mr. Thomas is entitled to his expenses incurred in respect of the arbitration.

December 5, 1996

Fred Sampliner 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. 2Downs and Allstate (July 18, 1991), OIC A-000064