Neutral Citation: 1996 ONICDRG 93

OIC A-010292

ONTARIO INSURANCE COMMISSION

BETWEEN:

KLIME MILEVSKI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Klime Milevski, was injured in an automobile accident on February 16, 1993. He was insured under a standard automobile insurance policy issued by the Insurer. The Applicant applied for statutory accident benefits under Ontario Regulation 672.¹

At the time of the automobile accident, the Applicant had claimed entitlement to temporary total disability benefits payable pursuant to the Workers 'Compensation Act, in respect of a compensable accident which occurred on February 1, 1993. In the absence of information concerning the amount of benefits payable to the Applicant as a result of this compensable accident, the Insurer paid the Applicant weekly income benefits in the amount of $185.00 per week pursuant to section 13 of the Schedule, for a period of five weeks, from February 23 to March 30, 1993.

The Applicant and the Insurer disagree about the duration of the weekly income benefits to which the Applicant is entitled, and about the amount of weekly income benefits payable to the Applicant under the Schedule. Mediation of this dispute was unsuccessful, and the Applicant applied for the appointment of an arbitrator under section 242 of the Insurance Act, R.S.O. 1990, c.I. 80, as amended.

At the outset of the hearing, the Insurer conceded that the Applicant's weekly income benefits should be calculated under section 12 of the Schedule.

The issues to be determined in this arbitration are:

1. Is the Applicant entitled to disregard the period of time during which he was unable to work and was in receipt of Workers' Compensation Benefits in calculating his average gross weekly income from his employment under section 12(7)1 of the Schedule?

2. Are the Applicant's Workers' Compensation Benefits deductible from the weekly benefit payable under paragraph 12(4)(b)(i) or 13(3)(a) of the Schedule?

3. Is the Applicant entitled to weekly income benefits after the date they were terminated by the Insurer?

4. The Applicant also claims interest on overdue benefits and his expenses in the arbitration.

Result:

1. Mr. Milevski is entitled to receive weekly income benefits at the rate of $185.60 per week. This benefit is calculated based upon his total income from employment earned in the four weeks immediately preceding the motor vehicle accident, divided by four weeks, rather than on his average income for the two weeks he actually worked during that period.

2. Temporary total disability benefits received by Mr. Milevski from the Workers' Compensation Board until May 1, 1993 shall be deducted from the benefit payable by the Insurer during that same period, resulting in no benefit being payable by the Insurer until May 1, 1993. The Insurer is entitled to repayment of five weeks of section 12 weekly income benefits paid during the period February 23 to March 30, 1993, plus interest calculated in accordance with section 27 of the Schedule.

3. After May 1, 1993, Mr. Milevski is entitled to receive weekly income benefits of $185.60 until January 19, 1994.

4. Mr. Milevski is entitled to interest on the outstanding amounts, calculated according to section 24 of the Schedule.

5. Mr. Milevski is entitled to his expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on June 1, 7 and 8, October 17 and 18, and November 2, 1995, before me, Marsha Faubert, Arbitrator.

Present at the hearing:

Applicant:

Klime Milevski

Applicant's

Stanley Pasternak

Representative:

Barrister and Solicitor

Insurer's

Michael Taylor

Representative:

Barrister and Solicitor

Witnesses:

1. Klime Milevski, Applicant

2. Dr. Sheldon Finkelstein

3. Valerie MacDonald, Claims Adjuster, State Farm Insurance

4. Frederick Goodfellow, Pintar Manufacturing Limited

5. Dr. Michael Schwartz

6. Dr. Reuven Lexier

Exhibits:

13 Exhibits were filed and are listed in Appendix A.

Reasons for Decision:

A. Calculation of Weekly Income Benefit

Background:

The facts which relate to this aspect of the application are not in dispute. Mr. Milevski, now fifty-four years of age, was educated in Macedonia. He completed high school, and attended trade school for three years, where he was trained as an industrial maintenance mechanic. He worked at his trade in Yugoslavia for approximately eight years. He then immigrated to Germany, where he worked on an assembly line for approximately one year.

In 1969, Mr. Milevski immigrated to Canada as a skilled tradesman. Since then, he has worked at various jobs, both in production and as an industrial maintenance mechanic. Most recently, he worked as a maintenance mechanic for a company which manufactured paint brushes. When this company was sold, he continued to work in the same job for the successor employer, until he injured his low back and right ankle at work on November 19, 1990.

Following his compensable accident, Mr. Milevski received temporary total disability benefits from the Workers' Compensation Board. The Workers' Compensation Board also recognized that Mr. Milevski suffered a permanent impairment resulting from this accident, and granted him a non-economic loss (NEL) award in the amount of $13,488.13, and a benefit for future economic loss (FEL) in the amount of $695.37 per month (increased to $719.91 per month effective August 4, 1994).

In January 1992, the Workers' Compensation Board found Mr. Milevski fit to perform modified work, with limitations on lifting, bending and twisting. Through his own contacts, Mr. Milevski arranged a training-on-the-job program with a company known as Pintar Manufacturing Limited (Pintar). The Board agreed to pay Mr. Milevski full compensation benefits while he was employed in this program from July 23, 1992 until December 31, 1992. Effective January 1, 1993, Mr. Milevski was to be enrolled on the company payroll at an hourly rate of $10.50, based upon a forty hour work week.

While working at Pintar, Mr. Milevski sustained two further compensable injuries. On December 9, 1992, Mr. Milevski strained the muscles in his right arm while operating a machine. Mr. Milevski's second compensable accident occurred on February 1, 1993. According to reports filed with the Workers' Compensation Board, on that day, Mr. Milevski sprained the muscles of the right side of his body from his neck down to his waist while adjusting a bevel cutter. The exact nature of the injuries sustained in these accidents was the subject of some controversy in this application, and they will be described below. At this point, it is sufficient to note that Mr. Milevski did not return to work following the second accident on February 1, 1993, and that the Board subsequently recognized his claim of total disability resulting from this accident. The Board paid Mr. Milevski benefits at the rate of $285. 83 per week until May 1, 1993, when it concluded that Mr. Milevski would likely have fully recovered from the effects of this accident.

On February 16, 1993, approximately two weeks after this compensable accident, Mr. Milevski was involved in an automobile accident. Mr. Milevski applied to his Insurer, State Farm, for statutory accident benefits to compensate him for his loss of income resulting from this accident. On March 30, 1993, State Farm issued an Assessment of Claim, in which it advised that Mr. Milevski's claim was accepted and that the Insurer would pay him the amount of $185.00 per week for the period from February 24, 1993 through March 30, 1993 inclusive. The Insurer's Claims Adjuster, Ms. MacDonald, explained that she was aware that Mr. Milevski was disabled and in receipt of Workers' Compensation Benefits at the time of his automobile accident. However, at the time she issued the Assessment of Claim, the amount of Mr. Milevski's compensation benefits from the Workers' Compensation Board had not yet been determined. It was her view that Mr. Milevski's Workers' Compensation Benefits could be deducted from the amounts payable by the Insurer, and accordingly, she calculated Mr. Milevski's weekly income benefit to be $185.00 per week, the amount she understood to be the minimum payable by the Insurer. In the Assessment of Claim, the Insurer also stated that if benefits were received from the Workers' Compensation Board for the same period, $185.00 per week must be returned to State Farm. State Farm has paid no other benefits to Mr. Milevski in connection with his automobile accident.

The Applicable Legislation

Section 12 of the Schedule requires an insurer to pay an insured person a weekly income benefit during the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her occupation or employment. The parties agree that section 12(4) of the Schedule provides that the weekly benefit payable for the period of Mr. Milevski's disability shall be a sum equal to eighty percent of his "gross weekly income from his occupation or employment," less any payments for loss of income received by or available to him under the laws of any jurisdiction or under any income continuation benefit plan. Section 12(7) of the Schedule sets out the rules for calculating the insured person's gross weekly income. It provides:

(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.00

On behalf of the Applicant, Mr. Pasternak concedes that the benefits received by Mr. Milevski from the Workers' Compensation Board covering the period from February 1 to February 16 are not included in the calculation of his gross weekly income under section 12(7). He noted that Mr. Milevski had only two weeks of active employment income in the four weeks preceding the accident. However, he argued that the two weeks preceding the accident during which Mr. Milevski received no income from employment should be disregarded, and that I should calculate his gross weekly income by averaging his income during the two week period that he worked from January 16 to February 1, 1993. In support of this argument, he relied upon the decision of Senior Arbitrator Naylor in Scavuzzo and Canadian Home Assurance Company (March 18, 1992), OIC A-000626 upheld by the Directors Delegate (June 19, 1992). In Scavuzzo, Senior Arbitrator Naylor noted that the Schedule is remedial legislation, and must be construed in a manner which serves the legislative purpose of fair, adequate and speedy compensation for loss of income resulting from automobile accidents. She concluded that the language of section 12(7) was capable of more than one meaning, and that the objectives of the legislation would be best met by calculating Mr. Scavuzzo's gross weekly income based on the weeks that he worked during the four and fifty-two weeks preceding the accident, without including periods of unemployment.

The Director's Delegate agreed with this interpretation of section 12(7), which she also found to be ambiguous and capable of two interpretations. She wrote (at p. 15):

Taken in the context of the legislation, I am of the opinion that the natural and ordinary meaning of the words of section 12(7) is that the average gross weekly income from employment should include only those weeks during the 4 or 52 weeks that he was employed, i.e., the interpretation previously referred to at the "first" interpretation.

Mr. Pasternak argued that a subsequent decision of Arbitrator Makepeace in Singh and Wellington Insurance Company (June 24, 1994), OIC A-004139 supports this interpretation of section 12(7) of the Schedule. In Singh, Arbitrator Makepeace found that its application to a long term employee who had had no interruptions in service in the year before the accident was relatively clear. However, she was not satisfied that it set out rules for determining the gross weekly income of casual workers, seasonal workers, or workers who have been laid off as a result of disability or economic conditions during the year before the accident. On the facts before her, Arbitrator Makepeace was satisfied that a vacation period during the fifty-two weeks preceding Mr. Singh's accident should be taken into account in calculating his gross weekly income, as it was an expected and regular part of his work cycle.

Mr. Taylor relied upon a number of decisions which, he argued, lead to the opposite conclusion: Jolin and Jevco Insurance Company (October 27, 1993), OIC A-002187; MouawadandAlpina Insurance Company Limited (June 30, 1994), OIC A-003226; Vo and Maplex General Insurance Company (October 4, 1993), OIC A-002777; and Descarie v. Personal Insurance Company of Canada, 1995 CanLII 7051 (ON CTGD), 23 O.R. (3rd) 457.

In the decisions in Vo and Mouawad, the Arbitrators were required to consider the effect of interruptions of employment in calculating an insured's gross weekly income under section 12(7). In Vo, Arbitrator Draper considered the reasoning of the arbitrator in Scavuzzo, but reached the opposite conclusion. He wrote (at page 23):

In my opinion, the ordinary meaning of section 12(7)1 is that the applicant's average gross weekly income is to be calculated for two periods: four weeks and fifty-two weeks. A weekly average is to be calculated for those two periods, even if the applicant had no gross weekly income from his or her occupation or employment during some of the weeks. Although it might be possible to read the section to mean that the four and fifty-two week periods can be further divided into weeks that the person worked, I am not convinced that this is the plain or ordinary meaning.

In Mouawad, Arbitrator Mackintosh reached the same conclusion. Arbitrator Mackintosh wrote (at page 14):

Like Arbitrator Draper in his decision in Vo I am not convinced that the wording of section 12(7) permits the applicant to rely upon a four week period that occurred approximately eight weeks prior to the motor vehicle accident, or 23 weeks out of the 52 weeks preceding the accident, on the basis that it is the most accurate or favourable reflection of the applicant's gross income from employment.

In Arbitrator Mackintosh's view, every week of the four and 52 week periods immediately preceding the accident ought to be considered and included when calculating the average gross weekly income for each of those periods. This calculation was to include days not worked in each seven day consecutive period, and weeks not worked within the two time periods.

The interpretation of section 12(7) of the Schedule was also considered by the Ontario Court (General Division) in Descarie v. Personal Insurance Company of Canada, (1995) 1995 CanLII 7051 (ON CTGD), 23 O.R. (3d) 457. In that case, the insured was subject to a mandatory two week holiday period during the four weeks preceding his motor vehicle accident. The Court's interpretation of the meaning of the words "gross weekly income from his or her occupation or employment for the (period) preceding the accident" is instructive. The Court wrote (at page 463):

If the Legislature had meant "weeks actually worked", those words could have very easily been used by the drafter of the Schedule. Consequently, the only logical conclusion, is that the Legislature meant what it said and the calculation in question has to be made by using only the four weeks in time immediately preceding the accident.

In my view, the conclusions of the Arbitrators in Vo and Mouawad, and of the Court in Descarie, are consistent with the applicable legislation. While it appears that some effort has been made by the Legislature to afford an insured the best calculation of his or her gross weekly income in the period leading up to an accident, I find that this must be done by considering his or her actual income for either the four week or fifty-two week period preceding the accident. I do not think that the language of section 12(7) is capable of further refinement so as to permit an arbitrator to consider only the weeks actually worked during these two time periods in determining the best calculation of an insured's pre-accident income. While this interpretation may lead to an unfortunate result in the case of an insured with an inconsistent work history preceding an automobile accident, I am not persuaded that the language of the section is capable of any other interpretation.

In the case before me, it was accepted that a calculation of Mr. Milevski's income for the fifty-two weeks preceding his accident would result in an amount less than his income for the four weeks preceding his accident, however that 4 weeks' income was calculated. Accordingly, I find that his gross weekly income must be calculated by averaging his income for the weeks actually worked during the four week period preceding his automobile accident, over the four week period. This would result in a weekly average of $210.00. Pursuant to section 12(7)1.iii of the Schedule, Mr. Milevski's gross weekly income is deemed to be $232.00, and he is entitled to weekly income benefits for the period of his disability at the minimum rate of $185.60.

B. Duration of Benefits

Mr. Milevski's Condition Prior to his February 16, 1993 Motor Vehicle Accident

In this application, Mr. Milevski claims that the physical injuries he sustained in the motor vehicle accident have resulted in his continuous substantial inability to perform the essential tasks of his employment. Briefly, Mr. Milevski claims that he is prevented from working as a result of neck and shoulder injuries from the automobile accident. The Insurer alleges that Mr. Milevski's motor vehicle accident is not a significant cause of his ongoing disability, which is more probably related to the prior injuries he sustained before his February 16, 1993 accident.

Mr. Milevski's family physician, Dr. Sheldon Finkelstein, testified that he has treated Mr. Milevski since 1986. Mr. Milevski first complained to him of a two month history of right shoulder pain on June 22, 1989. Although Dr. Finkelstein's records do not disclose any history of accidental injury, Mr. Milevski testified that he injured his right shoulder at work in 1987 or 1988, and had had worsening shoulder pain since then. Dr. Finkelstein concluded that Mr. Milevski suffered from right rotator cuff tendonitis (inflammation of one of the tendons in a group of muscles and tendons surrounding the shoulder), and he prescribed anti-inflammatory medication and physiotherapy.

Dr. Finkelstein saw Mr. Milevski on three occasions in August 1989 for his complaints of persisting pain in his right shoulder. As conservative treatment failed to resolve Mr. Milevski's complaints, Dr. Finkelstein referred him for treatment by orthopaedic surgeon Dr. S.J. Cartan. Dr. Cartan first saw Mr. Milevski on November 3, 1989 when he administered an injection to Mr. Milevski's right shoulder.

Subsequently, Dr. Cartan admitted Mr. Milevski to hospital in December 1989 for the purpose of carrying out a manipulation and injection of his right shoulder under anaesthetic. In his admission record dated December 13, 1989, Dr. Cartan wrote that he was treating Mr. Milevski for a right rotator cuff tendonitis and a painful severe adhesive capsulitis (inflammation of the capsule of the shoulder joint). According to the operative report, a manipulation of the right shoulder was carried out until all intra-articular adhesions were broken down and the shoulder moved freely. Dr. Cartan injected the shoulder with Xylocaine and DepoMedrol at the time of this procedure.

Dr. Cartan reassessed Mr. Milevski on two occasions, on December 29, 1989 and January 19, 1990. Dr. Cartan's handwriting in his reports of these examinations is illegible. It appears that Dr. Cartan did not report to Dr. Finkelstein concerning his treatment of Mr. Milevski, because Dr. Finkelstein's records contain no reference to further right shoulder complaints after August 1989, until 1993.

Mr. Milevski recalled going for physiotherapy for his right shoulder at Dr. Finkelstein's clinic for several months. He also recalled being treated by Dr. Cartan with an injection under anaesthetic, although he did not remember another injection to his right shoulder in 1989.

Mr. Milevski's evidence about the condition of his shoulder following this treatment was inconsistent. In response to a question put by Mr. Pasternak, Mr. Milevski stated that the pain went away after he was injected by Dr. Cartan, "but not completely." He stated that he continued working, and his pain did not interfere with his ability to work. However, in response to questioning by Mr. Taylor, Mr. Milevski stated that after being injected by Dr. Cartan, he could not remember having any problems with his right shoulder. He also stated that if he had had such problems, he would have requested help from Dr. Finkelstein.

Mr. Milevski worked throughout 1990 until November 19, 1990, when he injured his low back and right ankle after slipping on an oily floor at work. He was treated by Dr. Finkelstein and by orthopaedic surgeon Dr. S. Rosenfeld for injuries sustained in this accident. He had physiotherapy and medication. A November 22, 1991 report of the Board's Regional Evaluation Centre provides a useful summary of Mr. Milevski's injuries and limitations arising out of this compensable accident. Mr. Milevski reported that he was unable to walk comfortably for longer than half an hour, and prolonged sitting, standing, bending and twisting aggravated his right sided low back pain. He also had intermittent numbness involving his entire right leg, in a stocking distribution. His sleep was occasionally disturbed by low back pain. He experienced weakness and aggravation of right medial ankle pain with walking. The examiners concluded that Mr. Milevski had sustained a lumbar strain and a right ankle sprain. They felt that Mr. Milevski was capable of modified duties involving a primarily sedentary occupation, with avoidance of repetitive bending, twisting and lifting of greater than twenty kilograms.

As previously noted, Mr. Milevski began working with Pintar on July 23, 1992. While still engaged in the training-on-the-job portion of his vocational rehabilitation program, Mr. Milevski sustained another work injury. On December 3, 1992, he was working on the milling machine, turning the spindle to adjust the height of the table. He stated that the part jammed, and he felt a sharp pain in his right forearm around the elbow.

Dr. Finkelstein testified that he examined Mr. Milevski on December 3, 1992 for complaints of right upper arm and forearm pain. He observed tenderness over the right biceps and diagnosed a right biceps strain. Dr. Finkelstein prescribed physiotherapy, which Mr. Milevski received on eighteen occasions before his next compensable accident on February 1, 1993.

Dr. Finkelstein reassessed Mr. Milevski on December 10 and 18, 1992, and January 18, 1993. On these occasions, Mr. Milevski complained of continuing tenderness over the right biceps with difficulty on full elbow extension and with contraction of the right biceps. As well, he complained of lumbar pain.

Although Mr. Milevski testified that he remained off work for three weeks following this accident, the employers' report of accident filed with the Workers' Compensation Board, and the Board's records, indicate that he lost no time as a result of the incident. Dr. Finkelstein's records indicate that Mr. Milevski was advised to perform light duties for several weeks. Dr. Finkelstein testified that it was his recollection that by January 18, 1993, Mr. Milevski's symptoms concerning his right biceps injury were minimal.

After considering Dr. Finkelstein's records and his testimony, I am satisfied that Mr. Milevski sustained no direct injury to his right shoulder in this accident. However, in light of Dr. Finkelstein's recommendation that Mr. Milevski carry out light duties, it is reasonable to conclude that Mr. Milevski restricted the use of his right arm as a result of the injury.

Mr. Milevski's next work accident occurred on February 1, 1993. According to the report which he filed with the Workers' Compensation Board, Mr. Milevski was reaching with his right hand to make fine adjustments to the bevel cutter, when he felt "a sharp jolt go down the right side of (his) muscle from the neck down." Mr. Milevski obtained treatment from Dr. Finkelstein the following day.

In his report of this accident filed with the Workers' Compensation Board, Dr. Finkelstein noted that Mr. Milevski had complaints of acute right neck pain and chest pain which was worse with turning and inspiration. Dr. Finkelstein diagnosed a right cervical strain and chest wall pain. Dr. Finkelstein's clinical records indicate that Mr. Milevski also complained of an exacerbation of his lumbar pain and right arm pain, as well as right leg numbness at the time of his February 2, 1993 examination.

Mr. Milevski received nine physiotherapy treatments between February 2 and his motor vehicle accident on February 16, 1993. However, Dr. Finkelstein did not reassess Mr. Milevski until after his February 16, 1993 accident.

The Accident and Subsequent Medical Treatment

While driving to a medical appointment with Dr. Finkelstein on February 16, 1993, Mr. Milevski lost control of his car, struck a tree and subsequently struck a hydro or telephone pole. He recalled that he was going approximately thirty to forty kilometres per hour at the time of the impact. He testified that he hurt his neck and right shoulder in the accident, and although he did not strike his head, he was "twisted" or "shifted" from his position in the car. According to the ambulance call report, Mr. Milevski complained of right sided neck and shoulder pain at the scene of the accident. According to the emergency report of the Etobicoke General Hospital, Mr. Milevski had tender neck muscles, with range of motion reduced to ten percent. An x-ray of his cervical spine was taken, but showed no evidence of significant abnormality. Mr. Milevski was provided with a cervical collar and was discharged.

Mr. Milevski was treated by Dr. Finkelstein the same day. Dr. Finkelstein recalled that Mr. Milevski appeared to be quite shaken and in considerable pain and distress, with complaints of neck and shoulder pain. On examining Mr. Milevski, Dr. Finkelstein observed tenderness over the trapezius muscle on the right side, severe neck pain, and a reduction in the range of motion of his neck to twenty degrees on both sides. Dr. Finkelstein diagnosed an acute cervical strain and prescribed further physiotherapy and medication.

According to Dr. Finkelstein's clinical records, Mr. Milevski was reassessed on February 23, 1993. He complained of general malaise, as well as right trapezius muscle pain associated with right lateral neck rotation of twenty degrees and right and left lateral flexion of his neck. The diagnosis of Mr. Milevski's condition continued to be acute cervical strain. Similarly, on March 5, 1993, Mr. Milevski complained to Dr. Finkelstein that there had been no improvement in his neck pain. Dr. Finkelstein's findings on an examination of Mr. Milevski on March 15, 1993 were similar to those reported on March 5, 1993.

Dr. Finkelstein referred Mr. Milevski to physiatrist Dr. R. C. Wong, who first assessed Mr. Milevski on March 18, 1993. Dr. Wong was aware of Mr. Milevski's low back and ankle injury, as well as his December 3, 1992 and February 1, 1993 work accidents. Dr. Wong diagnosed a whiplash injury to the neck, mild rotator cuff tendonitis of the right shoulder, mild capsulitis of the right shoulder and moderate mechanical low back pain. When he re-assessed Mr. Milevski on March 29, 1993, Dr. Finkelstein also observed symptoms of right rotator cuff tendonitis.

Dr. Wong re-examined Mr. Milevski on April 15, 1993. In his report of this examination, Dr. Wong referred to Mr. Milevski's previous accidents, and noted that Mr. Milevski had reported increased pain in his neck and upper back since his February 16, 1993 automobile accident. With respect to his medical examination, Dr. Wong wrote:

At present, he has moderate myofascial pain as a result of the whiplash injury to his neck. In his right shoulder, there is mild rotator cuff tendonitis with a possibility of early capsulitis. He also has moderate mechanical low back pain.

Since then, Mr. Milevski has undergone extensive physiotherapy treatment as well as investigation of his complaints. Dr. Wong re-assessed him on May 13, 1993, at which time he felt that there had been "a great deal of improvement in his condition since last seen in April 1993." Dr. Wong encouraged Mr. Milevski to continue with his therapy and exercise program, and felt that within a few weeks he would be able to return to some of modified work.

Dr. Wong treated Mr. Milevski with an injection of DepoMedrol into his right rotator cuff in June 1993. In his July 8, 1993 report, Dr. Wong wrote that compared with the findings of April 15, 1993, Mr. Milevski's right shoulder range of motion had improved greatly. His previously observed decrease of seventy degrees abduction had improved to only twenty degrees reduction in abduction. However, his low back condition remained the same. Dr. Wong recommended that Mr. Milevski carry on with his exercises, as well as "occasional modality treatment."

In contrast, when Mr. Milevski was examined by Dr. Finkelstein on July 15, 1993, he complained of pain "all over" (Dr. Finkelstein's May 8, 1995 report). He had right lumbar pain radiating to his mid-back, posterior neck pain radiating to his right arm which was worse than before, numbness to his right third, fourth and fifth fingers, right ankle pain and a constant cold feeling in his right foot. He complained of diminished power in his right arm. He had only thirty to forty-five degrees of right and left lateral rotation of his neck. He had diminished grip strength in his right hand, as well as tenderness in his right forearm. He also had pain on abducting his right shoulder to 90 degrees.

Mr. Milevski underwent a nerve conduction study performed by Dr. L. S. Corrin, neurologist, on July 27, 1993. The results of this examination provide no neurological explanation for Mr. Milevski's right arm and hand symptoms. In her September 7, 1993 report, Dr. Corrin wrote that Mr. Milevski co-operated poorly for muscle testing, with much "giveway." She observed no muscle atrophy, and the results of sensory and reflex testing were normal. After reviewing the results of the motor nerve conduction and sensory studies of the right arm, Dr. Corrin wrote that "there seems to be much symptom magnification in this patient's presentation."

Dr. Wong reassessed Mr. Milevski on December 9, 1993, at which time he found his condition unchanged. An MRI of Mr. Milevski's right shoulder carried out on February 23, 1994, showed no evidence of joint effusion. The radiologist reported that there was minimal narrowing of the glenohumoral interval, as well as changes suggestive of mild supraspinatus tendonitis.

Mr. Milevski testified that there has been no significant improvement in his condition since 1993. He continues to have occasional back pain which is associated with his previous compensable accident. He also has numbness in his leg and pain in the ankle associated with that accident. He testified that he is unable to lift his right arm above shoulder level, and that he would experience a very sharp pain in his shoulder if he were forced to lift anything. There has been no change in his neck pain, which is present constantly. However, there has been some increase in his neck movement. He continues to go to therapy every day. He does not believe that he would be able to work at Pintar Manufacturing. He testified that he has no arm strength, and that his right arm is weaker than his left. He does not believe that he could use his right arm to work with tools. In addition, beginning in approximately 1994, he began to experience pain in his left shoulder, which will be described below.

Dr. Finkelstein's May 8, 1995 report indicates that in spite of active treatment, Mr. Milevski's complaints have increased, rather than improved. In an examination on December 17, 1993, Mr. Milevski complained of dizziness, headache, right facial pain radiating to his occiput and the right side of his neck, radiating further to his right shoulder and arm as far as his hand. He continued to have numbness in his right third, fourth and fifth fingers and limitation in neck rotation and shoulder abduction due to pain.

Orthopaedic surgeon Dr. H. Weinberg examined Mr. Milevski for investigation of his right shoulder complaints on January 19, 1994. He noted Mr. Milevski's complaints of pain in the right side of his neck and right shoulder, headache, dizziness, numbness in the right side of the face and in the long, ring, and baby fingers of the right hand. On examination, Dr. Weinberg noted "slight restriction of neck motion" with tenderness at the base of the neck on the right side. Mr. Milevski had limited mobility in his right shoulder, with flexion and abduction limited by pain at ninety degrees. Dr. Weinberg thought there was a minor degree of wasting in the right shoulder region. He wrote:

Based on the clinical evaluation, there does not appear to be any significant structural problem. I suspect his difficulty is mainly related to residual soft tissue sensitivity and a lot of weakness due to low activity level. I feel that he would improve significantly if he were able to push himself to build up the strength in the shoulder and arm through exercise. I would be interested in the results of the MRI but I would be surprised if it showed any significant structural damage. I tried to reassure him that there was no serious problem and I would encourage him to use the arm as much as possible. If a light duty job is available, it might be helpful for him to return to a more productive lifestyle.

On March 29, 1994, Dr. Weinberg reviewed the results of the MRI scan of Mr. Milevski's right shoulder, and recommended a steroid injection. He noted that the MRI indicated tendonitis, which was in keeping with his clinical picture. By the time of his next assessment of Mr. Milevski on January 18, 1995, Dr. Weinberg reported that Mr. Milevski's right shoulder "still bothers him to some degree," but that he had also been experiencing difficulties with his left shoulder. On examination, the left sided symptoms exceeded his right shoulder symptoms. Dr. Weinberg recommended a steroid injection of the left shoulder, which apparently did not help.

Dr. Wong reviewed Mr. Milevski again on May 12, 1994. He noted the results of the MRI, and his diagnosis remained unchanged. As well, Dr. Wong noted that Mr. Milevski continued to complain of low back pain. He wrote:

I have counselled him regarding the need for exercises and, at present I am not sure what work he can do. He appears to have pain all over his body and likely his prognosis for work at this time is poor. He may need occasional therapy for his condition.

Mr. Milevski was also assessed by neurosurgeon Dr. M. L. Schwartz, who examined him on October 17, 1994 for complaints of pain down the right side of his neck with radiation into his right arm. Mr. Milevski's neck was stiff and tilted toward the left. Neck movements aggravated the pain in his right shoulder. Dr. Schwartz noted that the bulk, power and tone of the muscle groups in his upper extremities were "likely normal, although he makes the less than maximal effort when tested." He thought the right triceps muscle might be slightly weak, and the right triceps jerk was absent. Dr. Schwartz wrote:

With the absent right triceps jerk and the sensory reference to the C7 territory, it is likely that Mr. Milevski has a C7 radiculopathy, perhaps as the result of a C6-7 intervertebral disk herniation. Accordingly, I am obtaining a CT scan of the neck which will be done in approximately three weeks time.

Dr. Schwartz testified that the CT scan and myelogram which were subsequently carried out eliminated the possibility of a disc herniation as the cause of Mr. Milevski's right arm and hand symptoms.

Dr. Schwartz re-examined Mr. Milevski on February 7, 1995. At that time, Mr. Milevski complained that his right hand was weak and his fingers were still numb. He had pain on the right side of his neck with radiation up into his face and toward the right occiput. Dr. Schwartz wrote,

With the absent triceps jerk and the tingling in the territory of the seventh cervical nerve group, one must conclude that Mr. Milevski suffered an injury to the right seventh cervical root at the time of his motor vehicle crash. Presumably this was a traction injury. Unfortunately, there is no way this can be remedied by a surgical operation. His response to physiotherapy has been disappointing. As a direct result of his injury, he is unable to work as a maintenance mechanic.

Although a considerable amount of time was spent in questioning Dr. Schwartz about this diagnosis, and the possible relationship between the motor vehicle accident and a "traction injury to the C7 nerve," I have not found this evidence significant in my overall assessment of Mr. Milevski's condition. First, I note that Dr. Schwartz is the only physician to have observed the absence of any reflex in Mr. Milevski's right arm. Having observed the absence of the right triceps reflex, Dr. Schwartz found only that the right triceps muscle was weaker than the left, although bulk, power and tone of all muscle groups in the arms were normal. As well, Dr. Schwartz was aware of the results of the EMG studies conducted in 1994, which showed no evidence of neurological impairment in the right upper extremity, and he acknowledged that these results suggest that if there is any damage to the right C7 nerve, "it is mild indeed." At most, Dr. Schwartz testified, the muscle function in Mr. Milevski's right arm "would be affected minimally" by such an injury. I interpret this evidence to mean that Mr. Milevski's complaints of pain, weakness, numbness and tingling in his right arm cannot be causally related to his neck injury.

Thus, I find that the primary diagnosis of Mr. Milevski's neck injury is that of a cervical strain. None of the many other physicians who have examined Mr. Milevski found any neurological damage. I am satisfied that any neurological impairment referable to his neck injury did not have a significant effect on the strength or use of Mr. Milevski's right arm.

Mr. Milevski's Essential Tasks

Mr. Goodfellow, operations manager for Pintar, testified that he became acquainted with Mr. Milevski when they were both employed by a company known as EZ Painters, a company which manufactured paint brushes, rollers and associated products. He was aware of Mr. Milevski's work as a maintenance mechanic, and understood that it involved work such as climbing under machines, replacing bearings, day-to-day maintenance, repairing and creating machines, as well as electrical work. He thought it was a physically demanding job which thrust a person into awkward places.

Mr. Goodfellow testified that Mr. Milevski approached him in April 1992, stating that he needed to find a job within his limitations. Mr. Goodfellow was aware of the restrictions on Mr. Milevski's employment as outlined above. He testified that he did not believe Mr. Milevski could have done the job of a maintenance mechanic with his restrictions, since he did not think he would be able to climb under machines.

Pintar Manufacturing created a job for Mr. Milevski, and Mr. Goodfellow prepared a job description which was provided to the Workers' Compensation Board. The position for which Mr. Milevski was to be trained was entitled "quality control co-ordinator". According to the job description, Mr. Milevski was to train the machine operators in the setup and maintenance of their assigned machines, and instruct and monitor the employees in quality control functions. He was to work with his supervisor and sales representatives in the formulation of new products and the revision of old, and assist in the revision and modification to machinery to provide improved costs, quality and efficiency. He was also to set up a program of preventative maintenance to minimize down-time for the machines. As well, he was to establish a central store of supplies for the maintenance and repair of machinery.

Mr. Milevski took the position that some of the work he was required to do at Pintar Manufacturing was the same as he would have performed as a maintenance mechanic, although he agreed that he was not hired to perform the duties of a maintenance mechanic. He testified in his examination-in-chief that he was hired to set up, fix and modify machines. He stated that he would have spent up to one-half his day on machine setup, which required him to bend over the machines and use a wrench to adjust the parts inside. He also stated that he might have to crawl on the ground, or twist in order to carry out the adjustment.

Mr. Milevski testified that he spent about 10 to 15 percent of his time fixing machines. In such cases, he would take the machine apart section by section, using a wrench to unscrew parts. He would also have to bend and "sneak under" the machine to do these repairs. Mr. Milevski stated that he carried out modification of certain machines almost every week, for a "very small percentage" of his working hours. For all these jobs, he used hand tools such as screwdrivers, hammers, hacksaws to cut sheets of metal, metal snips, hand grinders, and electric and gas welding torches. Mr. Milevski stated that he was unable to do his job at Pintar because he was not able to bend, twist or use hand movements requiring pushing and pulling as a result of his neck and shoulder injuries.

Mr. Goodfellow testified that Mr. Milevski was not hired to perform the duties of a maintenance mechanic, as the employer already employed one at the time. However, it became clear through the evidence of both Mr. Milevski and Mr. Goodfellow that a portion of Mr. Milevski's duties consisted of carrying out adjustments to some of the machines in order to accommodate the production of different products. Mr. Goodfellow disagreed that Mr. Milevski spent any time fixing machines. Mr. Goodfellow testified that Mr. Milevski was primarily involved in setting up machinery and making adjustments to it in order to improve or change the product. However, Mr. Goodfellow planned to have Mr. Milevski demonstrate and teach the machine operators how to carry out these functions themselves, so as to increase efficiency. He stated that most of the machine operators were capable of setting up their machines, but the machines frequently went out of adjustment, and they required frequent attention.

I agree with Mr. Pasternak that on closer scrutiny, there is not a significant difference in the description of Mr. Milevski's duties given by Mr. Milevski and Mr. Goodfellow. Although I accept that the position created by Pintar Manufacturing was consistent with Mr. Milevski's restrictions as they existed in July 1992, the job nonetheless required some bending and reaching, as well as repetitive movements of Mr. Milevski's right arm while using tools to make adjustments to various machines. This is so, whether the activity is characterized as "repairing" or "adjusting" machines.

Conclusions:

The evidence demonstrates that in addition to his low back and right leg disability which predated his motor vehicle accident, Mr. Milevski has been disabled since February 1992 by a combination of a cervical strain, right rotator cuff tendonitis and adhesive capsulitis, and left rotator cuff tendonitis.

The relationship between Mr. Milevski's rotator cuff tendonitis and his motor vehicle accident is unclear. Dr. Lexier, an orthopaedic surgeon who examined Mr. Milevski in April 1993 at the request of the Insurer, testified generally about the symptoms and causes of rotator cuff tendonitis. Dr. Lexier's evidence concerning the results of his examination of Mr. Milevski was challenged by Mr. Pasternak, and the Insurer did not rely on this evidence in support of its position. However, his testimony on this point was not controversial. Dr. Lexier stated that rotator cuff tendonitis is the inflammation of one of the tendons (usually the supraspinatus tendon) in the rotator cuff, a group of muscles and tendons which cause the arm to rotate inwards and outwards. He stated that as part of the aging process, some of the fibres are pulled and are torn for no apparent reason. In addition, the condition is likely to be occupationally related in patients of Mr. Milevski's age. Specifically, Dr. Lexier associated the condition with jobs requiring rotational movement of the arms. As well, in patients of Mr. Milevski's age, the condition could be chronic. Pain on movement of the arm above 90 degrees is an indicator of the condition. According to Dr. Lexier, capsulitis is a condition of inflammation of the capsule of the shoulder joint immediately below the rotator cuff, and may be caused by voluntary disuse of an arm for a period of time.

Clearly, Mr. Milevski suffered from right rotator cuff tendonitis and adhesive capsulitis prior to his automobile accident, to the extent that he required manipulation of his right shoulder under anaesthetic in December 1989. Although Mr. Pasternak argued that this treatment resolved Mr. Milevski's symptoms, Mr. Milevski's own evidence on this point was inconsistent. The absence of reference to ongoing symptoms in Dr. Finkelstein's notes is not conclusive, since he has no record of such complaints even during a period in which Mr. Milevski was undergoing active treatment from Dr. Cartan. Following this treatment, Mr. Milevski continued to be employed for only eleven months, after which he was treated for injuries suffered in his 1990 compensable accident. In the circumstances, I find it more probable than not that Mr. Milevski did continue to have ongoing symptoms referable to rotator cuff tendonitis between 1990 and February 16, 1993, which were not predominant in light of his other disabilities. On the evidence before me, there was no specific injury to the right rotator cuff at the time of either the December 1992 or February 1993 compensable accidents.

Although the ambulance call report referred to complaints of shoulder pain on the day of the accident, I find it significant that Dr. Finkelstein's examinations of Mr. Milevski at that time were concerned only with the neck and trapezius muscle area, and not with his rotator cuff. Dr. Finkelstein testified that in his opinion, right trapezius pain is not the same as a right shoulder problem. The first examination following the accident which documented rotator cuff complaints was carried out by Dr. Wong on March 18, 1993. At that time, Dr. Wong documented muscle spasm in the neck and trapezius muscle, as previously observed by Dr. Finkelstein, as well as symptoms of rotator cuff tendonitis, which he described as "mild." In keeping with this, the MRI scan of February 23, 1994, also disclosed mild supraspinatus tendonitis.

The pattern of Mr. Milevski's rotator cuff complaints are in keeping with a chronic degenerative condition which predated his accident. In my view, no reliable evidence suggests that the automobile accident was the cause of this condition. Other than Dr. Finkelstein, none of the physicians who treated Mr. Milevski commented upon whether it could be related to the accident. They all appeared to have assumed that this was the case. When Dr. Finkelstein was asked to comment upon the causal relationship, he stated that he was not sure why Mr. Milevski had a rotator cuff tendonitis. He thought that he could have injured the rotator cuff at the time of the accident, or it could have arisen as a result of disuse of his arm due to pain. However, he thought "in some way it was related to his accident." I find that this opinion is vague and non-specific. It fails to account for the effect of Mr. Milevski's pre-existing condition, and the possibility that a disuse of his right arm could have resulted from either of two previous compensable accidents which predated the automobile accident. In light of the existence of a rotator cuff tendonitis prior to the accident, and the fact that the symptoms of this condition after the accident appear to have been of a chronic nature, rather than acute, I find that the automobile accident was not the cause of Mr. Milevski's right shoulder complaints.

With respect to his neck symptoms, it is clear that Mr. Milevski injured his neck in a compensable accident on February 1, 1993. However, I find that the trauma which he experienced in the motor vehicle accident of February 16, 1993 was severe, and resulted in an aggravation of this earlier injury. The Workers' Compensation Board has taken the position that Mr. Milevski would have recovered from his compensable cervical strain by May 19, 1993, and the Board terminated his benefits after that date. The Insurer takes the position that it should not be responsible for the payment of weekly income benefits for any period in which Mr. Milevski's neck condition had returned to the state it was prior to the February 16, 1993 accident.

In my view, this is an oversimplification of the effect of the motor vehicle accident on Mr. Milevski's neck disability. In order to establish that Mr. Milevski's neck injury resulted from his motor vehicle accident, I need only be satisfied that the automobile accident was a significant cause of his ongoing disability, and not that it was the only cause. Applying this test, I am satisfied that the February 16, 1993 motor vehicle accident is a significant cause of Mr. Milevski's ongoing chronic cervical strain.

Does this condition result in Mr. Milevski's substantial inability to perform his pre-accident occupation? In my view, the symptoms of Mr. Milevski's cervical strain were sufficient to render him substantially unable to perform his pre-accident duties for a period. However, these complaints improved, and the progression of his bilateral shoulder complaints and the aggravation of his low back injury became the predominant sources of his inability to perform this employment after a time.

Dr. Finkelstein was provided with the particulars of Mr. Milevski's job description as prepared by the employer, and testified that he did not believe that Mr. Milevski could perform the job. He stated that Mr. Milevski's employability is "very limited," not just by his neck and shoulder symptoms, but by his widespread injuries. He felt Mr. Milevski would have difficulty performing even light jobs because of his "constant severe pain." He acknowledged that Mr. Milevski's ongoing disability was only "in part" related to his motor vehicle accident, an opinion which he expressed as early as July 20, 1993, in a report to the Insurer. With specific reference to Mr. Milevski's neck injury, Dr. Finkelstein testified that bending or twisting involving neck movement would be "problematic" for Mr. Milevski. His right shoulder condition restricts him from activities involving pushing or pulling with the right arm on a repetitive basis.

Dr. Schwartz commented on Mr. Milevski's ability to perform his employment, based upon his opinion that Mr. Milevski had a traction injury to the C-7 nerve. Although he understood that Mr. Milevski's dominant hand was his left hand (Mr. Milevski testified that he is right-handed), Dr. Schwartz stated that his injury would have an effect on his ability to use tools, if it involved significant muscle effort to tighten or loosen screws or bolts. Generally, the injury would make it more difficult for him to use tools. However, when presented with the job description prepared by the employer, Dr. Schwartz commented that it appeared to describe a sedentary position (with the possible exception of the unspecified "other duties"), and he felt that Mr. Milevski could handle these duties at the time of his examinations in October 1994 and February 1995.

The reports of Dr. Wong confirm Dr. Finkelstein's opinion that Mr. Milevski's ongoing disability and inability to work resulted from a variety of causes, only one of which was his motor vehicle accident.

Dr. Weinberg treated Mr. Milevski after January 1994 primarily for his shoulder complaints. At the time of his January 19, 1994 examination, he noted that Mr. Milevski had "slight restriction of neck motion" with no apparent muscle spasm. He did have tenderness at the base of the neck on the right side. In spite of these observations, and his conclusion that Mr. Milevski experienced right rotator cuff tendonitis, he recommended that Mr. Milevski return to a light duty job.

Having regard to these opinions, I have concluded that Mr. Milevski's neck strain had improved sufficiently by the time he was examined by Dr. Weinberg on January 19, 1994, to permit him to return to his employment with Pintar. His inability to work after that date was substantially caused by his shoulder and low back conditions, which did not result from his motor vehicle accident. He is entitled to receive weekly benefits until that date.

Repayment of Weekly Income Benefits:

The Insurer paid weekly income benefits to Mr. Milevski for five weeks following the February 16, 1993 automobile accident. Mr. Milevski also received temporary total disability benefits from the Workers' Compensation Board during that period. The parties agree that no weekly income benefit is payable to Mr. Milevski for the period in which he received Workers' Compensation Benefits. In view of this agreement, I am satisfied that the Insurer is entitled to repayment of five weeks benefits pursuant to the provisions of section 27 of the Schedule, with interest calculated in accordance with section 27(4) of the Schedule.

Expenses:

Mr. Milevski was partially successful in his claim in this proceeding. The issue of the role of his accident in his ongoing disability was complex. I find it appropriate to award him his expenses in this proceeding.

Order:

1. Mr. Milevski is entitled to weekly income benefits at the rate of $185.60 per week from May 1, 1993 until January 19, 1994.

2. Mr. Milevski is entitled to interest on the outstanding amounts, calculated according to section 24 of the Schedule.

3. The Insurer is entitled to repayment of five weeks of section 12 benefits paid during the period February 23 to March 30, 1993, plus interest, calculated in accordance with section 27(4) of the Schedule.

4. Mr. Milevski is entitled to his expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

June 6, 1996

Marsha Faubert

Arbitrator

Date

APPENDIX A

EXHIBITS

Exhibit 1

Workers' Compensation Board file for February 1, 1993 accident

Exhibit 2

Insurer's Medical Brief

Exhibit 3

Workers' Compensation Board claim file for November 19, 1990 accident

Exhibit 4

Workers' Compensation Board claim file for December 3, 1992 accident

Exhibit 5

Medical records - Etobicoke General Hospital

Exhibit 6

Medical records - Humber Memorial Hospital

Exhibit 7

State Farm cheque dated March 30, 1993

Exhibit 8

Assessment of Claim by Insurer - March 1993

Exhibit 9

Assessment of Claim by Insurer - December 1993

Exhibit 10

Employment File - Pintar Manufacturing/Milevski

Exhibit 11

Curriculum Vitae - Dr. Reuven Lexier

Exhibit 12

Application for Appointment of an Arbitrator, June 23, 1993

Exhibit 13

Response by insurer, July 25, 1994

Documents before the Arbitrator

Pre-Hearing letter dated November 12, 1994

Report of Mediator dated June 22, 1994

Index for Exhibit 2

Tab 1. Ambulance Call Sheet, February 15, 1993

2. Etobicoke General Hospital, February 16, 1993

3. Toronto General Division, February 23, 1994

4. Humber Memorial Hospital, March 31, 1994

5. Dr. Sheldon Finkelstein dated:

(a) February 19, 1993

(b) May 3, 1993

(c) July 28, 1993

(d) March 21, 1994

(e) May 8, 1995

(f) Notes

6. Dr. Roland Wong dated:

(a) March 18, 1993

(b) April 15, 1993

(c) May 13, 1993

(d) June 10, 1993

(e) July 8, 1993

(f) September 30, 1993

(g) December 9, 1993

(h) May 12, 1994

(i) Notes

7. Dr. Reuven Lexier dated:

(a) April 19, 1993

(b) Notes and records

8. Dr. Lesley Corrin dated:

(a) July 27, 1993

(b) September 7, 1993

9. Dr. Michael Schwartz dated:

(a) October 17, 1994

(b) February 7, 1995

10. Dr. Howard Weinberg dated:

(a) January 19, 1994

(b) March 29, 1994

(c) January 18, 1995

(d) March 21, 1995

(e) Clinical notes and records

11. Dr. L. Kontur dated:

(a) September 21, 1993

(b) February 21, 1995

(c) April 26, 1995, with notes

12. OHIP Summary

13. Workers' Compensation Board, Decision Review Specialist (Mr. D.E. Graham) dated November 2, 1993)

14. Sunnybrook Health Science Centre records dated July 1994 and December 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.