Neutral Citation: 1996 ONICDRG 25
ONTARIO INSURANCE COMMISSION
BETWEEN:
NARINDER TIWANA
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Narinder Tiwana, was injured in a motor vehicle accident on February 12, 1993. He applied for and received statutory accident benefits from the Insurer, Allstate Insurance Company, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on July 8, 1993. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:
Is Mr. Tiwana entitled to weekly income benefits pursuant to section 12 of the Schedule, and if so, to what date?
What is the proper amount of the weekly income benefits?
What amount, if any, should be deducted for collateral benefits received?
Has an overpayment been made by the Insurer, and, if so, is repayment required?
The Applicant claims interest on any amount owing and seeks his expenses incurred in the hearing.
Result:
Mr. Tiwana is entitled to weekly income benefits up to and including October 13, 1993.
The amount of the weekly income benefits is $235.37 before the deduction of any collateral income benefits.
Collateral benefits in the amount of $3,115.54 should be deducted from the benefits received by Mr. Tiwana.
While there was an overpayment exclusive of the collateral benefits received, the Applicant does not have to repay the Insurer.
The Applicant is entitled to be reimbursed for his expenses in the proceeding.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario on December 5, 6, 7, and 8, 1995 before me, M. Guy Jones, arbitrator.
Present at the hearing were:
Applicant:
Narinder Tiwana
Applicant's
Stanley Pasternak
Representative:
Barrister and Solicitor
Insurer's
Thomas Clemenhagen
Representative:
Barrister and Solicitor
Insurer's Officer:
Cathy Cameron-Smith
Witnesses:
Narinder Tiwana, the Applicant
Dr. S. Joshi
Mr. Robert Gaby
Ms. Yvonne Mirrlees
Mr. Robert Harding
Dr. Edwin Urovitz
Exhibits:
13 Exhibits were filed with the arbitrator.
The Facts:
The Applicant, Mr. Narinder Tiwana, has been involved in four accidents. On January 14, 1991, he was involved in a motor vehicle accident. On September 21, 1992, he was involved in an accident while at work. On February 12, 1993, he was involved in a second motor vehicle accident from which this arbitration arises. Finally, on June 9, 1993, he was involved in a third motor vehicle accident.
The Nature of the Injuries sustained in the Accidents:
In all four accidents, Mr. Tiwana injured essentially the same parts of his body, namely his neck, low back and right leg. In the initial accident of January 14, 1991, he was off work with what might generally be described as soft tissue injuries to the abovenoted areas. In October of 1991, he returned to work with some relatively minor ongoing complaints until September 21, 1992 when a forklift apparently struck a bin, which in turn struck Mr. Tiwana. In this work-related accident, he suffered injuries primarily to his low back and right leg. Mr. Tiwana remained off work from the injuries suffered in this accident until the motor vehicle accident of February 12, 1993.
Following the motor vehicle accident of February 12, 1993, he complained of an aggravation of his low back and right leg pains, and relatively minor problems with his neck and left shoulder.
On June 9, 1993, Mr. Tiwana was involved in a third motor vehicle accident, which by all accounts, resulted in only a very minor aggravation of his neck and low back problems. Mr. Tiwana maintains that, as a result of his motor vehicle accident of February 12, 1993, he has been injured and is still unable to return to work.
While Mr. Tiwana was not employed at the time of the accident, he was employed for at least 180 days in the 12-month period preceding the accident and, accordingly, he would be entitled to weekly income benefits pursuant to section 12(3) of the Schedule.
The Essential tasks of Mr. Tiwana's Employment:
Prior to the work-related accident and the subsequent motor vehicle accident of February 12, 1993, Mr. Tiwana had been employed as a secondary press operator at K. T. M Limited. This involved working with any of five different types of machines, including a press machine, tapping machine, welding machine, staking machine, and belt sanding machine. While the operation of each machine differed slightly, I find that the essential tasks of the Applicant's duties involved the following:
picking metal objects weighing less than one pound out of a bin,
turning slightly and placing the metal objects into a machine,
pressing two buttons simultaneously,
moving the metal objects from a machine,
turning slightly and putting the objects into another bin.
The only real exception to these tasks related to the belt sanding operation. This involved the Applicant simply taking the metal objects from a bin and placing them on what was essentially a conveyor belt. The above tasks had to be done on a repetitive basis, up to 5,400 times per day.
Findings and Analysis:
To be entitled to weekly income benefits, the applicant must show a substantial inability to perform the essential tasks of his employment. This is, of course, somewhat complicated in this case because the Applicant has been involved in four separate accidents with overlapping injuries to his low back and right leg.
In a number of decisions, arbitrators have stated that the applicant does not have to show that the motor vehicle accident was the only cause for his disability. The test is whether the accident significantly or materially contributed to the insured person's disability. It is that test that is to be applied to this case.
It is clear that the Applicant did suffer injuries to his low back and right leg in the 1991 and 1992 accidents. It is also clear that the February 1993 accident significantly or materially contributed to the Applicant's disability. All the doctors who commented on the effects of the February 1993 accident, including Dr. Urovitz who saw the Applicant for the Insurer, were of this view.
What is more difficult is determining for what period of time the Applicant suffered a substantial inability to perform the essential tasks of his employment as a result of the February 1993 motor vehicle accident.
In a case of conflicting evidence and opinions, this is a difficult question to answer. On reviewing all the medical reports filed, and considering the oral evidence of the witnesses, especially of Dr. Joshi and Dr. Urovitz, I am of the opinion that the effects of the February 1993 motor vehicle accident were no longer significantly or materially affecting the Applicant's ability to perform the essential tasks of his employment after October 13, 1993.
Dr. Joshi, the family doctor, testified for the Applicant and expressed the view that the Applicant was still disabled from working at the time of the hearing, and the February 12, 1993 accident played a significant role in his continuing disability. I note, however, that the Applicant had been seeing Dr. Joshi regularly since the 1991 accident until the February 1993 accident for ongoing low back and right leg complaints.
I also note that Dr. Joshi examined the Applicant just prior to the February 1993 motor vehicle accident while he was still off work. She stated that she had no idea when he would have returned to work, but for this motor vehicle accident. On cross-examination, Dr. Joshi expressed the view that the aggravations of the earlier injuries caused by the February 1993 accident were only of 10 to 12 days in duration. I am satisfied, however, on the totality of her evidence, that Dr. Joshi was really referring only to the acute stage of the Applicant's injuries. This is more consistent with her overall evidence.
I also note that while Dr. Joshi felt that the February 1993 motor vehicle accident continued to cause the Applicant problems and made working at a repetitive job not possible at the time of the hearing, she herself commented in her medical report of November 15, 1995, that as of January 27, 1993, "there had not been much improvement" in his condition subsequent to the 1992 work-related accident.2
Counsel for the Applicant also filed reports from Dr. Silverberg, a specialist in internal medicine, who has seen the Applicant for his injuries since the original motor vehicle accident in 1991. Dr. Silverberg confirmed the ongoing low back pain and right leg problems prior to the February 1993 motor vehicle accident. Interestingly, while he sent reports to Dr. Joshi on five occasions subsequent to the February 1993 motor vehicle accident, only on one occasion, in his March 24, 1993 report, did he even mention the February 1993 motor vehicle accident. Even then, he only stated that:
There were no broken bones or bleeding. However, there was immediate pain at the base of the neck and in the low back. He has not improved since. He requires Robaxacet and Elavil nightly to help him sleep. If he tries to walk any distance he will feel pain in the low back radiating down the right lower extremity. The car accident increased his pain from previous injuries in September 1992 and in 1991. The pain is now felt across the iliac crests and radiates up the lumbar spines.3
In his other post - February medical reports, Dr. Silverberg discussed the impact of the 1991 and 1992 accidents but makes no mention of the 1993 accident.
Dr. Edwin Urovitz testified on behalf of the Insurer, and his report of October 13, 1993 was filed. Dr. Urovitz has 16 years experience as an orthopaedic surgeon. Prior to his testimony, he had reviewed the reports of the various doctors who had seen Mr. Tiwana, as well as the materials of the Workers' Compensation Board regarding the Applicant. He examined the Applicant on October 13, 1993 for the Insurer.
In cases of soft tissue injuries, we are, to a very large degree, dependent upon the credibility of the injured person. In this particular case, Dr. Urovitz noted numerous discrepancies and inconsistencies during the course of his examination. He stated:
....Physical examination was carried out from an orthopaedic point of view today... He walks with a slow gait today favouring the right side. He has a pained expression on his face throughout the assessment and shows signs of illness behaviour as well as other inappropriate, inconsistent inorganic signs including positive axial loading, positive pelvic simulation rotation test, as well as significant discrepancies with regards to his ability to mobilize through the thoracolumbar spines and hip joints.
With regards to the thoracolumbar spine, further flexion is present so that the fingertips reach to the superior poles of the patella. All other spinal movements are restricted by at least 75 per cent.
In contradistinction to this limited flexion, he was able to sit on an examination table with his knees in extension and was able to bend forward beyond 90 degrees to show me his fingertips, at which point he reached the lower 1/4 of the tibias. There was no apparent pain on performing this manoeuvre, in contradistinction to the pain that he professed to be having when he was examined more formally...There was a tendency towards cogwheel giving-way on testing the iliopsoas and hip flexor muscles on the right side, which is a non-physiological response.4
Dr. Urovitz also noted that at the time of his examination, Mr. Tiwana indicated that just prior to his motor vehicle accident on February 12, 1993, he had improved marginally, perhaps to a level of 20 per cent from his September 1992 work-related injury.
Dr. Urovitz expressed the view that the effects of the motor vehicle accident of February 1993 on the Applicant's ability to perform the essential tasks of his employment would have passed in approximately four to six weeks. Dr. Urovitz indicated that he was certain that the Applicant was capable of performing the essential tasks of his employment by October 13, 1993 when he saw him.
Considerable time was spent by counsel for the Applicant in dealing with the evidence of the CAT scan taken of the Applicant prior to February 1993 accident which showed a small herniated disc. Dr. Urovitz expressed the view that the herniated disc was not causing problems of nerve involvement. I accept Dr. Urovitz's opinion and note that it appears to be consistent with that expressed by Dr. L. Perlin, dated December 20, 1992.5 In any event, it is obvious that the herniated disc predated the accident and the complaint by Mr. Tiwana regarding his right leg was essentially the same after the motor vehicle accident as before. I am not satisfied on the evidence that the herniated disc caused nerve root involvement, or that the motor vehicle accident of February 1993 exacerbated this problem.
Counsel for the Applicant also spent considerable time questioning Dr.Urovitz regarding whether or not the plaintiff was suffering from chronic pain syndrome, or whether he was malingering. A number of doctors, including Dr. Joshi and Dr. Silverberg, have suggested that the Applicant suffered from chronic pain syndrome. Dr. Urovitz agreed that there was an element of chronic pain syndrome, or malingering, or perhaps both present.
I note that even prior to the February 1993 motor vehicle accident, Dr. Silverberg expressed the view that it would be very difficult to get the Applicant back to work. I also note that Dr. Urovitz, while accepting that Mr.Tiwana might have been suffering from chronic pain syndrome, expressed the view at the hearing that Mr.Tiwana could work by October 1993 nevertheless. In addition, I am not convinced that Mr. Tiwana's chronic pain syndrome, if it is that, arose from, or was materially or substantially caused by the motor vehicle accident in question.
In determining the Applicant's ability to return to work, I was also influenced by the evidence of Mr. Robert Gaby, the Director of Human Resources, and Ms.Yvonne Mirrlees, the Manager of Human Resources for Mr.Tiwana's former employer, K.T.M. Limited. Mr. Gaby, who is also the co-chair of the Health and Safety Committee for K.T.M., reviewed the Applicant's j ob in considerable detail. While the Applicant operated a number of machines as a secondary press operator, most of the jobs involved very similar tasks. Mr.Gaby testified that the job primarily involved lifting a piece of metal normally weighing less than one pound, turning very slightly, putting the item into the machine, and then pushing two buttons. The Applicant would then remove the item from the machine, turn slightly, and put the item into another bin. It became clear that there was very little lifting beyond this, despite the formal job description.
Mr. Tiwana indicated in his testimony that he was concerned that the task of repeatedly pushing the two buttons on the machine would eventually cause him further back pain and make his working problematic. Mr.Gaby made it clear that the pressure required to push the buttons on the machine was similar to the pressure required to push an elevator button.
Ms. Mirrlees not only confirmed the description of the Applicant's job, but also provided details regarding a job modification program available to Mr.Tiwana. K.T.M. has a fairly well-developed job modification plan, which involved the Applicant doing lighter duties for 12 weeks, and potentially longer if progress was being made. K.T.M. was prepared to modify the Applicant's regular duties for this period, including working on the belt sanding job. This involved simply putting finished items weighing less than one pound on a conveyor belt.
Ms. Mirrlees also confirmed that, contrary to the Applicant's contention, all the jobs that Mr. Tiwana was involved with could be done either standing or sitting. She further testified that on February 1994, she and other K.T.M. representatives met with Mr. Tiwana to discuss his entering the job modification program. Whereas Mr. Tiwana indicated that the company did not have work that he felt he could do, Ms. Mirrlees indicated that the Applicant in fact told her that he would not do the job modification program unless he was offered the modified job on a permanent part-time basis. I accept the testimony of Ms. Mirrlees in this regard over that of Mr.Tiwana.
In light of all the evidence, I conclude that Mr. Tiwana was no longer suffering from the effects of the motor vehicle accident on February 12, 1993 by the time of his visit to Dr. Urovitz on October 13, 1993. In addition, I am of the view that the Applicant was able to return to work as of that date.
Quantum of Benefits
The Applicant was not working at the time of the accident but had worked 30 of the 52 weeks prior to the motor vehicle accident. During that time, he made $15,299.03 or $509.90 per week during the weeks worked. The Insurer paid 80 per cent of this, or $407.97 per week in weekly income benefits until July 8, 1993. This totalled $8,159.40. In other words, the Insurer arrived at the average wage by dividing by the number of weeks actually worked.
The Insurer, at the hearing, argued that the correct approach to determine average pre-accident income was to divide by the entire 52 weeks prior to the accident.
This is consistent with the approach taken by Arbitrator Draper in Chuong Vo.6The Applicant took the position that the proper approach was to base the calculation on the weeks actually worked as was done by Senior Arbitrator Naylor in Scavuzzo.7
There has, of course, been an ongoing debate regarding this matter. In Furtado8, I briefly reviewed some of the leading decisions in this area. Despite the very able arguments of the Applicant's counsel, I remain of the view that the approach adopted by Arbitrator Draper in Chuong Vo is the correct one, and Mr. Tiwana's income must be averaged over the entire 52 weeks preceding the accident.
The question then arises as to whether there should be a repayment of the excess, pursuant to section 27 of the Schedule. I find that the error was made by the Insurer in this particular case, and was not due to error or fraud on the part of the Applicant. In light of this fact, and in keeping with the criteria set out by Senior Arbitrator Naylor in Levenson9, I find that no repayment should be made with regard to this overpayment. I am of the view, however, that the Insurer can attribute the excess payments made up to July 8, 1993 to the payments owing after that date. The correct weekly payment, in my view, should have been $15,299.03 divided by 52 x .80 = $235.37 per week.
Allstate Insurance paid $8,159.40 divided by $235.37, or 34 weeks and four days of benefit.
This would mean benefits have, in essence, been paid from February 19, 1993, up to and including October 20, 1993 in the amount of $235.37 per week. Since I found that the effect of the motor vehicle accident was over by October 13, 1993, there has been an overpayment by one week. As I mentioned above, however, the overpayment was not caused by error or fraud by the Applicant, and therefore, the Applicant need not pay these monies back.
Collateral Benefits:
Mr. Robert Harding of the Sunlife Insurance Company testified at the hearing that disability payments were paid to Mr. Tiwana in the amount of $3,115.54. Pursuant to section 12(4)(b) of the Schedule, the Insurer is entitled to credit for this amount. Pursuant to section 27(3) of the Schedule, the Applicant must repay this amount to the Insurer.
Expenses:
While Mr. Tiwana was not successful in the arbitration, it is clear that his claim was neither frivolous nor vexatious. Accordingly, I am exercising my discretion and awarding him his expenses of the arbitration pursuant to section 282 (11) of the Insurance Act and Ontario Regulation 664.
Order
The Applicant is entitled to weekly income benefits pursuant to section 12 of the Schedule from February 19, 1993 to October 13, 1993.
The correct amount of weekly income benefits is $235.37 before the deduction of collateral benefits.
The Applicant must repay the Insurer $3,115.54 for collateral benefits received pursuant to section 27(3) of the Schedule.
The Applicant need not pay the Insurer for any overpayment of the weekly income benefits other than the above-mentioned collateral benefits.
The Applicant is entitled to his expenses incurred in respect of the arbitration.
February 13, 1996
M. Guy Jones Arbitrator
Date
Present at the Hearing:
Applicant:
Narinder Tiwana
Applicant's
Stanley Pasternak
Representative:
Barrister and Solicitor
Insurer's
Thomas H. Clemenhagen
Representative:
Barrister and Solicitor
Insurer's Officer:
Mary Darwent
Witnesses:
Exhibits:
Exhibit 1
Exhibit 2
Evidence and Findings:
Order:
- The Applicant is entitled to his expenses incurred in respect to the arbitration.
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.
- Medical Report, D. S. Joshi, Exhibit 1, Tab 17
- Medical Report, Dr. S. Silverberg, Exhibit 1, Tab 8
- Medical Report, Dr. E. Urovitz, Exhibit 13
- Medical Report, Dr. L. Perlin, Exhibit 3
- Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-000277
- Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626
- Filomena Furtado and York Fire and Casualty Insurance Company, June 22, 1995, OIC File No. A-008927
- Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260