Neutral Citation: 1999 ONFSCDRS 127

FSCO A97-001868

BETWEEN:

GERRY BAETSEN

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William Renahan

Heard:

June 1, 2 and 3, 1999, in Chatham, Ontario.

Appearances:

Jerry F. O'Brien for Mr. Baetsen

Doug Wright and Vincent Burns for Jevco Insurance Company

The Applicant, Gerry Baetsen, was injured in a motor vehicle accident on July 26, 1993. He applied for and received statutory accident benefits from Jevco Insurance Company ("Jevco"), payable under the Schedule.¹ Jevco terminated weekly income benefits on November 5, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Baetsen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the Applicant entitled to weekly income benefits pursuant to subsection 12(1) of the Schedule from November 6, 1995 to July 25, 1996?
Is the Applicant entitled to weekly income benefits pursuant to paragraph 12(5)(b) of the Schedule after July 25, 1996?
Is the Applicant entitled to a special award pursuant to subsection 282(10) of the Insurance Act?
Is either party entitled to expenses of the arbitration proceeding?
Is the Applicant entitled to interest on overdue payments?

The Applicant is entitled to weekly income benefits pursuant to subsection 12(1) of the Schedule from November 6, 1995 to July 25, 1996.
The Applicant is entitled to weekly income benefits pursuant to paragraph 12(5)(b) of the Schedule after July 25, 1996.
The Applicant is not entitled to a special award.
The issue of entitlement to expenses is deferred.
The Applicant is entitled to interest on overdue payments in accordance with section 24 of the Schedule.

Accident and Injuries:

On June 26, 1993, the Applicant, Gerry Baetsen, suffered injuries when the motorcycle he was riding was struck by another vehicle. At the time, he was off work from his regular job as a welder/millwright due to injuries he had suffered to his left hand and wrist a month earlier when a tire he was working on exploded. His most significant injury in the motorcycle collision was fractures to his left thumb. Jevco conceded that if I found that Mr. Baetsen met the disability tests in section 12 of the Schedule, his disability was caused by injuries sustained in the motorcycle accident.

The accident occurred in Merlin, a village near Chatham, as Mr. Baetsen returned from work on his hobby farm. As he turned into his driveway, he was struck by an oncoming vehicle. His wife, Linda, and a friend, Debra DeBruin, ran out of the house to find Mr. Baetsen lying motionless face down on the road. His helmet had flown off. Dr. Klein, Mr. Baetsen's family doctor, worked a few blocks down the street. By the time he arrived at the accident scene a few moments later, Mr. Baetsen was alert. Mr. Baetsen was taken to hospital where the staff monitored him for two days out of fear he may have suffered a head injury.

Mr. Baetsen suffered numerous abrasions and lacerations to his face and body and fractures to his nose, elbow and hand as well as soft tissue injuries. His most serious fractures were three fractures to his thumb. Before the motorcycle accident Dr. Klein had referred Mr. Baetsen to Dr. Patterson, an orthopaedic surgeon who specializes in the upper limbs, to look at Mr. Baetsen's left hand which still bothered him as a result of the tire explosion. He saw Mr. Baetsen on August 3, 1993, a few days after the motorcycle accident, and diagnosed the three fractures to the thumb and hand. He operated on Mr. Baetsen the next day. He treated two fractures by open reduction and fixation and the third fracture by a cast.

Mr. Baetsen continued to complain of pain and weakness in his left thumb and Dr. Patterson performed a second operation to rebuild a thumb joint on August 4, 1993. Mr. Baetsen testified that the operation did not help and that he cannot return to work because he continues to experience pain and weakness in the thumb.

Mr. Baetsen's also claimed that he cannot sleep properly because of persistent pain in his thumb at night. I heard contradictory evidence as to whether Mr. Baetsen's poor neuropsychological performance was due to his inability to sleep or to a head injury.

Jevco paid weekly income benefits until November 5, 1995. In coming to its decision to terminate benefits it relied, among other things, on a report by Dr. Michael Hall, an orthopeadic specialist, that Mr. Baetsen could return to work.

Credibility:

The testimony of Mr. Baetsen, his wife, his family doctor, Dr. Klein, and his friends, Bob Andruchow and Debra DeBruin, was generally consistent as to Mr. Baetsen's personality and problems. What emerged was the picture of a "workaholic" who worked long hours at the welding job he loved and who operated a hobby farm with his wife to keep himself busy in any spare time he had and to prepare for his retirement as a farmer. Although he was terrified of a second operation on his hand, he underwent the operation because he hoped it would allow him to return to work. Although his friends could see his problem with his hand, he did not discuss his problems with them. When others tried to persuade him that his memory lapses and confusion were due to a head injury, he blamed any problem on his age. Dr. Klein testified that Mr. Baetsen did not complain a lot and visited his office infrequently. Mr. Baetsen did not visit Dr. Klein between February 1997 and January 1999. I find that Mr. Baetsen tried to conceal or minimize his physical problems. I accept his wife's evidence that he had a high tolerance to pain. I found him a credible witness.

Background:

Mr. Baetsen moved to Canada with his family when he was 8. He went to school until he was 14 and then quit to help his father on his Cape Breton farm. He left Cape Breton when he was 20 and moved to Toronto. He worked at landscaping for two years and at the same time went to school for welding. One week after he completed the course he obtained employment welding tanks and pressure vessels. He worked at that job for 12 years. He quit because he wanted to leave Toronto. The next week he found employment with a company in Blenheim which manufactured grain elevators. He worked for that company for 22 years until his motorcycle accident in 1993.

Grain elevators are steel structures used to fill silos with grain. A series of buckets on a conveyor belt inside the elevator carry the grain to the top of the silos where the grain is directed by pipe into silos for storage. One elevator may serve as many as 15 silos with pipes 100 feet long. The grain is removed by an auger at the bottom of the silo which transfers the grain into a truck or rail car.

Mr. Baetsen and another worker assembled the elevator legs on the ground by lining up and bolting and welding ten-foot sections together. Every 60-foot section was hoisted into place by a crane. Mr. Baetsen climbed to the top of each section by himself and secured it to the next 60-foot section. He worked to a maximum of 200 feet above the ground. He wore a harness and used two six-foot ropes to tie himself off as he climbed the leg by reaching up as far as he could and securing one rope and detaching the other rope. The punches, hammers, vice grips and safety belt he carried weighed 20 pounds. After securing himself to his work position he dragged up the one-inch diameter arc welding cable by rope. He used a come-along chain puller attached from corner to corner of the leg to square it up before he welded in reinforcing braces. With a crane holding the next leg in place he aligned the 15 bolt holes at the base of the leg by hammering a punch through each hole and then inserting and securing a bolt. A crane then lifted as many as fifteen 100-foot, 12- or 16-inch diameter pipes to the top of the elevator where Mr. Baetsen used a chain-pull to pull the tapered end of the pipe into a distribution device where he welded it into position.

He also assembled and installed fans, light pipes, augers and grain driers.

He worked year-round throughout Canada. At the top of the elevator it was often windy and cold. In Saskatchewan, he worked at one job at 36 degrees below zero where he used a torch to warm his hands. When he could not get home on the weekends he worked seven days a week, 14 hours a day. When he worked close to home he tried to limit his work to 9 or 10 hours a day. Mr. Andruchow saw him work and said he was highly skilled. His employer described him as a dedicated and hard worker. In 1992 he earned $46,000. Both Mr. and Mrs. Baetsen said that Mr. Baetsen loved his job.

Mr. Baetsen thinks he finished grade six. He has great difficulty reading. He dictated a statement to Jevco's adjuster shortly after the accident. He said it would take him all day to read it and if the adjuster asked him to read it, he would pretend to read it before signing it. Mr. Andruchow thought that Mr. Baetsen could read but he related the difficulty Mr. Baetsen had with written material dealing with the calibration of a sprayer.

At the time of the motorcycle accident, Mr. and Mrs. Baetsen operated a 70-acre hobby farm growing winter wheat, soya bean, corn and straw and raising beef cattle. Mrs. Baetsen also worked full time in an office. The couple shared farm work equally. The farm never showed a profit.

Weekly income benefits for the first 156 weeks of disability:

The test for entitlement to weekly income benefits for the first 156 weeks of disability is set out in subsection 12(1). The insurer will pay a weekly income benefit during the period the insured person suffers substantial inability to perform the essential tasks of his occupation or employment.

Mr. Baetsen claims that his thumb is painful, his grip is weak, and that his thumb sticks out and that he tends to bang it.

Although he was terrified of a second operation, he underwent it because he hoped that it would fix his thumb so that he could work. Mrs. Baetsen could not do all the farm work without the help of Mr. Baetsen and the couple were forced to sell off their cattle in 1995. They started cashing in their Registered Retirement Savings Plans in 1996. Mrs. DeBruin testified that when she slept over at the Baetsen's one night she was constantly awakened by Mr. Baetsen going to the kitchen to make tea or to smoke.

Mr. Baetsen no longer does his share of the farm work. After the accident, the Baetsens hired Bob Andruchow to do planting and combining. Mr. Baetsen no longer services the equipment himself. He directs Mrs. Baetsen in those duties. His welding work was physically demanding and I find that he could not do it with a painful and weak thumb. I accept the evidence of Mr. and Mrs. Baetsen that Mr. Baetsen loved his work and wanted to return to work. I accept Mr. and Mrs. Baetsen's testimony that Mr. Baetsen could not sleep more than two hours at night because of persistent pain and that Mr. Baetsen could not work at his physically difficult and dangerous job unless he was well-rested.

On January 20, 1994, Dr. Hall examined Mr. Baetsen for Jevco and reported that Mr. Baetsen could return to full-time work in three months. He noted that Mr. Baetsen's hands were callused.

On June 13, 1994 he reported that the type of fractures and injuries Mr. Baetsen experienced were not unusual and that he did not agree with the "gloomy prognosis" of Dr. Patterson. On November 2, 1995, he examined Mr. Baetsen again and again noted that his hands were heavily callused. Dr. Hall thought that Dr. Patterson performed the second operation on the basis of Mr. Baetsen's complaints rather than any loss of function. He noted that Mr. Baetsen would not need a thumb to climb up the outside of elevators and opined that he probably had been fit enough to return to his occupation for "some long time."

Before operating on Mr. Baetsen a second time, Dr. Patterson sent Mr. Baetsen to Dr. McMurtry, another orthopaedic specialist, for a second opinion. Dr. McMurtry agreed that further reconstructive surgery on a joint in the thumb was recommended. Dr. MrMurtry commented on the calluses. On September 13, 1994, he reported:

There is some differential in the callous of his two hands. It is striking that on the left he had callous involving the digits, but the proximal palm and thumb were free of callous, in marked contrast to the other side. In other words, he is making use of the hand, but he is restricting the contact with the thumb secondary to discomfort.

Dr. McMurtry's observations of the calluses are more detailed than those of Dr. Hall and I therefore reject the implication by Dr. Hall that Mr. Baetsen was working and using his thumb more than he was willing to admit.

In May 1998, Dr. Patterson assessed Mr. Baetsen again and in a medical-legal report provided a detailed critique of Dr. Hall's report. He explained how Dr. Hall had misunderstood the unusual nature of the injury, the procedures undertaken in the first and second operations, the seriousness of the injury, the usual prognosis and the reason and need for the second operation. As well, Dr. Patterson found loss of function which Dr. Hall did not find. Dr. Patterson found that Mr. Baetsen had restricted motion and strength in his left hand associated with pain. He also suffered loss of fine motor dexterity because of the loss of thumb mobility. He opined that Mr. Baetsen could not use his hand for heavy manual work. Dr. Patterson operated on Mr. Baetsen's hand twice. His explanations are detailed and reasonable. For these reasons I prefer his opinion that Mr. Baetsen could not return to heavy manual work, such as welding, over the opinion of Dr. Hall.

I accept Mr. Baetsen's testimony that he cannot return to his pre-accident employment because of weakness and pain in the thumb and because of his long-standing inability to sleep properly.

Accordingly, I find that Mr. Baetsen suffered a substantial inability to perform the essential tasks of his employment as a welder for the 156-week period to July 25, 1996, in accordance with the disability test set out in subsection 12(1) of the Schedule.

Weekly income benefits after 156 weeks of disability:

Under paragraph 5(12)(b) of the Schedule the insurer is not required to pay a weekly income benefit:

for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

Mr. Baetsen was 53 years old in 1996 when the post-156 week test first applied. He is now 56. He has worked all his life as a welder for two employers. He testified that he has made little effort to retrain because he did not know what to do. He said welding is all he knows. He said he cannot sleep and cannot think well enough to apply for a job. He does not know what kind of job he could get. He said he was interested in operating a crane and asked a friend what the requirements were. The friend told him that even though he had grade 12 education, he failed the test "a couple of times" before passing. Mr. Baetsen feels that with the difficulty he has reading he would not pass the written test.

Mr. Baetsen has a commercial driving licence which allows him to drive any type of vehicle. He said that he renewed it regularly but that he has never driven a large truck. He does not know how to drive a large truck and he does not feel he could maintain a written log required for truck drivers. Dr. Klein confirmed that many farmers hold commercial licences which allows them to operate farm machinery on the road.

Although Mr. Baetsen can perform some farm work, he cannot work a normal day. I accept his evidence and Dr. Klien's evidence that Mr. Baetsen cannot drive a tractor for more than half an hour because of pain associated with jarring and constant neck turning. As well, even if Mr. Baetsen could farm full time, the work is not suitable because he could not earn anything close to the $46,000 he earned in 1992 as a welder. Counsel for Jevco asked Mr. Baetsen if he had considered working in a store or gas bar. Mr. Baetsen was a well-paid skilled worker. Having regard to Mr. Baetsen's education, training and experience, I do not find unskilled, low-paying work suitable work for him.

Dr. James Sweeney performed neuropsychological tests on Mr. Baetsen at the request of Mr. Baetsen's lawyer. Much of his evidence dealt with whether Mr. Baetsen suffered a head injury. It is not necessary for me to diagnose Mr. Baetsen's condition. Dr. Sweeney's January 1998 report is helpful in determining what is suitable employment for Mr. Baetsen. Dr. Sweeney reported that Mr. Baetsen's most serious problem was dealing with new situations and the unexpected. He had difficulty forming new ideas. Dr. Gayle Kumcy performed a neuropsychological assessment for Jevco in May 1999. She found a poor level of neuropsychological functioning and a learning problem. She also noted that Mr. Baetsen was extremely fatigued because of lack of sleep.

The neuropsychological evidence that Mr. Baetsen has problems dealing with change is consistent with his work history and testimony. He has difficulty learning and coping with change. In my view, without retraining, suitable employment having regard to Mr. Baetsen's training, education and experience is limited to the type of welding work he was doing at the time of the accident and had done for the previous 34 years.

I find that Mr. Baetsen cannot engage in suitable employment because of injuries he sustained in the motorcycle accident and that he is entitled to weekly income benefits pursuant to paragraph 12(5)(b) of the Schedule from July 26, 1996 and continuing for such period during which he is continuously prevented from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Special award:

Subsection 282(10) of the Insurance Act provides that the arbitrator shall make a special award where he or she finds that an insurer has unreasonably withheld or delayed payments.

Mr. Baetsen claims that Jevco unreasonably withheld weekly income benefits after November 5, 1995.

On January 20, 1994, Dr. Hall reported to Jevco that Mr. Baetsen could return to his pre-accident activities in three months.

On Apri 26, 1994 Jevco received a report from Dr. Patterson. He wrote: I anticipate that he will not return to his previous employment. He worked as a millwright welder which entails heavy manual work. He should be able to return to some extremely light, non-manual work at this time but I suspect it will be approximately another year and a half before he is able to return to any significant manual work. [18 months from April 1994 is October 95]

On October 25, 1994 Jevco received a medical report from Dr. Patterson. In answer to the question "When will claimant be able to return to work?" Dr. Patterson wrote "12 months." [12 months from October 1994 is again October, 1995.]

On October 31, 1994 Jevco sent Dr. Hall's reports to Dr. Patterson and asked why he thought that Mr. Baetsen could not return to work for another 12 months. I find that Dr. Patterson's opinions as to when Mr. Baetsen could return to his former work were ambivalent and that Jevco's interpretation that Dr. Patterson indicated that Mr. Baetsen could return to his former work in 12 months, or October 1995, was not an unreasonable interpretation. As well, I find that Jevco acted reasonably in sending Dr. Hall's reports to Dr. Patterson and asking him for further explanation.

In his response of November 21, 1994, Dr. Patterson reported that he did not agree with any of Dr. Hall's conclusions. He did not clarify what he meant when he reported that Mr. Baetsen could return to work in 12 months.

Jevco terminated weekly income benefits in November 1995. Mr. Baetsen filed for mediation on December 11, 1996. Dr. Patterson's medical-legal report, which contained a thorough critique of Dr. Hall's reports, was prepared in May 1998 for use at this hearing. It is not clear when Jevco received Dr. Patterson's critique of Dr. Hall's opinions, however, it is likely that Jevco only received the medical-legal report as part of the productions in anticipation of the hearing. Until that time it had ambivalent and contradictory statements from Mr. Baetsen's treating orthopaedic surgeon that on the one hand it was unlikely that Mr. Baetsen could return to his former work and on the other hand he could return to his former work in October 1995. Based on the information it had at the time it terminated weekly benefits, I find that Jevco's decision to withhold weekly income benefits was not unreasonable. As well, since the hearing was imminent when Jevco received Dr. Patterson's medical-legal report, it was not unreasonable to continue to withhold benefits for a relatively short period pending the decision in this hearing.

Moreover, even though Dr. Patterson's opinion on disability was much more persuasive than Dr. Hall's opinion, Mr. Baetsen's entitlement to weekly income benefits was not clear until after he and his witnesses testified at this hearing. I therefore find that Jevco did not unreasonably withhold weekly income benefits.

Mr. Baetsen also argued that Jevco acted unreasonably in failing to fund the neuropsychological assessment performed by Dr. Sweeney. Entitlement to the cost of that assessment was not an issue in this proceeding and I heard no evidence on the cost of the assessment. I therefore make no decision on whether Jevco unreasonably withheld payment of this benefit.

EXPENSES:

I heard no submissions on the issue of entitlement to expenses and defer this issue for written submissions if the parties cannot agree on entitlement.

July 8, 1999

William J. Renahan Arbitrator

Date