Neutral Citation: 1996 ONICDRG 214

OIC A96-000069

BETWEEN:

DALE C. WEATHERHEAD

Applicant

AND

JEVCO INSURANCE COMPANY

Insurer

DECISION

The Applicant, Dale C. Weatherhead, was injured in a motor vehicle accident on October 13, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Jevco Insurance Company ("Jevco") paid Mr. Weatherhead weekly income benefits of $564.56 per week. These benefits were terminated by the Insurer on May 8, 1994. Mr. Weatherhead seeks reinstatement of his weekly income benefits for the period from May 9, 1994 until November 1, 1994. In addition, he seeks a special award pursuant to section 282 (10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Jevco seeks a determination of whether $1,600.00 income earned by Mr. Weatherhead after May 8, 1994 should be set-off or repaid to Jevco in accordance with section 15 of the Schedule. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

Is Mr. Weatherhead entitled to weekly income benefits pursuant to section 12(1) of the Schedule from May 9, 1994 until November 1, 1994?
Is Mr. Weatherhead entitled to a special award pursuant to section 282(10) of the Insurance Act?
Is Jevco entitled to a set-off or repayment of $1,600.00 for post-accident income earned by Mr. Weatherhead after May 8, 1994?

Mr. Weatherhead seeks interest on any benefits owing and his expenses of this proceeding.

Mr. Weatherhead is not entitled to weekly income benefits for the period May 9, 1994 until November 1, 1994, pursuant to section 12(1) of the Schedule .
Mr. Weatherhead is not entitled to a special award pursuant to section 282(10) of the Insurance Act.
Jevco's claim for set-off or repayment of $1,600.00 income earned after May 8, 1994 is dismissed.
Mr. Weatherhead is entitled to his expenses of this proceeding.

The hearing was held in Kitchener, Ontario, on August 26, and 27, 1996, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Dale C. Weatherhead

Applicant's Representative:

Alexander R. McIntyre Barrister and Solicitor

Insurer's Representative:

David José Barrister and Solicitor

Witnesses:

Dale C. Weatherhead

Exhibits:

16 Exhibits were filed in this proceeding.

Arbitration Decisions Referred to by the Parties:

Beiler and. Alpina Insurance Company Limited (February 22, 1994), OIC A-003051

Boone and State Farm Insurance Companies (July 17, 1992), OIC A-000790

Climie and Wellington Insurance Company (October 17, 1994), OIC A-007443

Coombe v. Constitution Insurance Company [1980] I.L.R., p. 1060

Cramer v. Ocean Accident Guarantee Corporation, Limited, [1941] 9 I.L.R., p. 453

Donohue and State Farm Mutual Automobile Insurance Company (August 31, 1994), OIC A-006756

Erickson and. The Guarantee Company of North America (July 16, 1992), OIC A-000560

Power and Allstate Insurance Company (March 12, 1992), OIC A-000322

Singh and Wellington Insurance Company (June 24, 1994), OIC A-004139

Background:

Mr. Weatherhead is 34 years old. At the time of the accident on October 13, 1992, he was working for Bell Canada as a manual labourer, digging ditches on a subcontract basis. In addition, Mr. Weatherhead owned his own auto mechanic company known as D.W.I. General Repairs ("D.W.I.").

Jevco paid Mr. Weatherhead weekly income benefits pursuant to section 12(1) of the Schedule until May 8, 1994, in the amount of $564.56 per week. Mr. Weatherhead seeks reinstatement of his weekly income benefits for the period from May 9, 1994 until November 1, 1994. In addition, he seeks a special award pursuant to section 282 (10) of the Insurance Act. Jevco seeks a determination of whether self-employment income of $1,600.00 earned by Mr.

Weatherhead after May 8, 1994 should be set-off or repaid to Jevco in accordance with section 15 of the Schedule.

Evidence and findings:

On October 13, 1992 Mr. Weatherhead was driving a motorcycle when a motor vehicle cut in front of him causing him to fall. Mr. Weatherhead's right knee and shoulder hit the bumper of the car, and his left shoulder hit the ground. The tire of the motor vehicle drove over Mr. Weatherhead's head.

Mr. Weatherhead testified that he was taken to the Kitchener-Waterloo Hospital by ambulance where he remained for two to three hours. X-rays were taken, and he was given medication.

Mr. Weatherhead testified that immediately after the accident he was unable to bend or move on his right leg, and his shoulders were very sore. He took painkillers for about two weeks after the accident. He did not take any further medication for his pain.

Mr. Weatherhead testified that he felt that he was able to go back to his work as a ditch digger by only November 1, 1994. He concedes that the disabling injury from the motor vehicle accident from May 9, 1994 until November 1, 1994 was his right knee injury. Benefits for the period of time prior to this are not in dispute before me.

If Mr. Weatherhead is to be successful pursuant to section 12(1) of the Schedule, he must show that during the period from May 9, 1994 until November 1, 1994, as a result of his injuries from the motor vehicle accident, he was substantially unable to perform the essential tasks of his occupation or employment as a result of these injuries.

The Applicant states that his occupation at the time of the accident was that of a self-employed ditch digger. Mr. Weatherhead submits that as a result of his injury to his right knee, he was substantially unable to perform the essential tasks of his job.

Mr. Weatherhead testified that he obtained the contract for the ditch-digger job at Bell Canada from a friend, Jason Geil who was to have performed it on subcontract through Pinhiero Excavating. Mr. Weatherhead was hired by Mr. Geil at the rate of $16.00 per hour.² At the time of the accident, Mr. Weatherhead had been working full time on this contract for about two months. He started trench digging between 7:00 a.m. and 8:00 a.m. and worked until between 5:00 p.m. and 6:00 p.m. with a lunch and coffee breaks.

He dug ditches using a pick, shovel, jackhammer, and a heavy machine referred to as the "bullet." He utilized a shovel most of the day. He put his right foot on the shovel to push it into the ground. The jackhammer weighed 90 pounds and was used to break up the road. The "bullet" weighed 120 pounds and several individuals were required to lift it in and out of the trench. Mr. Weatherhead moved in and out of the three foot trench by jumping or climbing out of the trench on fresh lumpy soil. I find that this was a heavy manual job.

I find the essential tasks of this job were as I have listed them above.

Jevco submits that Mr. Weatherhead's essential tasks should not only be his tasks as a self-employed ditch digger, but also those as owner of D.W.I.

Mr. Weatherhead conceded that he was the owner of D.W.I. at the time of the accident, but stated that he earned no income from his "hobby shop." Accordingly, he submitted that the work he performed as owner constituted neither an "occupation" or "employment," and therefore, his tasks from this shop are not in issue. I accept this position.

Mr. Weatherhead was working full time and long hours at his ditch-digging job at the time of the accident. These hours would have left him no time during his day to do any work as an automobile mechanic for D.W.I. Accordingly, I find that any work that Mr. Weatherhead would have done would have been performed during his evening or weekend hours after his employment as a ditch digger had ended for the day. Mr. Weatherhead had been working at ditch-digging for two months prior to the accident. The work was to have continued, but unfortunately the accident intervened.

In addition, I heard no evidence to suggest that Mr. Weatherhead was engaged in the ditch-digging job as part of his work for D.W.I., or that his work as a ditch digger was in any way connected to D.W.I. The nature and duties of Mr. Weatherhead's ditch digging job were very different from the work undertaken at D.W.I. It appears Mr. Weatherhead did not have set hours or duties at D.W.I. He did not receive a regular salary. In fact his evidence was that he never made any money at D.W.I.

Mr. Weatherhead testified that he used the premises of D.W.I. to fix friends' cars as a hobby. In my view, D.W.I. was more than just a "hobby shop" for Mr. Weatherhead. He testified that he rented premises for D.W.I. and purchased and owned equipment for the company. I find he would not have incurred these expenses simply to fix friends' cars and therefore conclude that he hoped to make the business profitable. Nevertheless, at the time of the accident, it is clear that Mr. Weatherhead's main occupation was not at D.W.I., but his ditch-digging self-employment. Accordingly, I find that at the time of the motor vehicle accident, his work could not be defined as being an "occupation" or "employment."

Accordingly, in all the circumstances, I find that only the essential tasks from Mr. Weatherhead's ditch-digging self-employment are to be considered in determining whether Mr. Weatherhead was entitled to receive benefits.

Mr. Weatherhead submitted that he continued to be substantially disabled from performing his essential tasks as a ditch digger during the period from May 9, 1994 until November 1, 1994. Mr. Weatherhead's counsel acknowledged that he had no medical evidence referring to the time period in question. He submitted that Mr. Weatherhead does not have to prove that he continues to be disabled, and that the onus was on the Insurer to show that Mr. Weatherhead was no longer disabled.

The case cited by the Applicant in support of his position in this regard,³ is clearly distinguishable, from Mr. Weatherhead's situation. In that case an existing order obligated the Insurer to continue to pay the Plaintiff as long as the Plaintiff was disabled. Such is not the case here.

Arbitrators have consistently held that the burden of proof is on an applicant to meet the test under section 12(1) of the Schedule.⁴ I agree. Accordingly, I find the Applicant has the burden of showing he continues to be disabled under section 12(1) of the Schedule.

Mr. Weatherhead saw his family doctor, Dr. P. Sharky, one or two days after the accident. Dr. Sharky sent Mr. Weatherhead to Dr. R. Stewart, an orthopaedic surgeon, whom he saw on a few occasions. Dr. Stewart initially opined in December 1992, that he believed that Mr. Weatherhead might have a small flake fracture of the proximal pole of his patella. In March 1993 he suggested further x-rays and an arthrogram, for Mr. Weatherhead's peace of mind. He also suggested a second opinion.

Mr. Weatherhead did not continue with Dr. Stewart but saw Dr. A. Chris (also an orthopaedic surgeon) in April 1993. Dr. Chris thought that Mr. Weatherhead had likely sustained a patellar chondral injury. He reported that these injuries generally take a long time to get better, and that there is no surgical remedy for them. He did not feel that an arthroscopy would be helpful. Nevertheless, the arthrogram was performed on November 26, 1993 and found to be negative. Mr. Weatherhead had no physiotherapy between the time of the accident and his meeting with Dr. Chris.

Dr. Chris performed a physical exam and advised Mr. Weatherhead that he was not yet ready to go back to work. He suggested a session of physiotherapy treatments, as well as weight training. Physiotherapy was also suggested by Dr. G. Kay, the doctor who examined Mr. Weatherhead for the Insurer. In his report of April 20, 1993, Dr. Kay indicated that Mr. Weatherhead suffered from a traumatic chondramalacia of the patella. He noted that it was difficult to know to what degree this had occurred, and concurred with Dr. Chris that at that date Mr. Weatherhead was still unable to return to his heavy work.

Mr. Weatherhead also saw Dr. A. A. Horn, a family doctor. I reviewed Dr. Horn's report dated October 20, 1993, and was struck by his seeming lack of objectivity. Accordingly, I do not place any weight on this report.

Jevco hired Associative Rehabilitation Inc. ("ARI") as Mr. Weatherhead's rehabilitation consultant. The treating consultant was Allan Quinton. Mr. Quinton set up a physiotherapy program for Mr. Weatherhead with Mr. Randall Helm at the Belmont Centre for Physical Medicine.

Mr. Helm completed a Work Demands Analysis and Functional Abilities Assessment on October 29, 1993. Mr. Helm reported that Mr. Weatherhead was not limited in standing, walking (unless carrying heavy objects), sitting for less than three hours, reaching, twisting, or kneeling. He was able to lift 60 pounds from floor to waist, and 40 pounds overhead. He was able to carry 50 pounds. Mr. Quinton found Mr. Weatherhead's cardiovascular fitness and muscular strength, endurance and flexibility above average. Mr. Weatherhead was also capable of producing a repetitive-type motion with his right knee without significant repercussion of his pathology. He was able to lift overhead without difficulty and carry 50 pounds about 50 metres. He was able to carry objects up and down stairs but complained of right knee pain. He experienced right knee pain during deep static crouch and repetitive squats. Mr. Helm concluded that Mr. Weatherhead could perform heavy work on an occasional basis, but if he wished to work full time he could tolerate only medium level work. He recommended that Mr. Weatherhead enter a six to eight week physiotherapy program to increase the right knee extension strength.

A.R.I. noted in its report of December 23, 1993 that since commencing physiotherapy with Mr. Helm, Mr. Weatherhead's range of motion in his leg had increased from 50% of normal to 75% of normal. Mr. Weatherhead continued to have the problem of his knee collapsing when he squatted.

In his final report dated January 28, 1994, Mr. Helm noted that Mr. Weatherhead was exercising at a heavy level, but that some right knee patellofemoral signs still were present. Mr. Weatherhead's range of motion in his right leg was 80% of normal. Mr. Weatherhead was advised to be careful with jobs which required deep knee squats and jumping. At this time Mr. Weatherhead was able to lift 70 pounds ten times with little difficulty and climb eight flights of stairs with an occasional jabbing sensation on the top of his right knee. He was able to jump from the floor to a chair 15 times with occasional knee pain. He was above average in lifting and aerobics.

Mr. Weatherhead continued physiotherapy with Randall Helm five times a week for two hours a day until early 1994.

Mr. Weatherhead testified that he did not believe he could go back to his prior employment when his physiotherapy ended as he could not lift himself on one leg. He further testified that he did not think he could work in May 1994 due to problems with shooting pain, lack of strength and limited range of movement of his knee. Mr. Weatherhead indicated that the level of pain he was experiencing had diminished, and by 1994 it was intermittent. However, his leg would still collapse occasionally.

Dr. Chris reported to Associative Rehabilitation Inc. on January 29, 1994. This was the most recent evidence from a medical doctor put before me. Dr. Chris noted that Mr. Weatherhead's continued discomfort would likely plateau at the current level and would be unlikely to worsen over the long term. He felt that Mr. Weatherhead could return to a trial of labour, but should avoid squatting and climbing, and should strengthen his quads.

At Mr. Helm's suggestion, Mr. Weatherhead enrolled at Popeye's gym for weight training where he started exercising his right leg and upper body on March 4, 1994. He has continued this training to date.

Mr. Weatherhead must prove that the pain in his knee and the occasional collapsing of his knee when squatting caused him to be substantially unable to perform the essential tasks of his ditch-digging job after the relevant date. Cases at the Commission have held that "substantially unable" means to be "sizeably unable" to perform the essential tasks of his job. I note that Mr. Weatherhead was required to spend less than one hour a day squatting in his duties as a ditch digger, and he was able to modify his squat with the support of his left leg. He was required to climb to get in and out of the three foot trenches. Mr. Weatherhead testified that it would take approximately five to six steps for him to get out of the trench, and generally prior to the accident he "hopped" in and out of the trench. The Physical Demands Analysis performed by Mr. Quinton on October 29, 1993 indicated that Mr. Weatherhead was frequently requested to climb 11 to 20 steps as a ditch digger.

In addition, this analysis found that Mr. Weatherhead was able to carry 50 pounds up and down five flights of stairs, although he felt some pain and weakness. By November 26, 1993, he was able to carry 60 pounds up three flights of stairs, and by January 28, 1994, he was able to carry 60 pounds up eight flights of stairs. He experienced occasional jabbing sensations on the top of his right knee. He was able to jump from the floor to a chair 15 times with occasional knee pain. In all the circumstances I find that Mr. Weatherhead was able to climb in and out of the trench as required, by January 28, 1994.

Accordingly, I find that Mr. Weatherhead was functioning very well and had largely recovered from his accident injuries by January 1994. This finding is supported by the fact that Mr. Weatherhead only saw one doctor on one occasion in 1994. I did not have the benefit of hearing or reviewing evidence of this doctor. In addition, he was prescribed a leg brace but the prescription was not filled.

I believe that in January 1994 Mr. Weatherhead continued to suffer some pain in his right knee on occasion as well as occasional collapsing of his knee when squatting, crouching or climbing.

However, cases at the Commission have held that pain is not compensable in and of itself and is only compensable if the pain "substantially disables" the injured person from returning to work.⁵I heard no evidence which led me to believe that the pain which Mr. Weatherhead suffered was of such a nature.

Accordingly, in all the circumstances, I find that Mr. Weatherhead has failed to prove that he was "substantially" or "sizably" unable to do his essential tasks as a ditch digger during the period May 9, 1994 until November 1, 1994. Mr. Weatherhead's claim for weekly income benefits for the period May 9, 1994 until November 1, 1994 is therefore dismissed.

Mr. Weatherhead claims a special award pursuant to section 282(10) of the Insurance Act. I heard no evidence which would qualify Mr. Weatherhead for such an award. Accordingly, his claim is dismissed.

Jevco initially sought a determination of the amount of all post-accident income earned by Mr. Weatherhead from October 20, 1992 onwards. During the course of his submissions, counsel for the Insurer withdrew his claim for a determination of all post-accident income. Instead, the Insurer requested that I consider solely whether monies in the sum of $1,600.00 which Mr. Weatherhead earned from his self-employment after May 8, 1994 should be set-off (or repaid to the Insurer) against any benefits found to be owing to him. However, it was agreed that if I found that Mr. Weatherhead was not owed further benefits after May 8, 1994, no income earned after that date would be repayable.

Since I have found that Mr. Weatherhead was not entitled to weekly income benefits after May 8, 1994, no monies are repayable. The Insurer's claim for set-off, or in the alternative repayment by Mr. Weatherhead of $1,600.00 of income earned after May 8, 1994 is dismissed.

EXPENSES:

Mr. Weatherhead 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 the applicant's conduct unreasonably prolonged the proceedings."⁶

I choose to exercise my discretion in this case and find that Mr. Weatherhead 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, either party may apply to the Ontario Insurance Commission for an assessment of the expenses.

ORDER

Mr. Weatherhead's claim for weekly income benefits for the period May 9, 1994 until November 1, 1994 pursuant to section 12(1) of the Schedule is dismissed.
Mr. Weatherhead's claim for a special award pursuant to section 282 (10) of the Insurance Act is dismissed.
Jevco's claim for set-off or repayment of $1,600.00 of income earned after May 8, 1994 is dismissed.
Mr. Weatherhead is entitled to his expenses of this proceeding in accordance with Schedule F of the Dispute Resolution Practice Code—1995 version.

December 23, 1996

Fern Kirsch Arbitrator

Date

Footnotes

Prior 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.
Exhibit 7
Coombe v Constitution Insurance Company, [1980] I.L.R., p. 1060
Bellina and State Farm Mutual Automobile (May 18, 1995), OIC A-007379; Khanna and Co-operators General Insurance Company (October 24, 1996), OIC A-000243.
Wellington Insurance Company (June 24, 1994), OIC A-004139
McCormick and Economical Mutual Insurance Company (October 2, 1991), OIC A-000139.

Dale C. Weatherhead v. Jevco Insurance Company, 1996 ONICDRG 214

Case Summary