Neutral Citation: 1999 ONFSCDRS 96

FSCO A97-000566

BETWEEN:

ROBERT SCHIHL

Applicant

and

CANADA LIFE CASUALTY INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Evans

Heard:

March 15 and 16, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David F. Longley for Mr. Schihl

Shelley Hopkins for Canada Life Casualty Insurance Company

Issues:

The Applicant, Robert Schihl, was injured on September 8, 1992 when his truck left the road and rolled several times into a gulley. He applied for and received statutory accident benefits from Canada Life Casualty Insurance Company ("Canada Life"), payable under the Schedule.¹ Canada Life terminated weekly income benefits effective May 6, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Schihl 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. Schihl entitled to weekly income replacement benefits from May 6, 1996?
Is Mr. Schihl entitled to interest on any amounts owing?
Is Mr. Schihl entitled to his expenses incurred in this arbitration proceeding?

Result:

Canada Life Casualty Insurance Company shall pay Mr. Schihl weekly income replacement benefits from May 6, 1996.
Canada Life Casualty Insurance Company shall pay interest on outstanding amounts pursuant to section 24(4) of the Schedule.
The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Mr. Schihl testified that he was born on May 3, 1942, and grew up in farming country outside Windsor. He left high school in 1960 before completing grade 11 and, after working for a few years at various jobs such as stocking parts and apprenticing as a mechanic, he became a unionized journeyman construction millwright. From late 1966 on, he worked in effect for the union through the union hall, often at Ontario Hydro plants. In 1983 he also started training and racing pacer horses, owning four by the time of the accident. Indeed, on the day of the accident on September 8, 1992, he was driving to work at the Sarnia Lambton power station from his rented hobby farm in Bowmanville (where he kept some of the horses) when he lost control of his pickup truck.

Mr. Schihl testified that he was able to escape the flattened truck once it stopped turning, and eventually a passerby helped him to reach the Strathroy Middlesex General Hospital. His injuries included fractures to his ribs and left shoulder blade. He discharged himself within a few days because the Strathroy surgeons considered shoulder surgery unnecessary. He saw his family physician, Dr. Ian Richardson, who continues to treat him. He also saw Dr. P.C. Feng, orthopaedic specialist, who however confirmed the Strathroy opinion. Mr. Schihl went on to experience pain in both shoulders (having developed a right rotator cuff impingement), the right hip, and the low back.

The parties agree that Mr. Schihl's injuries prevented and continue to prevent him from returning to his former employment. Mr. Schihl testified that he also had to have help with his hobby farm and that, although he had hoped to return to his work and his business, he eventually sold the horses.

As will be seen below, the consensus of medical opinion is that Mr. Schihl developed a chronic pain syndrome after the accident. Mr. Schihl testified that his condition deteriorated after an initial improvement through the autumn of 1993. Currently, he still suffers pain in the left shoulder and neck, right shoulder, and in the low back through the hip on his right side. He has headaches approximately four times a month. His left shoulder and low back constantly bother him with varying degrees of pain. He testified that seven days a month his neck pain is severe, and his low back is worse, being severe about half the month. His left arm can also go numb from the elbow down to his hand. He testified that his right shoulder is "relatively pretty good" now, in that although use can make it weaker and may aggravate the pain, it is better than his left shoulder. He also complains of short-term memory and concentration problems, as well as feeling momentarily dizzy three times a day.

Mr. Schihl testified that his pre-accident health was very good and that his apprentice partners thought he was as agile as a man in his thirties. Two earlier accidents resulted in a sore neck (1965) and a sore rib; these resolved. A hernia operation in 1976 resulted in a WCB claim for a few weeks. He had a slight injury to his right knee in 1985 or 1986, when he was off work for a little longer. He also had a finger pinched, and otherwise he might have missed a day or so here and there when he received cuts and needed stitches.

Mr. Schihl testified that he saw Dr. Richardson, his family doctor, very rarely. However, the clinical notes and records of Dr. Richardson show that after Mr. Schihl was assaulted in July 1990, he suffered from dizzy spells, headache behind the eyes, "pressure feeling in head" and "balance off." He was booked for a brain scan. Mr. Schihl testified that a stranger attacked him and that he chipped a tooth and received cuts to his face, for which he was treated at the Oshawa hospital.

Mr. Schihl testified that in 1990 his only problem was osteoarthritis in his big toe resulting from a fracture the year before. He did fracture his finger ("mallet finger") while working with the horses. Dr. Richardson's notes in the fall of 1990 show several references to "head injury" and "mallet finger," and the entry for October also refers to a "note for UIC": Mr. Schihl could not remember if he had asked the doctor to sign such a note.

Mr. Schihl testified that he remembered some left elbow tendinitis and bursitis problems in his shoulder on occasion before the accident, but these were for only brief periods. The records do contain references to bursitis and C5-6 degenerative disc disease ("DDD"). The note for March 13, 1991, shows he had pain in his elbows, feet and left shoulder, with morning stiffness lasting one to two hours. The left shoulder was still sore on March 21, although the shoulder and elbows were both better by March 29. The notation for June 1, 1991, shows left elbow swelling. The record for September 25, 1991, indicates "sore ache in shoulder still." The record for March 20, 1992, shows headaches and pain in his rhomboids occasioned by heavy labour, as well as left shoulder bursitis. The record for July 2, 1992, shows that he was bailing and loading hay on the weekend and had soreness on the left side of his chest and soreness in his upper back on the right side and from his left shoulder down to his arm.

I do not find most of these pre-accident reports particularly striking. The immediate pre-accident entries appear to be caused by specific work such as shovelling manure or loading hay. Many entries deal only or mostly with his high cholesterol; indeed, the references in the July 2, 1992 record to "EKG," blood pressure and cholesterol suggest to me that Mr. Schihl was more worried about a heart attack.

With respect to Mr. Schihl's post-accident treatment, Canada Life took many steps to try to rehabilitate him. In 1994, Dr. M. C. Mason, physiatrist, thought that Mr. Schihl might still be able to return to work. However, a functional abilities evaluation in August 1994 determined that he still did not match the job requirements for a millwright but appeared to be able to manage his hobby farm work. The problematic areas noted at that time were with respect to heavy lifting to and above shoulder levels, prolonged static positions of standing and sitting, pushing at shoulder height, carrying heavy loads and repetitive shoulder movements; these problems have continued throughout. He was observed to wince and withdraw from tasks due to sudden pains in his shoulders, affecting productivity and posing a safety concern. Although he could not manage the heavy manual labour requirements of a millwright, and the lack of pattern to his "good" and "bad" days made it unlikely he could provide consistent effort on a regular basis, the evaluator thought he might be able to manage a similar job with light to medium job requirements.

Career Probe conducted a vocational evaluation, and in its report dated March 3, 1995 concluded that Mr. Schihl had the transferable skills to work as a turbine inspector, harness race horse trainer, millwright foreman and supervisor of turbine assembly. The evaluator noted that Mr. Schihl was somewhat disposed to focusing on disability issues, which could constitute "somewhat of a barrier to him with respect to making a smooth transition to the work force." (Mr. Schihl testified that at the time of the Career Probe evaluation he was feeling better and that he held up well during that week of testing). These jobs were classified as "light," as confirmed by a subsequent occupational therapy functional ability assessment in November 1995, which concluded that Mr. Schihl had the functional abilities for those occupations.

Mr. Schihl testified that, regarding the positions of turbine inspector or supervisor of turbine assembly, he had never worked in that kind of management position and did not know what they entailed. Mr. Schihl mentioned to the evaluator that he was familiar with the turbine supervisor position, so the evaluator put it in the report even though it is a job requiring four years of university. With respect to these management positions, Mr. Schihl testified that he was concerned about losing his pension if he worked for someone other than the union.

As for harness race horse trainer, Mr. Schihl testified that he could have qualified for the position, but by 1995 the work was becoming too demanding for him, and in 1996 he turned the horses over to another trainer before eventually selling them. Furthermore, he had never been paid to train horses and, as he was not established as a trainer, he did not know anyone willing to pay him.

However, regarding the position of millwright foreman, Mr. Schihl testified that every construction millwright is potentially a millwright foreman and that he had worked as a foreman for three months in 1969 or 1970 and again for six months in 1978. He had also been a sub-foreman or lead hand a few times on a job that had lasted five or six years in the early 1980s. A foreman assigns work based on the blueprint, programs the job, and makes sure the right people assemble it properly. On his last job there were at least three foremen who told him what to do and where to work. The foremen did no physical work.

I find that, apart from the issue of chronic pain, Canada Life has identified at least one suitable occupation for Mr. Schihl, that being the foreman position. Mr. Schihl has performed this work in the past, and the remuneration would be at least as good as that of a millwright. Therefore, I find that the burden is on Mr. Schihl to show that his chronic pain continuously prevents him from performing this work.

In July and August 1995, Dr. Heather McDonald, rheumatologist, saw him for his reported "waxing and waning pattern of musculoskeletal pain." She noted a tendency towards fibromyalgia with some tender points (11/18) and somewhat non-restorative sleep patterns. The X-rays she requested, particularly those showing the osteophyte formation in the left shoulder, were compatible with the diagnosis of post-traumatic musculoskeletal pain, but she was not able to recommend anything to improve his condition.

Dr. Philip Baer, rheumatologist, in his report of August 10, 1995, provides a portrait of Mr. Schihl at approximately the 156-week mark. He wrote that earlier psychological evaluations found no evidence of neurocognitive impairment but rather related his forgetfulness to pain. He noted that, from mid-1993 on according to Mr. Schihl, and from February 1994 according to the objective documentation, Mr. Schihl had increasing pain in the shoulder, left scapula, right buttock and right thigh areas. Although Mr. Schihl did have some of the features of fibromyalgia such as non-restorative sleep and some tender points, he did not meet the formal diagnostic criteria. Dr. Baer diagnosed chronic pain, noting that Mr. Schihl's pain avoidance behaviour was typical of the syndrome. He concluded that Mr. Schihl was totally disabled from his own occupation as a result of the accident. He also concluded that Mr. Schihl was incapable at that time of returning to work in any remunerative capacity due to his fluctuating symptoms and his poor endurance. Dr. Baer considered the prognosis for improvement guarded given the duration of symptoms and disability. However, he found that Mr. Schihl's total disability for any reasonable occupation was due to a combination of the injuries sustained in the accident and the subsequent development of the chronic pain syndrome after Mr. Schihl's initial improvement to mid-1993. This suggested to him that Mr. Schihl's impairment was only partially related to the injuries he suffered in the motor vehicle accident.

However, Dr. Baer does not make clear how the chronic pain syndrome could not be related to the accident. Although Mr. Schihl did not necessarily discuss every pre-accident problem with his physicians, I can find nothing in those records to suggest that Mr. Schihl was developing a chronic pain syndrome. Accordingly, I find that the chronic pain syndrome resulted from the accident. In any event, even if the impairment was only partially related to the injuries sustained in the accident, that would not necessarily be sufficient to disentitle Mr. Schihl.

I mention the 156-week mark in discussing Dr. Baer's report because after 156 weeks the eligibility test changes. In Jevco Insurance and Gagnon,² Director's Delegate Draper held:

The work reference is no longer specifically tied to what the person was doing just before the accident, but expands to include other "suitable" occupations or employment. Section 12(5)(b) of the Schedule states that an insured person is not entitled to weekly income benefits unless he or she establishes that the accident-related 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." This section should be applied with a sense of reality. As I read the decisions, arbitrators have consistently done so by asking what the insured person can reasonably and realistically be expected to do given his or her particular circumstances.³

Dr. Baer in his report recommended that Mr. Schihl receive a psychiatric assessment and a pain management program. Unlike what happened in Gagnon, Canada Life maintained Mr. Schihl's benefits after the 156 weeks while following up on Dr. Baer's recommendations. In November 1995, Dr. Yosef Kwamie conducted the psychiatric evaluation. He concluded that Mr. Schihl was not clinically depressed but had clinical features of chronic pain syndrome secondary to the accident. He also noted that Mr. Schihl's psychological status had a minimal effect on his perception of pain. (In September 1993, Dr. Lorne Switzman, in a psychology consultation report, felt it likely that Mr. Schihl's forgetfulness was related to his pain perception). He concluded that there were no psychiatric obstacles to his return to work.

I have already referred to the functional ability assessment also carried out in November 1995. The occupational therapist felt that Mr. Schihl should return to work on a part-time basis and gradually return to full-time employment.

Canada Life, further to Dr. Baer's recommendations, also entered Mr. Schihl in a pain management program in early 1996. Mr. Schihl testified that during his attendance at the Columbia Rehabilitation Centre program in Oshawa, his condition worsened, and he could not maintain his daily activities because of the pain. The records show that, at a case conference on March 19, 1996, those involved in Mr. Schihl's rehabilitation decided to end his treatment. According to a letter dated April 30, 1996, by Karen Hardie, rehabilitation consultant, the treating professionals felt that Mr. Schihl remained too pain-focused to make any progress and that he was even having a negative effect on other clients of the clinic. As well, Dr. Richardson, the family physician, was of the opinion that Mr. Schihl might be able to return to light employment such as that of a security guard or dispatcher "which would enable him to stand and sit as needed." Dr. Richardson, who had attended the case conference, countersigned this letter on May 7, 1996. Mr. Schihl's benefits were terminated effective May 6, 1996.

I find that what is relevant in Dr. Richardson's comment is not so much the occupations themselves (Mr. Schihl had been receiving the maximum benefit of $600 per week, as he earned a very good salary as a millwright, so these positions would be unsuitable on the basis of salary alone) but rather the suggestion that Mr. Schihl could undertake work that was not physically demanding.

However, I find the comment by Dr. Richardson in that letter of April 30, 1996 not a particularly strong finding that Mr. Schihl could indeed return to work. The perfunctory phrase "may be able to return to light employment" appears in what is in fact the caseworker's reiteration of Dr. Richardson's comments. Furthermore, some 20 months later and while continuing to act as the principal health provider for Mr. Schihl, Dr. Richardson wrote on a prescription note dated December 3, 1997 that Mr. Schihl continued to be unemployable due to fibromyalgia and arthritis since his accident.

Mr. Schihl testified that his condition has continued to deteriorate. He did continue his activities related to the horses for a period after the accident, with some help. The only horse he raced after the accident was his second mare. He took it to Kawartha Downs with the help of other people. He had a class F licence (training only one's own horses) initially. In 1996, he passed his class A licence, which would have allowed him to train other people's horses. However, he let his memberships in these horse-related organizations lapse after he sold his horses.

In 1996 and 1997, Mr. Schihl saw Dr. R. Webster, orthopaedic specialist, who gave him cortisone injections. In a report to Dr. Webster dated April 18, 1997, and in an expanded report dated March 3, 1998, Dr. Robin Richards, head of orthopaedics at St. Michael's Hospital, concluded that Mr. Schihl's chronic left shoulder pain was due to glenohumeral osteoarthritis that he considered to be post-traumatic since, to the best of his knowledge, Mr. Schihl did not have problems with his shoulder prior to the accident. Mr. Schihl would be a candidate for a total shoulder arthroplasty with a high chance of success, but because of the long-term loosening and wear he should delay the surgery as long as possible. Dr. Richards considered Mr. Schihl disabled for impact-type activity, heavy lifting, overhead activity and any kind of repetitive or forceful use of the shoulder against resistance and thus disabled for his regular occupation. He wrote that Mr. Schihl "is really only capable of light nonrepetitive occupational activity at bench level." (Dr. Richards was not considering the chronic pain aspect of Mr. Schihl's circumstances).

Dr. D.J. Ogilvie-Harris, orthopaedic surgeon, examined Mr. Schihl on March 25, 1998. After confirming Mr. Schihl's physical restrictions, he noted that Mr. Schihl had some features of fibromyalgia with positive points but equivocal control points, suggesting more of a chronic pain syndrome caused by physical problems. In turn, the chronic pain causes fatigue and poor endurance, making it unlikely that he would be able to work in even sedentary employment.

Mr. Schihl requested a medico-legal assessment in September 1998 by Dr. V. Kekosz, physiatrist. On physical examination, he demonstrated 8/18 fibrocytic points. After noting that some assessments indicated Mr. Schihl was capable of certain jobs within his restrictions while others indicated not, Dr. Kekosz concluded that the chronic pain leading to ongoing psychological and cognitive difficulties meant that, at best, Mr. Schihl could return to some form of part-time light sedentary work.

Conclusion:

The issue before me is to determine what Mr. Schihl can reasonably and realistically be expected to do, given his particular circumstances. Mr. Schihl is a person in his late 50s with a limited education and accident-related chronic pain. Dr. Baer concluded in 1995 that Mr. Schihl could not return to work, subject to further investigations. I am not satisfied that any subsequent investigations confirmed a change in circumstances. At best, at a case conference in March 1996 Dr. Richardson thought Mr. Schihl might be able to return to some kind of work, but he later expressed a different opinion in the handwritten note dated December 3, 1997. In considering the level of Mr. Schihl's chronic pain, I note that he had to give up his hobby of raising and training horses. The Career Probe evaluator noted that Mr. Schihl seemed "to prefer to pursue his hobby occupation of horse breeding and training to a greater extent than his skills as a millwright." The theme of the horse training and breeding returns in many of the reports. Mr. Schihl testified how he tried to keep his horses and maintain his hobby despite his pain. As stated by Reid J., "There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it."⁴

Turning to the question of whether or not Mr. Schihl is continuously prevented from performing a suitable occupation, Dr. Kekosz thought that at best Mr. Schihl could work part-time at a sedentary occupation. However, the functional abilities evaluation in August 1994 determined that the lack of pattern to Mr. Schihl's "good" and "bad" days made it unlikely he could provide consistent effort on a regular basis. Dr. Baer concluded that Mr. Schihl was incapable of returning to work in any remunerative capacity due to his fluctuating symptoms and his poor endurance. Dr. Ogilvie-Harris also found that Mr. Schihl has fatigue and poor endurance for any type of activity, restricting him to at best working for very short periods of time in a very light job. Accordingly, I find that Mr. Schihl cannot work full-time on a regular basis. Furthermore, in light of the fact that he was not able to maintain his hobby farm even though it offered him flexible part-time hours, and in light of his fluctuating symptoms, I find that he cannot work even on a regular part-time basis. I find that Mr. Schihl is therefore continuously prevented from performing a suitable occupation.

Even if Mr. Schihl could theoretically work part-time at a sedentary occupation, Mr. Schihl is in a different position from the Applicant in Van Devyvere and AXA Insurance (Canada)⁵ At the time of her accident, Mrs. Van Devyvere was working full-time as a saleswoman in a bridal salon in London. A market search provided a list of part-time employment opportunities within a 20 minute drive of her home and her physical restrictions, yet she refused to even explore these options. By way of contrast, it is difficult to conceive how Mr. Schihl could work part-time as a foreman at a job site. I note that the occupations identified in a labour market survey conducted in April 1997 for Canada Life also require full-time hours. Accordingly, I find that in any event there are no suitable occupations at which Mr. Schihl could work part-time.

Accordingly, I find that in these circumstances Mr. Schihl cannot reasonably be expected to return to any reasonably suitable form of employment. I find that he is entitled to weekly income replacement benefits from May 6, 1996.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Mr. Schihl's expenses of this arbitration proceeding may now be addressed, if the parties cannot agree among themselves.

May 28, 1999

David Evans Arbitrator

Date