Neutral Citation: 1997 ONICDRG 138

OIC A96-001077

ONTARIO INSURANCE COMMISSION

BETWEEN:

EMBARK MOUSSALI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Embark Moussali, was injured in a motor vehicle accident on July 6, 1992. At the time of the accident he had been off work for approximately 10 months because of a work-related accident. He applied for weekly income benefits pursuant to section 12 of the Schedule.¹ The Insurer, Allstate Insurance Company of Canada ("Allstate"), took the position that Mr. Moussali was not employed at the time of the motor vehicle accident and that he was not disabled to the point of suffering a substantial inability to perform the essential tasks which he normally engaged in and was therefore not entitled to benefits pursuant to section 13 of the Schedule. The parties were unable to resolve their dispute through mediation and Mr. Moussali applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

1. Was Mr. Moussali working or on a temporary lay-off at the time of the motor vehicle accident so as to be entitled to section 12 benefits?

2. If not, was Mr. Moussali disabled to the point of being entitled to weekly benefits pursuant to section 13 of the Schedule, and if so, for what period of time?

Mr. Moussali also claims interest on any amounts owing, as well as his expenses incurred in the arbitration.

Result:

1. Mr. Moussali was not working at the time of the accident nor was he on a temporary lay-off and therefore he is not entitled to weekly income benefits pursuant to section 12 of the Schedule.

2. Mr. Moussali is not entitled to weekly benefits pursuant to section 13 of the Schedule.

3. Mr. Moussali is entitled to his expenses of the arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on June 24 and June 25, 1997, before me, Guy Jones, Arbitrator.

Present at the Hearing:

Applicant:

Embark Moussali

Mr. Moussali's Representative:

Stephen Sieger Barrister and Solicitor

Allstate's Representative:

Colin Jackson Barrister and Solicitor

Allstate's Officer:

Joe Rachky

Witnesses:

Mr. Embark Moussali

Dr. Catherine McNally

Dr. Jacqueline Stewart

Exhibits:

A total of seven exhibits were filed at the hearing.

Facts:

The Applicant, Mr. Embark Moussali, was involved in a motor vehicle accident on July 6, 1992. At the time he was a pedestrian, crossing the street when a motor vehicle struck him. While there was some disagreement as to the speed of the motor vehicle and the extent of the impact, there is little doubt that the vehicle struck Mr. Moussali and threw him to the ground. He was taken to St. Michael's Hospital Emergency Department, treated for soft tissue injuries to his neck, low back and left shoulder, and then released.

It is important to note that prior to the July 1992 motor vehicle accident, Mr. Moussali had been involved in a work-related accident on September 18, 1991. At that time he had been working at the Food Terminal as a labourer. This job required him to carry a number of boxes of food to load them onto a "jack" and then to pull the "jack" to another location. The boxes in question weighed anywhere from 10-45 lbs, depending upon the content, and Mr. Moussali would take 20-30 boxes on the "jack" at any one time.

On the day of the work-related accident, Mr. Moussali was carrying boxes when one fell and injured his left shoulder. He suffered an avulsion of the sternal head of his pectoral musculature. With the exception of a brief attempt to return to work on September 23, 1991, when he lasted only a few hours, Mr. Moussali had not returned to work by the time of the July 6, 1992 motor vehicle accident. He has not returned to work from the time of the motor vehicle accident to the present.

Findings and Analysis:

Section 12 or Section 13 benefits:

The first question to be addressed is whether Mr. Moussali is properly entitled to section 12 benefits, which cover situations where a person is employed or on a temporary lay-off at the time of the accident; or section 13 benefits, which apply when the applicant is unemployed at the time of the accident.

Mr. Moussali had only been employed at the Food Terminal since May 1991 and therefore had not been working 180 days in the 12-month period prior to the accident, and therefore, did not qualify for benefits pursuant to section 12(3) of the Schedule.

The question of whether a person is employed at the time of the accident or not is very much dependent upon the facts of each particular case. One must look at the intentions and expectations of the parties concerned as well as the objective facts in order to determine if the applicant could be considered "employed" or on a "temporary lay-off" at the time of the accident.²

Mr. Moussali's counsel directed my attention to the case Ciolfi and Continental Insurance Company (1988), 1988 CanLII 4763 (ON HCJ), 66 O.R. (2d) 131. In that case, the Applicant had been receiving total temporary disability benefits from the Workers' Compensation Board ("WCB") for nine months when he was injured in a motor vehicle accident. Some months after the motor vehicle accident, the Applicant was granted a permanent disability pension by the WCB. The Court in that case held that the Applicant was "employed" at the time of the accident, as at the time of the motor vehicle accident, it was not known with assurance what would have happened if the Applicant had recovered from the work-related injury and been available to his employer.

I do not disagree with the decision of the Court in the Ciolfi case. In my view, however, one must look beyond the one fact that the applicant is still on WCB total temporary disability benefits at the time of the motor vehicle accident in order to determine the true employment status at the time of the motor vehicle accident.

In the case at hand, Mr. Moussali was receiving total temporary disability benefits from the Workers' Compensation Board at the time of the motor vehicle accident and continued to do so until August 1, 1992 or approximately three weeks after the motor vehicle accident. After that time he received future economic loss benefits from the WCB. We also know that at the time of the accident Mr. Moussali was looking for alternate employment, primarily as a gas station attendant or parking lot attendant. He was also looking for work at restaurants and hotels. Indeed, at the time of the accident he was on his way to submit an application when he was hit by the car.

It is also important to note that Dr. R. Richards, an orthopaedic surgeon with a specialization in the field of shoulder injuries, who was treating Mr. Moussali, about one month before the motor vehicle accident, stated:

"He does heavy lifting at the Food Terminal and I do believe that he is disabled for his regular occupation. The permanently modified work that will be necessary for Mr. Moussali will be avoidance of heavy lifting or repetitive forceful use of the shoulder against resistance."

While a question of modified duties at the Food Terminal was raised on a number of occasions, both the employer and the applicant, as early as November 8, 1991 were aware of the unavailability of modified duties at the Food Terminal.³ This is reflected by the fact that the Workers' Compensation Board became actively involved as early as March 1992 in an attempt to find the Applicant alternate work, in the fields of work mentioned above.

I therefore find for the following reasons that Mr. Moussali was not "employed" or on a "temporary layoff" at the time of the motor vehicle accident: Mr. Moussali's treating surgeon assessed him prior to the motor vehicle accident and was of the view that he was permanently disabled from going back to the old job; that no modified job was available at the Food Terminal; and that Mr. Moussali was actively looking for other work prior to the motor vehicle accident. Accordingly, Mr. Moussali is not entitled to received weekly income benefits pursuant to section 12 of the Schedule and therefore may only receive weekly benefits pursuant to section 13, if he meets the test set out in that section.

Section 13 entitlement:

In order to receive section 13 benefits, Mr. Moussali must show that he suffered a substantial inability to perform the essential tasks in which he normally engaged prior to the motor vehicle accident.

It is important to note that for the first 156 weeks of disability one looks at the essential tasks of the Applicant, whereas in considering eligibility after 156 weeks one looks at the activities of the applicant. Numerous arbitrators have commented on the distinction between "tasks" and "activities." Without going into the distinction in detail, it is clear that the "essential tasks" are limited to the core functions of the person, in contrast to the much wider connotation implied by the term "activities."

Pre-accident tasks

The evidence in the hearing revealed that Mr. Moussali was involved in the following essential tasks prior to the motor vehicle accident:

personal care

job searching

occasional housekeeping and child care

religious activity

The evidence also indicated that Mr. Moussali played soccer for approximately two hours per week and ran or jogged 5-10 miles a day. These items I find were more in the nature of activities rather than essential tasks.

Injuries and disability

There is no doubt but that Mr. Moussali suffered a major injury to his shoulder in the work-related accident prior to the motor vehicle accident and that he was still suffering from this at the time of the motor vehicle accident. Beyond that there is some question as to which injuries predated the motor vehicle accident and which did not.

With regard to his neck, Mr. Moussali undoubtedly had neck complaints prior to the motor vehicle accident, as noted in the report of the family doctor, Dr. McNally. I am satisfied, on the evidence provided by Mr. Moussali, as well as that of Dr. McNally, and Dr. Jacqueline Stewart, a rheumatologist who saw Mr. Moussali, that the accident did aggravate his previous neck problem. The neck pain was such that it apparently radiated up to his head and resulted in headaches. I note, however, that Dr. Stewart, in her report, as well as her testimony, indicated that the neck pain was intermittent. I find that while the neck pain was aggravated by the accident, it was not of sufficient severity, either alone or combined with his other injuries to cause Mr. Moussali to be unable to perform his essential pre-accident tasks.

With regard to the left shoulder condition, I find that while it may have been aggravated slightly by the motor vehicle accident, there was no significant change in its condition after the motor vehicle accident. This is consistent with the views expressed by Dr. McNally and Dr. Stewart.

The most serious injuries suffered in the motor vehicle accident were to Mr. Moussali's lumbar spine. While counsel for the Insurer suggested that Mr. Moussali was suffering from problems to this area of his body prior to the motor vehicle accident, I am satisfied, on the evidence, that these injuries arose from the motor vehicle accident. While there are occasional references to back problems prior to the motor vehicle accident in the family doctor's clinical notes and the WCB notes, I am satisfied that they relate to the left shoulder and adjacent areas.

The question then becomes to what extent the low back injuries were disabling. The evidence in this regard was somewhat contradictory. Dr. McNally testified that the low back pain had become chronic and disabled Mr. Moussali not only from his work but numerous activities as well. Dr. Jacqueline Stewart, who saw Mr. Moussali for medical-legal purposes at the request of his solicitor, was of the opinion that Mr. Moussali had chronic low back pain which not only disabled him from his former employment, but also prohibited him from performing even very light simple jobs and activities.

Dr. Geoffrey Lloyd, an orthopaedic surgeon who saw the Applicant at the request of the Insurer, on December 9, 1996, was of the view that Mr. Moussali had suffered a soft tissue injury to the low back. Dr. Lloyd's examination revealed normal rotation of movement with no muscle spasm, which he assessed as not being expected to lead to a permanent impairment.

Dr. M. Wood, another orthopaedic surgeon, saw Mr. Moussali in mid-October 1992. He stated:

"From the point of view of his more recent accident with his back, this is to be treated as a back strain and I think he should continue to mobilize. I have suggested that he try to get back to work in early November and if this is as Dr. Richards states, the need for modified work because of his shoulder problems then so be it."⁴

While I accepted Mr. Moussali may not have recovered quite as quickly as Dr. Wood have anticipated, I note that Dr. Wood was suggesting a return to work, even if modified, within two to three weeks. I have already found that the test Mr. Moussali must meet in order to receive benefits was not to return to work, but only to be able to perform the essential tasks of his daily living.

Mr. Moussali, based on his own testimony, as well as the WCB records was able to return to his primary task of looking for work by late July 1992, obviously with difficulty.

In addition, a surveillance report and video of Mr. Moussali taken on May 18, 1994 revealed that Mr. Moussali was capable of walking approximately 3.3 kilometres on that day. Notably, he pushed his child's stroller with bags and groceries attached to it part of the time, even though his wife was accompanying him at the time. He moved in a completely normal and fluid fashion at that time.

With regard to housekeeping activities, Mr. Moussali indicated that he was unable to do them after the motor vehicle accident. I note, however, that the clinical notes of Dr. McNally indicate that he was unable to help out at home because of his shoulder shortly before the motor vehicle accident.

I also note that Dr. McNally's clinical note of September 30, 1993 indicates that Mr. Moussali returned to his home land of Morocco in summer of 1993 and that it indicates that he was able to have a job in a pharmacy there which was owned by his relatives. He indicated to Dr. McNally that he wanted to move back there, however, his wife wanted to stay in Canada.

On the basis of all of the evidence, I find that Mr. Moussali was capable, by at least early November 1992, of carrying on substantially all his pre-motor vehicle accident essential tasks, including:

looking for work

personal care

minor housekeeping and child care activities

carrying out his religious activities

In making these findings, I wish to make it clear that I accept that Mr. Moussali has suffered considerable pain because of the motor vehicle accident; however, as numerous arbitrators have pointed out, the Schedule does not compensate for pain. It is only when that pain makes it impossible to carry out one's essential tasks that benefits are to be paid. In this case I find that such a situation no longer existed in early November 1992.

Having decided that Mr. Moussali was not disabled so as to be eligible for section 13 benefits as of November 1992, it is necessary to look at the effect Arbitrator Friendly's order of June 11, 1997. Arbitrator Friendly found that because of the running of the limitation period and the receipt of workers' compensation benefits, Mr. Moussali could only claim benefits from April 5, 1994 and ongoing. I have found that Mr. Moussali had recovered sufficiently by November 1992 so that he was no longer entitled to section 13 benefits, and accordingly no such benefits are owing to Mr. Moussali by the Insurer.

Counsel made submissions on the period for which benefits ran, as well as on the deductibility of certain WCB payments. In light of my findings regarding entitlement to benefits it is unnecessary to make any findings in this regard.

Expenses:

While Mr. Moussali was not successful in his claim, I am exercising my discretion and awarding his expenses of the arbitration proceedings.

Order:

1. Mr. Moussali is not entitled to section 12 or section 13 benefits.

2. Mr. Moussali is entitled to his expenses of the arbitration proceedings.

July 23, 1997

Guy Jones Arbitrator

Date

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.
2. 2See: Rajinder Sharma and Co-operators General Insurance Company (February 7, 1994), OIC A-003840; Ranko Raickovic and Gore Mutual Insurance Company (May 26, 1993), OIC A-002533; Enid Thorning and Allstate Insurance Company of Canada (October 9, 1996), OIC A-010617.
3. 3Exhibit 6, Tab 5, page 73
4. 4Exhibit 6, tab 4, page 2