Neutral Citation: 1996 ONICDRG 89

File No.: A-004410

ONTARIO INSURANCE COMMISSION

BETWEEN:

BRETT W. DEGRAS

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Brett W. DeGras, was injured in a motor vehicle accident on August 19, 1992. He applied for and received statutory accident benefits from the Insurer, Jevco Insurance Company ("Jevco"), payable under Ontario Regulation 672.¹ Benefits were terminated by Jevco on March 30, 1993 on the basis that Mr. DeGras was no longer disabled from performing the essential tasks of his pre-accident employment. Mr. DeGras claims that he continues to suffer a substantial inability to perform his essential tasks. 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:

1. Is Mr. DeGras entitled to payment of further weekly income benefits under section 12(1) of the Schedule?

2. What amount of weekly income benefit is payable to Mr. DeGras under section 12 ?

3. Is Mr. DeGras entitled to the payment of supplementary medical and rehabilitation expenses under section 6 of the Schedule?

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

The issue of Mr. DeGras' entitlement to weekly income benefits for any period in excess of 156 weeks, under section 12(5)(b) of the Schedule, was not before me in this proceeding.

Result:

1. Jevco is required to pay Mr. DeGras further weekly income benefits under section 12(1) of the Schedule up to and including April 8, 1994;

2. Jevco is required to pay Mr. DeGras further weekly income benefits in the amount of $12,167.94 plus interest thereon calculated at the rate of 2% per month in accordance with the provisions of section 24(4) of the Schedule.

3. Jevco is required to pay Mr. DeGras the expenses of the Accident Injury Management Clinic's functional restoration and work simulation programs and chiropractic treatments, (particularized in Exhibit 2, tab 39) under section 6 of the Schedule.

4. Jevco is required to pay Mr. DeGras his expenses incurred in respect of this arbitration in accordance with Ontario Regulation 664.

Hearing:

The hearing was held in Toronto, Ontario, on February 15, 16, and April 10 and 11, 1995, before me, Janice Mackintosh, Arbitrator.

The names of those present at the hearing and a list of exhibits filed are contained in Schedule A.

Evidence and Findings:

Mr. DeGras' motorcycle collided with a car on August 12, 1992. As a result of the impact he was projected up and over the car, striking both kneecaps and other parts of his body against the car. He ultimately landed in the middle of the intersection. He remained conscious and experienced immediate pain in his right shoulder, back, hips, knees, legs and ankles. He was taken by ambulance to York Central Hospital and remained there for three days. No fractures were detected on X-Ray, however, Mr. DeGras was diagnosed with significant multiple soft tissue injuries, which continue to trouble him.

Pre-accident employment:

At the time of the accident, Mr. DeGras was 28 years of age and had been employed by Lawrence-Paine Limited ("L-P Ltd.") for approximately seven years. L-P Ltd. was engaged in the business of importing, distributing, and installing folding wall systems in gymnasiums, auditoriums and in industrial and commercial buildings. Mr. DeGras stated that at the time of the accident he was primarily working as an installer of folding walls. He described this work as being very physically demanding. The wall panels might weigh anywhere from 100 to 200 pounds each, depending on their height and thickness. The panels are hung from the ceiling by a large steel track which is installed first. The panels are then lifted and angled into place, to travel on the steel framework. Mr. DeGras stated that installers generally worked in groups or pairs. He explained that installation work involved bending, lifting, carrying, twisting, crouching, and kneeling, often holding very heavy weights. Overhead work with heavy tools and cement drills was required, as well as working from a ladder.

There is little dispute that the essential tasks of an installer of folding walls requires consistent very heavy labour.² However, the Insurer maintains that before the motorcycle accident, L-P Ltd. had moved Mr. DeGras from his heavy job as an installer to a light job primarily requiring office work in connection with sales and customer service.

Mr. Keith Paine, President of L-P Ltd., testified on behalf of Jevco. He stated that Mr. DeGras had previously sustained a serious low back injury resulting in back surgery in 1989. When Mr. DeGras returned to L-P Ltd. following his surgery, the company explored ways to provide him with a less physically demanding job than that of an installer. The company was responding to an audit by the Worker's Compensation Board and the recommendation of a private consulting firm that Mr. DeGras be placed on light duties to minimize the risk of re-injury to his back. The CCDO defines "light work" as lifting 20 pounds maximum, with frequent lifting and /or carrying of objects weighing up to 10 pounds.

Mr. Paine testified that the company saw an opportunity to develop new business in the area of repairing and maintaining existing folding wall systems in addition to providing service follow-up on the company's previous installations of folding wall systems. Mr. DeGras was given the title of Service Department Co-ordinator to develop this new business. Mr. Paine characterized this position as largely administrative, involving sedentary office work. He described the essential elements of the job as identifying and procuring new customers, determining their service and maintenance requirements by telephone or on-site inspections, driving to customers' premises, visually inspecting the product to assess the service requirements, occasionally kneeling or climbing a ladder in the course of an inspection, preparing quotes for labour and materials, preparing service contracts and reports using the computer and adding machines, ordering and preparing materials required to complete the work, performing minor repairs or adjustments himself or requisitioning installation/repair crews for larger jobs, and invoicing the work.³ Mr. Keith Paine testified that other employees of L-P Ltd. were notified that Mr. DeGras was to avoid heavy work and were instructed to assist him as required.

Mr. DeGras testified that the realities of his new position with the company were significantly different than that as described by Keith Paine. He stated that he had always done the physical work of an installer and was not accustomed to office work. He explained that he had received little training, and did not adjust well to the paper-work of sales, ordering supplies, preparing quotes, preparing accounts and using the computer. The installers were frequently not available to perform the service and repair work generated by Mr. DeGras' efforts, because the company's first priority was new installations. Mr. DeGras explained that more often than not, he ended up cutting steel track weighing up to 65 pounds in the shop, loading wall panels, tools and materials onto a cube van, and carrying out the repairs and maintenance himself. Mr. DeGras testified also that the amount of maintenance and service work was less than originally anticipated by the company and the flow of service work gradually diminished. Mr. DeGras stated that he was not well suited to sales work and that he gradually shifted from sales and office work back into physical labour.

Counsel for both the Applicant and the Insurer pointed out several anomalies in the documentation relating to Mr. DeGras' employment maintained by L-P Ltd. in the months immediately preceding the motorcycle accident. Each argued that various documents supported their divergent views concerning the essential tasks of Mr. DeGras' pre-accident employment.

I conclude that Mr. DeGras' daily time sheets, his diary,⁴ the time records of Mr. DeGras' direct supervisor, Mr. Ross Paine, (the brother of the President, Mr. Keith Paine),⁵ the company's statement of Mr. DeGras' hourly earnings and the bundle of documentation produced by the company reflecting paperwork created by Mr. DeGras⁶ are of little assistance in determining the precise nature of the work performed by Mr. DeGras prior to the motorcycle accident. These documents establish that Mr. DeGras was attending at locations in Toronto and surrounding areas on behalf of L-P Ltd. and that his immediate supervisor was maintaining time records of his activities along with time records for installers. However, the documents contain no description of the precise nature of the work performed by Mr. DeGras at these locations, during the time periods noted. I find that I must primarily rely upon the oral testimony and demeanor of the witnesses to determine the specific nature of Mr. DeGras' essential tasks prior to the motorcycle accident.

Mr. Michael Hugli testified on behalf of Mr. DeGras. Mr. Hugli had been an installer at an earlier stage in his career with L-P Ltd., but was working in sales in the months preceding Mr. DeGras' accident. He explained that although Mr. DeGras was in charge of customer service at L-P Ltd. no staff was assigned to him to perform the repair and service contracts. Generally, Mr. DeGras did the work himself, or requested help from Mr. Hugli or others for larger jobs. Mr. Hugli used brief diary notes of his own activities to refresh his memory of events which had occurred well over two years earlier⁷ Mr. Hugli described several specific jobs on which he believed he and

Mr. DeGras had performed heavy physical labour together, in the months immediately preceding the August 1992 accident. The Insurer submitted that Mr. Hugli's recollection of Mr. DeGras' involvement in specific jobs was faulty and coloured by his friendship with Mr. DeGras. Mr. Hugli frankly acknowledged that he had enjoyed a friendly working relationship with Mr. DeGras. I also accept the Insurer's contention that Mr. Hugli mistakenly attributed some of the specific jobs noted in his diary to Mr. DeGras. Nonetheless, I am satisfied that Mr. Hugli honestly gave his best recollection of events. I accept his evidence that, prior to the motorcycle accident, he and Mr. DeGras worked together on several folding wall projects which required their heavy labour.

Mr. Craig FitzGerald also gave evidence concerning physical labour that he and Mr. DeGras performed together prior to the August 1992 accident. Mr. FitzGerald was employed as a welder/ installer with L-P Ltd. Both Mr. FitzGerald and Mr. Hugli acknowledged that Mr. DeGras' back was not 100% prior to the motorcycle accident. Both mentioned times when Mr. DeGras had to take a break from working to lie on the floor, due to back pain. Mr. Hugli stated that Mr. DeGras experienced trouble bending and had some difficulty working from a ladder and that he (Mr. Hugli) generally handled the heavier, more awkward portions of the work. However, he stated that Mr. DeGras used all the power tools required for the job and lifted and manouvered his end of heavy folding wall panels.

Neither Mr. FitzGerald nor Mr. Hugli recalled being notified by L-P Ltd. that Mr. DeGras was prohibited from heavy lifting. They were aware of Mr. DeGras' back pain from working with him on various jobs but expected that when Mr. Ross Paine assigned them to a job along with Mr. DeGras, that Mr. DeGras would fulfil his share of the work. Mr. FitzGerald stated that it was obvious to him that Mr. DeGras frequently worked in pain, but Mr. FitzGerald could not recall one occasion when Mr. DeGras abandoned his responsibilities on the job due to pain. I found Mr. FitzGerald to be honest and forthright in his assessment of Mr. DeGras' pre-accident condition and in his description of the work that he and Mr. DeGras performed. I accept his evidence on these points.

Mr. Ross Paine testified on behalf of the Insurer. He is the brother of Mr. Keith Paine, President of L-P Ltd. At the time of the motorcycle accident, Mr. Ross Paine was the Installations Manager who assigned installation and repair crews to various job sites. He was Mr. DeGras' direct supervisor and kept track of Mr. DeGras' time.

Mr. Ross Paine confirmed that following Mr. DeGras' back surgery the company reduced the amount of heavy lifting done by Mr. DeGras, and for that reason moved him from installations to service and repairs. However, whereas Mr. Keith Paine estimated that Mr. DeGras' work involved "lifting or carrying less than 10 pounds".⁸ Mr. Ross Paine testified that he would have included lifting and carrying weights of "more than 50 pounds" in Mr. DeGras' job description.

Whereas Mr. Keith Paine conveyed the impression that Mr. DeGras' involvement in hands-on repair work was minimal and limited to minor adjustments.⁹ Mr. Ross Paine testified that Mr. DeGras was responsible for effecting most of the service and repair calls himself with the exception of larger, heavier jobs to which Mr. Ross Paine assigned installation crew members. Mr. Keith Paine did not include "climbing" as part of Mr. DeGras' routine job requirements,¹⁰but Mr. Ross Paine testified that Mr. DeGras would routinely carry and climb a ladder on service calls. Whereas Mr. Keith Paine did not consider "crawling" as a requirement of Mr. DeGras' job,¹¹ Mr. Ross Paine testified that prior to his motorcycle accident Mr. DeGras tightened bolts from a crawl space in the ceiling of a new folding wall installation. Mr Ross Paine testified that he was away in August 1992, immediately preceding Mr. DeGras' accident, and he could not confirm whether Mr. DeGras worked on a specific installation involving heavy lifting, climbing and crawling as indicated by Mr. Hugli and Mr. DeGras in their testimony. I accept the testimony of Mr. DeGras, as corroborated by Mr. Hugli, that they performed heavy labour in connection with a large installation of folding wall panels in the summer of 1992.

Mr. Keith Paine acknowledged in cross examination that he had little direct exposure to, or involvement with, Mr. DeGras' day to day job activities. Where there is a discrepancy between the testimony of Mr. Keith Paine and Mr. Ross Paine, I prefer the evidence of Mr. Ross Paine, based upon his first hand knowledge of Mr. DeGras' activities.

I find that at the time of his motorcycle accident in August 1992, Mr. DeGras was not engaged in the consistently very heavy physical work of a full time installer, as he claimed. However, I do not agree with Mr. Keith Paine's description of Mr. DeGras' job as primarily office work with a minimum of light repair work. I find that prior to his motorcycle accident, Mr. DeGras's involvement in the more sedentary and administrative portions of his job had diminished as he gravitated towards those aspects of the job that were familiar to him, requiring his physical labour. I conclude that Mr. DeGras was physically engaged in the repair and service of folding wall installations at the time of his accident. I accept that he received help with the heaviest and most awkward tasks of that job. However, I find that he was required to lift and carry a tool and parts box weighing approximately 50 pounds, several times a day, to work in awkward positions including kneeling, stooping, and climbing ladders, and from time to time to lift or manoeuvre his end of wall panels weighing well over 100 pounds. I conclude that Mr. DeGras' job prior to the accident involved physical demands in the medium to occasionally heavy range.¹²

Pre-accident medical condition and job performance:

The hospital note of Dr. E.P. Urovitz indicates that Mr. DeGras had back surgery in October 1989 to relieve a large herniated disc at the L-4-5 level (discotomy) with nerve root compression. According to Dr. Urovitz's note, Mr. DeGras experienced "gratifying relief of his [referred] leg pain".¹³

Mr. DeGras returned to work approximately four months after his back surgery, but in November 1990, he saw Dr. Urovitz again when he strained his back lifting a crate at work. Dr. Urovitz advised Mr. DeGras to avoid heavy work and to attend several sessions at the Canadian Back Institute to learn appropriate exercises and back care.¹⁴ Mr. DeGras' uncontroverted evidence was that prior to his motorcycle accident he continued to experience pain and some limitation of back function but he missed no further days from work due to his back complaints until the motorcycle accident in August 1992.

I find that Mr. DeGras was no longer capable of performing the sustained heavy lifting of an installer prior to his motorcycle accident. I also find that the medium to occasionally heavy demands of the work he was engaged in were likely in the extreme outside range of his physical capacities. I find that, at times, he was working in excess of his physical tolerances, which resulted in significant pain. Nonetheless, I am satisfied that Mr. DeGras somehow managed to meet the physical demands of repair and service work. His direct supervisor, Mr. Ross Paine expressed satisfaction with Mr. DeGras' job performance prior to his motorcycle accident, as did his co-workers. On the other hand, Mr Keith Paine expressed disappointment that Mr. DeGras had been unable to adjust to the administrative, clerical, and sales, aspects of his position as Service Department Co-ordinator. Mr. Keith Paine was undoubtedly concerned about Mr. DeGras' long term prospects with the company, in view of his obvious physical limitations. Mr. Keith Paine testified that he visited Mr. DeGras after the motorcycle accident to alert him to concerns regarding his future with L-P Ltd. Mr. Paine testified that he advised Mr. DeGras that there would likely be no suitable position for him to return to. It was clear from Mr. Keith Paine's testimony that Mr. DeGras' history of back injury had changed Mr. DeGras from an asset to a liability for the company. It was also clear from Mr. DeGras' testimony that he understood that there was no longer a place for him at L-P Ltd. No steps were taken by either party to formalize their understanding until Mr. DeGras requested his record of employment to apply for unemployment insurance benefits in June 1994. On that form Mr. Keith Paine stated that Mr. DeGras had "quit".¹⁵ In my view this description does not accurately reflect the understanding reached between Mr. Keith Paine and Mr. DeGras.

Post -Accident Period:

Mr. DeGras was released from hospital three days after his accident of August 19, 1992 with a diagnosis of significant multiple soft tisssue injuries. He saw his family physician, Dr. Mahadeo Balkissoon, who prepared a Form 4 medical report for the Insurer dated September 1, 1992. Dr. Balkissoon confirmed York Central Hospital's diagnosis and anticipated that Mr. DeGras' disability would likely extend a further four to six weeks. Mr. DeGras attended the Scarborough Professional Physiotherapy Centre and then the Early Treatment Centre. He applied for short term disability benefits through his employer's disability plan, ManuLife Financial Services ("ManuLife"). ManuLife paid approximately 2/3 of Mr. DeGras' former salary and Jevco paid the remaining 1/3.

Mr. DeGras suffered injuries to his neck, right shoulder, right elbow, lower back, hips, knees and ankles.¹⁶ By October 1992 he was experiencing multiple spasms in his lumbar area.¹⁷ At the hearing Mr. DeGras described his most serious remaining difficulties as: lower back pain radiating into his right upper hip and buttock area and down into his right leg, accompanied by clicking in his right hip joint. He testified that his back and hip pain prevents him from heavy lifting, sitting for extended periods, bending for extended periods, or crouching. Mr. DeGras also experiences clicking, popping, pain, and instability in both knees, but in particular his right knee. He states this sometimes causes him to lose his balance or limp, and prevents him from working in a kneeling position.

In November 1992, the Insurer referred Mr. DeGras to Dr. Michael Hall, an orthopaedic specialist, for a medical examination. Dr. Hall noted approximately 25% restriction of movement in Mr. DeGras' lumbar spine where he had previously been operated but observed no abnormality of his knees.¹⁸ Dr. Hall accepted that Mr. DeGras' pre-accident employment was physically heavy, however, he anticipated that Mr. DeGras should be in a position to return to his former occupation in approximately four weeks time (ie. January 1993) following a work hardening program, back strengthening and mobilizing exercises. Dr. Hall suggested that all passive therapies ought to be discontinued in favour of more active modalities.

Termination of benefits: December 1992:

Jevco terminated weekly income benefits to Mr. DeGras on December 29, 1992, based on its understanding that Mr. DeGras' pre-accident employment was primarily administrative, involving sedentary to light physical duties, as described by Mr. Keith Paine, coupled with the medical opinion of Dr. Hall.¹⁹ Mr. DeGras continued to receive income benefits through ManuLife. It appears that Jevco took no active role in Mr. DeGras' rehabilitation during this period and Dr. Hall's recommendations for more active rehabilitation and a work hardening program were not pursued.

In December 1992, Dr. Balkissoon reported muscle spasm in Mr. DeGras' lumbar area and soft tissue swelling of the knee. However, he recommended that Mr. DeGras attempt to return to light work for a four week trial period in late January 1993. Dr. Balkisoon placed restrictions on lifting, climbing, and kneeling.²⁰ Mr. DeGras did not attempt to return to L-P Ltd. as he understood that there was no suitable light work for him there. In addition, Mr. DeGras continued to experience problems with his knees.

In December 1992, Mr. DeGras returned to Dr. Urovitz, the orthopaedic surgeon who had performed his back surgery in 1989. Upon examination of Mr. DeGras, Dr. Urovitz noted global restriction in lumbar movement of approximately 75%, and recommended a more aggressive form of therapy such as provided by the Canadian Back Institute. He observed crepitus (grating) involving the patellae (knee caps) but no other significant abnormality of the knees. He arranged for arthroscopic surgery for both knees for January 1993. Dr. Urovitz concluded that Mr. DeGras was unable to do any type of heavy manual labour but could likely work at a very light, sedentary, occupation.²¹

In January 1993, Mr. DeGras sought the opinion of another orthopaedic specialist, Dr. Morris D. Charendoff. Dr. Charendoff observed that Mr. DeGras' ability to squat was 50% of normal, that his range of motion in the lumbar spine was approximately 80% of normal accompanied by moderately severe pain, that the range of motion of his knee joints was less than 180 degrees and was accompanied by clicking or grating of the knee caps. Dr. Charendoff concluded that Mr. DeGras had suffered traumatisation of his joints including the knee, and significant aggravation of his pre-existing back problem, but with no recurrent rupturing of a disc. Dr. Charendoff suggested that these symptoms could be expected to persist for at least six months to a year, i.e. until July 1993 and up to January 1994.²² In a medical report to ManuLife completed January 21, 1993, Dr. Charendoff concluded that Mr. DeGras was totally disabled from performing the essential duties of his job at that time, but predicted that Mr. DeGras would likely improve.²³

Mr. DeGras underwent day surgery on his knees on January 27, 1993. Dr. Urovitz reported his findings as follows:

Virtually identical lesions were noted in the knee joints, that is an area of chrondromalacia of grade 1 off the medial facet of the patella and an area of chrondromalacia of the weight bearing surface of the lateral femoral condyle. These were treated with debridement using straight and curved basket forcepts and scissors...until relatively smooth articular rims were reestablished. The rest of the knee joints were examined and found to be intact....²⁴

Jevco asked Dr. Hall to comment on the "necessity" of arthroscopic knee surgery in Mr. DeGras' case. Dr. Hall observed that arthroscopic surgery is often used as a diagnostic tool rather than a therapeutic procedure and that any "patient who complains of knee pain loudly enough and long enough, will almost surely end up with an arthroscopy" for diagnostic purposes. He noted that his own examination of Mr. DeGras in November 1992, had suggested no symptomatic changes to the patella. Dr. Hall explained that the articular surface of the patella inevitably degenerates through life, and stated that he had no reason to suppose that the changes to the articular surface of Mr. DeGras' patella had any relationship to his motor vehicle accident. He informed Jevco that any disability engendered by the arthroscopic procedure itself would be over within a maximum of six weeks (i.e. mid-March 1993) and that Mr. DeGras would be ready to return to heavy work at that time.²⁵

Dr. Hall's assessment of Mr. DeGras' back and knee injuries is at variance with that of Dr. Urovitz, Dr. Balkissoon and Dr. Charendoff. Dr. Balkissoon noted spasm in the back and swelling of the knee. Dr. Urovitz and Dr. Charendoff noted significant limitations of Mr. DeGras' movements and all three doctors noted objective knee symptoms. Dr. Hall noted no objective symptoms of the knee and suggested that in any event Mr. DeGras' knee complaints were probably unrelated to the accident. I find Dr. Hall's conclusion difficult to accept in view of Mr. DeGras' description of striking both knees while being thrown from his motorcycle over the car and Dr. Urovitz's report of finding virtually identical lesions on both kneecaps, which he treated with debridement (scraping) during surgery.

All four doctors agreed that Mr. DeGras would benefit from a more active program of therapy. However, only Dr. Hall concluded that Mr. DeGras would be ready to return to heavy labour following such therapy. I find Dr. Hall's reports to be dismissive and disbelieving with a tendency to minimize Mr. DeGras complaints or attribute them to something other than the obvious trauma of the motorcycle accident. I prefer and accept the preponderance of medical opinion (Dr. Balkisoon, Dr. Urovitz and Dr. Charendoff) which supports the conclusion that Mr. DeGras remained disabled from returning to work involving medium to heavy physical demands in the winter of 1992 and spring of 1993. Jevco continued to rely on Dr. Hall's opinions and continued to deny weekly income benefits to Mr. DeGras during this period. It also appears that no action was taken with respect to the unanimous recommendation for a more aggressive program of rehabilitation.

Mr. DeGras applied for mediation at the Ontario Insurance Commission. Mediation was conducted from March 25, to May 17, 1993. Mr. DeGras received assurances that his supplementary medical and rehabilitation benefits had not been terminated and remained available to him. The parties also agreed that Jevco would contact Mr. DeGras' family doctor (Dr. Balkissoon) to explore his recommendations for therapy, that Mr. DeGras would attend a further Insurer's medical examination and that both sides would exchange information concerning Mr. DeGras' essential tasks of employment.²⁶ Following mediation, Mr. DeGras continued to see his family doctor who continued to confirm disability. I heard no evidence concerning what, if any, follow-up occurred with respect to arranging further therapy for Mr. DeGras.

Jevco arranged an appointment for an assessment of Mr. DeGras by Dr. Lyndon Mascarenhas. In his report dated September 1, 1993, Dr. Mascarenhas indicated that he has had extensive experience in the evaluation of injured workers and patients in his capacity as an Independent Examiner and Disability Consultant. Dr. Mascarenhas was initially provided with the medical reports of Dr. Hall and Dr. Balkissoon but not with the reports of Dr. Urovitz or Dr. Charendoff. Dr. Mascarenhas relied heavily upon the reports of Dr. Hall for his understanding of Mr. DeGras' medical history. Dr. Mascarenhas concluded that Mr. DeGras had sustained significant soft tissue injuries as a result of the motorcycle accident. He felt that Mr. DeGras would have difficulty performing the heavy physical tasks of his job without further therapy. He suggested that more than one year post accident, Mr. DeGras should be in a position to attempt a work trial, provided that Dr. Urovitz had no further concerns, that a CT scan or MRI evaluation of Mr. DeGras was within normal limits, and that Mr. DeGras had participated in an appropriate physical rehabilitation program, incorporating back education, posture correction, and work hardening components.²⁷

Dr. Balkissoon also examined Mr. DeGras in September 1993 and essentially agreed with the physical findings and rehabilitation approach of Dr. Mascarenhas. Dr. Balkissoon opined that Mr. DeGras appeared to be developing a chronic pain syndrome and needed appropriate therapy and an opportunity to re-enter the workforce at a reduced capacity and shortened work week, gradually increasing his time and effort over a six month period.²⁸ Dr. Urovitz re-examined Mr. DeGras in September 1993, and concluded that Mr. DeGras continued to be disabled by back pain and a clicking in his right hip or "snapping hip" syndrome related to injuries suffered in the motorcycle accident. Dr. Urovitz noted global restrictions through Mr. DeGras' thoracolumbar spine of approximately 30%, and concluded that Mr. DeGras would be capable of returning to work in a medium or lesser physical capacity. He restricted lifting to a maximum of 50 pounds on an infrequent basis, but permitted lifting of objects weighing up to 25 pounds on a frequent basis. I conclude that Dr. Urovitz's weight limits would have prevented Mr. DeGras from performing a substantial proportion of his pre-accident employment tasks. Dr. Urovitz reinforced Dr. Mascarenhas' and Dr. Hall's recommendations for the implementation of an active exercise and treatment program to promote Mr. DeGras' maximum rehabilitation.²⁹

In a report dated October 22, 1993, Dr. Mascarenhas revised his original opinion concerning the steps required to prepare Mr. DeGras for a return to his former job. Dr. Mascarenhas concluded that if the majority of Mr. DeGras' essential tasks were of an administrative and sedentary nature, as alleged by Mr. DeGras' former employer, Mr. Keith Paine, Mr. DeGras was capable of performing these activities with no restrictions whatsoever and no further therapy.

I do not accept Dr. Mascarenhas' revised medical opinion. I find that it was based on inaccurate information concerning Mr. DeGras' pre-accident employment, provided by Mr. Keith Paine.

I prefer the earlier opinion of Dr.Mascarenhas, subject to the specific conditions set out by him. Dr. Mascarenhas made his original opinion subject to any additional concerns of Dr. Urovitz.³⁰I also accept that Dr. Urovitz's first hand knowledge of Mr. DeGras' condition, both before and after the motorcycle accident, as well as his direct involvement in the treatment of Mr. DeGras' back and knee problems, gives him a unique perspective not available to the other specialists. Accordingly, I prefer Dr. Urovitz' opinions and recommendations where they conflict with those of the other medical practitioners and specialists.

Termination of benefits: March 1993:

Jevco issued an Insurer's Assessment of Claim Form dated December 6, 1993, notifying Mr. DeGras of its decision to pay additional weekly income benefits from December 30, 1992 to March 30, 1993, being the estimated recuperation period following orthoscopic knee surgery, suggested by Dr. Hall and Dr. Mascarenhas. Jevco terminated further weekly income benefits after that period and took the position that further supplementary medical and rehabilitation benefits were no longer applicable.

The Early Treatment Centre (ETC):

At about this time, ManuLife informed Mr. DeGras of its intention to terminate his long term disability benefits as of February 16, 1994 on the basis that he was no longer totally disabled from any occupation for which he was qualified or might reasonably become qualified by reason of training, education, or experience. ManuLife enrolled Mr. DeGras in a six week comprehensive exercise program at ETC to assist his return to work in some capacity.³¹ Mr. DeGras attended the ETC program between November 19, 1993 and January 24, 1994. By the end of the program, the ETC kinesiologist reported that Mr. DeGras was performing up to three and one half hours of moderate to heavy exercises with high repetitions. His program included resisted pulley exercises with weights from 6-12 kg (26 pounds) sequence training with weights from 40 - 70 kg. (154 pounds) and moderate to high intensity aerobic activity on the Stair Master. Upon his release from the program a Canadian Standardized Test of Fitness was administered to evaluate Mr. DeGras' basic aerobic fitness, strength, flexibility and endurance. He generally demonstrated an above average level of fitness.³²

Accident Injury Management Clinic (AIM):

Mr. DeGras contested the decision of ManuLife to terminate his long term disability benefits and pursued further rehabilitation through AIM. AIM conducted its initial assessment in January 1994 and determined that Mr. DeGras was a good candidate for a physically demanding functional restoration program. The assessment team concluded that in view of the exacerbation of his pre-existing back injury by the motorcycle accident, it was not wise for Mr. DeGras to return to heavy work. The stated goal of the program was to enable Mr. DeGras to return to work in the light to medium range.³³

In my view the objective of the AIM rehabilitation program was set rather low. Four months earlier (in September 1993), Dr. Urovitz had concluded that Mr. DeGras was ready to return to work in the medium range. In addition, Dr. Urovitz had anticipated further improvement with appropriate rehabilitation.³⁴ Since September 1993, Mr. DeGras had participated in the ETC exercise program in which he had exhibited physical capacities in the medium to heavy range.

Dr. David Berg, a chiropractor with AIM testified on behalf of Mr. DeGras. Dr. Berg stated that he prepared the initial assessment report dated February 18, 1994, which was also signed by Dr. H. Brown, a physician on the staff of AIM, but he was unable to confirm from his files whether Dr. Brown had actually examined Mr. DeGras. Dr. Berg was unable to explain why the rehabilitation goal for Mr. DeGras was set at the light to medium range. For the reasons previously stated, I conclude that Dr. Urovitz was in a better position to assess the impact of Mr. DeGras' motorcycle accident on his previous back injury than either the chiropractor, Dr. Berg, or AIM's physician, Dr. H. Brown. I accept Dr. Urovitz' opinion that Mr. DeGras was capable of returning to work in the medium range in September 1993 and could maximize his rehabilitation beyond that level through appropriate rehabilitation.

Rehabilitation Expenses:

In its initial assessment, AIM identified de-conditioning as the main impediment to Mr. DeGras' recovery, along with behavioural issues such as a lack of confidence and lack of pain management strategies to assist him to cope with and work through his pain. AIM recommended a full functional restoration program including reconditioning, controlled work simulation under the supervision of an occupational therapist, counselling and pain management education. I find that the rehabilitation approach proposed by AIM incorporated the recommendations made to the Insurer by Dr. Hall well over a year earlier³⁵ as well as Dr. Mascarenhas,³⁶ Dr. Urovitz and Dr. Balissoon. As such, I find that the full AIM program was necessary for Mr. DeGras' treatment and rehabilitation pursuant to the provisions of section 6 (4) of the Schedule.

I received no evidence establishing that the cost of the AIM program was overstated or exorbitant. However, Jevco did question the appropriateness of expenses for chiropractic treatments provided by Dr. Berg. Jevco relied on Dr. Hall's opinion that all passive treatments should be discontinued in favour of more active therapy.³⁷ In his testimony Dr. Berg explained that in the context of the AIM program, passive treatments were not provided in lieu of active therapy but were often required by patients to assist them to cope with increased levels of pain resulting from the very active portions of the program. I accept Dr. Berg's explanation and conclude that the chiropractic expenses as well as the other expenses related to the AIM program as outlined in the invoices found under Exhibit 2, Tab 39, are reasonable expenses resulting from Mr. DeGras' motorcycle accident pursuant to section 6(1) of the Schedule and are to be paid by Jevco.

In February 1994, Mr. DeGras began the AIM functional restoration program in respect of a moderate to heavy workload. In March 1994, he entered the work simulation and work hardening phase of the program in which he maintained the moderate to heavy workload under the supervision of Lyndy Goldlust, an occupational therapist. At the end of March 1994, Lyndy Goldlust reported that Mr. DeGras had been participating in the work hardening program for three weeks and appeared to be in no distress while carrying it out. Mr. DeGras was discharged from the program on April 8, 1994 after completing 48 sessions. Unfortunately there is no final report from AIM summarizing Mr. DeGras' progress through the program. Dr.Berg confirmed that Mr. DeGras had increased his general range of movement during the program but could provide no additional information concerning Mr. DeGras' work tolerances. The brief comments contained in the four progress reports prepared during the course of the functional restoration and work hardening program establish that Mr. DeGras was able to sustain a workload in the moderate to heavy range.³⁸ At the conclusion of the AIM program Mr. DeGras estimated that he had experienced an overall improvement of approximately 75%.³⁹ I, therefore, conclude that by April 8, 1994, Mr. DeGras was consistently functioning in the medium to heavy range.

Although these results exceed the stated goals of the AIM program, they are consistent with the expectations of Dr. Urovitz and with Mr. DeGras' performance in the previous ETC program sponsored by ManuLife. In July 1994, Mr. DeGras received a CT scan of his lumber spine.⁴⁰Posterolateral protrusion of the L5-S1 disc on the left side was noted. However, Counsel agreed that this finding was not clinically significant in Mr. DeGras' case. No other abnormalities were observed.

At the hearing Mr. DeGras maintained that he continues to function well below the medium to occasionally heavy level and as such, has not returned to the level of his pre-accident employment. He principally relies upon the report and testimony of Ms. Lindy Goldlust, an occupational therapist formerly with AIM, who conducted a one-day functional abilities evaluation of Mr. DeGras on February 6, 1995 (approximately ten months after the conclusion of the AIM program). Upon testing, Mr. DeGras demonstrated abilities in the "low average" to "well above average" range, on tests measuring his material handling, strength, and endurance. However, Ms. Goldlust concluded that he was physically incapable of meeting the demands of his pre-accident job, as described to her. Mr. DeGras described the tasks of his pre-accident employment as continuous very heavy work. Mr. DeGras had demonstrated maximum lifting of 65 pounds on one occasion and he generally worked with lower weights of 20 to 50 pounds. Ms. Goldlust observed that Mr. DeGras' performance was largely self-limited by pain, and she rated his function profile at medium.⁴¹

I accept that Mr. DeGras' comfortable level of function falls within the medium range. However, I am satisfied that Mr. DeGras has returned to his pre-accident level of function and is capable of working within the medium to occasionally heavy range, albeit with some level of pain and minor limitation of back movement. Prior to his motorcycle accident, Mr. DeGras routinely extended himself beyond his comfortable range of physical activity when he engaged in the heavier aspects of his job. Both Mr. Hugli and Mr. FitzGerald confirmed that Mr. DeGras often worked in obvious pain.

I find the lifting capacities and work tolerances Mr. DeGras demonstrated over a period of weeks and months during the ETC and AIM programs in 1994, are more reliable indicators of his abilities than his scores from a single day of testing in February 1995. I therefore conclude that Mr. DeGras no longer suffered a substantial inability to perform the essential tasks of his employment by the conclusion of the AIM program on April 8, 1994.

Quantum of Weekly Income Benefits:

During the course of the hearing the parties agreed to the following facts relating to the quantum of Mr. DeGras' weekly income benefits:

1. Mr. DeGras' pre-accident gross weekly income from employment was $492.25;

2. Mr. DeGras' weekly income benefit was $393.80;

3. Mr. DeGras received payments for loss of income from ManuLife in the amount of $246.10 for the period August 26, 1992 to February 16, 1994 (77 weeks);

4. Under section 12(4)(b)(i) of the Schedule, Jevco is entitled to deduct the amount of ManuLife's payments ($246.10) from the amount of weekly income benefit otherwise payable ($393.80) for a remainder of $147.70;

On the basis of these facts, I conclude that Jevco is required to pay weekly income benefits to Mr. DeGras in the amount of $147.70 for a total of 77 weeks from August 26, 1992 to February 16, 1994, i.e. $11,372.90 less $1,961.56, being the stated amount of weekly income benefits already paid to Mr. DeGras by Jevco.⁴² I conclude that Jevco owes Mr. DeGras $9,411.34 weekly income benefits to February 16, 1994.

After February 16, 1994 Mr. DeGras seeks weekly income benefits from Jevco in the full amount of $393.80. Jevco queries whether it is obligated to pay the full amount, in light of Mr. DeGras' position that ManuLife wrongly terminated his benefits in February 1994 and his decision to commence a court action against ManuLife for the reinstatement of the benefits. Counsel for Jevco submitted that section 12(4)(b(i) of the Schedule permits the Insurer to deduct payments for loss of income "received by or available to" Mr. DeGras. It is Jevco's position that further benefits from ManuLife should be considered to be "available to" Mr. DeGras and, therefore, deductible by Jevco.

The simple answer to Jevco's position is found at section 14(1) of the Schedule which states:

The insurer will pay full benefits under this part [Part IV Weekly Benefits] until the insured receives payments that would reduce the insurer's obligation through the operation of subsection 12(4) or 13(3) if the insured person has applied to receive the payments.

Mr. DeGras applied for and received disability benefits from ManuLife and has fulfilled the requirement of section14(1). Jevco is, therefore, required to pay Mr. DeGras weekly income benefits in the amount of $393.80 for 7 weeks from February 17, 1994 to April 8, 1994 for a total of $2,756.60 until such time as Mr. DeGras receives further benefit payments from ManuLife in respect of this motorcycle accident.

I conclude that Jevco is required to pay Mr. DeGras weekly income benefits in the total amount of $12,167.94 plus interest calculated at the rate of 2% per month in accordance with the provisions of section 24(4) of the Schedule.

Expenses:

The dispute between these parties developed because of a significant difference of opinion concerning the essential tasks of Mr. Degras' pre-accident employment. As a result of this unfortunate misunderstanding Jevco prematurely terminated Mr. DeGras' weekly income and rehabilitation benefits. This may well have delayed his recovery from soft tissue injuries until he finally obtained the appropriate therapy from AIM. Although Jevco could have done more to assist its insured to obtain the rehabilitation he needed, I find that it is not an appropriate case in which to make a special award under section 282(10) of the Act due to Jevco's honest confusion concerning Mr. DeGras' essential tasks. This is, however, an appropriate case in which to exercise my discretion to award Mr. DeGras his expenses incurred in the arbitration under section 282(11) of the Act. The prescribed expenses are set out in Ontario Regulation 664.

If the parties are unable to agree on the amount of expenses owing by Jevco, either party may apply to the Commission for an assessment of expenses.

Order:

1. Jevco is required to pay Mr. DeGras further weekly income benefits under section 12(1) of the Schedule up to and including April 8, 1994;

2. Jevco is required to pay Mr. DeGras further weekly income benefits in the amount of $12,167.94 plus interest thereon calculated at the rate of 2% per month in accordance with the provisions of section 24(4) of the Schedule.

3. Jevco is required to pay Mr. DeGras the expenses of the Accident Injury Management Clinic's functional restoration and work simulation programs and chiropractic treatments, (particularized in Exhibit 2, tab 39) under section 6 of the Schedule.

4. Jevco is required to pay Mr. DeGras his expenses incurred in respect of this arbitration in accordance with Ontario Regulation 664.

May 30, 1996

Janice Mackintosh Arbitrator

Date

SCHEDULE "A"

Present at the Hearing:

Applicant:

Brett W. DeGras

Applicant's Representative:

Louis Mostyn Barrister and Solicitor

Insurer's Representative:

John S. McNeil Barrister and Solicitor

Witnesses:

For The Applicant:

Brett W. Degass, Lisa Degass Paula Lockyer Michael Hugli Craig FitzGerald Lyndy Goldlust, O.T. Dr. David Berg

For the Insurer:

Keith Paine Ross Paine

Exhibits:

28 Exhibits including two bound volumes with multiple Tabs

Exhibit 1

Volume I - Joint book of documents - Tabs 1-11

Exhibit 2

Volume II - Joint book of medical records and reports - Tabs 1-47

Exhibit 3

Curriculum Vitae of Lyndy Goldlust, Occupational Therapist

Exhibit 4

Volume I - Tab 10 - Diary of Mike Hugli

Exhibit 5

Assessment of Claim by Insurer Form dated January 22, 1992 [should read 1993]

Exhibit 6

Assessment of Claim by Insurer Form dated December 6, 1993

Exhibit 7

Letter dated January 27, 1994 from Manulife to Applicant

Exhibit 8

Letter dated May 17, 1994 from Manulife to Applicant's solicitors Mostyn, Mostyn and Naiman

Exhibit 9

Video surveillance of Applicant taken February 11, 1995

Exhibit 10

Letter dated January 12, 1993 from Lindsey Morden Claim Services Limited (Insurer's rep.) to Applicant's solicitors, Mostyn, Mostyn and Naiman

Exhibit 11

Canada Life Job Analysis dated October 2, 1992

Exhibit 12

Time sheets maintained by Mr. Ross Paine of Lawrence-Paine Limited

Exhibit 13

Application for short and long term disability benefits to Manufacturer's Life

Exhibit 14

Employer's job description dated November 10, 1992, provided to Manufacturer's Life

Exhibit 15

Employer's job description date dated January 18, 1993 completed by Mr. Paine for Manufacturer's Life

Exhibit 16

Ontario Automobile Insurance Employer's Conformation of Income Form dated September 4, 1992

Exhibit 17

Two letters (a) dated February 16, 1993 and (b) dated September 21, 1993 from Mr. Keith Paine re. Job descriptions

Exhibit 18

Employment and Immigration Canada Record of Employment issued by Lawrence-Paine Limited for Mr. DeGras dated June 29, 1994

Exhibit 19

Daily time sheet for Lawrence-Paine Limited dated August 13, 1992

Exhibit 20

Bundle of documents prepared by Brett DeGras - July and August 1992 - Office work

Exhibit 21

Letter dated July 2, 1992 from Modernfold to Brett DeGras

Exhibit 22

Undated note from Ross Paine re query layoff for Brett DeGras

Exhibit 23

Letter dated December 2, 1993 from Mostyn, Mostyn and Naiman to AIM clinic

Exhibit 24

Prescription note of Dr. Balkissoon dated November 24, 1993

Exhibit 25

AIM - Physical fitness assessment forms

Exhibit 26

AIM - Patient Satisfaction Questionnaire - prepared by Brett DeGras, April 7, 1994

Exhibit 27

AIM - Work Simulation/Homemaker Intake Assessment Form - March 9, 1994

Exhibit 28

(a) Undated letter from Lindsey Morden to AIM

(b) Letter from AIM to Lindsey Morden dated May 27, 1994

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. 2The Canadian Classification and Dictionary of Occupations ("CCDO") defines "very heavy work" as lifting objects in excess of 100 pounds (45.5 kgs.), with frequent lifting and/or carrying of objects weighing 50 pounds or more (23 kgs.). The CCDO along with the National Occupational Classification (NOC) are the most commonly used vocational work classification systems in Canada. However, the CCDO includes information regarding the physical requirements of occupations and the physical capacities a worker must have to meet these requirements, not currently available in the NOC.
3. 3Exhibit 14, dated November 10, 1992; Exhibit 15, dated January 18, 1993; Exhibit 16, dated September 4, 1992; Exhibit 17 (a) and (b) dated February 16, 1993 and September 21, 1993.
4. 4Exhibit 1, Volume 1, Tab 4 (9) and (11)
5. 5Exhibit 12
6. 6Exhibit 20
7. 7Exhibit 1, Volume 1, small Tab 10
8. 8Exhibits 11 and 14, Job analysis prepared by Mr. Keith Paine.
9. 9Exhibits 15, 16, and 17a
10. 10Exhibit 11, Job analysis completed by Mr. Keith Paine
11. 11Exhibit 14
12. 12The CCDO defines "medium work" as lifting 50 pounds (23 kgs.) maximum, with frequent lifting and/or carrying of objects weighing up to 20 pounds (9 kgs) and "heavy work" as lifting 100 pounds (45.5 kgs.) maximum, with frequent lifting and/or carrying of objects weighing up to 50 pounds (23 kgs.).
13. 13Exhibit 2, Tab 24, Vol. 2 Joint medical brief, Final note from Centenary Hospital dated October 23, 1989.
14. 14Volume 2, Tab 42, letter from Dr. Urovitz to Dr. Balkissoon dated November 15, 1990.
15. 15Exhibit 18, Record of Employment issued by L-P Ltd. - refer to code E.
16. 16Exhibit 2, Tab 41, Hospital records of York Central Hospital.
17. 17Exhibit 2, Tab 3, Dr. Bilkissoon's supplementary statement dated October 7, 1992.
18. 18Exhibit 2, Tab 6, Report dated November 30, 1992.
19. 19Exhibit 5, Insurer's Assessment of Claim Form dated January 22, 1992. [sic]
20. 20Exhibit 2, Tab 8, Report dated December 22, 1992.
21. 21Exhibit 2, Tab 45, Report of Dr. Urovitz dated December 21, 1992.
22. 22Exhibit 2, Tab 40, Report of Dr. Charendoff dated February 26, 1993.
23. 23Exhibit 2, Tab 12
24. 24Exhibit 2 Tab 13, Report of operation dated January 27, 1993.
25. 25Exhibit 2, Tab 15, Report dated March 16, 1993.
26. 26Report of Mediator dated May 18, 1993.
27. 27Exhibit 2, Tabs 22, 23 and 29 Reports of Dr. Mascarenhas each dated September 1, 1993 and follow-up report dated October 22, 1993.
28. 28Exhibit 2, Tab 26, Report of Dr. Balkissoon dated September 15, 1993.
29. 29Exhibit 2, Tab 27, Report of Dr. Urovitz dated September 20, 1993; Exhibit 2, Tab 38, report dated September 30, 1993.
30. 30Exhibit 2, Tab 22, Report of Dr. Mascarenhas dated September 1, 1993 at page 9.
31. 31Exhibit 8, letter from ManuLife dated May 17, 1994.
32. 32Exhibit 2, Tab 42, ETC report dated February 2, 1994.
33. 33Exhibit 2, Tab 32, AIM report dated February 18, 1994 .
34. 34Exhibit 2, Tab 27, Report of Dr. Urovitz dated September 20, 1993; Exhibit 2, Tab 38, Report dated September 30, 1993.
35. 35Exhibit 2, Tab 6, Report of Dr. Hall dated November 30, 1992 at pages 6 and 7
36. 36Exhibit 2, Tabs 22, 23 and 29, Reports of Dr. Mascarenhas each dated September 1, 1993 and follow-up report dated October 22, 1993
37. 37Exhibit 2, Tab 6, Report of Dr. Hall dated November 30, 1992.
38. 38Exhibit 2, Tabs 31, 34,35 and 36, AIM progress reports and discharge report.
39. 39Exhibit 26, Patient Satisfaction Questionnaire dated April 4, 1994.
40. 40Exhibit 2, Tab 42, Scarborough General Hospital Report dated July 25, 1994.
41. 41Exhibit 2, Tab 43, Report of Ms. Goldlust, occupational therapist dated February 6, 1995.
42. 42Exhibit 1, sub tab 13 of Tab 4, letter from Mr. McNeil to Mr. Mostyn dated February 8, 1995; Exhibit 5 and 6 assessment of claim forms issued by Jevco.