Neutral Citation: 1999 ONFSCDRS 27

FSCO A97-001113

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NICK PREKAS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

January 20 and 21, 1999, at the Financial Services Commission of Ontario, Toronto

Appearances:

Michael Mancini for Mr. Prekas

Ian D. Kirby for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nick Prekas, was injured in a motor vehicle accident on November 6, 1995. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule¹ State Farm terminated weekly education disability benefits on August 1, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Prekas 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:

1. Is Mr. Prekas entitled to weekly education disability benefits from August 2, 1996 to November 6, 1997, pursuant to section 15 of the Schedule?

2. Is Mr. Prekas entitled to $340 in transportation expenses?

Mr. Prekas also claims interest and expenses.

Result:

1. Mr. Prekas is not entitled to further weekly education disability beyond August 1, 1996.

2. Mr. Prekas withdrew his claim for $340 in transportation expenses.

EVIDENCE AND ANALYSIS:

At the time of the motor vehicle accident on November 6, 1995, Mr. Prekas was 20 years old and enrolled in the first semester of a heavy duty equipment mechanic course at Centennial College. In order to establish entitlement to weekly education disability benefits, Mr. Prekas must establish either that he suffered a substantial inability to continue his education, or suffered a partial or complete inability to carry on a normal life during the period of his claim, August 2, 1996 to November 6, 1997.²

The accident occurred while Mr. Prekas and a friend were parked on the side of the road on the Bayview extension. He was standing in front of the car, looking under the hood when the car was struck from behind. Mr. Prekas testified that the next thing he recalled was a man standing over him, helping him out of the ditch where he had been thrown. He was taken to the hospital and released several hours later, with a diagnosis of soft tissue injuries. Mr. Prekas testified that he felt pain and swelling along his entire right side, in his head, neck, down into his arms, his hip and down his legs.

Two days later Mr. Prekas visited Dr. James Vavougios, his family doctor, complaining of headache, dizziness, and pain in his neck, lower back, chest, left shoulder, right hip, right thigh, right calf and right ankle. Dr. Vavougios prescribed painkillers and referred him for physiotherapy. At one point, Dr. Vavougios also prescribed medication for depression. He continued to see Dr. Vavougios approximately once a month. By September 18, 1996, Dr. Vavougios noted improvement with respect to his neck and back pain, with restrictions in the range of motion in his neck, back and right shoulder. In May 1997, Mr. Prekas continued to complain of lumbar pain and right hip pain, and pain in his knee. Mr. Prekas' visits to Dr. Vavougios were sporadic after that time.

In November 1995, Dr. Vavougios referred Mr. Prekas to an orthopaedic surgeon, Dr. T. W. Barrington. Dr. Barrington concluded that Mr. Prekas had suffered multiple contusions and that he should increase his activity level and try to get back to school. He was also referred to a neurologist, Dr. Ross Roussev, who concluded that Mr. Prekas had suffered some mechanical strain, and perhaps a very mild concussion. Dr. Roussev prescribed painkillers for Mr. Prekas' complaint of post-traumatic headaches and predicted a complete recovery within six to eight weeks.

Mr. Prekas attended thirteen physiotherapy sessions at The Accident Injury Management Clinic ("AIM") from November 1995 to the end of January 1996. The report of the AIM clinic noted that Mr. Prekas' attendance had been poor and his progress erratic. Mr. Prekas also had chiropractic treatment until January 1996. Mr. Prekas has not sought any further rehabilitation since January 1996. Mr. Prekas testified that he felt none of the doctors or treatments were helping him and he decided to do his own rehabilitation in the exercise and pool room of his parents' condominium. His exercise program consisted of weight training, using the stationary bicycle, swimming widths of the pool and relaxing in the sauna. Despite his complaints of depression, he has not received any psychological or psychiatric counselling.

Mr. Prekas never returned to Centennial College. He testified that he lacked the physical capacity to do the heavy activities required in the garage and was unwilling to return unless he could participate fully. He also stated that he lacked the necessary mental outlook to complete the two-year course.

Conclusions:

Substantial Inability to Complete His Education:

The Applicant has failed to satisfy the onus, which rests upon him, to present persuasive evidence that he was substantially unable to complete his education from August 2, 1996 to November 6, 1997 because of injuries related to his accident.

Heavy Duty Equipment Mechanic Program:

At the time of the accident Mr Prekas was in the first semester of a two-year college program to become a heavy duty equipment mechanic. The program consisted of 70 percent class work and 30 percent "lab" work, involving hands-on work in the garage. Classes and labs were held from 8:30 a.m. to 3:20 p.m. and students were expected to do additional reading and homework. The "lab" work consisted of working with heavy engines and engine components found in large vehicles and other heavy equipment. The larger pieces were secured with a 60 lb chain and transferred mechanically to the work table where students worked on the equipment in groups of four or five. As the program involved heavy equipment and vehicles, all the engines, equipment and tools were larger and heavier than that found in a car garage. However, apart from the requirement to lift and manoeuvre the 60 lb chain, I heard no evidence about the specific lifting requirements involved in the garage work. Based on Mr Prekas' description of the work, I conclude that the "lab" work would also involve some bending and twisting.

Physical Injuries:

Mr. Prekas conceded at the hearing that he was physically capable of attending the lecture part of the program which comprised 70 percent of the course. Mr. Prekas also conceded that the College had agreed to accommodate him if he needed assistance with the heavier tasks required in the laboratory work. However, Mr. Prekas refused to return to consider returning to the College until he believed he was capable of completing all the lab work independently.

I conclude, based on Mr. Prekas's own evidence, that he was physically capable of returning to the program of heavy duty equipment mechanic by August 1, 1996, with some accommodation of the heavier aspects of the lab work, which the College was willing to provide.

Mr. Prekas' conclusion about his physical capacity to return to College is largely supported by the medical evidence. Mr. Prekas's own specialists concluded in November and December 1995 that Mr. Prekas had suffered primarily soft tissue injuries and should recover quickly. The A.I.M. clinic concluded that by January 1996, Mr. Prekas had almost complete range of motion in his neck, 75 percent back extension, with only slight restriction in flexion, and full shoulder range of motion.

Several Insurer medical examiners and DAC assessors confirmed that there was no physical basis for Mr. Prekas' ongoing complaints of pain. Dr. David Goldstein, a physical medicine specialist, and Dr. Paul J. Ranalli, a neurologist, concluded in February 1996, that although Mr. Prekas still had residual pain symptoms, there were no disabling musculoskeletal or neurological injuries. Dr. Ronald Gitelman, a chiropractor, concluded in July 1996 that no physical injuries were preventing Mr. Prekas from returning to school. In December 1997, Dr. J. S. Hummel, an orthopaedic surgeon, Dr. Charlton Locke, a chiropractor, and Ms. Susan Wagar, a registered physiotherapist, confirmed the lack of physical impairment.

The only medical reports supportive of Mr. Prekas' physical inability to attend school were Dr. Vavougios' report of May 27, 1997, Dr. V. Kekosz's Consultation Note of September 9, 1997 and Dr. Howard P. Jacobs' Report of July 19, 1998. These doctors essentially concluded that, based on Mr. Prekas' subjective complaints of pain, headaches and sleep difficulties, he was unable to complete the program because of chronic pain. These conclusions contradict Mr. Prekas' concession at the hearing that he was physically capable of attending classes. In addition, the diagnosis of chronic pain is inconsistent with Mr. Prekas' reported employment and weight training activities, described below.

After weekly benefits were terminated in August 1996, Mr. Prekas began looking for work. He obtained employment in the flooring department at Home Depot around November or December 1996. The work involved assisting customers in the purchase of carpets, carpet pads, ceramic tiles, wood and parquet. The work involved measuring and cutting the materials and piling them onto skids. He testified that he sometimes moved ceramic tiles weighing up to 60 lbs. He testified that he was fired after a couple of months because he was too slow and could not keep up with the heavy work. However, he did not testify that he was physically incapable of doing the work.

In the summer of 1997, Mr. Prekas spent two and a half months visiting relatives in Greece. Although he took along a supply of pain killers, he did not seek any medical treatment during that period.

In the fall of 1997, Mr. Prekas began working as a security guard, hired out to various nightclubs. He was responsible for maintaining order, and he was at times called upon to intervene with argumentative guests. He left that employment before January 1998, because he did not feel that he was able to perform the most physically demanding aspects of the work.

In May 1998, he began working in the tire bay of the automotive department of a large retail store, changing oil, filters and tires. His duties included lifting tires, removing the rim and installing new tires. He testified that he loved this work, but was let go, not for any physical inability to do the work, but because he was perceived by his employer to be "slow."

Mr. Prekas employment duties in the flooring department at Home Depot in the fall of 1996 (during the period of his claim) indicate that he was capable of the heavy lifting, bending and twisting tasks which he would be required to do in his lab work in school.

In addition, Mr. Prekas testified that he been weight training steadily since ceasing physiotherapy treatments, and that he is currently capable of bench pressing up to 125 lbs (two sets of five presses), and doing arm curls of 20 to 40 lbs in each hand. While Mr Prekas testified that his condition has improved over time, I am satisfied that having regard to his weight training and employment activities, Mr. Prekas has demonstrated the physical capacity required to complete the program of heavy duty technician.

The ability to complete the laboratory work, which only comprised 30 percent of the program, is not an indication that Mr. Prekas would be capable of working as a heavy duty equipment mechanic, once the course was completed. However, the evidence in this case did not address the duties of a heavy duty equipment mechanic, or establish that Mr. Prekas was not physically capable of performing those duties.

Mental State:

By the completion of the hearing, it became evident that Mr. Prekas strongest argument for entitlement to ongoing education disability benefits was based on his "mental state." Mr. Prekas repeatedly stated that he was not mentally ready to return to school, based on a combination of depression, difficulties concentrating, frustration, forgetfulness, and outbursts of anger.

The evidence did not establish a closed head injury or a brain injury. Although Mr. Prekas testified to a short period of unawareness, by the time the ambulance arrived he was alert and oriented, with a Glasgow Coma scale of 15 out of 15. None of the medical practitioners who examined Mr. Prekas, (apart from Dr. Jacobs, who has no academic or clinical expertise in the area of head injuries) were concerned about a significant head injury. No tests of cognitive function were administered.

Dr. Vavougios did prescribe some medication for depression for an unspecified period of time. However, Dr. Vavougios's report of May 27, 1997 did not support a claim of disability based on depression. Mr. Prekas has not sought any psychological or psychiatric counselling to address his cognitive or emotional condition.

The only medical evidence supportive of some form of psychiatric disability was Dr. Jacobs' report of July 19, 1998. However, Dr. Jacobs is a pain specialist, and has no training in psychiatry or psychology. Accordingly, I give his opinion on Mr. Prekas' psychiatric condition little weight. The only psychiatric opinion on disability is that of Dr. Robert Notkin, who examined Mr. Prekas in February 1996 at the request of the Insurer. Dr. Notkin concluded that Mr. Prekas may have been suffering from post-adjustment depression, but that it was not disabling. His diagnosis is consistent with Mr. Prekas failure to seek any treatment for his depression.³

Mr. Prekas perceives that his life has undergone a dramatic turn for the worse because of the car accident. He testified that he was a great student in high school and an athlete. He testified that he weighed 190 lbs before the accident and gained over 100 lbs after the accident. He was "doing great" in the heavy duty equipment mechanic course, and was on the road to a career in which he could make $40 to $50 per hour. Once his educational disability benefits were terminated, Mr. Prekas stated that he felt he had to earn money. Instead of returning to school, he has been forced to attempt a series of low paying jobs, none of which have worked out. Although he has considered returning to school to study auto mechanics, he does yet feel confident enough, and wants to lose more weight first.

I find that Mr. Prekas' perception of his pre-accident abilities and the role of the accident in his life is seriously flawed. His grade twelve grades were generally in the 50s and 60s. His grade twelve physical education grade was 50. During his first semester at Centennial College, he completed four courses prior to the accident, and he received one C, one D and two failing grades.

While Mr. Prekas' dissatisfaction with his weight was a strongly contributing factor in his emotional state,⁴ the medical records establish that Mr. Prekas weighed approximately 290 lbs at the time of the accident and did not gain significant weight after the accident.⁵ Thus, Mr. Prekas' weight gain and his emotional reaction to it were not materially related to the accident.

Mr. Prekas may have believed that it was pointless to return to College, if he was not capable of working as a heavy duty equipment mechanic. However, it is puzzling that he did not return to school to train for less physically demanding work, such as automotive engine repair. Mr. Prekas testified that he had completed a co-op term as a car mechanic in high school and had loved it. He could have pursued an alternative career, while still pursuing his claim for education disability benefits on the basis that he was incapable of completing the education he was engaged in at the time of the accident. Mr. Prekas' statement that he felt he needed to earn money is also puzzling, since at the time of the accident his parents were financially supporting him to attend school and he agreed that his parents continued to financially support him after benefits were terminated. Therefore, it is not financial necessity which motivated Mr. Prekas to seek out employment rather than return to school. I conclude that while the accident initially interrupted Mr. Prekas' schooling, his decision not to return to school was not related to the accident.

Partial or Complete Inability to Carry on a Normal Life:

Counsel for Mr. Prekas did not argue that Mr. Prekas suffered a partial or complete inability to carry on a normal life, but for the sake of completeness, I will review the evidence on this ground of entitlement as well. Prior to the accident, Mr. Prekas was a full-time student, living with his parents. He occasionally helped out in his mother's framing business, but was not paid for his work. He trained with weights and was a member of a gym. He socialized with friends, and was involved in a relationship.

After the termination of benefits, instead of returning to school, Mr. Prekas sought out and engaged in a series of moderately physical jobs. He vacationed in Greece. He continues to lift weights, in the exercise room of his condominium. He continues to work occasionally in his mother's framing business. He socializes with friends, and has formed a new relationship.

The evidence does not establish that Mr. Prekas has suffered a partial or complete inability to carry out a normal life.

CONCLUSION:

Mr. Prekas is not entitled to further weekly education disability benefits beyond August 1, 1996.

EXPENSES:

If the parties are unable to agree upon expenses, I remain seized to address that issue.

February 10, 1999

M. Kaye Joachim

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 27

FSCO A97-001113

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NICK PREKAS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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. Mr. Prekas's claim for weekly education disability benefits is dismissed.

February 10, 1999

M. Kaye Joachim

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Section 15 of the Schedule.
3. 3In December 1997, Mr. Prekas' symptoms of depression had worsened and Dr. S. Ozersky, a psychiatric DAC assessor recommended ten sessions of pain management psychotherapy, but did not comment on disability.
4. 4Exhibit 2, Tab 7, Dr. S. Ozersky's Report, December 15, 1997.
5. 5Exhibit 2, Tab 4, Clinical Notes and Records of Dr. J. Vavougios. The notes contain the following recorded weights: November 16, 1995 (ten days after the accident), 292 lbs, July 11, 1996, 286 lbs, January 27, 1997, 291 lbs, April 22, 1997, 294.8 lbs, August 29, 1997, 284 lbs.