Neutral Citation: 1999 ONFSCDRS 121

FSCO A95-000337

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BERYL WARD

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

and

DOUGLAS WARD

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Asfaw Seife

Heard:

April 7, 8, 9, 14, 15, 16, 1998 and July 13, 14, 15, 16, 1998, at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on September 25, 1998.

Appearances:

Altor Shields for Mr. and Mrs. Ward

Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

Beryl Ward and Douglas Ward were injured in a motor vehicle accident on July 13, 1991. They applied for and received weekly benefits from Dominion of Canada General Insurance Company ("Dominion"),¹ payable under the Schedule.² Dominion terminated their weekly benefits on July 29, 1994. The parties were unable to resolve their disputes through mediation, and Mr. and Mrs. Ward applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, (the "Act").

The issue in this hearing pertaining to Beryl Ward is:

1. Is Mrs. Ward entitled to weekly benefits from July 29, 1994 until August 31, 1994 under subsection 13(8)(b) of the Schedule?

Mrs. Ward claims interest on any amounts owing.

The issues in this hearing pertaining to Douglas Ward are:

1. Is Mr. Ward entitled to weekly income benefits after July 29, 1994 pursuant to subsection 12(5)(b) of the Schedule?

2. What is the correct amount of the weekly income benefit Mr. Ward is entitled to?

3. Is Mr. Ward entitled to a special award, pursuant to subsection 282(10) of the Insurance Act?

Result:

1. Mrs. Ward is not entitled to further weekly benefits.

2. Mr. Ward is not entitled to further weekly income benefits.

3. The correct amount of Mr. Ward's weekly income benefit is $216.47 per week from July 20, 1991 through to March 31, 1994, and $229.40 per week from April 1, 1994 through to July 29, 1994. Dominion shall pay Mr. Ward the shortfalls at the rate of $30.87 per week from July 20, 1991 to March 31, 1994, and at the rate of $43.80 for the period between April 1, 1994 and July 29, 1994, together with interest calculated in accordance with subsection 24(4) of the Schedule.

4. Mr. Ward is not entitled to a special award under section 282 (10) of the Insurance Act.

5. The issue of expenses is deferred.

EVIDENCE AND ANALYSIS FOR MRS. WARD:

Background:

At the time of the accident, Mrs. Ward was 59 years old and married to Douglas Ward. Mrs. Ward had two sons from her previous marriage. One of them, Nigel, lived in Winnipeg. He was 34 years old and afflicted with a terminal illness. Mrs. Ward had been employed for 25 years as a purchasing agent with a pharmaceutical company. Six months prior to the accident she left this job temporarily in order to travel frequently to Winnipeg to visit Nigel. Nigel died six months after the accident.

The accident occurred on July 13, 1991. Mrs. Ward was sitting in the front passenger seat, when her vehicle was struck from behind while stopped at a red light. As a result of the impact, Mrs. Ward, who was wearing her seat belt, was thrown forward in the car. Her right arm struck the dashboard.

After the accident, Mr. Ward drove the car directly to Scarborough Centenary Hospital where Mrs. Ward was seen with complaints of pain in her neck and back, intermittent numbness and tingling in her right hand, and pain in her right shoulder. X-rays of her cervical spine taken at the hospital showed moderately advanced degenerative changes in her cervical spine, at the C5-6 and C6-7 level and narrowing of the intervertebral foramen at C5, C6 on the right. The lumbar spine showed no abnormality. She was diagnosed as having sustained a whiplash injury to her neck. Dr. P. Salo, the doctor who examined her at the hospital, was "a little bit concerned about the paraesthesia in her right hand and the slight diminution of grip strength." Mrs. Ward was given a cervical collar and encouraged to rest. She was released to the care of her family physician, Dr. Howard Jay.

Mrs. Ward saw Dr. Jay, her family physician since 1971, six days after the accident with complaints of increased pain in her neck, and numbness, tingling and weakness in her right arm and right shoulder as well as some back pain. Her back problem resolved soon after the accident. However, the other conditions got progressively worse, with decreased range of motion of her neck, right arm and shoulder. She reported to Dr. Jay that she was unable to engage in her pre-accident household activities.

Since the accident, in addition to seeing Dr. Jay on a regular basis, Mrs. Ward has been examined, treated and assessed by various medical practitioners, including several neurologists, orthopaedic surgeons, pain management specialists, physical rehabilitation workers, massage therapists, physiotherapists, occupational therapists and psychologists. She underwent various investigative tests, including CT scans, an EMG study, a venogram study, a bone scan and an MRI of the spine. The investigations culminated in a cervical spinal fusion surgery performed by Dr. I. Schacter, a neurosurgeon at Mount Sinai Hospital, on January 17, 1997. The surgery confirmed previous suspicions that Mrs. Ward had cervical radiculopathy as a result of cervical disc herniation at the C5-C6 level.

Mrs. Ward testified that her right arm and neck problems were resolved by Dr. Schacter's surgery and that she was able to return to her normal pre-accident activities after a few months of convalescence, in August 1997.

Dominion terminated Mrs. Ward weekly benefits three years after the accident on the basis that she did not meet the stricter test for entitlement under subsection 13(8)(b) of the Schedule. This provision states that an insurer is not required to pay benefits for any period in excess of 156 weeks unless it is established that the injuries continuously prevent the insured from engaging in substantially all of the activities in which he or she would normally engage. Dominion also took the position that Mrs. Ward's injury was not caused by the accident but by her pre-existing degenerative disc disease.

The pre-accident activities in which Mrs. Ward would normally engage:

There is no dispute regarding the activities in which Mrs. Ward normally engaged before the accident.

Mr. and Mrs. Ward lived in a two-bedroom ground floor apartment with a small flower garden outside. The apartment had two washrooms and a den. Mrs. Ward was responsible for all housekeeping, including cleaning the apartment, cooking, laundry, ironing and bed making. She vacuumed three times a week and swept and mopped the floor daily. She cleaned the fridge and the stove once a week. She did grocery shopping on her own, loading and unloading the items in the car. She prepared all meals for herself and her husband. She used the dishwasher to clean the plates, but she washed pots and pans by hand. She did the laundry at a nearby laundromat. She was also responsible for the flower garden.

Mrs. Ward went to the hairdresser once a week. She organized birthday parties and picnics for family members, and took out her grandchildren to various activities. She drove her own car.

Mrs. Ward was very active in her community as a volunteer. She participated in the Tenants' Association at her apartment building, was a member of the Neighbourhood Watch programme, and appeared before the local school board to make representations. She attended these meetings once a month and occasionally took notes. She prepared letters and other documents on the computer.

Mrs. Ward testified that she danced and played tennis prior to the accident. I am not satisfied that the evidence demonstrated that these activities were carried out with such frequency that they could be considered activities in which she ordinarily engaged prior to the accident.

Medical Evidence:

The medical evidence indicates that Mrs. Ward had no disabling health problems at the time of the accident. Her relevant pre-accident medical history includes a hospitalization in 1979 for a fractured right collar bone which healed quickly, complaints of stiffness, and semi-numbness in her left arm in 1988 and complaints of pain in her knees in 1989. In February 1991, she experienced episodes of depression attributed to her son's illness. Mrs. Ward had a cervical degeneration disc disease at levels C5-6 and C6-7, which was asymptomatic. She had no history of right arm, right shoulder or neck problems prior to the accident.

The evidence demonstrates that Mrs. Ward's symptoms of right arm, right shoulder and neck pain appeared immediately after the accident and persisted until her surgery in January 1997.

Dr. Jay initially diagnosed her with cervical and lumbar strain and treated her with a combination of medications, physiotherapy and a soft cervical collar to be worn intermittently. However, six months after the accident, she was still complaining of increased right arm, neck and shoulder pain accompanied with functional disability.

In December 1991, Dr. F. Dindar, the neurologist who saw her at the request of Dr. Jay, diagnosed her condition as a "thoracic outlet syndrome causing irritation of the brachial nerve plexus." He also suspected she might have a disorder of the rotator cuff. Dr. Dindar felt that "although her x-ray shows a fair amount of degenerative changes in the cervical spine, clinically her findings were not those of a cervical radiculopathy."

In April 1992, Dr. M. Kronby, the neurologist who examined Mrs. Ward at Dominion's request, attributed her problems to "mild lower cervical nerve root irritation on the right." He opined that Mrs. Ward had "significant nerve root symptoms in the right arm even though the EMG performed by Dr. Dindar was apparently normal."

In March 1993, Dr. A. Galea found that in addition to cervical and thoracolumbar strain, she possibly had "adhesive capsulitis of the right shoulder." A follow-up x-ray of Mrs. Ward's neck in December 1993 demonstrated for the first time the presence of spinal stenosis at C5/6 and C6/7 and another x-ray in February 1996 showed marked encroachment on the right intervertebral foramina at C5/6 and C6/7. Dr. Jay suspected these pathologies were causing Mrs. Ward's right upper limb radiculopathy.

When Dr. Dindar saw Mrs. Ward again three years later, in January 1994, he noted that Mrs. Ward had developed increased pain in the right arm, and continued to have paraesthesia in the right hand. He referred her Dr. A. Mailis, a pain management specialist. Dr. Mailis found that in addition to her physical problems, Mrs. Ward had "a significant number of non-physical factors which contribute extensively for her current disability." Dr. Mailis found that Mrs. Ward's bilateral arm venography was normal and eliminated Dr. Dindar's earlier diagnosis of thoracic outlet syndrome.

Dr. R. Soric, physiatrist-in-chief at Mount Sinai Hospital, examined Mrs. Ward at Dominion's request in May 1995, and stated that Mrs. Ward was "suffering from mild case of frozen shoulder which is most likely due to disuse and habitual." He found no musculoskeletal basis for her complaints. In terms of her functional performance he felt that Mrs. Ward could engage in all types of physical activities that do not involve repeatedly raising her right arm above the shoulder.

Mrs. Ward's symptoms did not improve with time or treatment. In May 1996, Dr. Jay decided to seek a neurological opinion from Dr. Schacter at Mount Sinai Hospital.

On July 16, 1996, after reviewing an MRI study, Dr. Schacter wrote to Dr. Jay:

The MRI study on this lady has been carried out and it is quite informative. She has a number of changes in the cervical area with a disc bulging and a small annular tear at C3, 4 with similar changes at C4, 5. At C5, 6 there is a large paracentral disc herniation to the right with compression of the cord. There seems to be some evidence of a myelomalacia at that level. A paracentral disc herniation on the left is 6,7 with compression of the cord at that point as well.

Dr. Schacter recommended an "anterior cervical discotomy and interbody fusion, at least at the C5, 6 and probably at C6, 7." Dr. Schacter advised that "this is a rather complex problem from the standpoint of her neck and it would have to be looked at with the patient quite carefully and in full explanation of the situation carried out."

Dr. R. Yufe, Dominion's neurologist, examined Mrs. Ward on November 29, 1996. He disagreed with Dr. Schacter's diagnosis of nerve root injury. In his report dated December 30, 1996, Dr. Yufe stated:

Mrs. Ward suffers from a chronic pain syndrome, which has multiple etiologies, many of which are due to psychological, not neurological factors. I will leave to the psychologist to comment on whether these factors prevent her from performing her regular duties. It would appear to me that her pain and limited joint movements may impair her ability to engage in her regular activities at this time. The question of why this lady has developed symptoms of this kind is certainly extremely controversial and not readily diagnosed. From a purely neurological perspective, there is no reason why Mrs. Ward cannot perform her usual activities, but chronic pain would certainly be a limiting factor. The etiology of this pain is multifactorial. There is evidence of underlying degenerative disc disease, but this cannot be attributed to the subject motor vehicle accident.

Dr. Yufe concluded that "Mrs. Ward's current problems are largely functional rather than organic," and that there were no physical barriers preventing her from resuming all her normal activities.

Dominion had also sent Mrs. Ward to Dr. J. Shapiro, a clinical psychologist, for psychological examination. Dr. Shapiro concluded that Mrs. Ward met "the criteria for a Somatoform Pain Disorder" that "appears to have been acquired as a result of the 1991 accident." Dr. Shapiro felt that "there are also a number of long-standing personality characteristics that are negatively influencing her pattern of recovery." Dr. Shapiro concluded that from a psychological perspective "a return to active employment would be the healthiest path for Mrs. Ward." Dr. Shapiro indicated that there was no psychological disability preventing Mrs. Ward from resuming her normal pre-accident activities.

Mrs. Ward decided to undergo the surgery recommended by Dr. Schacter. On January 17, 1997, Dr. Schacter performed the operation and found "a narrowing at C5-C6 and C6-C7 and encroachment on the neural exits to the arm at both C5-C6 and C6-C7 levels." He performed a decompression and fusion procedure at the C5-C6 level. Mrs. Ward stayed in the hospital for two days.

Mrs. Ward testified that following the surgery, her arm and neck pain disappeared and the knowledge that her problem was identified and resolved made her feel better mentally. When she was released from the care of Dr. Schacter by March 1997, she was doing her own cleaning and cooking. After a few months of exercise and convalescence, she regained all of her pre-accident functional capacity.

Causation:

Dominion contends that Mrs. Ward's pre-existing disc degeneration disease, rather than the car accident, was the cause of her injury. Dominion submitted that Dr. Schacter operated on and relieved a disc herniation that was the result of the natural degenerative process. Dominion relied on the opinion of Dr. Yufe, who testified that Mrs. Ward's disc herniation was not caused by the car accident. Dr. Yufe stated in his report dated February 24, 1998:

It is my opinion that Mrs. Ward's symptoms are on the basis of a cervical degenerative disc disease. However, the disc herniation and cervical degenerative disc disease were not caused by the rear end motor vehicle accident of 1991. The pathology was there before the accident and indeed if one were to do a post-operative MRI scan on Mrs. Ward at this time, one would see abnormalities similar to the preoperative MRI scan even though her arm pain may be relieved.

Dr. Yufe questioned the cause and effect relationship between Dr. Schacter's surgery and Mrs. Ward's functional restoration. He stated that she could just as well have responded to other treatments, suggesting that the resolution of her problems was due to the placebo effect of the surgery.

I do not accept Dominion's argument that the accident did not cause Mrs. Ward's injuries. The evidence shows that Mrs. Ward had no right arm problem before the accident and that her problems started immediately after the accident. In contrast to Dr. Yufe's opinion, Dr. Kronby stated:

In my opinion, she had no symptoms of a similar ongoing nature prior to the accident date so I believe her symptoms are directly attributable to the accident of July 13, 1991. The pre-existing degenerative changes seen in the cervical spine x-rays with intervertebral foraminal encroachment I believe pre-disposed her to the cervical nerve root symptoms she is now suffering in the right arm which she did not have prior to the motor vehicle accident.

Dr. Jay stated that his interpretation of the various x-rays was that:

Mrs. Ward "had for some years had asymptomatic degenerative changes in her cervical spine which had become symptomatic at the time of the accident. There was x-ray evidence of significant further deterioration in the state of these changes between November 1991 and December 1993 following the accident and then a stabilization or plateauing of the situation from December 1993 to February 1996.

Dr. Schacter was also of the view that the car accident was the cause for Mrs. Ward's disc herniation. In his report dated October 15, 1996, Dr. Schacter stated:

....I do not consider that the entire MRI findings which show multiple problems are related to a specific incident. However, in light of the fact that symptoms developed after the accident and specific symptoms were related to the neck and right upper extremity, one certainly can state that the trauma secondary to the motor vehicle accident either accentuated the situation resulting in the problems being symptomatic or could very readily have resulted in the specific herniation that occurred at the C5-6 level.

Dr. Yufe did not rule out the possibility that disc herniation in the cervical spine could be caused by even a minor rear-end motor vehicle collision. He also grudgingly conceded that "whiplash injury can aggravate a pre-existing degenerative disc problem in the acute phase." Dr. Yufe did not examine Mrs. Ward after her surgery. Dr. Schacter, on the other hand, had the advantage of performing an operation on the site of the complaints and saw her several times after the surgery. His diagnosis was confirmed by what he actually saw at the site upon the operation. Mrs. Ward had undergone considerable treatment before the surgery, none of which relieved her problems.

The evidence is clear that Mrs. Ward's complaints commenced immediately after the accident and continued until the surgery by Dr. Schacter. Her problems were immediately reduced after the surgery and disappeared within a few months. I have heard no evidence, medical or otherwise, about any cause, other than the car accident, that could account for the immediate onset of Mrs. Ward's symptoms and disability after the accident. I accept the preponderance of medical evidence that the trauma of a car accident can accelerate or aggravate a pre-existing, dormant condition and render it symptomatic. I conclude in this case that the whiplash injury from the accident exacerbated Mrs. Ward's pre-existing disc degeneration disease and ultimately caused the disc herniation. Accordingly, I find that the accident caused Mrs. Ward's herniated disc.

Post-accident activities:

Mrs. Ward testified that she began to experience functional problems immediately after the car accident and her condition continued without any improvement until her surgery in January 1997. Mrs. Ward is right-hand dominant. She experienced constant aching, tingling, loss of power in her right hand, numbness in her finger tips and right shoulder pain. She could not lift her right arm above shoulder level nor could she lift or carry a heavy object. Her arm would swell and she would get spasms in her hand if she tried to use it. Therefore, she avoided using her right hand in order to ease the pain. She testified that her neck was also very painful. When she slept, she put a rolled up towel under her neck.

Mrs. Ward testified that despite the pain in her right arm and shoulder, she pushed herself to do things even when it hurt her to do so because she "would not let [her] personal habits slide." She testified that during the two and a half years prior to her surgery, she did her household tasks at a much slower pace than before the accident. She was unable to wash her hair or to blow-dry it because she could not lift her right arm above her shoulder. She continued to attend at the hairdresser once a week. She could not open a can or peel potatoes using her right arm because of weakness in her hand. She could not do the laundry. She could only iron within the inner range of her shoulder movements, essentially covering an area not larger than a handkerchief. She could make the bed and perform light cleaning, at a very slow pace.

She could not type and stopped using the computer because of pain and swelling of the fingers on the right hand. She could not look after her garden since she could not use her right hand to dig the ground and plant flowers. She used her left hand to do as much as possible. She cooked light meals and washed the pots and pans at a very slow pace. She resumed driving in early 1992. Her husband could not help in the housework because of his own disability. Mr. Ward corraborated her evidence.

Mrs. Ward's complaints of functional restrictions were recorded by the various health care professionals who examined her over the years. In April 1992, Dr. Kronby noted her complaints at that time as being difficulty holding and shopping with her right hand, inability to vacuum, move furniture, do the laundry and play tennis. On March 2, 1993, Mrs. Ward was examined by Dr. Galea who recorded these same functional complaints.

In June 1993, Mrs. Ward was interviewed by Shirley Mossman of Crawford & Company, the agency retained by Dominion in May 1993 to coordinate Mrs. Ward's rehabilitation and treatment, regarding her functional status. In a report dated June 15, 1993, Ms. Mossman recorded that Mrs. Ward was able to groom and dress herself without assistance but at a slower pace than before the accident. She washed her hair less often. She continued to cook and prepare meals for herself and her husband; however, she prepared more one pot meals on top of the stove because she could not lift heavy pots repetitively nor could she reach and lift baking dishes from the oven. She managed to load the dishwasher by using her left hand and pacing herself.

Ms. Mossman recorded that Mrs. Ward could lift and carry a two to five pound load below shoulder height, such as a small bag or garbage to the incinerator. She could manage to lift lighter loads of groceries into the car or into the shopping cart, one bag at a time using her left hand. However, she could not reach over shoulder height with her right arm. The laundry was done by another person at the laundromat. She ironed very little. She could not push or pull the vacuum cleaner at all. She managed to make the bed and change the linen with assistance from her husband. She completed dusting and light household chores that did not involve reaching above shoulder level. At that time, Mrs. Ward had a cleaner paid by Dominion for three hours every two weeks.

In January 1994, Dominion retained Ms. L. Goldlust, an occupational therapist at The Accident Injury Management Clinic, to conduct an in-home assessment of Mrs. Ward's functional abilities. Ms. Goldlust concluded that Mrs. Ward demonstrated during this assessment that she was capable of carrying out her pre-accident household activities (albeit less frequently and more labouriously), with the exception of laundry and heavy cleaning. Ms. Goldlust observed Mrs. Ward relying primarily on her left arm although, as the assessment progressed, Mrs. Ward began to use her right arm more frequently.

In May 1995, Mrs. Ward was examined by Dr. Soric, physiatrist, at the request of Dominion. Dr. Soric recorded that Mrs. Ward advised that she was "doing everything, but at her own pace," except setting her hair.

Ms. Ward testified that Dr. Jay, and her treating psychologist Dr. J. Garber, encouraged her to look for work and to be active. In October 1991, four months after the accident, she ran for a position of School Trustee, unsuccessfully. The campaign took several weeks. She attended speech training three times during the preparation stage. She formulated a platform and drafted her own pamphlets. She attended at All-Candidates Meetings and went door to door to meet voters. Mrs. Ward testified that all she did was walk and talk. She shook hands with her left hand.

In December 1991, Mrs. Ward started a job as an "expediter" and purchaser at Electro Arts, an electronics manufacturing company. She worked there on a full-time basis, five days a week, until June 27, 1992. She was responsible for ensuring that parts ordered for a job were properly stocked. Mrs. Ward stated that the job involved talking to people on the phone and making notes of when items were to be delivered. She testified that she left this job because she could not handle the clerical work.

Mrs. Ward earned a total of $9,412.00 from her six-month employment at Electro Arts. After the termination of her employment, Mrs. Ward claimed and received unemployment insurance. The Record of Employment from Electro Arts was not filed into evidence and I heard no evidence regarding the basis for Mrs. Ward's qualification for Unemployment Insurance payments. Mrs. Ward did not inform Dominion about her employment at Electro Arts or the fact that she was collecting unemployment insurance while receiving disability benefits from Dominion. She explained that she was not aware that she had to reveal this to Dominion. She stated that the adjuster from Safeco Insurance Company had advised her that she was entitled to weekly benefits as long as she remained under medical treatment.³

Subsequent to her separation from Electro Arts, Mrs. Ward applied for and began receiving disability benefits under the Canada Pension Plan (CPP) effective August 1992, on the basis that the injury from the car accident disabled her from engaging in any employment. Mrs. Ward applied for numerous other jobs after leaving Electro Art in June 1992 but did not receive any offers of employment.

In October 1994, shortly after Dominion terminated her weekly benefits, Mrs. Ward ran again for the position of School Trustee in her ward. Her activities for this campaign were similar to those in 1991. She was unsuccessful in this endeavour as well.

Mrs. Ward testified that she reduced her volunteer activities after the accident because of her injuries. However, the evidence indicates that she continued to be involved in a wide variety of volunteer activities. During the summer of 1994 Mrs. Ward was invited to be a "Lion" by the Lions Club. She organized the annual picnic in 1994, 1995 and 1996. In 1994, she became president of the Central Agincourt Community Association. She attended and chaired meetings. She continued with her participation in the Tenants' Association and the Neighbourhood Watch programme until she moved to an apartment on Kennedy Road in March 1995.

Mrs. Ward took a computer course in 1993 and earned a certificate. She testified that she did not complete the course but they gave her the certificate anyway. She did not state why she was unable to complete the course.

In March 1995, during the move to the Kennedy Road apartment, she testified that she packed her crystal herself and her husband packed their clothes and personal items, assisted by her daughter-in-law.

Mrs. Ward continued attending at golf club functions after the accident, however, she said she did not dance.

Mrs. Ward testified that there were a number of emotional stressors in her life other than her injuries, including the death of her son six months after the accident, and her relationship with her husband who was also injured in the accident. She saw Dr. Garber for treatment of depression. Dr. Garber taught her how to deal with her husband's temper and the psychological problems arising from her own inability to do things that she had done all her life.

Surveillance:

Surveillance videotape footage taken between August 9, 1993 and July 25, 1995 depict Mrs. Ward using her right arm to carry small parcels, open the car door and store entrance doors. In July 1994, she was observed brushing her hair with her right hand. It is clear from the video evidence that Mrs. Ward preferred her right hand to accomplish these tasks, contrary to her testimony that she avoided the use of her right hand. She is seen turning the steering wheel hand over hand while driving, using her right arm without any apparent restrictions. On one occasion she is shown carrying a case of pop for some distance from a store to the car. She carried the case to a mailbox, propped it on her right knee against the mailbox. The case slipped from her knee and fell to the ground. Mrs. Ward picked up the case of pop with both hands and crossed the plaza parking lot to her car. Mrs. Ward placed the case of pop on the rear bumper, opened the trunk, loaded the pop into the car and proceeded to close the trunk by lifting her right arm to reach the trunk lid.

Conclusion:

The Law:

In order to be entitled for further weekly benefits, Mrs. Ward must meet the test under subsection 13(8)(b) of the Schedule, which states:

13(8) The insurer is not required to pay a weekly benefit under this section,

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.

In Marchildon and State Farm Mutual Insurance Company (FSCO A97-000643, November 3, 1998),⁴ Arbitrator Joachim interpreted subsection 13(8)(b) as follows:

While the pre-156 test focuses only on essential tasks, the post-156 test focuses on substantially all activities in which the insured would normally engage. Thus, an applicant must establish inability, not only with respect to his or her essential tasks, but with substantially all the activities in which he or she would normally engage. The degree of functional impairment is also stricter. Pre-156, the applicant must establish that he or she suffers a substantial inability to engage in the essential tasks. Post-156, the applicant must establish that he or she is continuously prevented from engaging in the relevant activities.

While the post-156 test is strict, it should not be read so strictly as to make it virtually impossible for anyone to qualify. In cases such as the present one, where pain is the primary factor which allegedly prevents the Applicant from engaging in her former activities, the question is not whether the Applicant can physically do these activities, but whether the degree of pain she experiences, either at the time, or subsequently, is such that she is practically prevented from engaging in those activities.

I agree and adopt this test for the purposes of this case. I also find the following comments of Arbitrator McMahon in Urquart and Zurich Insurance Company (OIC A96-000368, June 4, 1997) helpful in understanding the requirements of the test under subsection 13(8)(b):

I agree that counsel and arbitrators alike must avoid falling into the trap of focusing exclusively on the constituent elements of an activity. The activity must be seen as a whole. I also agree that a qualitative assessment is necessary and that if the length of time that it takes an individual to complete a task becomes extreme, an Arbitrator may be justified in concluding that the person is unable to engage in the activity. Likewise if the degree to which an individual can partake in an activity is sufficiently restricted it is safe to say that the person is no longer "engaging" in the activity.

However, it is also crucial to keep in mind that whereas in section 13(1) entitlement is premised upon a "substantial inability," pursuant to section 13(8) only individuals who are prevented from engaging in activities are entitled to a benefit. In my opinion, when viewed on a continuum, "prevented from engaging in" represents a higher degree of disability than "substantial inability." In light of this, while it is true that a qualitative analysis is merited, it must be employed against the backdrop of the ultimate question, which is whether the person is prevented from engaging in the activity. In considering this case, we must also remember that the disability must extend to substantially all of the activities in which the person would normally engage.

I find on the totality of the evidence that Mrs. Ward's injuries did not continuously prevent her from engaging in substantially all of the activities in which she would normally engage. The evidence indicates that after the accident, Mrs. Ward continued with virtually all of her volunteer activities. With the exception of laundry and ironing, she was able to complete her household activities with modification and the use of her left arm, albeit at a slower pace than before. As depicted in the videotape evidence, Mrs. Ward was able to use her right hand to carry small parcels, to open her car door, and large glass entrance doors, and use both hands together to carry heavier things. She was able to drive a car without restrictions.

On balance I am not satisfied that Mrs. Ward's injury was so severe as to prevent her from engaging in substantially all of the activities in which she would normally engage. She was prevented from engaging in some of her usual activities such as laundry and drying her hair; however, I am not persuaded that she was disabled to the requisite degree with regard to substantially all of her usual activities.

In reaching this conclusion, I am mindful of the fact that Mrs. Ward went through a lot of pain and discomfort as a result of her injuries; however, under the Schedule, pain is compensable only if it results in functional disability that meets the requisite test. I find the evidence in this case does not demonstrate the requisite disability under subsection 13(8)(b) of the Schedule. As a result, Mrs. Ward is not entitled to further weekly benefits.

EXPENSES:

The question of expenses is deferred. I may be spoken to if the parties are unable to reach an agreement on this issue.

EVIDENCE AND ANALYSIS FOR MR. WARD:

Background:

At the time of the accident on July 13, 1991, Mr. Ward was 61 years old and married to Beryl Ward. They lived in a two-bedroom apartment in Toronto. This was the second marriage for both. Mrs. Ward was a homemaker, having left her employment six months prior to the accident due to the terminal illness of her son, Nigel. Mr. Ward was receiving a permanent disability benefit from the Workers' Compensation Board (WCB) and a Canada Pension Plan (CPP) disability pension, as a result of a work-related back injury he sustained in 1969. Mr. Ward was also receiving Unemployment Insurance benefits following the termination of his full-time employment at Bristol National Leasing in January 1991. At the time of the accident, Mr. Ward was the sole proprietor and operator of Ward Consulting Services (WCS), a business which provided consultation services in the sale, lease and purchase of cars, trucks and trailers. He had started this part-time self-employment on March 12, 1991.

The accident occurred when the car Mr. Ward was driving was rear-ended by another vehicle while stopped at a red light. Mrs. Ward was seated in the front passenger seat. It is not disputed that as a result of the accident, Mr. Ward sustained soft tissue injuries to his neck, shoulders and arms. He was subsequently diagnosed with chronic pain syndrome.

Since the accident, Mr. Ward has been treated by Dr. S. Nitzkin, his family physician since 1969, and a number of specialists in neurology, orthopaedics, physical rehabilitation medicine, pain management, psychiatry and psychology. He has undergone various investigative procedures, including MRI and CT scan of the cervical spine and head, which revealed no objective evidence of injury from the trauma of the car accident.

Mr. Ward had attended physiotherapy for eight months at Scarborough Centenary Hospital after the accident. He received a series of steroid injections at the Whiplash and Headache Clinic in February and March of 1993. This did not provide Mr. Ward with much relief. He had acupuncture treatments which gave him only short-term relief. He also sought psychiatric treatment and psychological counselling from Dr. S. Barron and Dr. J. Garber, respectively.

Mr. Ward testified that since the accident, he has been unable to engage in his part-time self-employment as a consultant in truck sales and leasing or in any other employment that is within his area of training and experience because of chronic pain and psychological problems resulting from injuries he received in the motor vehicle accident. He testified that in July 1994, at the time of the termination of his weekly benefits, he was experiencing pain in his arms, hand tremors and severe headaches. He was unable to communicate with people socially or in a business context because of anger and a short temper.

He testified he saw some improvement of his emotional problems after July 1994, when he started seeing Dr. Garber, the clinical psychologist, regularly. Since then, he has been able to control his temper and manage his anger better. However, he testified that he continues to have considerable communication problems.

Pre-accident disability:

It is not disputed that at the time of the accident, Mr. Ward had a history of significant, long-standing, disabling back problems. In 1970, following a work-related accident, Mr. Ward underwent a spinal fusion surgery of the low back, and in 1971 a laminectomy, related to degenerative changes in his spine and his long career as a transport truck driver. Mr. Ward was originally assessed for permanent disability by the WCB on December 12, 1971 and given a 10 percent award. (A WCB permanent disability pension is strictly a clinical award reflecting anatomical or functional abnormality resulting from a work injury). Since December 1991, his award has been increased several times: to 20 percent on May 7, 1974; to 25 percent on July 2, 1974; to 40 percent on August 20, 1981; and to 60 percent on May 29, 1991. Each time, Mr. Ward's claim of deteriorating functional capacity was confirmed by WCB physicians. Mr. Ward appealed his award after the accident in November 1991 on the basis of further deterioration in his functional capacity, without success.

In January 1991, Dr. Nitzkin diagnosed Mr. Ward with chronic pain syndrome secondary to low back pain, spinal stenosis of L3 - L4 area of lumbar spine pain and degenerative disc disease and arthritis in both knees. Mr. Ward left his job with Bristol and applied for a CPP disability pension.

In a questionnaire he completed for CPP application on January 7, 1991, Mr. Ward stated that he was unable to perform his work duties, which he described as demonstrating cars and trucks for leasing and sales. He reported that the main problems that prevented him from returning to work were "extreme pain lower back and legs, numbness ankles and toes left foot, problem walking." He stated that he was unable to concentrate due to the drugs that he was taking.

In March 1991, Mr. Ward started his own business by establishing WCS. He described his involvement in WCS as "less than a full-time job," but could not estimate how many hours he worked per week or how many transactions he performed between starting WCS and July 13, 1991, the date of the accident.

On April 9, 1991, less than three months before the accident, Dr. B. Woolford, Mr. Ward's treating orthopaedist since 1979, wrote to the Income Security Branch, Health and Welfare Canada as follows:

[Mr. Ward] has never really been without pain and it has become greatly difficult as he has gotten older for him to cope with his duties. He has been working as a manager at Cory's National Leasing [sic] going 8-10 hours per day or more. It has now got to the point where he is not able to cope with his duties.

Although this patient is capable of doing a 4-hour day this is really not practical for him either in this present job market or in his current position. I think it has got to the point where this patient would be advised to take an early retirement as being the only way that he can reasonably continue to cope with things at this time and I recommend this for him.

Mr. Ward was awarded CPP disability pension effective May 1, 1991.

On May 4, 1991, almost two months after starting his own business, Mr. Ward applied for Unemployment Insurance benefits, claiming that he was not employed at the time. Mr. Ward testified that at that time he "just did not know what he was going to do."

The WCB records of Mr. Ward's examination on May 29, 1991 indicate that Mr. Ward continued to complain of low back pain and sciatica, and cramps at night which disturbed his sleep. He also responded that he was limited in his sitting and standing to up to fifteen minutes and could walk only a block or two. He also used a TENS unit and medications such as Darvon, Vivol, Halcion, Voltaren and Zantac regularly. The WCB doctor reviewing Mr. Ward's pre-accident spinal CT scan stated that he had a very significant spinal stenosis at the L3-L4 level above his fusion. He also noted marked degenerative disc disease at L4 and L5.

Weekly Income Benefits:

In order to be entitled to further weekly income benefits, Mr. Ward must prove, on a balance of probabilities, that the injuries he sustained in the accident of July 13, 1991 continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, pursuant to subsection 12(5)(b) of the Schedule. The injuries can be physical or psychological.

Dominion pointed to Mr. Ward's pre-existing and post-accident problems not related to the accident and took the position that Mr. Ward did not sustain an injury as a result of the accident which continuously prevents him from engaging in his pre-accident employment or any other employment to which he is reasonably suited by education, training or experience. Dominion also questioned his motivation to return to any type of employment.

Mr. Ward's counsel stated in his written submissions:

...[The] injuries from the motor vehicle accident consisted mainly of injury to the upper back and shoulders with an exacerbation of the low back. The examination of the WCB file would only be of use if there were comments regarding upper back and shoulder complaints. There were none and, therefore, that which existed as at late May 1991 was a finding by WCB that Mr. Ward was entitled to a 60 percent permanent disability pension. That clearly indicates that the opinion of the doctor who examined Mr. Ward in May 1991 was that Mr. Ward could function to the level of 40 percent. It was that 40 percent function which was taken away from him by the motor vehicle collision. [emphasis added]

Education, training and experience:

Mr. Ward had attained a formal education level equal to two years of high school when he immigrated to Canada in 1948. He served in the Canadian Armed Forces from 1950 until 1952 and upon his discharge he started driving transport trucks. He drove until 1970, when he was forced to stop due to a back injury. For the next 20 years, he worked for various car and truck dealerships, and developed expertise in fleet management, sale, leasing and purchase of light to heavy duty trucks and cars. He also gained experience in dispatching for trucking companies and acquired driver safety training. In addition, Mr. Ward acquired considerable experience in administration, supervision of employees and property management.

Mr. Ward's last full-time employment was with Bristol National Leasing from 1989 to January 1991. Mr. Ward testified that he "was more or less let go [from Bristol] because of bad business." He stated that he considered himself retired when he left Bristol; however, he became semi-retired when he started his own business.

Mr. Ward testified that at WCS, he appraised trucks and cars. He had no employees. Each appraisal was conducted by visual inspection which involved walking around the vehicle; checking under the hood; inspecting the springs, shocks, power steering, tires and rear-axle. The job also required negotiation skills, knowledge of financing and computing leasing charges. Sitting, standing, walking, reaching, handling and lifting are the usual physical demands involved in the job. The strength level to accomplish these tasks is considered light.

Mr. Ward is a member of the National Association of Fleet Administrators (NAFA) and during his long career, he has attended lectures in marketing, sales, maintenance, wholesale as well as property management relating to automobiles.

I find that Mr. Ward's training and experience relate to driving transport trucks, and expertise developed over two decades in purchasing, leasing and sales of cars, light to heavy duty trucks and trailers. He has acquired considerable administrative and fiscal experience in truck fleet management, supervision of employees, negotiation skills, truck dispatching and truck driver safety training.

Post-accident activities:

Subsequent to the accident, Mr. Ward suffered two significant medical problems unrelated to the accident. On January 25, 1995, as a result of an injury he suffered during an assault and a fall in a parking lot, he underwent an open reduction and internal fixation of the left knee with a bone graft from his hip. Dr. D.J. Ogilvie-Harris, the orthopaedic surgeon who saw him in March 1996 regarding this injury, stated that "although the bony component has gone on to heal, he is left with considerable problems with the left knee." He opined that Mr. Ward "will have restrictions in his ability to play golf, to dance or to do anything that involves impact loading with the left knee." Dr. Ogilvie-Harries stated that "it will also be difficult for him to bend, kneel, carry or squat. Going up and down stairs will aggravate his pain. This situation is likely to be permanent and will persist" with a "substantial chance of deteriorating in the future."

Mr. Ward himself considered this injury serious, permanent and disabling. In a Statement of Claim he issued in the Ontario Court of Justice (General Division) Court File # 95-Cu-87517, against the alleged perpetrator of the assault and the owner of the parking lot, Mr. Ward alleged that as a result of the assault he suffered serious and lasting permanent injuries, which have, among other consequences, impaired his ability to work. This case was subsequently settled out of court.

In 1996, Mr. Ward was diagnosed with prostate cancer which affected him mentally as well as physically. He underwent surgery in mid-1996 to have his prostate removed.

Mr. Ward testified that he attempted to return to work on two separate occasions in late 1992 and mid-1993, unsuccessfully. He worked at HINO Trucks (a truck leasing company), for a total of five and a half months, earning income in excess of $2,000. Although Mr. Ward testified that he returned to work because he wanted to find out for himself if he could do the job; he did not inform either Dominion or his own family doctor or any of his rehabilitation workers regarding this attempt. The fact that Mr. Ward had returned to work was discovered by Dominion only when he was asked by Dominion's accountants who were calculating the amount of his weekly income benefits to explain the source of certain post-accident earnings found in his financial records.

Mr. Ward testified he left HINO "because the communication was not there." He testified that he could not talk to people on the telephone "socially and business wise" and he could not concentrate on details. Mr. Ward did not state what physical problems, if any, related to the accident, prevented him from engaging in this work.

The major post-accident activity in which Mr. Ward engaged was playing golf. Mr. Ward is an avid golfer. He testified that before the accident he played three to seven days a week and resumed playing soon after the accident. He stated that he was encouraged by his treating physicians to play golf and to be as active as possible. He played "for peace of mind and companionship and to get out of the house and also to see what [he] was capable of doing." He stated he "played with discomfort and tried to enjoy it."

Mr. Ward testified that he played as often as he could get out, sometimes as much as four times a week. He testified that within a "couple of months" after the accident he could play a full round of 18 holes. In December 1992, he drove to Myrtle Beach with 20 other men and played golf for two days.

Mr. Ward did not play golf in 1995 and the first five months of 1996 because of his knee operation and the prostate cancer diagnosis. He testified that in 1997, he played "as often as he could" and his scores got better. He used a golf cart for a short while, but later he bought a "Kangaroo" caddie with a remote control for carrying his golf equipment.

I find that in his testimony Mr. Ward attempted to minimize his golf activities. The records of Ontario Golf Information Network, obtained by Dominion after considerable resistance by Mr. Ward, indicate that in 1994, 1996 and 1997, Mr. Ward played golf very frequently, sometimes as much as 20 times in a 23 day span, eight to ten hours a day. Alan Patterson, the Golf Professional at Cedarbrae Golf Club where Mr. Ward played, testified that he had known Mr. Ward since 1981 and that he did not see any noticeable change in Mr. Ward's golf playing after the accident. Referring to the records of the golf club, he testified that Mr. Ward was playing at least five times a week after the accident. Mr. Patterson testified that Mr. Ward was playing golf on July 17, 1991, just four days after the accident. He played in the Senior's Golf Tournament and was one of the winners. He testified that he had a gross score of 85, which means he swung the golf club 85 times.

Mr. Patterson demonstrated the mechanics and body movements involved in a golf swing. It is a game that requires reasonable overall fitness, some strength in the arms and shoulders and stability of hand grip. Focus and concentration are important elements of the game. A golfer would stoop and bend frequently during a game.

Mr. Patterson described the golf course where Mr. Ward played as a mid-range course, with some hills, involving at least five miles of walking. He testified that it would take approximately four hours for a group of four to complete 18 holes of golf.

Mr. Patterson described Mr. Ward's golf playing skills as consistent and his handicap was in the range of 16 to 18 from 1988 until 1997. He described Mr. Ward's golf swing as short and powerful, and "covered a lot of distance for the swing."

Mr. Rick Pero, who was the Associate Golf Professional at the Cedarbrae Golf Club from 1989 to 1996, testified that he had a good relationship with Mr. Ward and played golf with him. He had frequent contacts with him during the two golf seasons prior to the accident, and until he left the club in 1996. Mr. Pero testified that he did not see any change in Mr. Ward's behaviour pattern after the accident.

The evidence also indicates that Mr. Ward engaged in several volunteer activities after the accident and helped his wife run two campaigns for a position as a School Trustee. He attended meetings at the National Association of Fleet Managers, and shows put on by the Association on a monthly basis, as he did before the accident. He explained that he attended in order to keep up his contacts but that the "communication was not there."

Medical Evidence:

The consensus of medical opinion is that as a result of the accident of July 13, 1991, Mr. Ward sustained a whiplash-type, soft tissue injury to his neck, arms and shoulders and that he was suffering from chronic pain syndrome. There, is however, disagreement as to whether he sustained a psychological injury as a result of the accident and the effects of the injuries that he sustained in the accident on his ability to function.

Dr. Nitzkin, Mr. Ward's family physician of 29 years, supports his claim. Although in October 1991 Dr. Nitzkin estimated that Mr. Ward should be able to return to his pre-accident employment activities within 6 to 18 months of the accident, he stated in his testimony that he was very unlikely to return to any form of appropriate employment for the rest of his life. He attributed Mr. Ward's ongoing disability to the effects of chronic pain syndrome. He testified that in July 1994, Mr. Ward was still complaining of headaches, pain in his shoulders, neck and right upper extremity, and tingling in his hands and shaking of the hands. He stated these symptoms continued without improvement until March 27, 1998, when he last saw him before he testified.

Dr. Nitzkin testified that when he completed the CPP form in January 1991, he believed that Mr. Ward was disabled on account of chronic pain syndrome secondary to his back injury. He stated that he had degenerative disc disease of the lumbar spine, spinal stenosis at L3-L4, and absence of left knee reflexes. He testified that Dr. Woolford was treating Mr. Ward in 1989 for right elbow and right shoulder stiffness and that Mr. Ward suffered occasionally from depression before the accident. Dr. Nitzkin did not testify that Mr. Ward's pre-accident problems were no longer a factor in his post-accident disability. However, he felt that "the most significant reason for his disability in July 1994 was persistent pain in his neck plus ongoing anxiety, causing him to be angry, which would make it impossible to hold a job from fear of insulting a client."

On May 23, 1992, Dr. Nitzkin reported to Dominion as follows:

With regard to your question of whether Mr. Ward should undergo a more active life style, my answer would be that he should try to slowly increase his social and recreational activities. Once the weather remains warmer, he might try, for example, a few holes of golf. However, without his trying I am unable to say whether he will be able to do this because of the neck pain.

Dr. Nitzkin made these comments at a time when Mr. Ward was playing golf at the same level as he did before the accident. In his testimony, Dr. Nitzkin stated that he was not sure when Mr. Ward started playing golf after the accident. In July 1994, he was not aware that he was playing golf.

At the hearing, Dr. Nitzkin agreed that Mr. Ward could engage in some sedentary activity from a physiological point of view, however, he testified that he could not extrapolate Mr. Ward's golfing abilities into job-related functional ability. He did agree, however, that four hours of walking the golf course and playing 18 holes would take a certain amount of stamina and requires swinging with both hands, using the shoulders, and bending to put the ball down.

Dr. Nitzkin did not know that Mr. Ward worked for a total of five and a half months after the accident. He stated that he was surprised to know that, but that it would not make him change his opinion about Mr. Ward's disability.

Dr. Nitzkin testified that he was aware of the 1995 knee injury that Mr. Ward sustained as a result of an assault. However, he did not take this injury in assessing the causes of Mr. Ward's functional disability after January 1995.

On March 31, 1995, two months after Mr. Ward's knee surgery, Dr. Nitzkin wrote to Mr. Ward's solicitors, stating as follows:

Mr. Ward's recreational activity appears to be golf. Prior to the accident of July 13, 1991, he played golf to the best of his ability and had attained a good handicap. He enjoyed playing with friends on the golf course and would frequently enjoy social contact with them in the club house. Following the motor vehicle accident of July 13, 1991, his golf deteriorated severely due to problems of his arms and shoulders. He also became critical of himself and his partners.

Subsequent to that he stopped joining them in the coffee shop and associating with them when there was a men's night. He was last able to play golf in November 1994 but had to return early because of pain.

Dr. Nitzkin made no mention of the knee surgery. In 1995, Mr. Ward did not play golf, not because of the accident, but due to his knee operation. Dr. Nitzkin conceded in his cross-examination that his assessment of Mr. Ward's post-accident level was based on a chart that Mr. Ward had prepared.

Dr. Nitzkin testified that he did not know the details of Mr. Ward's pre-accident employment, other than the fact that he knew he was a sales/leasing agent and that the job was mainly sedentary. Dr. Nitzkin testified that he has recorded nothing in his file regarding Mr. Ward's pre-accident self-employment activities.

I do not find Dr. Nitzkin's opinion regarding Mr. Ward's functional disability helpful due to:

a) inconsistencies between his testimony and the opinion he provided on the CPP forms;

b) his apparent lack of knowledge of Mr. Ward's employment activities at the time of the accident and the level of his post-accident activities; and c) his failure to take into account Mr. Ward's post-accident problems unrelated to the accident.

Dr. Garber, the clinical psychologist, is the only other medical professional who testified in support of Mr. Ward's claim of disability. Dr. Garber has treated Mr. Ward from February to May 1993 and from March 1994 until the end of December 1997. I find his evidence to be problematic. In his testimony-in-chief, Dr. Garber stated that he found Mr. Ward continuously psychologically disabled from engaging in any employment, until he stopped treating him in December 1997. In cross-examination, however, he was confronted with a number of clinical notes he had made during his treatment of Mr. Ward in which he indicated the contrary. In particular, he was questioned about his handwritten clinical note of February 21, 1997, which stated:

tele. contact. Very distressed (Beryl). Why am I treating Doug if he is not disabled. Told her that I can't discuss details but that she should discuss this with lawyer-advise that Doug is not and has never been psychologically handicapped- some limitation- but he has been able to work from psychological perspective. She advised that he can't get along with people - I can't support that.

Contact with lawyer-advised that I can refer for second opinion but that I cannot support psychological claim at any level. [emphasis added]

Dr. Garber confirmed in his testimony that he did communicate to Mrs. Ward and Mr. Ward's lawyer on February 21, 1997, that he never found Mr. Ward psychologically disabled.

When asked to explain the discrepancy between his clinical note and his testimony-in-chief, Dr. Garber stated: "I'd need to reconsider my statement [of February 21, 1997] that [Mr. Ward] has never been psychologically disabled." When asked why he needed to reconsider his previous opinion, he stated: "my opinion fluctuated subsequent to continued involvement with him after [February 21, 1997]. He then stated that his clinical note of February 21, 1997 "was not entirely accurate — it was a rash statement that I made. Probably I misperceived his previous level of disability." Dr. Garber was unable to say what, if anything, happened after February 21, 1997 that caused him to change his opinion. He agreed that his clinical notes after February 21, 1997 indicate clearly that Mr. Ward continued to show significant improvement in his psychological condition until he was discharged in December 1997. When pressed for a reason, Dr. Garber stated: "I simply changed my mind." Despite this stark admission, Dr. Garber insisted in re-examination that he considered Mr. Ward was continuously prevented from engaging in any employment by reason of psychological disability until December 1997.

The clinical note of February 21, 1997 is not the only instance where Dr. Garber expressed doubt about Mr. Ward's claim of functional disability on psychological grounds.

In his letter to Dominion dated December 24, 1996, Dr. Garber stated that he did not consider Mr. Ward "to be seriously or significantly psychologically disabled, psychologically limited or psychologically handicapped at this time." He advised that "the frequency of current treatment is designed to maintain Mr. Ward's level of functioning, as he has struggled with a series of multiple life stressors which have been deemed to complicate his recuperative process. These include a significant slip and fall injury [the January 1995 knee injury], the need for excision of a malignancy in addition to his wife's anticipated surgical procedure in early 1997."

A "Termination Note to File" dated March 6, 1997, signed by Ann Russell, the psychometrist in Dr. Garber's office (who had the most contact with Mr. Ward during his treatment), stated that Mr. Ward "continued to experience psychological distress, however, this distress does not significantly interfere with his ability to remain an active and involved member of his community." The note goes on to say that Mr. Ward:

displayed remarkable psychological resiliency during the course of treatment with respect to rehabilitation not only from physical injury, but also disease (cancer). His ability to maintain pre-accident interest and activities (i.e., community volunteering and golfing) is evidenced in Doug's motivation to recover and desire for wellness.

Mr. Russell concluded that Mr. Ward did experience psychological distress related to the MVA, "but this distress is not so significant as to render him incapacitated."

In a letter Dr. Garber sent to Dominion on July 30, 1997, he confirmed that he was of the opinion that Mr. Ward was not "seriously or significantly psychologically limited and/or disabled."

Dr. Garber admitted during cross-examination that his contemporaneous clinical notes were a better record of his opinion at the time than his current independent recollection. There is nothing in his clinical notes or reports that indicates he had found Mr. Ward continuously psychologically disabled from engaging in any employment. Dr. Garber provided no reasonable explanation for rescinding his own clinical note of February 21, 1997 in which he stated that Mr. Ward has never been psychologically disabled at any level. I am therefore unable to accept his opinion that Mr. Ward was continuously prevented from engaging in any suitable employment because of psychological injury.

Dominion called Dr. J. Shapiro, the clinical psychologist who assessed Mr. Ward in March 1997. She testified that she found Mr. Ward was not psychologically disabled from resuming any and all of his normal pre-accident activities, including work. However, she testified that she could not comfortably state whether or not he was psychologically disabled prior to the assessment date of March 14, 1997.

Mr. Ward has undergone several other Insurer's Medical Examinations (IMEs) and Functional Abilities Evaluations (FAEs), which have found him to be capable of returning to his pre-accident occupation as a self-employed truck/car lease/sales consultant.

Mr. Ward was examined by Dr. E.P. Urovitz, orthopaedic surgeon, at Dominion's request in March 1992. He estimated that it will be at least six months before he would consider him "capable of doing consulting work on a part-time basis i.e., up to 20 hours per week." Dr. Urovitz expected that "full recovery is likely to take place over the course of about 18 to 24 months." Dr. Urovitz stated in his report: "In terms of recreational pursuits, he is somewhat worried about his ability to play golf and has not tried to do this since last summer prior to July 13." It is clear, however, that Dr. Urovitz was not aware of Mr. Ward's golf playing at the time of his assessment.

In June 1994, Dominion referred Mr. Ward to Workable Centres Inc. (Workable) for a multidisciplinary assessment, which included an FAE.

The FAE concluded that Mr. Ward demonstrated unrestricted abilities in sitting at the frequent level, handling and standing at the occasional level, and lifting 20 pounds with both hands from floor to waist level. He demonstrated physical abilities rated at the light strength level which meets the strength demands of his pre-accident occupation as Sales Representative, Automotive Leasing. The assessment concluded that Mr. Ward was able to perform the essential tasks of his pre-accident occupation as a truck leasing consultant with some discomfort.

In October 1996, Mr. Ward underwent a Work Capacity Evaluation at AssessMed by Dr. J. Richman, occupational medicine physician. Dr. Richman prepared a report dated October 22, 1996 and he testified at the hearing. Dr. Richman testified that Mr. Ward refused to perform the testing for a formal physical capacity evaluation on the advice of his lawyer who he said had told him that it would not be in his interest to participate in the testing. He also refused to answer any questions with regard to what he could or could not do. Based on his examination of Mr. Ward, Dr. Richman concluded that there is no measurable impairment other than some muscle tightness in Mr. Ward's neck and shoulders at the extreme of movement. He felt that this would not cause a disability with respect to the job demands of his pre-accident employment.

Dr. Richman was qualified to give opinion evidence on occupational medicine. He testified in cross-examination that Mr. Ward's pre-accident job activities were much less physically demanding than playing golf and that Mr. Ward would be able to perform his work. He stated: "if he could play golf on a regular basis, he could be able to, from a physical point of view, perform his work."

Conclusion:

The medical evidence indicates and I find that at the time of the termination of his weekly income benefits Mr. Ward suffered from chronic pain syndrome resulting from the injuries he sustained in the accident. Under the Schedule, only pain that is disabling is compensable.

The onus is on Mr. Ward to establish that the injuries he sustained in the accident continuously prevent him from engaging in any occupation or employment that he is reasonably suited by education, training or experience. There is no question that if Mr. Ward is not continuously prevented by his injuries from engaging in his pre-accident self-employment at WCS, he would not be entitled to further weekly benefits under he Schedule. Having considered the entire evidence carefully, I find that Mr. Ward is not continuously prevented from engaging in self-employment as a part-time truck leasing/sales consultant — the work he was doing at the time of the accident. In reaching this conclusion, I have taken the following facts into consideration:

1. Mr. Ward's pre-accident self-employment was on a part-time basis (not exceeding 20 hours a week) and it involved light physical demands.

2. Mr. Ward returned to his pre-accident employment for a period of at least five and a half months within less than two years after the accident. He did not stop working because of pain or physical restrictions.

3. Mr. Ward has been playing golf frequently at the same level as he did before the accident, starting four days after the accident, with the exception of periods in 1995 and 1996, when he stopped due to injuries unrelated to the accident.

4. The physical demands of playing golf are harder than those of Mr. Ward's pre-accident employment.

5. The Functional Abilities Evaluations conducted by Workable, which are not challenged by Mr. Ward, show that in July 1994 he was capable of performing the essential tasks of his pre-accident employment, with discomfort.

6. Mr. Ward did not sustain a disabling psychological injury as a result of the accident. The only evidence that tended to suggest Mr. Ward was psychologically disabled was Dr. Garber's testimony, which I have rejected.

7. Since the termination of his benefits, Mr. Ward has suffered significant injuries to his left knee and a prostate cancer operation, which were disabling and required considerable treatment and rehabilitation.

8. A few months prior to the accident, Mr. Ward was found by his treating orthopaedic specialist that he was incapable of doing a four-hour day because of chronic pain and was urged to retire. Mr. Ward's pre-accident diagnosis of chronic pain syndrome and significant back problems continued after the accident.

In the result, I find that Mr. Ward is not entitled to further benefits under subsection 12(5)(b) of the Schedule.

Quantum of Benefits:

Dominion initially paid Mr. Ward weekly benefits of $185 per week under section 13(3) of the Schedule, on the basis of his Application for Accident Benefits in which Mr. Ward indicated he was not employed at the time of the accident. He stated in the Application that he was retired and reported no employment income. He was paid at this level, without protest, until the termination of his benefits in July 1994. In August 1994, Dominion received a letter from Mr. Ward's lawyer, indicating that Mr. Ward was employed at the time of the accident and that his benefits should have been calculated under section 12 of the Schedule. The lawyer enclosed Mr. Ward's 1991 income tax return. The calculation based on the income figure from the tax return did not generate a benefit level more than the minimum of $185.60 per week under subsection 12(4) of the Schedule. Dominion subsequently made a lump sum payment for the difference of 60 cents per week from one week after the accident to July 29, 1994, when his benefits were terminated.

Shortly before the case went to mediation in August 1995, Dominion received certain financial information from Mr. Ward, and a claim that his weekly income benefit was not properly calculated. Dominion then retained Hyrcko & Associates, chartered accountants, to calculate Mr. Ward's weekly income benefit.

Hyrcko & Associates spent considerable time attempting to obtain financial information and supporting documentation from Mr. Ward. It was finally able to determine Mr. Ward's weekly income benefits based on information it obtained. It determined his weekly benefits to be $216.47 per week for the period July 20, 1991 through to March 31, 1994, and $229.40 per week from April 1, 1994 onwards.

Mr. Ward did not dispute Hyrcko & Associates' calculation.

Dominion urged me to disregard the calculation of its own accountant and to fix Mr. Ward's weekly benefits at the minimum of $185.60 per week because Mr. Ward did not provide adequate financial documentation of his earnings on a timely basis. This is not a relevant consideration for determining benefits under the Schedule.

I accept Hyrcko & Associates' calculation, in the absence of expert evidence to the contrary. Accordingly, I find Mr. Ward's weekly income benefit to be $216.47 per week from July 20, 1991 through to March 31, 1994, and $229.40 per week from April 1, 1994 through to July 29, 1994. This would mean an underpayment of $30.87 per week during the first period, and $43.80 per week for the second period. Dominion is required to pay Mr. Ward this difference, with interest calculated in accordance with section 24 of the Schedule.

Special Award:

Mr. Ward seeks a special award on the basis that Dominion delayed paying Dr. Garber's account for Mr. Ward's psychological treatment under subsection 6(7) of the Schedule, and on the basis that it also delayed payments of the shortfall.

Subsection 282(10) of the Insurance Act states:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Having considered the entire circumstances of this case, I do not find that Dominion has unreasonably withheld or delayed payment of Mr. Ward's benefits.

Although I heard some evidence with respect to delays in the payment of Dr. Garber's invoices, Mr. Ward's entitlement to supplementary medical benefits was not at issue in this arbitration. I have made no awards pertaining to the payment of such benefits. Accordingly, I make no orders involving this issue.

With regard to Mr. Ward's claim that Dominion has unreasonably delayed payments of the shortfall in his weekly income benefits, I note that Mr. Ward made his application for accident benefits as a retired person and provided the information about his pre-accident employment and earnings more than three years after the accident. Mr. Ward was not forthcoming with documents about his earnings even after Dominion retained accountants to determine his weekly income benefit. Despite my acceptance of the accountants' calculation, I find Dominion had legitimate concerns about Mr. Ward's employment status at the time of the accident, and the income verification documents he provided. Dominion's withholding of payment pending the resolution of the dispute by an arbitrator was not an unreasonable position to take.

Accordingly, I do not find a special award is warranted in this case.

EXPENSES:

The question of expenses is deferred. I may be spoken to if the parties are unable to reach an agreement on this issue.

June 25, 1999

Asfaw Seife Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 121

FSCO A95-000337

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BERYL WARD

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

and

DOUGLAS WARD

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Ward's claim for weekly income benefits is dismissed.

2. Mr. Ward's claim for weekly income benefits is dismissed.

3. The correct amount of Mr. Ward's weekly income benefits is $216.47 per week from July 20, 1991 through to March 31, 1994, and $229.40 per week from April 1, 1994 through to July 29, 1994. Dominion shall pay Mr. Ward the shortfalls at the rate of $30.87 per week from July 20, 1991 to March 31, 1994, and at the rate of $43.80 for the period between April 1, 1994 and July 29, 1994, together with interest calculated in accordance with subsection 24(4) of the Schedule.

4. Mr. Ward is not entitled to a special award under section 282 (10) of the Insurance Act.

5. The issue of expenses is deferred.

June 25, 1999

Asfaw Seife Arbitrator

Date

Footnotes

1. 1At the time of the accident, Mrs. Ward was covered by a motor vehicle insurance policy issued by Safeco Insurance Company. Her application for benefits was initially processed by Safeco. Safeco was subsequently taken over by Dominion and Mrs. Ward's file was transferred to Dominion.
2. 2The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
3. 3The parties advised that Dominion has filed a court action seeking a repayment of benefits paid to Mrs. Ward while she was working. Repayment is not an issue in this arbitration.
4. 4This approach was approved by the Director's Delegate in the appeal order P98-0043, March 24, 1999.