Neutral Citation: 1997 ONICDRG 132

OIC A96-000842

ONTARIO INSURANCE COMMISSION

BETWEEN:

CORY A. GONYOU

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Cory A. Gonyou, was injured in a motor vehicle accident on August 15, 1991. He applied for and received statutory accident benefits payable under Ontario Regulation 672¹ from Zurich Insurance Company. Zurich terminated weekly income benefits on November 2, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Gonyou 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. Gonyou entitled to weekly income benefits after November 2, 1995?

Zurich alleges that Mr. Gonyou is not entitled to further benefits and relies in particular on the test set out in section 12(5)(b) of the Schedule: unless it has been established that Mr. Gonyou's injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training, or experience, he is not entitled to a weekly income benefit from Zurich more than 156 weeks after the accident.

2. What is the correct amount of weekly income benefits to which Mr. Gonyou is entitled?

The calculation of gross weekly income under subsection 12(7) of the Schedule determines the amount of weekly income benefit. Zurich applied different formulas at different times as it reacted to the developing case law.

3. Is Zurich entitled to a repayment?

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

Result:

1. Mr. Gonyou is not entitled to further benefits after November 2, 1995.

2. It is not necessary for me to determine the amount of Mr. Gonyou's benefit.

3. Zurich is not entitled to a repayment.

Mr. Gonyou is entitled to his reasonable expenses incurred in the hearing.

Hearing:

The hearing was held in London, Ontario, on December 11 and 12, 1996, before me, David Evans, Arbitrator.

Those present at the hearing, the witnesses, and the exhibits are set out in the Appendix.

Evidence and Findings:

Following his graduation from high school in May 1978, Mr. Gonyou worked as a painter, carpenter, floor installer, mail sorter, mail deliverer, assembly line worker, and real estate salesman. He held the latter position for approximately three years. In August 1991, Mr. Gonyou was working as a labourer with Welland Chemical.

On August 15, 1991, Mr. Gonyou lost control of his car; it veered off the road under a roadside barrier. A cable rode across the car's hood, sliced through its windshield, and lacerated the right side of Mr. Gonyou's neck.

Following the accident, Dr. I. Campbell, Mr. Gonyou's family physician, diagnosed soft tissue injuries to Mr. Gonyou's right shoulder, neck and back. After a three-month course of physiotherapy, Dr. Campbell referred Mr. Gonyou to Dr. D. C. MacKinlay, an orthopaedic surgeon. In December 1991, Dr. McKinlay diagnosed rotator cuff tendinitis in the right shoulder and injected xylocaine and celestone. Dr. MacKinlay assumed Mr. Gonyou made a good recovery, as he had told Mr. Gonyou to return for further injections if needed. Mr. Gonyou did not return despite a continuing, non-disabling problem in the area.

Mr. Gonyou was again referred to physiotherapy following the injections. He was evasive about the decision to terminate this program after three months, finally stating that the termination was mutual. However, he told the specialist he saw in 1993, Dr. Michel Lacerte, that he terminated this program because it was of no benefit.

Mr. Gonyou's initial complaints were musculo-skeletal; only after six months did he start to complain of pain in the face. He went to see his dentist, Dr. L. Slipacoff, whose report of March 1992 contains the first reference to facial injury. Dr. Slipacoff found that a tooth had to be extracted and that a bridge would be required to replace it.

Dr. W. P. Southcott conducted an independent medical examination of Mr. Gonyou in early March 1992 on behalf of the Prudential Insurance Company, Mr. Gonyou's long-term disability carrier at work. Dr. Southcott found that Mr. Gonyou was not yet able to return to work and that he should restrict any major lifting above the shoulder. Evidence before me from the Employee Relations Manager at Welland indicates that the physical demands of Mr. Gonyou's job consisted of pushing and pulling 500 pound drums of aluminum chloride for six to seven hours per day while standing or walking short distances on a cement surface located outdoors. Constant trunk bending and twisting and repetitive arm movements were required to move these large drums.

In June 1992, Dr. Slipacoff diagnosed severe temporomandibular joint (TMJ) dysfunction. He arranged a consultation in September 1992 with Dr. J. R. Pocklington, a rehabilitation specialist and dental surgeon in Port Huron, Michigan. Dr. Pocklington diagnosed a flexion-extension injury to the cervical cranio-mandibular neuromuscular complex. He recommended treatments three times a week for a period of four to six months. Mr. Gonyou did not begin his TMJ treatments until January 6, 1993, because he cancelled or missed numerous appointments. Mr. Gonyou attended these treatments sporadically until January 26, 1993.

In August 1992, the rehabilitation consultant attempted to set up physiotherapy sessions with Ms. Freny Saxena. Mr. Gonyou waited seven months before beginning the program.

Dr. Southcott saw Mr. Gonyou again in December 1992. Examination revealed full range of motion in Mr. Gonyou's head, neck and shoulders. He noted that Mr. Gonyou would probably be restricted in lifting heavy objects above shoulder height, but noted that such lifting was not part of his work. Dr. Southcott concluded that there was nothing in Mr. Gonyou's job description as a labourer that he could not do. Dr. Southcott could not see how Mr. Gonyou's jaw or dental problems would affect his work in any way. Prudential terminated its benefits after receiving this report. Zurich advised Mr. Gonyou that it would thereafter pay his entire weekly income benefit.

On January 25, 1993, Dr. John Clifford saw Mr. Gonyou on referral from the rehabilitation consultant. Dr. Clifford was not surprised that Mr. Gonyou reported that his symptoms were worse, since he had delayed his physiotherapy. Dr. Clifford considered as unnecessary and totally inappropriate Mr. Gonyou's expressed desire to further delay starting the rehabilitation program until commencing TMJ therapy.

Dr. Clifford recommended a co-ordinated functional restoration program including physical and vocational rehabilitation and psychological support. In view of Mr. Gonyou's deconditioning as well as ongoing symptomatology, he felt the following temporary vocational restrictions would be appropriate:

• no prolonged positioning of the head and neck

• no repetitive/heavy lifting with the arms above the shoulders

• no prolonged working with the arms held out in front, unsupported.

Dr. Clifford felt that after a limited period of time, Mr. Gonyou would be free to pursue work in any capacity, including his pre-accident activities of labouring, odd jobs, and selling real estate. Dr. Clifford left the exact prognosis of the TMJ dysfunction to the treating dental surgeon, noting that it seemed likely Mr. Gonyou would continue to report pain in one or both of the temporomandibular joints.

In the context of Mr. Gonyou's inconsistent participation in therapy to that date, Dr. Clifford suggested an element of malingering.

Mr. Gonyou finally started a physiotherapy program with Ms. Freny Saxena on March 16, 1993. Over the course of the treatment, Mr. Gonyou cancelled four times and failed to attend 13 times. Ms. Saxena's initial assessment was of a very angry young man with attitudinal problems. He complied poorly with the program and stopped attending in June 1993. Ms. Saxena, who described Mr. Gonyou as angry and rude at times, believed he was malingering.

Despite Mr. Gonyou's poor compliance with the therapy, he was able to drive to Florida with his girlfriend for a vacation in April 1993.

As Dr. Clifford had recommended Mr. Gonyou see a psychologist to help with pain management and an element of depression, the rehabilitation consultant referred him to Dr. R. Pasternak. Dr. Pasternak saw Mr. Gonyou from April to July 1993. Mr. Gonyou presented to Dr. Pasternak as defensive, pre-occupied with pain, angry at the establishment, and committed neither to the psychotherapeutic process nor to helping himself. Mr. Gonyou cancelled his August 11 appointment and neither appeared nor called to cancel the August 18 appointment. Dr. Pasternak reported that, with Mr. Gonyou's intense pain focus, she found it impossible to engage him in a pain management program.

On September 23, 1993, Mr. Gonyou, pleading a headache, failed to attend a team meeting that the rehabilitation consultant had arranged at Dr. Clifford's suggestion. Dr. Pasternak and Ms. Saxena refused to attend. Dr. Clifford did attend.

After Mr. Gonyou's failure to attend the team meeting, the rehabilitation consultant asked Dr. Michel Lacerte for an assessment of Mr. Gonyou. Dr. Lacerte, a specialist in physical medicine and rehabilitation, saw him on November 24, 1993, and diagnosed multiple soft tissue injuries secondary to a motor vehicle accident and residual chronic myofascial pain, with a secondary diagnosis of deconditioning. He recommended a reassessment by a dentist for TMJ pain, assessment by a neurologist for headache management, psychosocial counselling to improve pain coping skills, and the drafting of a vocational rehabilitation plan. In Dr. Lacerte's opinion, Mr. Gonyou could not return to his occupation at Welland Chemical, but he was medically fit to return to his former occupation of real estate salesman with the following restrictions: no above-shoulder activities with the right arm and no lifting and carrying with the right arm of more than 10 pounds.

On January 20, 1994, Mr. Gonyou visited Dr. Campbell (his family physician) because of a fractured collarbone. Mr. Gonyou testified that he slid on a friend's rink playing hockey, and two or three days later while skating he collided with someone, causing the fracture. He testified that, to relieve stress, he participates irregularly in a few sports such as golfing, bike riding, walking, and home exercising.

Mr. Gonyou applied for Canada Pension Plan benefits in January 1994. These were denied.

The rehabilitation consultant arranged for Dr. George Rice, neurologist, to assess Mr. Gonyou on March 30, 1994. Mr. Gonyou cancelled the first appointment and attended on April 6, 1994. Dr. Rice concluded that Mr. Gonyou's post-traumatic headaches and TMJ troubles seemed in excess of what one would expect following the type of injury he had suffered. Mr. Gonyou's history of missed appointments and non-participation in treatment programs raised the issue of noncompliance or malingering. The headaches would likely continue, possibly helped by Amitriptyline. Dr. Rice was confident that with proper motivation Mr. Gonyou could return either to his previous position at Welland Chemicals or to any of the occupations he had performed earlier.

The rehabilitation consultant attempted to obtain further treatment for Mr. Gonyou in the summer of 1994 with Dr. Pocklington, the rehabilitation specialist and dental surgeon. On June 10, 1994, Dr. Pocklington wrote that Mr. Gonyou had cancelled or failed to attend three scheduled appointments without 48 hours' notice, and added, "We will be unable to reschedule him at this time due to his inability to keep scheduled appointments."

Dr. R. Brooke, of the Faculty of Dentistry, University of Western Ontario, saw Mr. Gonyou on August 12, 1994. He diagnosed post-injury TMJ dysfunction. He recommended ultrasound and simple jaw exercises. If those failed, he recommended a simple occlusal splint. He did not believe surgery would be helpful. The prognosis was guarded, as TMJ dysfunction tends to go on giving symptoms in up to 80% of cases for months or even years following the surgery. He told the consultant that the TMJ dysfunction prevented Mr. Gonyou from engaging in any occupation whatsoever.

On October 12, 1994, Roberts Investigative Services videotaped Mr. Gonyou spending an afternoon golfing. On viewing the tape, I find that Mr. Gonyou golfed with no pain behaviour. He carried his golf clubs, had a fluid and free swing, and bent over with no apparent problems to tee up the ball. Mr. Gonyou initially testified that the golf day was a "bad" day, but after reviewing the tape at the hearing he changed his testimony and said it was not that bad.

Mr. Gonyou realized he was under surveillance. On November 3, 1994, Dr. Slipacoff (Mr. Gonyou's dentist) wrote a note advising that he and Dr. Brooke had suggested golfing, walking, or biking to Mr. Gonyou to get him outside, where the activity would get his mind off the constant pain. The note was directed "To Whom It May Concern."

I find this interest in sports novel. Mr. Gonyou told Dr. Southcott in March 1992 that he was not participating in sports. He told the rehabilitation consultant in August 1992 that he was no longer physically capable of participating in sports. He told Dr. Clifford that since the accident he had neither resumed any regular sporting activities nor been involved in an exercise program. He told Dr. Lacerte that he could no longer play sports. None were advised that he had been playing golf and hockey.

The rehabilitation consultant arranged an independent medical examination with Dr. H. C. Tenenbaum of the Mount Sinai Hospital, a physician with TMJ expertise. Mr. Gonyou followed his usual practice of cancelling several appointments until he finally attended on January 13, 1995.

In his report of January 17, 1995, Dr. Tenenbaum reported that Mr. Gonyou presented with clinical findings and a history consistent with a diagnosis of post-traumatic TMJ disorder. He noted an internal derangement: deviation at the mandibular joint affecting movement of the jaw.

However, he related the headaches to tension and not to the joints. A course of anti-inflammatory medication for the joint capsule inflammation pain and a low dose muscle relaxant would be indicated. Dr. Tenenbaum also suggested a trial of an antidepressant and recommended arthroscopic surgery for the TJM problem. Although the prognosis for complete recovery was guarded, he advised that Mr. Gonyou's TMJ condition should not interfere with working at certain occupations. Finally, he felt Mr. Gonyou's chronic pain syndrome required further medical attention.

The rehabilitation consultant wished to discuss Dr. Tenenbaum's report with Mr. Gonyou. Over the period December 20, 1994, to April 25, 1995, Mr. Gonyou cancelled three scheduled appointments due to illness. Follow-up attempts to contact him in April were unsuccessful until April 25, 1995, when Mr. Gonyou explained that he had been on holiday in Florida.

On April 10, 1995, Dr. Campbell advised the rehabilitation consultant that he had encouraged Mr. Gonyou in the past regarding his readiness to return to work, but Mr. Gonyou was not of the opinion that he was ready. Dr. Campbell explained that Mr. Gonyou was focused on his pain symptoms and headaches and that he had a pattern of cancelling appointments.

In her report of May 17, 1995, the rehabilitation consultant writes that Mr. Gonyou stated he was not interested in returning to the real estate business in any capacity. She also writes that Mr. Gonyou was not interested in committing himself to any programme requiring his daily attendance because his pain and headaches would interfere.

In a report dated June 13, 1995, Dr. Tenenbaum concluded that Mr. Gonyou's TMJ disorder would not totally incapacitate him from working as a real estate salesman, despite the history of pain exacerbated by talking. Dr. Tenenbaum was not convinced that the headaches were entirely related to the TMJ disorder. He suggested a referral from a physician on that point.

Dr. Stephen Burton, neurologist, saw Mr. Gonyou on referral from Dr. Campbell on August 29, 1995. Dr. Burton could find no neurological disorders and had no medical suggestions. An entry in Dr. Burton's notes reads: "O/E [on examination]: well built, callouses on hands." Mr. Gonyou first testified that he was doing nothing in the summer of 1995. Then he stated that he was possibly cutting the grass, that he had once or twice played golf, and that possibly he had been doing yard work, finally adding: "I haven't worked a day since the accident."

The rehabilitation consultant requested a further report from Dr. Rice in September 1995. Dr. Rice reported that Mr. Gonyou still had a TMJ dysfunction, tension headaches, and probably medication-induced headache disorder. He discussed with Mr. Gonyou that he could better control these headaches and that his injury was not generally considered disabling. Mr. Gonyou did not agree with Dr. Rice that the best thing for him would be a graduated work reentry. Dr. Rice noted that Mr. Gonyou seemed very complacent in doing nothing further to better his condition. In his large practice, Dr. Rice has none on full-time disability for TMJ dysfunction and only a few who have failed to manage their medication-induced headaches.

Dr. Slipacoff continued to be of the opinion in November 1995 that Mr. Gonyou remained unemployable either in a mental or a physical capacity as a result of his headaches, joint, and neck pain.

Dr. Brooke wrote to Dr. Slipacoff on November 22, 1995, recommending that Mr. Gonyou attend a pain clinic. In a handwritten note at the bottom of the letter he adds that he agreed with Dr. Slipacoff that Mr. Gonyou remained in no fit state to return to work.

Zurich requested a further opinion from Dr. Tenenbaum after receiving these opinions. Dr. Tenenbaum continued to be of the opinion that the specific TMJ condition should not incapacitate Mr. Gonyou. He continued to believe that the TMJ condition was not contributing in large part to the headaches. However, he left the issue of the impact of the headaches on Mr. Gonyou's capacity to work to members of the medical profession.

On November 30, 1995, Dr. Campbell wrote that the ongoing significant jaw pain and headaches prevented Mr. Gonyou from working.

Mr. Gonyou does not appear to have received any further treatments in the year prior to the hearing.

Period of Benefits

Based on Dr. Lacerte's opinion, I find that Mr. Gonyou is incapable of returning to his former employment at Welland Chemical.

However, I find that Mr. Gonyou is capable of working at a suitable employment. Mr. Gonyou testified that his headaches destroy his concentration and prevent him from being a reliable employee. He testified that his "100% answer" for any occasions when he failed to attend for treatments was his problem with headaches. I find that Mr. Gonyou has thwarted all attempts at rehabilitation. I am not persuaded that his headaches are as severe as he claims as he has not taken the steps to control them suggested by Dr. Rice. Mr. Gonyou admitted that, considering his limitations, his former employment as a real estate salesperson would be most suitable. Accordingly, I find that Mr. Gonyou fails the test set out in section 12(5)(b) of the Schedule, in that his injury does not continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. I find that Mr. Gonyou is not entitled to further benefits after November 2, 1995.

Furthermore, I can find nothing in the medical records to suggest that Mr. Gonyou's condition changed from August 15, 1994, until benefits were terminated in November 1995. Accordingly, I find that Mr. Gonyou was only entitled to weekly income benefits during the 156 weeks following the accident.

Quantum of Benefits and Repayment

Because of my findings regarding the term of benefits and the established precedents on repayment, I need not determine the quantum of benefits. Mr. Gonyou does not dispute the quantum he received during the first 156 weeks after his accident. Counsel for Zurich admitted that, if Mr. Gonyou was overpaid during that first period, this did not arise through either error or fraud on Mr. Gonyou's part. Subsection 27(1) of the Schedule provides that Mr. Gonyou must repay to Zurich any benefit received under the Schedule that was paid to him through error or fraud. Previous similar cases at the Commission have established that overpayments are not refundable unless the applicant induced the error or committed fraud. Therefore, even if there were an overpayment, it would not be refundable, and accordingly the quantum during the 156-week period is irrelevant.

As for the post 156-week period, I have found that Mr. Gonyou was not entitled to those benefits. Therefore, he cannot dispute the amounts that he received. Accordingly, I find the quantum paid during this period is also irrelevant. Since the payment did not arise through error or fraud on Mr. Gonyou's part, Zurich is not entitled to repayment.

Expenses:

Mr. Gonyou is entitled to his reasonable expenses incurred in this arbitration.

Order:

1. Mr. Gonyou is not entitled to further benefits after November 2, 1995.

2. It is not necessary for me to determine the amount of Mr. Gonyou's benefit.

3. Zurich is not entitled to a repayment.

4. Mr. Gonyou is entitled to his expenses incurred in respect of the arbitration.

July 17, 1997

David Evans

Arbitrator

Date

Appendix

Present at the Hearing:

Applicant:

Cory A. Gonyou

Mr. Gonyou's Representative:

John L. McLeod

Barrister and Solicitor

Zurich's

Ian M. Boundy

Representative:

Barrister and Solicitor

Witnesses:

Mr. Gonyou

Exhibits:

Exhibit 1

Curriculum vitae of Dr. Ralph I. Brooke, Specialist in Oral Pathology

Exhibit 2

Curriculum vitae of Dr. Howard C. Tenenbaum, Director of Periodontics, Department of Dentistry, Mount Sinai Hospital

Exhibit 3

Curriculum vitae of Dr. George P.A. Rice

Exhibit 4

Curriculum vitae of Dr. Michel Lacerte

Exhibit 5

Curriculum vitae of Dr. John C. Clifford

Exhibit 6

Medical Brief

Exhibit 7

Medical and Rehabilitation Brief

Exhibit 8

Notes and Records Brief

Exhibit 9

Photographs of Mr. Gonyou's car

Exhibit 10

Letter from Mr. Gonyou to Becky Ostrom dated January 31, 1994

Exhibit 11

Assessment of Claim Forms

Exhibit 12

Group of Prudential Claims Forms

Exhibit 13

Report of Dr. D. MacKinlay

Exhibit 14

Summaries of Surveillance Reports

Exhibit 15

Videotaped surveillance of Mr. Gonyou

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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.