Neutral Citation: 1997 ONICDRG 140

OIC A95-000725

ONTARIO INSURANCE COMMISSION

BETWEEN:

CARLOS MARQUES

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Carlos Marques, was injured in a motor vehicle accident on February 1, 1994. He applied for and received statutory accident benefits from Commercial Union Assurance Company ("Commercial Union"), payable under the Schedule¹ Commercial Union terminated weekly income replacement benefits on January 2, 1995. The parties were unable to resolve their disputes through mediation and Mr. Marques 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. Marques entitled to income replacement benefits from January 3, 1995 onward, pursuant to section 7 of the Schedule?

2. Is Mr. Marques entitled to supplementary medical and rehabilitation benefits and transportation expenses, pursuant to section 36 of the Schedule?

3. Is the Insurer entitled to be repaid benefits pursuant to sections 70 and 75 of the Schedule?

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

Result:

1. Mr. Marques is not entitled to further income replacement benefits.

2. Mr. Marques is not entitled to further supplementary medical and rehabilitation benefits.

3. The Insurer is not entitled to be repaid benefits received by Mr. Marques.

4. Mr. Marques is entitled to one half of his expenses of the arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 24, 25 and 26, and October 9, 1996.

Present at the Hearing:

Applicant:

Carlos Marques

Mr. Marques's Representative:

Murray Tkatch Barrister and Solicitor

Commercial Union's Representative:

Aldo Picchetti Barrister and Solicitor

Witnesses:

Carlos Marques Dr. Marvin Shedletzky Dr. Morris Charendoff Jack Kugelmass

Exhibits:

The parties filed 76 exhibits.

Evidence and Findings:

Procedural Issue

Following the completion of the calling of evidence (which covered three days), but before the hearing resumed for final submissions, counsel for Mr. Marques indicated that, given the evidence at the arbitration, he wished to argue the issue of compliance with section 64 of the Schedule (regarding designated assessment centres). At the resumption of the hearing, counsel for the Insurer objected to this issue being raised.

I ruled that I would not consider this issue. The entire arbitration proceeded on the basis of issues clearly delineated at the outset of the hearing. Compliance with section 64 was not raised at any time prior to the commencement of the hearing, including the pre-hearing or mediation. No explanation was given for this. The issue would likely require the calling of significant new evidence, as well as the recalling of some of the witnesses already heard from. Counsel had not clearly formulated the issue by the time of the resumption. The Insurer would suffer considerable prejudice. For all of these reasons, I declined to consider this issue.

Background

Mr. Marques was injured in a motor vehicle accident on February 1, 1994. He was 31 years old at the time. He was rear-ended on his way home from work, while stopped at a red light. Damage to his car was estimated to be $2,000. He experienced pain in his neck and shoulder the following day and sought medical and chiropractic treatment. He also claimed that he has experienced numbness and tingling in his hands and arms since the accident.

Mr. Marques' chiropractor, Marvin Shedletzky, noted his injuries as neck and mid-back pains, headaches, insomnia, fatigue, malaise, mood swings, and right leg/calf pains. Approximately a year after the accident, Dr. Zarnett, an orthopaedic surgeon, reported that Mr. Marques received a soft tissue injury to his cervical spine and suffered from a regional myofascial pain syndrome. Approximately two and a half years post-accident, Dr. Morris Charendoff, another orthopaedic surgeon, reported that Mr. Marques had chronic neck strain. Dr. Charendoff testified at the hearing that Mr. Marques' complaints of neck pain have stayed roughly the same since the accident.

Mr. Marques had had three workplace accidents and one motor vehicle accident prior to 1994. In May 1984, while working on a construction job, a concrete form fell on Mr. Marques' neck and back. His neck pain eventually resolved, but he required back surgery in March 1985. Although his back continued to give him problems, he was able to return to work as a bricklayer in mid-December 1984. However, in early January 1985, he slipped and fell from a scaffold, and further injured his back, as well as his left upper arm and shoulder. Mr. Marques testified that his back pain never really resolved, even after the back surgery. In August 1988, Mr. Marques again injured his back while getting off of a forklift truck. He had been working as a delivery truck driver and forklift operator at a plumbing supply company for seven months prior to this accident. He testified that he has never fully recovered from it. He receives a permanent disability pension and supplement from the Workers' Compensation Board for this injury. In November 1988, Mr. Marques was involved in a minor motor vehicle accident (in which he rear-ended another car), which resulted in minor neck injuries, but apparently resolved.

Prior to the accident, Mr. Marques worked as a shipper/receiver at Meschino Banana, (a warehouse). He had worked there on an informal basis from 1993 until January 1994, when he began formal, full-time employment. He testified that he was able to work there despite occasional back pain from his previous injuries. He said that his neck was "nothing serious" at that time. Mr. Marques performed a number of tasks at Meschino Banana. He drove a forklift to load and unload boxes of bananas from trucks. He manually re-stacked the boxes of bananas, which weighed 40 pounds. He also drove a delivery truck. He washed the truck and swept the floors of the warehouse. His work broke down into 20% physical lifting, 20% truck driving, 15% cleaning up, and 45% loading and unloading, using a forklift.

Mr. Marques' position in this arbitration is that, as a result of the motor vehicle accident, he has been rendered substantially unable to perform the essential tasks of his employment, pursuant to section 7(1) of the Schedule. He also claims entitlement to reasonable supplementary medical benefits which he incurred as a result of the accident, pursuant to section 36(1) of the Schedule. The Insurer maintains that Mr. Marques was able to return to his pre-accident employment in January 1995, and that he required no further medical treatment from that time. The Insurer also claims a repayment of benefits, pursuant to section 70(1) and 75(4) of the Schedule.

Causation

Mr. Marques maintained that he suffered soft-tissue injuries and an injury to the discs in his cervical spine, as a result of the accident. Mr. Marques exhibited a pronounced forward posture in his neck and head at the hearing. This was observed by many of the medical practitioners Mr. Marques visited. I find that Mr. Marques suffered only soft-tissue injuries in his neck as a result of the accident.

Despite his previous neck and back injuries, x-rays taken in 1988 and 1992 of Mr. Marques' cervical spine showed no abnormalities or degeneration. An x-ray taken the day after the 1994 accident showed straightening of the normal cervical curve, which Dr. Shedletzky testified was the result of accident-related muscle spasm. Dr. Charendoff also testified that this x-ray was consistent with someone who had suffered a whiplash injury. There was no evidence of degenerative disc disease.

Mr. Marques underwent examination and a work-hardening programme at the Canadian Back Institute over the summer of 1994. The managing physiotherapist there, Mr. Michael Bilas, reported that Mr. Marques exhibited "disc type patterns of pain as flexion tends to be the aggravating position for these symptoms." A CT scan two years after the accident showed disc herniation at the C4-C5 and C5-C6 level of his spine. Dr. Shedletzky testified that this was consistent with the whiplash injury suffered in the 1994 motor vehicle accident, even if Mr. Marques had had an asymptomatic bulge in his cervical spine before the accident. Dr. Shedletzky said it was unlikely Mr. Marques had had a disc herniation prior to the accident, and he felt his current herniation was caused by the accident. In April 1994, Dr. Shedletzky also reported that Mr. Marques' pre-existing low back symptoms remained unchanged following the accident.

Dr. Charendoff was only prepared to say that the CT scan findings were of significance in relation to Mr. Marques' symptoms of numbness and tingling in his hands. He did not state that the CT scan showed that Mr. Marques' symptoms of neck pain were caused by the motor vehicle accident. He testified that Mr. Marques' neck pain was related to the soft-tissue injuries he suffered in the accident, and that his symptoms of numbness and tingling were related to the cervical herniation shown in the CT scan. An EMG done on Mr. Marques in March 1995 was normal. Dr. Charendoff testified that the CT scan was more accurate than the EMG in identifying a discogenic problem, and that the EMG did not change his view of the nature or source of Mr. Marques' symptoms.

In September 1996, Dr. Hugh Cameron, an orthopaedic surgeon to whom the Insurer referred Mr. Marques, reported that the CT scan was of "no clinical significance at all," and that Mr. Marques had suffered a "simple muskuloligamentous strain of the neck." Dr. Cameron further stated that if Mr. Marques had injured a disc in the accident, he would have displayed various signs that "something awful had happened," but that there was "nothing at all in his history which would suggest that [he] had injured a disc." Dr. E. P. Urovitz, another orthopaedic surgeon to whom the Insurer referred Mr. Marques, also reported that the CT scan finding of herniation had "no bearing with respect to the issue of disability," and that "a number of studies...clearly show a high prevalence of disc herniation even in asymptomatic patients."

On the basis of this evidence, I am satisfied that Mr. Marques suffered soft-tissue injuries in his neck as a result of the accident. He did not suffer an injury to his cervical spine in the accident, nor was the disc herniation in his spine caused by the accident. On this point, I prefer the evidence of Drs. Cameron and Urovitz, both experienced orthopaedic surgeons, to Dr. Shedletzky, a chiropractor. Dr. Charendoff's evidence only established a likely relationship between the CT scan findings and Mr. Marques' symptoms of numbness and tingling in his hands. I note that Mr. Marques did not display any signs that he had suffered a serious neck and/or cervical disc injury in the accident, as discussed by Dr. Cameron.

Disability

Mr. Marques maintained that the injuries he received in the accident rendered him substantially unable to perform the essential tasks of his job as a shipper/receiver. He also complained that the work-hardening programme at the Canadian Back Institute caused him additional neck pain.

Dr. Shedletzky testified that, although Mr. Marques might be able to do occasional lifting, the herniation in his cervical spine would prevent him from lifting or doing other physical tasks on a consistent basis. Dr. Shedletzky also testified that Mr. Marques would not be able to drive a forklift for any length of time, but this disability appeared to be related primarily to Mr. Marques' back problems and symptoms of numbness and tingling in this hands. Dr. Shedletzky, nevertheless, felt that Mr. Marques should at least try to return to work.

In June 1994, Dr. Urovitz reported that he was "unable to determine any consistent, reproducible, major signs of objective impairment which would preclude [Mr. Marques'] ability to be able to return to his job immediately." Dr. Urovitz also found that "at a minimum there is a significant degree of underlying functional overlay being manifested." Dr. Urovitz anticipated that Mr. Marques would have a "full functional recovery," and did not feel that any further investigations or passive modalities were necessary for Mr. Marques' treatment.

In September 1994, Mr. Marques' family physician, Dr. Alvin Chan, reported that Mr. Marques had progressed quite well since the accident, although he continued to complain of intermittent pain. Dr. Chan stated that Mr. Marques' "functional capacity assessment [was] approximately 95% pre accident state" and that there was "no medical contraindication in Mr. Marques undergoing trial employment program." However, Dr. Chan wished to re-assess Mr. Marques on a weekly basis upon his return to work. Mr. Marques continued to see Dr. Chan and to complain of neck pain. Dr. Chan does not appear to have expressed any further opinions regarding Mr. Marques' ability to return to work.

Mr. Marques participated in two work trials in November 1994, following his treatment at the Canadian Back Institute. The first job was at Cosentino Fruit and Vegetables, and involved tasks very similar to those Mr. Marques was doing prior to the accident. The second job was at Sparkles Beverages, a soft-drink company, lifting cases of pop. Mr. Marques terminated these work trials after only a few days, maintaining that he experienced too much pain in his neck, arms and shoulders. The work trials did not last long enough to determine Mr. Marques' ability to drive a forklift. He informed Jack Kugelmass and Dale Smith, the rehabilitation consultants, that he wished to obtain further medical assurance that he was capable of returning to work, before he participated in any more work trials. Although Mr. Kugelmass testified that he believed Mr. Marques was in pain, he also reported that on several occasions Mr. Marques said, "when I need to get a job, I will get one." Mr. Kugelmass felt that "in the absence of a need to work, [Mr. Marques would] not try to get a job" (emphasis in the original).

Mr. Marques testified that he has since done some work at a garden centre, but only on an unpaid basis, and as a favour for a friend. This work involves driving a forklift and delivery truck, as well as lifting. He testified that he has worked only on an intermittent basis, and that the work causes significant pain in his neck and shoulders. Mr. Marques states that it is his neck pain, and not his back pain, which is the primary reason for his inability to return to sustained, productive employment.

In mid-November 1994, Dr. Cameron reported that he could find "little evidence of any on-going disability" in Mr. Marques, and that he did not require "any further active treatment." Dr. Cameron felt Mr. Marques was "fully fit to return to his former occupation," and that "any minor residual symptoms...[were]...of nuisance value only and [would] disappear in due course."

Dr. Charendoff testified that he believed Mr. Marques was suffering neck pain, and that this disabled him from doing the lifting and forklift driving required in his pre-accident job. Dr. Charendoff reported that Mr. Marques could manage approximately two hours of truck driving, but with difficulty. He also felt that Mr. Marques was a motivated individual since he had participated in the rehabilitation programme and attempted to return to work.

A medical-rehabilitation DAC conducted in June 1995 found that Mr. Marques' cervical soft tissue strain had resolved. The objective examination did not support his subjective complaints of pain. The DAC also found functional overlay and pain behaviour present. The DAC report indicated that no further active or passive therapies were reasonable or necessary. The DAC stated that Mr. Marques suffered from pain secondary to some deconditioning, and recommended an independent daily exercise programme and resumption of all usual activities.

On the basis of this evidence, I find that the injuries Mr. Marques suffered in the accident did not render him substantially unable to perform the essential tasks of his pre-accident job. Dr. Shedletzky's evidence suggests that any difficulty Mr. Marques might have in returning to work is related to his back problems and herniated cervical spine, both of which I have found were not related to the 1994 motor vehicle accident. Drs. Urovitz and Cameron both found minimal functional disability in relation to a potential return to work by Mr. Marques. This is consistent with the view of Mr. Marques' own family physician (who found his functional capacity to be approximately 95% of his pre-accident state) and the medical-rehabilitation DAC (which found that any pain he continued to suffer was related to deconditioning, and that he should resume all usual activities).

Mr. Marques terminated the two work trials, saying he wanted additional medical assurance that he was capable of returning to work. However, despite continued complaints to his family physician, and the apparent absence of a further medical clearance, he proceeded to perform heavy lifting and driving at his friend's garden centre, albeit on a limited basis. Coupled with this, are the observations of both Dr. Urovitz and the medical-rehabilitation DAC that Mr. Marques exhibited pronounced functional overlay and pain behaviour. No psychological evidence was called to suggest that this was causally related to the motor vehicle accident. Mr. Kugelmass also noted Mr. Marques' frequent statements that he would only return to work if he needed to do so. In my view, the totality of this evidence significantly diminishes the weight of both Dr. Charendoff's and Mr. Marques' testimony that his neck pain is the primary reason for his inability to return to full-time work, and that he is motivated to return to work. Therefore, even if Mr. Marques continued to suffer pain as a result of the motor vehicle accident, I am not satisfied that this pain substantially disabled him from performing the essential tasks of his pre-accident employment.

Credibility

My finding is bolstered by the serious credibility problems raised throughout the evidence. On numerous occasions, Mr. Marques failed to disclose his pre-accident injuries and symptoms to treating physicians and rehabilitation workers. This included Dr. George Vincent, an orthopaedic surgeon Mr. Marques saw two days after the 1994 motor vehicle accident. Mr. Marques complained to Dr. Vincent of continuing symptoms of back pain, but made no mention of either the accident or neck pain. In a written statement to the Insurer, he also denied being in any previous motor vehicle accidents, and stated that the only time he had received WCB benefits was for a "foot injury" ten years earlier. Mr. Marques attempted to explain these discrepancies by saying that he was scared and confused at the time, that he was afraid he would not get benefits from the Insurer and that he did not want to "mix everything up" concerning his various injuries and accidents. He also said that his inaccurate statements were "stupid of him" and a "mistake on his part."

Mr. Marques told Drs. Urovitz, Cameron and Charendoff that he did not suffer from any significant back pain, although Dr. Shedletzky reported that the pre-existing back pain remained unchanged after the motor vehicle accident. Mr. Marques continued to report to the WCB that his pre-accident work injury (not the motor vehicle accident) prevented him from working. He specifically told the WCB in May 1994, that he continued to experience significant back pain, and that even light jobs around the house caused him considerable back pain. In May 1996, he also indicated to Michael Drinkwater, a physiotherapist, that the motor vehicle accident made his back pain worse, and that it was aggravated by bending and lifting light objects. Mr. Marques also testified that he experienced numbness and tingling in his hands and arms since the accident. However, Dr. Cameron reported in November 1994 that there was no radiation of pain from his neck down to his hands, and no numbness or tingling. In March 1995, Dr. Rick Zarnett, another orthopaedic surgeon who saw Mr. Marques, reported that he had been experiencing numbness and tingling in both of his hands since November 1994.

As indicated, both Dr. Urovitz and the medical-rehabilitation DAC noted excessive pain behaviour, in which Mr. Marques would react dramatically to light palpitation to the cervical spine. No objective reasons for this were uncovered.

The Insurer introduced a surveillance videotape of Mr. Marques working at his friend's garden centre. The tape shows Mr. Marques doing some lifting and driving on a forklift. He does not appear to be in any discomfort. Mr. Marques claimed that he only did a little bit of work at a time, and that he would experience significant pain the following day. Evidence was also tendered showing that Mr. Marques had used a false social insurance number and false names on two WCB claims. He was ordered to pay restitution to the WCB and also spent some time in jail. Mr. Marques attempted to explain his conduct by reference to his immigration status at the time. I find neither the surveillance tape, nor the WCB evidence particularly helpful. The surveillance does not show Mr. Marques performing his pre-accident tasks on a continuous basis, and the WCB evidence does not necessarily indicate that Mr. Marques has been dishonest in the context of this claim.

However, even without these two items, Mr. Marques' evidence still raises serious credibility problems. As stated by Dr. Charendoff in his testimony, a patient's honesty is crucial to properly assessing the degree of pain he or she may be experiencing. In this case, Mr. Marques misled physicians and rehabilitation workers about significant aspects of his medical history, gave inconsistent reports about the nature, extent and impact of his symptoms, and exhibited subjective pain behaviour completely at odds with the objective medical findings. I do not accept Mr. Marques' explanation of the numerous discrepancies and inconsistencies in the evidence. I am, therefore, not satisfied that Mr. Marques' complaints of pain are as he has described. As indicated above, this further suggests that the injuries Mr. Marques suffered in the 1994 motor vehicle accident do not substantially disable him from performing the essential tasks of his pre-accident employment.

Supplementary Medical Benefits

Mr. Marques claims the costs of the physiotherapy treatments he received at Canada's Accident Rehab Group from May to July 1996, and associated costs of transportation. For the reasons discussed above, I find that Mr. Marques is not entitled to these amounts. In any event, the Initial Assessment Report relates the need for this treatment to Mr. Marques' disc herniation and low back pain, neither of which are related to the 1994 motor vehicle accident. I prefer the views of Drs. Urovitz and Cameron, as well as the medical-rehabilitation DAC, that Mr. Marques did not require any further passive or active treatment.

Repayment

The Insurer seeks a repayment of benefits paid to Mr. Marques under section 70 of the Schedule, on the basis that Mr. Marques failed to disclose his workers' compensation pension and supplement, which, it is argued, are deductible as collateral benefits under section 75(4) of the Schedule. Section 75(4) provides that workers' compensation benefits can only be deducted as collateral benefits if they are "temporary disability benefits" within the meaning of section 1 of the Schedule. However, none of the workers' compensation benefits received by Mr. Marques are among those enumerated under the section 1 definition of "temporary disability benefits."² The benefits he received are, in any event, permanent benefits. Therefore, even if Mr. Marques did not disclose his workers' compensation pension and supplement, the benefits are not deductible, and the Insurer is not entitled to a repayment. The parties made submissions concerning the notice requirements under section 70 of the Schedule. Given my findings on the repayment issue, it is unnecessary to address the notice question.

Expenses

Although Mr. Marques was not successful in this arbitration (due, in part, to his lack of honesty on certain aspects of the claim), I find that the arbitration nevertheless raised legitimate medical issues for determination. I, therefore, exercise my discretion under section 282(11) of the Insurance Act to award Mr. Marques one half of his expenses of the arbitration. If the parties are unable to agree on the amount owing, they may apply for an assessment.

Order:

1. Mr. Marques is not entitled to further income replacement benefits.

2. Mr. Marques is not entitled to further supplementary medical and rehabilitation benefits.

3. The Insurer is not entitled to be repaid benefits received by Mr. Marques.

4. Mr. Marques is entitled to one half of his expenses of the arbitration.

July 25, 1997

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2See the case of DeForest and Royal Insurance Company of Canada (July 2 and 9, 1996) OIC A95-000415, upheld on appeal, April 14, 1997, Appeal P96-00066, in which it was held that, despite any jurisprudence developed under the pre-1994 Schedule, workers' compensation benefits not specifically enumerated as "temporary disability benefits" under section 1 of the current Schedule, cannot be considered deductable as collateral benefits under section 75(4) of the Schedule.