Neutral Citation: 1996 ONICDRG 213

OIC A-95-000703

ONTARIO INSURANCE COMMISSION

BETWEEN:

Jose Pereira

Applicant

and

State Farm Mutual Automobile Insurance Company

Insurer

DECISION

Issues:

The Applicant, Jose Pereira, was injured in a motor vehicle accident on May 5, 1991. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), for the period May 12, 1991 until May 4, 1994 in the amount of $536.75 per week, payable under Ontario Regulation 672.¹ Mr. Pereira seeks additional weekly income benefits from May 5, 1994 onwards.

The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mr. Pereira entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period from May 5, 1994 onwards?

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

Result:

1. Mr. Pereira is entitled to weekly income benefits in the sum of $536.75 per week from May 5, 1994 onwards, under section 12(5)(b) of the Schedule.

2. Mr. Pereira is entitled to interest at the rate of 2% per month on any weekly income benefits outstanding.

3. Mr. Pereira is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 version.

Hearing:

The hearing was held in Windsor, Ontario, on June 4, 5, and 6, 1996 before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Jose Pereira

Applicant's

Robert Cunningham

Representative:

Barrister and Solicitor

Insurer's

Karol Dycha

Representative:

Barrister and Solicitor

The proceedings were translated by Maria Silva from Omnicon.

Kelly Kemp, articling student, assisted Mr. Dycha. John Courtney attended from State Farm.

Witnesses:

Isabel Prout

Jose Pereira

Mario Pereira

Dr. Armand Benoit

Dr. Garth Annisette

Antonio Teves

Maria Pereira

Dr. Bartol

George Boghean

The evidence of Doug McPherson was presented in writing by Agreed Statement of Facts.

Exhibits:

31 exhibits were filed in this proceeding.

Other Documents before the Arbitrator

Application for Arbitration dated November 23, 1995

Response of Insurer, dated December 22, 1995

Mediation Report dated October 24, 1995

Pre-hearing letter dated February 23, 1996

ENTITLEMENT:

Background:

Mr. Pereira is 62 years old and has a grade three education from Portugal. He came to Canada in 1971. At the time of the accident he was working as a labourer for Budd Heat Treating, where he had worked since 1973. He was also a part-time farmer working for Antonio Teves. Mr. Pereira was an active member of the Portuguese Community. He was treasurer for a Portuguese marching band and was a member in a Portuguese social club. He was heavily involved in church and family activities. Mr. Pereira loved to grow vegetables and fruit trees in his garden, and he also raised rabbits.

The Accident and its Aftermath:

Mr. Pereira was struck by a motor vehicle in the evening of May 5, 1991 while walking in Toronto. His body and ribs smashed into the passenger window of the vehicle and his head struck the pavement. His head and ear were bloodied and he had pain on the right side of his body.

Mr. Pereira was taken by ambulance to the Toronto Western Hospital, where he was treated for a small laceration on the occipital area of his head. Mr. Pereira also complained of pain on the right side of his chest and ribs. X-rays revealed "no definite evidence of rib fracture." Mr. Pereira was released from the hospital to the care of his son and wife in the early morning hours of May 6, 1991.

Mr. Pereira's son drove Mr. Pereira back to his home in the Leamington area, after his release from the Toronto Western Hospital. During the trip home Mr. Pereira required several stops, because of his pain. By the time Mr. Pereira arrived home on May 6, he found it necessary to attend the Leamington District Memorial Hospital ("Leamington Hospital") for his pain.

Mr. Pereira testified that on May 7, 1991, he had difficulty standing due to his pain, and fell, at home. Mrs. Pereira confirmed that her husband could not stop shaking after the accident. She confirmed that she was helping Mr. Pereira walk when he fell. Mrs. Pereira stated that Mr. Pereira's face got dark and he did not appear to be breathing. Mr. Pereira was taken to the Leamington Hospital by ambulance, and sent home later that day.

On May 8, 1991, Mr. Pereira continued to experience severe chest pain, side pain and headaches. He contacted Dr. Ablenas, then his family doctor, who sent Mr. Pereira back to the Leamington Hospital for x-rays. Mr. Pereira was diagnosed with three broken ribs. The x-rays also revealed he suffered from degenerative osteoarthritis and spur encroachment. Mr. Pereira was treated in the hospital for his broken ribs for seven days, and was then released, with pain medication.

Mrs. Pereira testified that after the accident Mr. Pereira complained of pain in his back, head, leg and ear, and he remained in bed for the next month. About two months after the accident, Mr. Pereira experienced pain when twisting. In addition, he started to suffer from blackouts.

Mr. Pereira testified, and Mrs Pereira confirmed, that Mr. Pereira's complaints and pain have continued to the date of the hearing. He continues to complain of middle and low back pain, neck pain, right-sided chest and leg pain, daily headaches, blackouts, dizziness and blurry vision, forgetfulness and general weakness, as well as difficulty hearing with his right ear.

Applicable Law

If Mr. Pereira is to be successful in his claim for weekly income benefits for any period after May 5, 1994, he must establish that his injuries from the motor vehicle accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, as required by section 12(5) of the Schedule.

To meet the burden of proof imposed by the section, an Applicant must first establish his residual impairments caused by the motor vehicle accident. Secondly, he must establish his education, training and experience. After this, an Applicant must prove that his residual injuries from the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited.

I agree with the numerous decisions dealing with the criteria for examining whether proposed employment is suitable. The criteria have been summarized as follows:²

• 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.³

• 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.⁴

• 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.⁵

• 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.⁶

Education, Training and Experience:

Mr. Pereira has a grade three education. Although he is able to speak some simple English, he is unable to read or write in English.

Mr. Pereira has been a labourer or a farmer all of his working life. Prior to coming to Canada Mr. Pereira raised cows and goats in Portugal. In addition, he worked in a sugarcane factory, a sausage factory, did road work, and worked for a tobacco company. In Ontario, Mr. Pereira also worked in many aspects of farming, including operating farm machinery and basic farm management.

At the time of the accident Mr. Pereira was employed as a general labourer for Budd Heat Treating. This company heat treated metal parts. Mr. Pereira's job was to move skids of metal parts by lift truck to a conveyor belt, and then load the parts, each weighing 50 or 60 pounds, onto the conveyor belt, which was three to four feet above the ground. The conveyor belt would move the parts into the furnace to be heat treated. Mr. Pereira then loaded the treated metal parts back onto the empty skids. Mr. Pereira's job required bending and lifting, and he was required to stand during his eight hour shift. Armand Benoit, a co-worker of Mr. Pereira's, confirmed Mr. Pereira's testimony concerning his duties at work.

Did Mr. Pereira's injuries continuously prevent him from engaging in any occupation or employment for which he was reasonably suited by education, training or experience?

Mr. Pereira testified at the hearing. Although he had difficulty remembering the names and tests performed by his treating doctors, I found his testimony credible.

Mr. Pereira testified that a month after the accident he was still experiencing constant pain.

He complained of right-sided pain, including pain in his chest and leg, as well as pain in his back and neck. He also complained of daily headaches and a swishing sound in his right ear, blurry vision, dizziness and blackouts which caused him to fall. Mr. Pereira indicated that he suffered his first blackout two weeks after the accident while driving. He has fallen on several occasions due to dizziness and blackouts. Many of these complaints were listed on his Application for Accident Benefits dated May 14, 1991.

After the accident, Dr. Ablenas, Mr. Pereira's family doctor, sent him to a number of specialists for x-rays and tests, for assistance in diagnosing Mr. Pereira's various problems. A CT scan was performed on June 24, 1991 and an MRI on July 7, 1992. Neither scan showed any abnormality.

In addition, Mr. Pereira saw a number of doctors, both on referral from Dr. Ablenas, and from the Insurer. These doctors included Dr. Oleksiuk, an ear, nose, and throat specialist, Dr. Chakravathi, a neurosurgeon, Dr. Rajkuma and Dr. Strban, respirologists, and Dr. Desai, a neurologist. None of these doctors have found objective physiological reasons for Mr. Pereira's pain and many of his ongoing complaints.

Nevertheless, there was sufficient medical evidence of Mr. Pereira's head injury, headaches, cervical pain and chronic disabling pain to satisfy me, on a balance of probabilities, that his injuries from the car accident, continuously prevent him from engaging in any occupation or employment for which he was reasonably suited by education, training and experience. I summarize the evidence as follows:

On August 26, 1991 Mr. Pereira saw Dr.T.N. Ayers, a neurosurgeon, who reported that Mr. Pereira might have a basal skull fracture.⁷

The Insurer sent Mr. Pereira to Dr. R.A. Haliburton, an orthopaedic consultant, on February 19, 1992. Mr. Pereira's main complaints at this time were daily headaches, chest pain and some low back pain. Dr. Haliburton confirmed that Mr. Pereira was still suffering from disabling post concussion headaches at this time, although he noted that from an orthopaedic standpoint he appeared capable of returning to his previous employment.

Dr. Ablenas' reports together with the OHIP Summary show that from October 13, 1992 until December 20, 1994 Mr. Pereira attended at his office at least 100 times. Dr. Ablenas confirmed in his report dated July 2, 1992, that Mr. Pereira suffered a concussion in the accident, as well as a laceration on the back of his head, a sprained neck, a contusion of the right scapula, fractured right second, third and fourth ribs and haemothorax.⁸ He confirmed that Mr. Pereira was complaining of headaches, dizziness, loss of hearing, forgetfulness, poor orientation, cough and weakness and pain in his back, chest, neck and leg. He diagnosed Mr. Pereira with post-concussion syndrome. Dr. Ablenas confirmed that as of February 13, 1996 Mr. Pereira showed no improvement.

Mr. Pereira started seeing Dr. Caroline D. Staddon, a chiropractor, in December 1992. He saw her several times per month until 1996. Dr. Staddon confirmed Dr. Ablenas'diagnosis that Mr. Pereira was suffering from post-concussion syndrome. In her detailed report of February 21, 1996⁹ she noted that Mr. Pereira's numerous complaints and symptoms, including dizziness, have continued during the three years she has been involved in his treatment.

Dr. Staddon noted that Mr. Pereira had become dizzy and fell on several occasions throughout 1993 and 1994. Dr. Staddon conducted comprehensive neuromusculoskeletal examinations on Mr. Pereira on January 21 and 26, 1993 which found that Mr. Pereira was progressing unfavorably.

Mr. Pereira continued with Dr. D. Carswell as his family doctor from January 1995. Dr. Carswell found that Mr. Pereira was depressed, moved with great difficulty and needed a cane. He noted diffuse tenderness in Mr. Pereira's lumbar spine, especially on his right side. He stated that on January 30, 1996 Mr. Pereira's condition was not good. He was chronically depressed, had limited strength and needed his wife to help him with his activities of daily living. He diagnosed multiple soft tissue injuries secondary to the motor vehicle accident. He stated that Mr. Pereira suffers particularly from chronic sprain of his neck, right shoulder, chest and lower back, complicated by right leg weakness. He concluded that Mr. Pereira's pain "will continue to be ongoing and chronic." He continues at page three of his report:

It seems quite clear that his total disability also will continue indefin[i]tely.

Mr. Pereira's pain and level of disability appear to me to be genuine and physically based. He is direct and forthright...Further, I expect that such a disability will continue indefinitely, such that he will not be able to take up any work or employment whatsoever.¹⁰

Dr. Ablenas, Dr. Staddon and Dr. Carswell were Mr. Pereira's primary treatment providers for several years and are the three doctors who best knew Mr. Pereira. Accordingly, I prefer their evidence where it differs from the other medical evidence before me at the hearing.

In addition to the evidence of his treatment providers that Mr. Pereira is suffering from post-concussion syndrome, there is an abundance of evidence which supports the view that Mr. Pereira is suffering from chronic pain.

The Insurer sent Mr. Pereira to see Dr. S.W. Bartol, an orthopaedic surgeon, on June 7, 1993, and May 31, 1994. Mr. Pereira's counsel sent him to Dr. G.M. Annisette, an orthopaedic surgeon, on May 9, 1996. Despite some of the differences in their opinions, it is clear that they agree on Mr. Pereira's pain focus.

Dr. Bartol indicated in his report of June 7, 1993, that Mr. Pereira complained of pain in the lumbar spine with radiation into the right buttock and right posterior thigh. He noted extreme tenderness to superficial touch and pain with deep palpation over the lumbar spine. Tenderness was also diffuse throughout the cervical spine especially on the right side.

Dr. Bartol noted that Mr. Pereira appeared frail and looked about ten years older than his stated age. He exhibited somewhat exaggerated difficulty with gestures and movements. He testified that Mr. Pereira could move his arms and legs only with extreme effort and pain, not in keeping with his injuries. He also noted extreme restriction of movement and pain in Mr. Pereira's right shoulder, but was unable to localize specific point tenderness. He opined that Mr. Pereira's neck and shoulder pain was largely created by an aggravation of Mr. Pereira's pre-existing cervical disc disease.

Mr. Pereira saw Dr. Bartol again on May 31, 1994. At this time Mr. Pereira continued to complain of problems and pain with his right ear, decreased hearing and headaches. He also complained of pain and restriction in moving his neck, pain in his thoracic and lumbar spine, blackouts and right-sided numbness. He was now walking with a cane and had a limp of the right leg, and confirmed that Mr. Pereira's non-physiological complaints had worsened since his last examination. He also confirmed that Mr. Pereira was functioning at a low level. Dr. Bartol opined that Mr. Pereira exhibited exaggerated facial and verbal response to his examination as well as demonstrating extreme pain magnification behaviour.

In his testimony Dr. Bartol indicated that he did not believe Mr. Pereira was malingering. He felt that a non-physical cause was influencing Mr. Pereira, but he could not conclude on the basis of the examinations what non-organic factor was at play.

Dr. Bartol dealt with Mr. Pereira's ability to work in his report of June 3, 1994. He states as follows:

The cervical spine problem leaves this gentleman with a disability in as much as [he] would have difficulty with jobs that required repetitive side to side movements of the neck or repetitive looking upwards particularly in association with upward reaching or lifting above the shoulder level. Appropriate restrictions therefore should include avoidance of working above shoulder level, avoidance of repetitive side to side head turning and avoidance of heavy lifting.

Dr. Bartol attributed Mr. Pereira's inability to perform the duties of his job as a general labourer, to general de-conditioning, and not to the car accident. I do not accept this view. Clearly, Mr. Pereira was in a good condition prior to the motor vehicle accident. He worked as a general labourer and lifted and carried as part of his work related duties. He also farmed and gardened. Accordingly, I find that any de-conditioning from which Mr. Pereira suffered, resulted from the accident.

Mr. Pereira saw Dr. Annisette on May 9, 1996. Dr. Annisette's report indicated that Mr. Pereira's complained of pain which completely interfered with his daily routine and his activities of daily living. He was unable to do activities at home and his wife attended to many of his personal care needs. He confirmed that at their meeting, Mr. Pereira required the assistance of his relatives getting from a sitting to a standing position, and then onto the examining table.

Dr. Annisette agreed with Dr. Bartol that Mr. Pereira was extremely de-conditioned, with poor muscle tone. He noted that Mr. Pereira suffered from widespread spine and low back tenderness, and pain on the right side of his body over his ribs. He had ten percent of normal neck extension. He was unable to flex forward to his knees. Dr. Annisette states on page seven of his report:¹¹

In my opinion, this man's complaints with reference to his neck, low back, chest, black outs and ear problems stem from the motor vehicle accident. The degenerative changes which are visible in his cervical and lumbosacral spine clearly pre-date the accident but based on review of his past history, these areas were not significantly symptomatic prior to the accident and obviously have been flared up as a result of the accident.

He went on to state that Mr. Pereira injured his neck when he was struck by the motor vehicle. He indicated that if the force to Mr. Pereira's chest was sufficient to fracture three ribs, then it is easy to see how he may now have chronic musculoskeletal pain emanating from this area.

In considering Mr. Pereira's level of disability he opined that "it is unlikely that with this gentleman's degree of chronic pain syndrome, obvious body de-conditioning that has occurred as a result of the motor vehicle accident, that he will be fit for any form of gainful employment."

Dr. Annisette referred to a Vocational Assessment performed by George Boghean, a rehabilitation consultant, and stated as follows on page eight of his report:

I agree totally with Mr. Boghean's assessment that it is unlikely that any employer will hire a 61 year old gentleman, where English is a second language and has had significant features of chronic pain syndrome and expect that this gentleman will be able to function in today's environment, particularly in a light duty job, which may well require a degree of cognitive skills which Mr. Pereira has been clearly shown not to possess, based on the assessment of Mr. Boghe[a]n on April 24, 1996. It is obvious that this gentleman now is permanently disabled and can continue to expect significant decrease in his ability to carry on with daily activities and in elements of his life style, I do not think he is capable of working.

Mr. Pereira testified that his back and leg pain have increased over time. He has difficulty standing and walking due to stiffness. About a year after the accident he started using a cane to walk. He has difficulties sitting or standing too long due to the pain in his back, and neck. He is unable to negotiate the stairs down to the family room and shower in his home. He cannot bend or twist to the right, which creates problems for him in lifting, washing his hair or putting on his socks. Accordingly, Mr. Pereira's wife assists him with these chores. This evidence was confirmed by Mr. Pereira's daughter Isabel Prout, and his wife.

Mr. Pereira testified that he is unable to continue in his prior activities at the Portuguese club or with the band, and has been unable to socialize with his family and friends as he had before. He is no longer able to tend to his garden, fruit trees or rabbits or do other outside chores.

Mrs. Pereira confirmed that her husband's complaints and pain continue. In addition, she testified that her husband's personality has changed. He cries and claims that he is not worth anything.

She noted that he is always in pain, he does not care about anything, and does best while in bed or in his chair. She confirmed that her husband no longer socializes with his grandchildren nor does he participate in his activities outside his home.

Mr. Benoit, a co-worker of Mr. Pereira's, confirmed that he has had occasions to see Mr. Pereira since the accident. He confirmed that Mr. Pereira was not in good health, he had pain in his back, and legs and walked with a cane. He confirmed that Mr. Pereira was unable to stand or sit for any length of time and complained of dizziness.

Mr. Anthony Teves, Mr. Pereira's friend and former employer, testified that since the accident Mr. Pereira has not been the same. He testified that Mr. Pereira has been unable to sit, stand or walk normally. He noted that Mr. Pereira appeared to be a hurt man, and that he had noticed a big change in Mr. Pereira's abilities since 1992. He testified that he would not hire Mr. Pereira in his present condition.

Isabel Prout confirmed that her father has difficulty standing for more than 15 minutes without getting exhausted. He is unable to walk any distance, and requires the use of a cane. He also has difficulty sitting, as well as twisting to the right. Mr. Pereira is unable to do his gardening, and he is unable to drive due to his blackouts. Ms. Prout confirmed that she has seen her father black out on one occasion. Ms. Prout stated that her father suffers from steady headaches, and his personality has changed.

It is well settled that pain and suffering resulting from injuries sustained in an automobile accident are not per se compensable unless the experience of pain causes an insured to be substantially disabled within the meaning of the section.

In the present case, I am satisfied that Mr. Pereira is a straightforward, credible witness. I am satisfied that his pain is genuine and beyond his conscious control, and that his physical limitations result from the motor vehicle accident. There was no suggestion of malingering in the evidence. Although it was suggested that Mr. Pereira's pain behaviour was magnified there was no suggestion that his pain itself was not genuine or that he was deliberately exaggerating his pain. I am not persuaded that this aspect of Mr. Pereira's behaviour is under his conscious control. I am satisfied that Mr. Pereira did not fabricate his evidence with respect to the issue of his pain or his ability to function.

The evidence was not clear whether Mr. Pereira's chronic pain was rooted in physiological, psychological or behavioural conditions. However, this is not fatal to Mr. Pereira's claim. I rely on the case of Edwards¹² in reaching this conclusion. In that case also, the arbitrator was unable to determine whether Mrs. Edwards' chronic pain was rooted in physiological, psychological or behavioural conditions or some combination thereof. However, the arbitrator stated that in her view it was not necessary to determine the precise contribution of each of these factors to the Applicant's chronic pain condition, as she found the Applicant was a credible witness, and that in large part her pain was genuine, and her resulting behaviour was essentially beyond her conscious control.

In all the circumstances, I find that Mr. Pereira continues to suffer from post-concussion syndrome and chronic disabling pain on the right side of his chest and leg, pain in his back and neck, and daily headaches. I find that he is unable to perform many of his personal care and mobility activities without total disabling pain.

Mr. Pereira is 62 years of age and has a grade three education.He speaks limited English and cannot read or write English. He has been employed solely in manual labour and farming. In my view, Mr. Pereira's lack of education, his poor English language skills, his age, and his present injuries would severely limit him in any field other than manual labour and farming. I find that the level of Mr. Pereira's pain and post-concussion syndrome do not allow him to presently work in the fields of manual labour or farming.

The Insurer suggested a number of jobs that it felt Mr. Pereira could perform.

It commissioned a Computerized Transferable Skills Analysis on Mr. Pereira by Crawford & Company Healthcare Management ("Crawford"), which was prepared on March 15, 1994.¹³ The report noted amongst other things that Mr. Pereira suffered a major loss of lumbar range of motion and had very poor trunk strength and endurance. He had a standing tolerance of about ten minutes and walking tolerance of five minutes. The report proposed a number of alternative job matches for Mr. Pereira.

I find that this report has limited value, as it was completed over two years prior to the hearing of this matter. Mr. Pereira's physical condition has seriously deteriorated and his pain has increased since 1994. Moreover, no evidence was called to explain the codes next to the various jobs, or their suitability for Mr. Pereira. I heard no evidence with respect to the nature, status or remuneration of these jobs in relation to the job that Mr. Pereira was performing at the time of the accident.

The Insurer also asked Dr. Bartol to testify as to the suitability of these various jobs noted by Crawford. For the reasons stated above, Dr. Bartol's comments were not helpful.

George Boghean testified at the hearing. He prepared a vocational assessment of Mr. Pereira dated April 24, 1996 after meeting with Mr. Pereira on April 22, 1996. I place more weight on this vocational assessment than on the Insurer's assessment as it is more current.

Mr. Boghean testified that at the time of his assessment Mr. Pereira had significant difficulty walking even with the assistance of a cane. He also noted that Mr. Pereira required assistance in achieving standing and sitting postures. During the course of the evaluation Mr. Boghean observed pain behaviour while Mr. Pereira was seated. Discomfort of the arms and lower back as well as laboured breathing were also evident.

Mr. Boghean found Mr. Pereira's upper extremity and gross body movement to be limited. He observed that Mr. Pereira's academic functioning was well below that of the general population and noted further that at his age it is unlikely that academic upgrading will be of any vocational significance to him. He indicated that Mr. Pereira has very few transferable skills that would qualify him for more sedentary forms of employment. He concluded by noting that he "can think of no occupations that would be within his cognitive/perceptual or physical capacity to perform," and that, in all the circumstances, Mr. Pereira's potential to re-enter the competitive work force was quite slim.

I accept this view, and accordingly, I find in all the circumstances that there is no occupation or employment for which Mr. Pereira is reasonably suited by reason of his education, training or experience.

The Insurer has submitted that Mr. Pereira is not motivated to return to work as Budd Heat Treating is no longer in existence. I do not accept this submission. On the contrary, the evidence showed that Mr. Pereira was a highly motivated individual prior to the accident. Mr. Benoit confirmed that Mr. Pereira was job-conscious and was proud of his work. Mr. Pereira's strong work ethic was reiterated by Mr. Antonio Teves, the farmer for whom Mr. Pereira worked on weekends. Doug McPherson, the supervisor of Budd Heat Treating, also confirmed that Mr. Pereira was a good and reliable worker. Accordingly, I do not find lack of motivation to be a factor in this case.

Did Mr. Pereira suffer his injuries as a result of the accident or some other cause?

State Farm submits that Mr. Pereira suffered from a number of pre-existing medical conditions which are the cause of Mr. Pereira's present complaints. It submits that Mr. Pereira suffered from emphysema and chest pain, degenerative arthritis in his spine, and that he hurt his back in work-related accidents. In addition, it submits that his blackouts did not result from the accident but from some other cause. State Farm suggests in addition, that subsequent to the accident Mr. Pereira broke three ribs in a fall in his home. It submits that these complaints, and not the injuries sustained in the accident, continuously prevent Mr. Pereira from engaging in any occupation or employment for which he is reasonably suited. I do not accept these submissions.

a) Back Pain and Degenerative Arthritis in Spine

Counsel for the Insurer filed the clinical notes and records of Dr. Ablenas from March 1987 onwards.¹⁴ These notes were largely illegible. Nevertheless, both counsel agreed that the relevant portions of the notes documented that Mr. Pereira suffered from limited pain in his lumbar region and had occasional backaches and headaches prior to the motor vehicle accident.

Mr. Pereira testified before the accident he had injured his back in work-related accidents. He testified that he received worker's compensation for two to three weeks on each occasion but always went back to work after these accidents, despite the fact that from time to time he had pain. This was confirmed by the witnesses at the hearing.¹⁵

Although there was evidence that Mr. Pereira was working fewer hours for the two weeks just prior to the accident, Mr. Pereira's uncontradicted testimony was that this was due to a work slowdown, and not due to any medical problems.

In my view, despite the fact that Mr. Pereira might have been suffering from some intermittent back pain and had degenerative arthritis at the time of the accident, his complaints were not disabling .

b) Ribs, Chest Pain and Emphysema

The Insurer also submitted that Mr. Pereira's ribs were not broken in the motor vehicle accident but as a result of his fall on May 7, 1991. I do not accept this submission. The x-rays taken on May 7, 1991 after the fall did not show that Mr. Pereira's ribs were broken, just as the x-rays taken after the accident did not show his ribs were broken.

I heard considerable medical evidence on the issue of whether Mr. Pereira broke his ribs in the accident or in the fall. Dr. Anisette testified that he believed Mr. Pereira broke his ribs in the accident. Dr. Bartol disagreed and suggested that Mr. Pereira broke his ribs in the fall in his home. I find that Mr. Pereira broke his ribs in the accident for the following reasons.

The evidence is that the motor vehicle struck Mr. Pereira with such force as to throw him onto the pavement. He immediately complained of chest pain, which has been ongoing from the time of the accident. In fact the pain was so severe that Mr. Pereira went to the hospital complaining of this problem on three different occasions.

He went to Leamington Hospital on the way home from Toronto on May 6, 1991. He continued to experience chest pain when he attended at the hospital on May 7, 1991 after his fall at home. The x-rays taken on both occasions were negative. It was only after Mr. Pereira went to the hospital on May 8, 1991 again complaining of chest pain, that the x-rays showed that he had three broken ribs.

I heard no evidence as to the severity of the fall that would lead me to believe that Mr. Pereira's broken ribs resulted from the fall rather than the accident.

The fact that the x-rays showed no fracture immediately after the motor vehicle accident and after the fall, supports Dr. Anisette's opinion that Mr. Pereira's ribs were fractured in the motor vehicle accident, but not displaced until later. Accordingly, I find it more probable than not that Mr. Pereira's ribs were fractured in the motor vehicle accident. I accept Dr. Annisette's opinion that Mr. Pereira's chronic pain in his chest area was caused by the force of the vehicle against Mr. Pereira's chest.

In addition, there was no evidence that Mr. Pereira's emphysema was such that he was unable to work prior to the accident. Furthermore, I heard no evidence that Mr. Pereira's emphysema played a role in his inability to work post-accident.

c) Blackouts

The Insurer submits that Mr. Pereira's blackouts were not due to the accident, but due to some other cause. Mr. Pereira indicated that he suffered his first blackout two weeks after the accident, while driving. No conclusive medical evidence was presented at the hearing to explain why Mr. Pereira was suffering from blackouts.

Although Mr. Pereira did not suffer from blackouts before the accident, it does not necessarily follow that the blackouts he suffered post-accident resulted from the accident. I am not satisfied on a balance of probabilities that Mr. Pereira's blackouts resulted from the accident. However, this finding has no bearing on my final determination of this matter, as I have not found that this particular disability in itself continuously prevents Mr. Pereira from engaging in any occupation or employment for which he is reasonably suited.

Conclusions:

In all the circumstances, I find that Mr. Pereira's chronic pain and post-concussion syndrome continuously prevent him from engaging in any occupation or employment for which he is reasonably suited, by reason of his education, training or experience.

The parties did not dispute the issue of quantum of benefit. Counsel confirmed that Mr. Pereira had been receiving $536.75 per week as weekly income benefits during the period May 12, 1991 until May 4, 1994.

Accordingly, Mr. Pereira is entitled to weekly income benefits in the sum of $536.75 per week from May 5, 1994 onwards under section 12(5)(b) of the Schedule.

Expenses:

Mr. Pereira seeks an award of the expenses he has incurred in this arbitration. Under section 282(11) of Insurance Act, an arbitrator may exercise discretion in awarding expenses. It has been held that it is appropriate to award an applicant his or her expenses unless it is established that the application for arbitration was "manifestly frivolous or vexatious, or that Mr. Pereira's conduct unreasonably prolonged the proceedings."¹⁶

I choose to exercise my discretion in this case and find that Mr. Pereira is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 version. If the parties cannot agree on the total amount of expenses, they may apply to the Commission to have the expenses assessed.

Order:

1. State Farm shall pay Mr. Pereira weekly income benefits in the sum of $536.75 per week from May 5, 1994 onwards under section 12(5)(b) of the Schedule.

2. State Farm shall pay Mr. Pereira interest at the rate of 2% per month on any weekly income benefits outstanding pursuant to section 24(4) of the Schedule.

3. State Farm shall pay Mr. Pereira his expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 version.

December 23, 1996

Fern Kirsch 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. 2Caruso and Guarantee Company of North America (May 9, 1996), OIC A-006856.
3. 3Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995), OIC A-005714.
4. 4Spicer and State Farm Mutual Automobile Insurance Company (May 24, 1995), OIC A-010158.
5. 5Rodway and Royal Insurance Company of Canada (June 12, 1995), OIC A-007593.
6. 6Mills and Canadian General Insurance Company (July 6, 1995), OIC A-005599 and Reid and Continental, (July 27, 1995), OIC A-006022.
7. 7Exhibit 11
8. 8Exhibit 9
9. 9Exhibit 25
10. 10Exhibit 24
11. 11Exhibit 16
12. 12Edwards and State Farm Mutual Automobile Insurance Company (July 12, 1993), OIC A-001707 (appeal pending).
13. 13Exhibit 19
14. 14Exhibit 9.
15. 15Doug McPherson and Armand Benoit confirmed that Mr. Pereira was able to do his work at Budd Heat Treating. In addition, Mr. Antonio Teves, testified that Mr. Pereira was able to work 10 to 12 hours a day for him on Saturdays and Sundays at his farm prior to the accident, planting and hoeing the vegetables, which entailed bending, picking and lifting.
16. 16McCormick and Economical Mutual Insurance Company (October 2, 1991), OIC A-000139.