Neutral Citation: 1999 ONFSCDRS 260

FSCO A96-001239

BETWEEN:

LUC VILLENEUVE

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: William J. Renahan

Heard: March 8, 9 and 10, 1999, in Windsor, Ontario.

Appearances: Terry G. Pearce for Mr. Villeneuve Monica Gupta for Royal Insurance Company of Canada assisted by Anastasia Linardatos

Issues:

The Applicant, Luc Villeneuve, was injured in a motor vehicle accident on October 14, 1993. He applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal terminated weekly income benefits on August 3, 1994. The parties were unable to resolve their dispute through mediation, and Mr. Villeneuve 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 Mr. Villeneuve entitled to weekly income benefits from August 3, 1994 to August 31, 1996 pursuant to subsection 12(1) of the Schedule?
Is Mr. Villeneuve entitled to interest on any amounts owing?

Result:

Mr. Villeneuve is entitled to weekly income benefits from August 3, 1994 to August 31, 1996 together with interest calculated in accordance with subsection 24(4) of the Schedule.

EVIDENCE AND ANALYSIS:

Background:

Mr. Villeneuve suffered soft tissue injuries to his back and leg when the vehicle he was driving rolled over a number of times after leaving the highway. He called a friend to deliver one of his other cars to him and Mr. Villeneuve drove himself to the hospital where he was examined and released with instructions to see his family doctor. Mr. Villeneuve conceded that the results of a number of diagnostic tests were normal. As well, although he claimed to suffer muscle spasms in his leg and back, no doctor reported muscle spasms.

Mr. Villeneuve was 24 years old at the time of the accident. He had worked at manual labour in a variety of construction and factory jobs. At the age of 15 years, he lost the four fingers of his right hand in a punch press accident. Despite this impairment, he continued to work in construction and factory jobs. At the time of the accident Mr. Villeneuve was employed with a placement agency. The agency placed Mr. Villeneuve at Siemens Automotive Limited where Mr. Villeneuve worked on a blow molding machine which made plastic automobile parts.

Royal terminated weekly income benefits on August 3, 1994. At that time it had the following reports:

August 3, 1994. The caseworker wrote that Mr. Villeneuve said that his treating orthopaedic surgeon had cleared him to return to his pre-accident employment with no restrictions and that his family doctor had asked him to search for employment;
July 5, 1994. The Canadian Back Institute reported Mr. Villeneuve could perform his old job or any job requiring a moderate level of work;
June 29, 1994 and July 5, 1994. The caseworker wrote that the treating physiotherapist thought Mr. Villeneuve could return to his pre-accident employment;

The evidence is consistent that Mr. Villeneuve was a hard worker before the accident and was motivated to work and pursue his recovery. One witness with whom he worked on construction said that Mr. Villeneuve could do more with one hand than some people can do with two. Another witness with whom he worked on construction said that he loved to work and that it was extraordinary the work he could do with one hand. A doctor described Mr. Villeneuve as "hyper" and very intense and an investigator hired by Royal after the accident described Mr. Villeneuve as a workaholic.

In the summer of 1994 he returned to the employment agency and asked that his file be reactivated. That winter Mr. Villeneuve tried selling vacuum cleaners door to door. He travelled to North Bay and Chatham at his own expense and gave up after eight weeks because he was losing money. In the summer of 1995 he borrowed money to sell Amway products. In October 1995 and over the next seven months he helped his friend Edgar Mailloux renovate a duplex. The extent of work he did was in issue. On the completion of those renovations in May 1996, Mr. Villeneuve assisted another friend, Yvan Valcourt, build a new house. The extent of the work he did with Mr. Valcourt was also in issue.

On August 31, 1996, Mr. Villeneuve started work with a home builder dealing with complaints of new home owners. That job lasted eight weeks before the company went out of business. At this time Mr. Villeneuve also started his own business as a home handyman. This work is less physically demanding than factory work and Mr. Villeneuve continues to work at this business. He does not seek weekly income benefits beyond August 31, 1996.

As part of his self-employment, Mr. Villeneuve enrolled in a young entrepreneur's program sponsored by the federal government. Royal relies on documents in that file to impugn Mr. Villeneuve's credibility.

The Law:

Mr. Villeneuve is entitled to weekly income benefits under section 12(1) of the Schedule if he establishes that for the period August 3, 1994 to August 31, 1996 he suffered a substantial inability to perform the essential tasks of his factory job as a result of injuries he suffered in the motor vehicle accident.

Credibility of Mr. Villeneuve:

Mr. Villeneuve was a poor witness. On a number of occasions in testimony he denied or refused to admit conversations noted by caseworkers in which he allegedly said that his family doctor and orthopaedic doctor had cleared him to return to work. He refused to admit that the discharge report of the Canadian Back Institute accurately reflected his comments that he was fit to return to most activities, including work. His testimony that at the time of the accident he worked eight hours a day Monday to Friday and 12 hours a day on Saturday and Sunday greatly exceeded the time disclosed by his employer's confirmation of income form. He testified and reported to others that had it not been for the accident he would have obtained full-time employment at Siemens, whereas a letter from Siemens indicated that Mr. Villeneuve had not succeeded in the interview process for a permanent position. To answer this contradictory evidence, Mr. Villeneuve speculated that the caseworker may have intimidated Siemens into writing the letter. Lastly, Mr. Villeneuve testified that he did very little work on the Mailloux and Valcourt construction projects, whereas his reports to the Young Entrepreneurs Program suggested that he did most of the work on those projects.

I do not accept that each reporter was mistaken. I find it likely that the documents accurately reflect what Mr. Villeneuve said to the reporter at the time. These inconsistencies and unexplained contradictions lead me to conclude that Mr. Villeneuve was not credible and I do not accept his evidence relating to his disability unless it was corroborated by other reliable evidence.

Essential tasks of employment:

Mr. Villeneuve worked in an area seven feet by eight feet beside a blow molding machine which manufactured plastic engine parts such as exhaust and intake manifolds. The part weighed up to five pounds and measured three feet by two feet when it came out of the molding machine. Mr. Villeneuve took the part and placed it on a cooling rack. When it was cool, he placed the part in a stamping press which removed excess plastic and then in another press which cut off the ends. He then placed the part on a conveyor belt where it was transported to another post. The process of finishing the part involved four posts and normally the workers would rotate to another post every two hours. Mr. Villeneuve did not rotate because his finger amputations made it difficult for him to perform the tasks at the other posts. The other workers did not mind because the blow molding machine emitted the unpleasant odour of burnt plastic. Mr. Villeneuve stood on a concrete floor and rotated and twisted in his area moving parts from one machine to the next. He repeated the cycle every 30 seconds, eight hours a day with 12 minute breaks every two hours. The molding machine broke down up to five times a shift and during those times, Mr. Villeneuve pushed pallets of material to his machine and filled it.

Disability:

Dr. Lacerte is a physiatrist and testified for Royal. He examined Mr. Villeneuve two months before the hearing and reviewed the medical brief. In coming to his opinion that Mr. Villeneuve was not disabled from returning to work in August 1995, he relied on the opinions of Mr. Villeneuve's first family doctor, Dr. DeMarco, his physiotherapist and his treating orthopaedic doctor, Dr. Stecko. He also relied on "guidelines" that soft tissue injuries should resolve after two or three months. He admitted that Mr. Villeneuve felt in his own mind that he was disabled from pain.

Although these doctors expressed opinions that Mr. Villeneuve was not restricted from returning to work and although various reports from the caseworker record Mr. Villeneuve as saying that he was able to work, Mr. Villeneuve claimed at this hearing that he was disabled from repetitive physical work and prolonged standing due to back and leg pain.

Although he was a poor witness, I consider his assertion that he was disabled from physical work against clear evidence that he was motivated to return to work. Selling Amway products and vacuums is more indicative of Mr. Villeneuve's desire to work than his ability to do physical work. Neither sales job required prolonged standing or physical endurance and neither is comparable to the physical demands of standing and handling parts eight hours a day.

In this case, I heard testimony from two friends of Mr. Villeneuve who had worked with him both before and after the accident. Although neither witness worked with Mr. Villeneuve in a factory doing repetitive work, they did work with him at physical tasks over an extended period. I found their evidence relevant to the issue of whether Mr. Villeneuve was disabled from performing physical work over a number of normal work days.

Mr. Mailloux is retired from excavating contracting work. He and Mr. Villeneuve have been friends for 12 years. Mr. Mailloux knew of Mr. Villeneuve's reputation as a handyman and had called him in 1992 to help him replace shingles on his roof which had blown off in a storm. He said that some people with two hands cannot do what Mr. Villeneuve does with one hand.

Mr. Mailloux purchased a duplex so that he could renovate it for his daughters to live in. He testified that he called Mr. Villeneuve to help him because he felt sorry for him because he did not have anything to do. Mr. Villeneuve said he worked with Mr. Mailloux as a companion and helper. The two started renovations in October 1995 and finished in May 1996. The work included removing the old plaster, rewiring and replumbing, insulating and putting up drywall. Mr. Mailloux testified that he let Mr. Villeneuve do what he wanted, which was limited to some clean up work, breaking up chunks of drywall so that it would fit into bags, stripping wiring and removing electrical boxes and handing Mr. Mailloux tools. He said that Mr. Villeneuve worked two to five hours with breaks, that Mr. Villeneuve was full of pain in his back and leg, and that he was always stretching. Mr. Villeneuve said that he had back pain radiating into his leg. Mr. Mailloux said that before the accident, Mr. Villeneuve could do anything and that he could still do anything during the renovations but it took him a "hell of a lot of time" to do it. He said that he would not dare ask Mr. Villeneuve to go up on the roof with him because he was afraid he would injure himself. Mr. Mailloux paid Mr. Villeneuve $10 per hour and both kept a rough record of Mr. Villeneuve's hours. Over the seven months of work Mr. Mailloux paid Mr. Villeneuve about $2,400 which worked out to approximately 40 hours per month.

Mr. Mailloux wrote a letter "To whom it may concern" one year before the hearing. His statements in that letter about how much work Mr. Villeneuve did, his disability and the amount he paid Mr. Villeneuve were consistent with his testimony.

Yvan Valcourt testified for Mr. Villeneuve. He operates a drywalling and painting company and has known Mr. Villeneuve since 1985. In 1990 Mr. Villeneuve and a general contractor helped Mr. Valcourt build his home. Mr. Villeneuve "worked like a fool" and did everything including framing. Mr. Valcourt started another house in May 1996 and finished in September. Mr. Valcourt asked Mr. Villeneuve to help him because they were friends and Mr. Villeneuve needed money. He said that he paid Mr. Villeneuve $10 an hour for about 53 hours of work. He said Mr. Villeneuve was limited to working an hour or two a day because of pain in his back and leg. He said that he cleaned and fetched coffee. He said that the longest time Mr. Villeneuve spent at the site was 5 or 6 hours. Mr. Villeneuve said he was paid for talking and picking up things.

Royal's investigator spoke to Mr. Valcourt and reported that Mr. Valcourt said that Mr. Villeneuve could only do minor clean up work because of his finger amputations. Mr. Valcourt explained that he thought the investigator was investigating the workers' compensation accident.

Susan Trepanier remembers selling car insurance to Mr. Villeneuve. Over an eight week period she drove past the Valcourt construction site four times a day to and from work. She was under the impression that Mr. Villeneuve was always there because she saw his truck there all the time. She could only remember seeing Mr. Villeneuve on two occasions. On one occasion he was hammering the framing for a wall on the side of the house. On another occasion he was carrying a piece of wood.

Although Mr. Villeneuve told a number of assessors that he was able to and wanted to go to work, I attribute those statements more to his desire to return to work, then an ability to return to physical work. This was evidenced by the fact that instead of returning to remunerative work in a factory, he lost money or made very little money in selling Amway products and vacuum cleaners door to door. After the fact, he described those efforts to sell vacuums as "They saw me coming with the word 'sucker' written on my forehead."

"There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it."² In this regard I find Edgar Mailloux's evidence the most helpful in assessing disability. I found him credible and I accept his evidence that before the accident Mr. Villeneuve was an accomplished physical worker and during the period he was renovating his house, October 1995 to June 1996, Mr. Villeneuve was disabled from doing physical labour. I do not accept Mr. Villeneuve's statements in his Young Entrepreneur reports that he was building houses and hiring people to work for him as reliable. Just as he misrepresented that he had 12 Amway associates working for him in nine countries, I find that his statements that he was building houses and hiring people were gross exaggerations designed to promote himself. He only provided minor help during the construction of the Valcourt house and the people he hired during the Young Entrepreneurs Program were not employees but homeowners who assisted him with their own home repairs.

I find that the medical opinions on Mr. Villeneuve's ability to work were based largely on his unreliable statements that he was ready to go back to physical work and his overstatements that he was accomplishing a lot of work.

The essential task of working at Siemens involved standing and handling parts over an eight hour period. I find that the tasks of construction are useful in determining Mr. Villeneuve's ability to stand and handle parts for eight hours. Both set of tasks require physical endurance. I find that the period Mr. Mailloux observed Mr. Villeneuve was reflective of Mr. Villeneuve's abilities for the period he is claiming benefits. Mr. Villeneuve was motivated to work and he was limited in the amount of work he could do on the Mailloux duplex. I expect that if he was fit enough to work at Siemens, he would have done significantly more work than the helper-type work he was doing with Mr. Mailloux. I therefore find that Mr. Villeneuve was disabled from standing and handling parts for eight-hour-days for the period in dispute, August 3, 1994 to August 31, 1996.

Causation:

I heard little evidence or argument on the issue of whether Mr. Villeneuve's inability to do physical work was caused by the motor vehicle accident.

Mr. Villeneuve said that holding things between his thumb and palm caused painful scar tissue to build on the nerves of his hand. He testified that it did not affect his ability to work except for times he had to undergo surgery to remove these neuromas. I did not receive any records from the family doctor who treated Mr. Villeneuve for this condition. The first caseworker who interviewed Mr. Villeneuve noted that he underwent surgery every few years to remove the scar tissue and that Mr. Villeneuve was concerned that with his amputations and back pain he would have difficulty in obtaining employment in the areas in which he was most suited by interest and aptitude. She reported that Mr. Villeneuve felt that he could not engage in construction full time because it would continue to aggravate his hand. As well, Mr. Villeneuve noted in his application for employment that he left self-employment construction jobs on two occasions because it was "too hard on my hand." Mr. Villeneuve did not directly answer the one question concerning the discrepancy between this evidence and his testimony that his finger amputations did not affect his ability to work. I heard no other evidence on the issue of whether the risk of neuromas prevented Mr. Villeneuve from engaging in manual work.

Dr. Lacerte reported that "without clearly documented trauma over the right sartorious and adductor longus muscle, it is difficult at this time to establish with reasonable medical certainty a causal relationship between Mr. Villeneuve's current right groin and thigh pain and the October 14, 1993 motor vehicle accident." Trauma need not be documented to establish a causal connection. I understand that Dr. Lacerte was speaking from the perspective of giving a medical opinion on causation five years after the injury based on the medical documentation he reviewed. I do not find this opinion as useful as the observations of one who had seen Mr. Villeneuve work.

Again, the most persuasive evidence was that of Mr. Mailloux. He saw Mr. Villeneuve try to work during the relevant period. He said that his back, leg and arm were full of pain and that Mr. Villeneuve was always stretching to relieve the pain. At times, he saw Mr. Villeneuve hang from a door frame in order to relieve the pressure. Mr. Mailloux has undergone three operations for back problems and is sympathetic to those who suffer back pain. I find that he was observant and I accept his testimony that Mr. Villeneuve's disability was caused by back and leg pain. The medical records and the testimony of Paul Laforest, myotherapist, confirm that Mr. Villeneuve has consistently complained of this pain since the motor vehicle accident. I find that Mr. Villeneuve's inability to do physical work for the relevant period was caused by injuries he suffered in the motor vehicle accident.

Expenses:

If the parties cannot resolve the issue of entitlement to expenses, either party can apply for me to determine the issue.

William J. Renahan Arbitrator

Date