Neutral Citation: 2000 ONFSCDRS 170

FSCO A97-001971

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ANTONIO FERNANDES

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

April 12, 13, 14, 15, July 9, 1999, May 5, and June 2, 2000 at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Antonio F. Azevedo for Mr. Fernandes

Darrell P. March for Zurich Insurance Company

Issues:

The Applicant, Antonio Fernandes, was injured in motor vehicle accidents on August 9, 1993 and on May 2, 1996. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on June 15, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Fernandes 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. Fernandes entitled to weekly income benefits from June 15, 1996 to August 9, 1996 under section 12(1) of the 1990 Schedule?

2. If so, is Mr. Fernandes entitled to receive weekly income benefits beyond August 9, 1996 under section 12(5)(b) of the 1990 Schedule?

3. What is the correct amount of the weekly income benefits?

4. Is Mr. Fernandes entitled to supplementary medical expenses for chiropractic and physiotherapy treatment, medications and the cost of Dr. Charendoff’s report claimed pursuant to paragraphs 6(1)(a) or (f) of the 1990 Schedule?

5. Is Mr. Fernandes entitled to his expenses incurred in this arbitration proceeding?

6. Is Mr. Fernandes liable to pay Zurich's assessment under subsection 282(11.2) of the Insurance Act?

Result:

1. Mr. Fernandes is entitled to weekly income benefits from June 15, 1996 to August 9, 1996.

2. Mr. Fernandes is entitled to weekly income benefits from August 9, 1996 and ongoing.

3. The correct amount of his benefits is $600 per week.

4. Mr. Fernandes is entitled to $3,003.95 for physiotherapy and chiropractic expenses incurred at Multi-Rehabilitation and $1,550.25 for prescription medication expenses. Mr. Fernandes is not entitled to expenses for physiotherapy treatment incurred at Annex Physiotherapy & Rehab. Mr. Fernandes is not entitled to the cost of Dr. Charendoff’s report under section 6 of the Schedule.

5. The issue of expenses and the assessment fee may now be spoken to.

Mr. Fernandes confirmed that he was seeking benefits solely under the 1990 Schedule and that he does not claim any benefits as a result of the May 2, 1996 accident.

My procedural rulings are included in Appendix "A."

EVIDENCE AND ANALYSIS:

Employment History:

Antonio Fernandes is a 58-year-old married father of three. He was born in Portugal and attended school for four years. He communicates in Portuguese. After leaving school, he helped on his family's farm, growing crops and raising livestock. At the age of 16 or 17 he began working in a wood factory, cutting, sawing, and drying wood. He spent three years in the armed forces. Following that, he returned to the wood factory, this time as a truck driver. He drove a large six-metre truck, sometimes with an additional trailer attached, transporting wood. He worked as a truck driver until he moved to Canada in 1973 or 1974. He initially obtained work as a casual labourer on farms in Simcoe County around Lake Erie, clipping tobacco, picking fruit, and pruning trees. He also worked as a general labourer for Cliffside Construction Company and briefly, as a machine operator at Massey-Ferguson.

In 1977, he returned to Portugal, and began truck driving again. In 1980, he obtained a job as a metre reader. This job involved reading electricity metres and collecting payments. In 1985, he returned to Canada and resumed working as a casual farm labourer. In 1986, he obtained work at Donald Construction, a construction company which built residential houses. He began as a general labourer, earning $16 to $17 per hour. He gradually learned how to lay pipes, which was a slightly better-paid position, and became recognized as a qualified pipe layer. During the winter of 1988, he was laid off for lack of work and collected unemployment insurance. When he left that position, he was earning approximately $20 to $21 per hour. In the spring of 1989, he found similar work at Brentview Construction, performing pipe-laying or general labour as required, at the rate of $19 to $20 per hour. He was laid off in November 1989.

The following summer he began working as a marble polisher in a factory. This job involved picking up pieces of granite and marble and putting them into the grinding machine. The grinder was operated by buttons. When he was laid off from this position in June 1992, he was earning $15 per hour.

Mr. Fernandes remained unemployed until the following year, when he began working as a building cleaner in March or April 1993. His duties included mowing the lawn, gathering the garbage, cleaning carpets, mopping entrance ways and hallways, operating floor waxing machinery and other miscellaneous tasks. This was only part-time work, approximately five hours a day, at a rate of $10 to $12 per hour. Mr. Fernandes viewed this as a temporary position.²

In July 1993, he was offered a job at Vieirense Masonry as an assistant bricklayer. He worked as an assistant to four bricklayers, bringing them wheelbarrows of cement and bricks, putting up scaffolding and doing general cleanup. The job paid $18 per hour, for 40 hours per week. He had only been employed in this position for a few weeks before the accident.

Pre-Accident Medical History:

Mr. Fernandes sustained two work injuries in 1988. In February 1988, Mr. Fernandes tripped over a pile of pipes and fell, fracturing a rib on his left side and was off work for approximately one month. In November 1988, Mr. Fernandes slipped while carrying a heavy object. He strained his left shoulder area. He was off work initially for a week or so of work and had occasional problems with his left shoulder

He was also involved in a car accident in 1988, but was not injured in the accident and did not seek any medical attention.

Mr. Fernandes specifically denied right-shoulder pain prior to the August 1993 motor vehicle accident. However, there is a notation in Dr. Cordeiro's clinical notes and records that Mr. Fernandes complained on June 7, 1993, of pain in the right scapula since the accident of 1987.

Dr. Cordeiro he testified that he believed the reference to the right shoulder might be an error. The only shoulder injury which Mr. Fernandes experienced was to his left shoulder in 1988. There are no references in Dr. Cordeiro's clinical notes and records from December 1987 to June 1993 of any right shoulder complaints. I find it highly unlikely that Mr. Fernandes experienced ongoing right shoulder pain since 1987 without mentioning it once to his family physician. In all the circumstances, I am satisfied that the notation on June 7, 1993 was an error, and more probably than not, referred to left shoulder complaints since the 1988 work-injury.

Even if Mr. Fernandes had made complaints of right shoulder pain since 1987, I note that Mr. Fernandes worked continuously (albeit seasonally) for many years prior to the accident, without losing time for disability-related reasons. Accordingly, I am satisfied that Mr. Fernandes pre-accident health condition did not play a material role in his ability to work after the accident.

Accident of August 9, 1993:

The accident occurred around midnight on the evening of August 9, 1993. Mr. Fernandes testified that he was stopped at a red light adjusting the rear view mirror with his right hand, when his car was struck on the right-hand side from behind. He was momentarily dazed, and when he exited the car, the other vehicle had left the scene.

Mr. Fernandes did not experience any immediate symptoms, and drove himself home. The next morning he attended at his family doctor's office, reporting pain in his right arm and shoulder, and the right side of his neck.³ Apart from one brief attempt to return to work, Mr. Fernandes has not resumed any form of employment. Nor has he sought any English language training or other form of training which would enable him to find any other type of work.

Mr. Fernandes typically spends his days driving his daughters to work and spending time at the various neighbourhood cafes with other construction workers. He testified that he spends approximately 20 minutes, twice a day, doing exercises. His wife works seasonally, and his daughters also work and assist him financially.

Subsequent Accidents:

In 1995, Mr. Fernandes was involved in another accident when his car collided with a lamp post. He was not injured and did not mention the accident to anyone.

On May 2, 1996, Mr. Fernandes was involved in another car accident. While passing through an intersection on a green light, his front left bumper struck the back door area of another vehicle. Mr. Fernandes testified that he had both arms on the steering wheel at the time, and he experienced an immediate pain in the right shoulder upon impact. He drove his car home and sought medical attention from Dr. Fernandes.

While the 1996 accident may have temporarily exacerbated Mr. Fernandes' pain, I am satisfied that the 1993 accident continued to materially contribute to Mr. Fernandes' right shoulder condition after the 1996 accident. The evidence indicates that Mr. Fernandes' right shoulder complaints were ongoing since the 1993 accident and had not resolved prior to the 1996 accident. The symptoms of the right shoulder did not change after the 1995 or 1996 accidents.

Credibility:

Mr. Fernandes was cross-examined at length about the details of the accident, his medical history, his physical limitations, and his presentation at various medical examinations. Mr. Fernandes was not a loquacious witness. His manner of speaking was generally brief and occasionally argumentative. I find his recollection of the history and chronology of his symptoms and treatment was not reliable. Hence, I prefer the written medical documents which were created at the time of the events, over Mr. Fernandes' personal recollection some years after the event. However, this is not a finding that Mr. Fernandes was not credible; it is merely an observation that the passage of time has eroded the reliability of Mr. Fernandes' memory with respect to dates and events.

Mr. Fernandes was cross-examined extensively about the time and date of the accident. He testified that the accident occurred around midnight on August 9, 1993 and that he visited his family doctor the morning of August 10, 1993. His application for benefits lists the date of accident as August 9, 1993 at 12.30 a.m., which would be early morning on August 9, 1993. Mr. Fernandes explained that someone helped him complete the application, but he had no explanation why 12.30 a.m. was written down instead of midnight. I find that it more likely than not that the accident occurred late on August 9, 1993.

Dr. Cordeiro's record of August 10, 1993 notes that Mr. Fernandes came in complaining of right arm and shoulder pain, resulting from an accident that happened "that night." I interpret this to mean an accident the night before, which in common terms would mean late evening of August 9 or early morning of August 10.

In any event, I find that nothing turns on whether the accident occurred at midnight on August 9 or at 12.30 a.m. on August 9. In either event, Mr. Fernandes began to experience symptoms shortly after the accident and sought medical treatment soon afterwards.

Zurich suggested that Mr. Fernandes did not consistently reveal his 1988 work injuries to every medical examiner. I find that this does not reflect on Mr. Fernandes'credibility, as it is apparent that these prior accidents had no material bearing on his injuries from the 1993 motor vehicle accident.

Mr. Fernandes was questioned on why he failed to mention the May 2, 1996 accident to Dr. P. Welsh when he was examined on May 9, 1996. Mr. Fernandes explained that the interview was brief and that he could not specifically recall being asked about accidents after 1993. I do not find that this omission reflects on Mr. Fernandes'credibility, as his symptoms had been continuous from the May 1993 accident and he understood that the purpose of the examination was to assess the injuries from the May 1993 accident.

Surveillance taken in May 1996, June 1996, and March 1999 did not show Mr. Fernandes engaging in any activities inconsistent with his stated restrictions. While the March 1999 video did show Mr. Fernandes using his right hand to smoke a cigarette, this is consistent with the medical evidence which indicates restrictions with overhead use or repetitive use of the right shoulder.

I will deal with one area which caused me some concern about Mr. Fernandes' credibility. While Mr. Fernandes initially complained of neck pain, in addition to his right shoulder pain, Dr. Cordeiro's clinical notes and records indicate that this appeared to resolve and his right shoulder became the primary focus. Dr. Cordeiro's clinical notes and records do not reveal any complaints about neck pain after the first few months of the accident and reveal no complaints about back pain. While Dr. Cordeiro's clinical notes and records are exceedingly brief, and it is possible that Mr. Fernandes may have reported some complaints which Dr. Cordeiro did not record, I do not find it likely that Dr. Cordeiro would have failed to record serious, persisting complaints of neck and low-back pain stemming from the 1993 accident. When Mr. Fernandes switched to Dr. N. Fernandes in March 1996, Dr. Fernandes noted complaints of low-back and neck pain, related to the 1993 accident. Dr. Fernandes referred him to physiotherapy and, after several months, the complaints seemed to resolve. The neck and back complaints played no role in Mr. Fernandes' claim for ongoing weekly benefits, but he is claiming physiotherapy expenses incurred in respect of his neck and back pain. I find his attempt to attribute these symptoms to the 1993 accident troubling. However, I have already commented that Mr. Fernandes is not a good historian regarding dates. Viewing the medical records as a whole, it appears that upon changing family doctors, Mr. Fernandes' low-back and neck complaints may have been mistakenly attributed to the 1993 accident. I am satisfied that despite this brief focus on low-back and neck complaints, Mr. Fernandes' primary complaint of right shoulder pain has remained constant and genuine.

Medical Treatment and Assessments:

Initially, Dr. Cordeiro was of the opinion that Mr. Fernandes had suffered a myofascial strain of the right shoulder rotator cuff, right arm and forearm, and predicted that he would be able to return to work within two months of the accident. Mr. Fernandes underwent a course of physiotherapy from August 1993 to the end of December 1993. He was discharged from physiotherapy in January 1994, although he was still reporting pain on shoulder movement. At that time, Dr. Cordeiro recommended that he return to work. V-Masonry was no longer in business, but the owner offered him work as a bricklayer's assistant with a different company. In January 1994, Mr. Fernandes attempted to work four hours on two days, but was unable to continue due to pain and swelling in his right arm and shoulder.

In March 1994, Mr. Fernandes was referred to Seiden and Associates by Zurich and began another round of active physiotherapy. In May 1994, Dr. H. Koonar of Seiden and Associates noted that Mr. Fernandes' symptoms of pain upon abduction and external rotation of the right shoulder were consistent with supraspinatus tendinitis. By June 1994, Dr. Koonar confirmed that Mr. Fernandes remained unable to return to work and noted that there is often a degree of chronicity associated with this condition. He was discharged from active physiotherapy and continued to exercise at the gym until his membership expired in October 1994.

Seiden and Associates referred Mr. Fernandes to Dr. M. D. Charendoff in August 1994. Dr. Charendoff diagnosed chronic bursitis and tendinitis, with no disruption to the rotator cuff. He reconfirmed this diagnosis in October 1994.

Zurich referred Mr. Fernandes to Dr. P. Grant for a work-capacity evaluation in January 1995. Dr. Grant diagnosed sub-acromial impingement and rotator cuff tendinitis and concluded that Mr. Fernandes was unable to do any heavy labour, overhead work or repetitive work with his right shoulder. However, he felt that Mr. Fernandes was pain-focussed and the level of pain expressed was not in keeping with the nature of the injury.

By November 1994, Seiden and Associates discharged Mr. Fernandes from further treatment, as they felt they were unable to help him further.

Mr. Fernandes continued to see various specialists, including Dr. P. H. Marks and Dr. R. W. Tayler who also diagnosed chronic right shoulder tendinitis.

In March 1996, Mr. Fernandes stopped seeing Dr. Cordeiro and began seeing Dr. N. Fernandes. Dr. Fernandes noted complaints of back and neck pain, in addition to the right shoulder problem. Dr. Fernandes referred Mr. Fernandes to Annex Physiotherapy for treatment of cervical and lumbar myofascial injuries. He was receiving this physiotherapy at the time of the second car accident in May 1996. The second accident exacerbated his neck, back and shoulder pain for a period of time. Mr. Fernandes was discharged from Annex physiotherapy in November 1996, and there are few complaints regarding his neck and back pain after that time.

Zurich arranged an insurer medical examination with Dr. P. Welsh on May 9, 1996. Dr. Welsh was of the opinion that the acrominioclavicular strain sustained in the August 1993 accident had resolved and there were no medical limitations preventing Mr. Fernandes from returning to work.

Zurich terminated weekly benefits effective June 15, 1996 on the basis that Mr. Fernandes was capable of returning to his pre-accident employment as a bricklayer's assistant.

In October 1996, Mr. Fernandes referred himself to a neighbourhood rehabilitation clinic. He was treated by Dr. M. Rodrigues, a chiropractor, for his right shoulder for several sessions until November 1996. He ceased attending because Zurich would not reimburse him for these expenses.

He returned to the clinic in May and June 1997. Dr. Rodrigues attempted to increase the range of motion in his shoulder through manipulation, hot packs and a half-hour of exercise. He recommended a 16-week program because of the longstanding nature of Mr. Fernandes' complaints.

In June 1997, Mr. Fernandes was referred to Dr. G. M. Vincent, who ordered an ultrasound and a bone scan. Based on the test results, the current symptoms and the history of the complaints, Dr. Vincent diagnosed right acromioclavicular strain and right rotator cuff tendinitis, related to the August 1993 accident.

In November 1998, Dr. D. J. McGonigal examined Mr. Fernandes at the request of Zurich. He found no evidence of abnormality in the right shoulder and felt that Mr. Fernandes's complaints of pain were overstated. In his opinion, Mr. Fernandes was capable of returning to his pre-accident work. Dr. McGonigal subsequently reviewed the results of the ultrasound and the bone scan and submitted a further report dated April 5, 1999 confirming his earlier opinion.

Current Complaints:

At the time of the hearing, Mr. Fernandes continued to experience pain in the shoulder area upon raising his right arm or using the arm with force. Mr. Fernandes testified that any action requiring the raising of his right arm, including shaving and combing his hair, causes pain. He takes two prescription pain pills per day, as well as anti-inflammatory medication and muscle relaxants. He testified that he is sometimes awakened because of pain when he sleeps on his right side, but otherwise does not experience sleep disturbances.

Menilde Fernandes, Mr. Fernandes' wife, testified briefly. She confirmed that Mr. Fernandes complained to her about pain in the right shoulder, and was "nervous" because he couldn't work. She testified that he did not help around the house since 1993, except to help her with the shopping and the laundry, using his left arm.

Nature and extent of right shoulder disability and relationship to the August 1993 Accident:

The rotator cuff is the tendinous tissue of the shoulder which governs the movement of the arm. The tendons attach the muscles to the bone. One of the three main muscle groups which govern the movement of the arm is the supraspinatous muscle. Tendinitis is an inflammation of a tendon. Supraspinatus tendinitis refers to swelling of the tendons of the supraspinatus muscle of the shoulder. The swelling of the tendons in the shoulder area narrows the subcromial space in the shoulder socket and can cause pain. One of the possible remedial measures is a surgical procedure known as an acromioplasty, to increase the subcromial space.

Tendinitis can be chronic or acute. Although tendinitis usually resolves within months, in a small minority of patients, it can become chronic. While chronic tendinitis can generally be explained by a tear in the tendon, a narrowing of the outlet or arthritis, it is possible that the chronic tendinitis may have an unexplained cause. Chronic tendinitis waxes and wanes, (depending on the degree of swelling of the tendon) and can be exacerbated by activity. Clinical findings consistent with a diagnosis of tendinitis include difficulty rasing an arm above the shoulder, impingement (pain when arm is flexed forward and inward) and mild muscle atrophy. However, an impingement sign may not always be present, as the condition tends to wax and wanes.

Most of the medical specialists agreed that Mr. Fernandes was initially suffering from tendinitis of his right shoulder or rotator cuff, although the severity of the condition is disputed. However, when Dr. Welsh examined Mr. Fernandes in May 1996, he concluded that any initial injury had resolved. Similarly, Dr. McGonigal testified that while he accepted the initial diagnosis of tendinitis, based on his examination in November 1998, Mr. Fernandes' presentation was no longer consistent with a diagnosis of tendinitis or any objective impairment to the shoulder.

Although it is not necessary to attach a diagnosis to Mr. Fernandes' complaints of right shoulder pain, the preponderance of medical evidence supports a finding that Mr. Fernandes continues to suffer from chronic tendinitis in his right shoulder as a result of the August 1993 motor vehicle accident.

Mr. Fernandes had no pre-existing complaints of pain or restriction in his right shoulder. Dr. Vincent testified that the position of Mr. Fernandes' arm during the accident increased the risk of sustaining an injury in the right shoulder area. His evidence on this point was not contradicted. Immediately after the accident, Mr. Fernandes began complaining of right shoulder pain. Abduction and internal and external rotation of the shoulder consistently produced pain. Dr. Vincent observed mild atrophy in the right shoulder. Although Dr. McGonigal did not observe any atrophy in the right shoulder muscles compared to the left, he agreed that it is difficult to measure shoulder atrophy with the eye and that different orthopaedic surgeons may differ about the presence of minor atrophy.

In July 1997, Dr. Vincent referred Mr. Fernandes for tests. The x-rays taken showed minor osteoarthritis changes in the acromioclavicular joint, which had not been present in earlier x-rays. The bone scan indicated mild arthritic changes in both shoulders. The ultrasound report stated:

This examination is directed particularly at the right shoulder with comparison views of the left. On the right side there is marked irregularity of the humeral head at the insertion of the supraspinatus.The supraspinatus tendon is also inhomogeneous and I suspect the presence of tendinitis. I can see no definite tear. The examination is otherwise unremarkable.

Dr. Vincent testified that the history of the accident, the clinical complaints, and the objective tests supported a finding of chronic tendinitis.

Dr. McGonigal agreed that the ultrasound findings are compatible with a diagnosis of tendinitis in the right shoulder, but pointed out that abnormal findings on tests do not necessarily equate with painful, disabling symptoms. For example, the bone scan also showed abnormalities in Mr. Fernandes' left shoulder, but Mr. Fernandes denied any symptoms in that shoulder.

While I agree that the mere presences of abnormalities on the bone scan and the ultrasound are not conclusive of disability, in this case, I find that the tests are consistent with Mr. Fernandes' clinical complaints of pain.

Drs. Welsh and McGonigal both noted several inconsistencies in Mr. Fernandes' presentation during their examinations that caused them to question the genuineness of Mr. Fernandes' complaints of pain. For example, Dr. McGonigal observed that Mr. Fernandes moved his neck freely during the interview, but moved it very slowing during the physical examination. He avoided any use of the right shoulder while dressing, but was able to passively and actively move the shoulder during the examination. Further, Dr. McGonigal noted a non-anatomical response to sensory testing on the lower part of the right arm and non-anatomical complaints of pain during reflex testing. Also, Mr. Fernandes contracted his right shoulder so that it was higher than his left, and stated that this was a constant position. Mr. Fernandes was capable of and did relax his right shoulder indicating that the contraction of the right shoulder was voluntary and deliberate.

In my view, these findings do not negate the existence of a genuine pain condition. I accept that Mr. Fernandes may have exaggerated his pain and limitations during formal medical examinations, in his eagerness to confirm the fact that he has genuine difficulties with his right shoulder. However, that does not lead me to conclude that the core of his complaints about his right shoulder are not genuine. I find it significant that Dr. Cordeiro, Mr. Fernandes' family physician for many years, judged Mr. Fernandes's complaints as genuine. Dr. Cordeiro did not initially foresee a long period of disability and actively encouraged Mr. Fernandes to attempt to return to work. Mr. Fernandes attempted to do so, but was unable to continue. Dr. Cordeiro was no longer treating Mr. Fernandes at the time of the hearing and he gave his evidence in a fair and balanced manner. Similarly, the majority of the medical practitioners found Mr. Fernandes' complaints of pain consistent with right shoulder tendinitis.

I find that the accident of August 1993 caused some injury to Mr. Fernandes' right shoulder which manifested itself as tendinitis. While tendinitis usually resolves itself within a few months, this did not occur in Mr. Fernandes' case. While the chronicity of Mr. Fernandes' condition cannot be explained by a gross physical abnormality such as a tear of the rotator cuff, unexplained chronic tendinitis is a recognized phenomenon. In any event, whether Mr. Fernandes' pain continues to be caused by ongoing tendinitis, or whether he has simply developed a chronic pain condition despite the healing of the original injury is irrelevant. I accept that Mr. Fernandes genuinely experiences pain when he uses his right shoulder. Over time, Mr. Fernandes gradually stopped using his right arm and adopted a lifestyle of inactivity. This is consistent with Dr. Welsh's observation that Mr. Fernandes "has become adapted to a way of life, a pattern of activity with pain complaints and self-limitation dominating his presentation." Unlike Dr. Welsh, I find that Mr. Fernandes' complaints of pain and limitation in his right shoulder are genuine.

Pain in and of itself is not compensable. In this case, Mr. Fernandes' impairment is quite focussed. His only restriction relates to the use of his right arm. I accept Dr. Vincent's opinion that it would be difficult for Mr. Fernandes to use his right arm repeatedly or above chest level.⁴Having regard to those limitations, I turn to the question of Mr. Fernandes' entitlement to income replacement benefits.

1. Entitlement to Income Replacement Benefits from June 15, 1996 to August 9, 1996:

The onus is on Mr. Fernandes to establish that he continued to suffer a substantial inability to perform the essential tasks of his employment beyond June 15, 1996, as a result of an impairment sustained in the August 9, 1993 accident.

The essential duties of an assistant bricklayer consist of carrying bricks and cement (using a shovel or a pail) to the bricklayers, cleaning cement spills, and putting up and taking down scaffolding. The pails of cement weighed up to 20 kilograms and Mr. Fernandes would carry one pail in each hand. He was required to perform these tasks 40 hours per week.

I find that given his restrictions against using his right arm repetitively or above chest level, Mr. Fernandes would be unable to carry out the essential tasks of a bricklayer's assistant.

2. Income Replacement Benefits beyond August 9, 1996:

The onus is on Mr. Fernandes to establish that his impairment from the August 9, 1993 accident continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, after August 9, 1996.

Zurich relied upon the cases of Henriques and Motor Vehicle Accident Claims Fund⁵ and Kota and Wawanesa Mutual Insurance Company⁶ in support of the proposition that the insured has a positive obligation to seek out suitable employment and demonstrate that he or she is unable to perform such employment, in order to satisfy the test under section 12(5)(b). I do not accept that proposition.

The leading case on the type of evidence required to meet that onus is the appeal decision in H. K. and Canadian Surety Company:⁷

In my view, the arbitration decisions on which Canadian Surety relies simply reflect the longstanding recognition that sincere but unsuccessful rehabilitation efforts go a long way towards proving disability. Conversely, failure to take such steps is likely to work against a claimant unless there is some explanation such as evidence of total disability. I do not view the decisions as establishing a rigid proposition that insureds must "provide evidence of suitable employment" to prove their claim. The appropriate approach is a flexible, fact-based one, in which, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. This involves consideration of the evidence presented by both parties, including the nature of the individual's condition and extent of the disability, the efforts the insured has made to position himself or herself to return to the workforce, the vocational assistance made available by the insurer and the options for alternative work that have been put forward.

I am satisfied that the totality of evidence establishes that Mr. Fernandes is continuously prevented from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Mr. Fernandes underwent a vocational assessment at WorkAble to assess his transferable skills. The vocational rehabilitation consultant reviewed Mr. Fernandes' work history, identified suitable vocational options, and applied Dr. Vincent's and the Workers' Safety and Insurance Board restrictions for a shoulder injury to these options.

This was the only vocational assessment evidence before me and there was no serious challenge to its reliability. Accordingly, I give significant weight to this report.

The vocational rehabilitation consultant identified two factors which limited Mr. Fernandes' ability to obtain suitable employment.

One is Mr. Fernandes' limited English language skills. Although Mr. Fernandes has lived in Canada since 1985 (and previously from 1974 to 1977), he has always worked in situations where he was able to communicate with co-workers in Portuguese or Spanish. He speaks with his family and most of his friends in Portuguese. I find that although Mr. Fernandes has some basic understanding of English, he cannot read or write English. While Mr. Fernandes has not taken any initiative to obtain English proficiency or job search skills, neither has Zurich assisted him in this regard. Given Zurich's greater expertise in this area, I find that the primary responsibility for initiating such training rests with Zurich.

Lack of English limits Mr. Fernandes' job search skills. Every job he has attained in Canada or Portugal has been obtained through friends or relatives. He has never conducted a job search, completed an application, or attended an interview. In order to acquire these skills, he would need significant English language training. The vocational rehabilitation consultant estimated that it would take approximately four months of full-time study for Mr. Fernandes to obtain a level of reading sufficient to complete an employment application and become employed in an occupation where reading is not required in the job. If reading were required on the job, a grade 8 reading level would be required, which would take three years of full-time study. The consultant acknowledged that Mr. Fernandes had not undergone an English language assessment, the results of which may affect these estimates.

For these reasons, I find that Mr. Fernandes is unable to obtain employment other than construction industry and factory work which he has performed previously.

Many of the NOC job classifications WorkAble identified as potentially suitable, vocationally and physically, were found to be unsuitable for Mr. Fernandes. WorkAble determined that they were inappropriate because they involved physical abilities beyond Mr. Fernandes' restrictions; they required English language skills or they were seasonal. In one case, Mr. Fernandes lacked a requisite certificate.

The average wage for these positions (other than Central Supply Aides, for which Mr. Fernandes is not qualified) ranges between $7.50 to $12.87, which is substantially lower than the $15 to $20 hourly wage which Mr. Fernandes earned prior to the accident.

The vocational rehabilitation consultant determined that "other elemental service occupations" and "food service counter attendants and food preparers" were suitable for persons with a shoulder injury. This accords with Dr. Rodrigues' and Dr. Vincent's opinions that Mr. Fernandes is capable of some work. However WorkAble noted that these positions involved a significant wage loss⁸ and that Mr. Fernandes would require English language training even for those positions. I conclude that the jobs identified by WorkAble as vocationally and physically suitable are not "reasonably suitable" within the meaning of subsection 12(5)(b) because they would involve a substantial wage loss from what Mr. Fernandes had been earning in the last several years from construction and factory work. The case law supports the proposition that work which is substantially less remunerative than that which the insured was earning prior to the accident may not be considered suitable.⁹ This is not to say that any wage loss makes an alternative employment unsuitable. However, since 1986, Mr. Fernandes has been earning construction industry and factory wages of between $15 and $20 dollars per hour. I exclude the building cleaner work from this analysis, because he only performed this work once, for a couple of months. I find that employment which pays significantly less than $15 to $20 per hour is not suitable for Mr. Fernandes.¹⁰

In addition, these are not employment areas where Mr. Fernandes' informal networking skills would enable him to find employment. He would need English upgrading and job search skills to be able to effectively apply for and compete for such positions.

Mr. Fernandes has performed a variety of tasks and jobs during his lifetime. However, the Work Able report did not identify any of his previous occupations as physically suitable.

In addition to the physical restrictions, I am satisfied that Mr. Fernandes is not reasonably suited to the work of a building cleaner, as it pays substantially less than the work he primarily performed in the last seven years prior to the accident, and he only performed this work once, for three months.

Similarly, I am satisfied that, although Mr. Fernandes has experience as a casual farm labourer, he is not reasonably suited to return to this work for a number of reasons. He had not performed this work for over 10 years prior to the accident. More significantly, there is no farm work available in downtown Toronto, where he has been residing for some time.

Despite Mr. Fernandes' experience as a metre reader in Portugal, this skill is not necessarily transferrable to Canada. English language skills would reasonably be required to conduct the job search and to undergo training for this position.

Mr. Fernandes has considerable experience as a truck driver, although he has not performed that work in Canada. As stated previously, the WorkAble report did not identify truck driver (NOC 741) as physically suitable for someone with a shoulder injury. Further, I am satisfied that obtaining a truck driving position (other than on a construction site) would require job search skills, which Mr. Fernandes currently does not possess. With respect to driving a truck for a construction company, the evidence did not suggest that there were full-time positions involving driving a truck, or that Mr. Fernandes had any previous experience in that position. What little truck driving was required (to ferry workers to the site, pick up supplies) was performed by the foremen.¹¹

I find that the only work for which Mr. Fernandes is reasonably suited are the types of manual labour he has been performing since 1986, including general labourer, pipelayer, bricklayer's assistant and factory work, at a wage rate of at least $15 per hour. He obtained all these positions through informal means.

However, I find that Mr. Fernandes was continuously prevented, as a result of his chronic right arm pain, from physically performing those jobs.

I have already discussed my reasons for concluding that Mr. Fernandes is no longer capable of returning to work as an assistant bricklayer.

Mr. Fernandes has limited experience in factory work, having worked as a marble polisher at Maple Terrazzo for two years, and prior to that, as a machine operator at Massey Ferguson. The work at Maple Terrazzo involved lifting pieces of marble or granite and feeding them through the marble polisher. The lifting was continuous. Larger pieces were lifted by two workers. Mr. Fernandes has no specialized factory work experience, other than that described above. I find that the type of factory work which Mr. Fernandes is qualified to perform would involve repetitive motions involving the arms and shoulders.

General labouring on construction sites involves operating machinery, carrying cement, preparing the site, cleaning up, heavy lifting, carrying, bending, and the ability to repetitively stress the shoulder girdle.

Julio Lopez, a friend of Mr. Fernandes, who also works in construction, described other construction tasks, which such as cement finishing. This involves putting cement in the basement, then using a machine to straighten it out. The job also involves carrying cement in a wheelbarrow and pulling with a rake.

Pipelaying involves digging large trenches from the main pipeline to the house (with a machine), and smaller trenches inside the house (with a pick and a shovel), laying long plastic pipes weighing five kilograms in the trenches, fastening them, connecting them to basement pipes, and covering the trenches with gravel and cement. While the pipes themselves are not heavy, the cement work and the digging requires bending, lifting and repetitive shoulder work.

I find that Mr. Fernandes would not be able to physically perform these jobs in light of his right shoulder restrictions.

There was evidence about the existence and availability of light-duty construction work. I accept the evidence of Mr. Lopez that some construction companies are eager to offer light-duty work, in the case of work-related injuries, in order to avoid or lessen their obligations with respect to workers' compensation benefits. However, he was unequivocal that full-time permanent light duty was not available on construction sites. I accept that evidence, and I conclude that light-duty work is not available on construction sites on a full-time long-term basis.

In summary, Mr. Fernandes' right shoulder restrictions prevent him from engaging in the well-paying construction and factory work he is experienced in. His limited education and language skills prevent him from obtaining and performing all but low-paying unskilled work, which is not suitable for him in light of the substantial wage loss. I conclude that Mr. Fernandes is continuously prevented from engaging in any occupation or employment for which he is reasonably suited after August 6, 1996.

3. Quantum

Zurich submitted that the onus is on Mr. Fernandes to establish entitlement to weekly benefits at the rate of $600 per week. In its opening statement, Zurich stated that it paid benefits at the rate of $600 per week based on information provided by the masonry company which employed Mr. Fernandes during the four weeks prior to the accident. Zurich clarified that it learned from Dr. Cordeiro's clinical notes and records that Mr. Fernandes had returned to work for some period of time after the accident.

Mr. Fernandes testified that he was working for Vieirense Masonry prior to the accident with a wage rate of $18 per hour, 40 hours per week. The record of employment from Vieirense Masonry confirmed a weekly wage of $763.20 in the four weeks prior to the accident.¹² The evidence established that, apart from one failed attempt to return to work in early 1994, Mr. Fernandes did not earn any post-accident income.

I find that there is no basis to challenge the quantum of $600 per week.

4. Supplementary Medical and Rehabilitation Expenses:

Multi Rehabilitation Services Inc.

Mr. Fernandes claims $3,003.95 for treatment received from Multi Rehabilitation Services Inc. Mr. Fernandes was assessed by Dr. M. Rodrigues, a chiropractor, and participated in a functional capacity assessment conducted by a kinesiologist. He received seven chiropractic and physiotherapy treatments between October 24 and November 1, 1996 and then ceased attending.

He advised Dr. Rodrigues that he could not afford to pay for treatments and that Zurich would not pay. He resumed treatment in May and June 1997 and attended 17 more sessions.

Multi Rehabilitation's account includes $580 for the initial chiropractic and functional capacity assessment, $30 for each chiropractic treatment and $90 for each physiotherapy session.

Dr. Rodrigues diagnosed a myofascial chronic pain syndrome in the right shoulder. He tried to increase the range of motion in the right shoulder with manipulation, hot packs and one-half hour of exercise. He testified that he believed that the assessment and the treatments were reasonable and necessary, given Mr. Fernandes' right arm weakness and limited range of motion. He testified that he normally recommends a course of eight weeks therapy, but in light of the longstanding nature of Mr. Fernandes' condition, he doubled his usual recommendation to16 weeks. He would have eventually discharged Mr. Fernandes to a home or gym program, perhaps with monthly sessions.

A Medical and Rehabilitation DAC Assessment was carried out in September 1996 to assess the reasonableness of further physiotherapy and chiropractic treatment. The physical therapist was of the opinion that Mr. Fernandes did not need further physiotherapy for his arm but should be encouraged to do home exercises. Dr. Steiman, the chiropractor, was of the opinion that Mr. Fernandes' right shoulder pain was most likely due to right bicipital tendinitis which would not be improved by chiropractic treatments. Dr. Steiman recommended a comprehensive stretching and strengthening program at home.

Mr. Fernandes' right shoulder condition is chronic and he has undergone two previous programs of physiotherapy at Active Physiotherapy from August 1993 to January 1994 and again with Seiden and Associates from April to June 1994. He continued to exercise on his own until his gym membership expired. He was discharged from further treatment in light of his failure to progress. Given the length of time since the last supervised treatment program, I find that it was reasonable for Mr. Fernandes to seek out further treatment. I accept Dr. Rodrigues' opinion that up to 16 weeks of treatment was justified in light of the chronicity of Mr. Fernandes' condition. In fact, the full 16 weeks was not carried out, due to a lack of funding. I find that the treatment provided by Multi Rehabilitation Services Inc. was reasonable and necessary as a result of the 1993 accident. Mr. Fernandes is entitled to $3,003.95 in respect of this account.

Annex Physiotherapy:

Mr. Fernandes claims $1,050 for 14 physiotherapy treatments received from the Annex Physiotherapy & Rehab between November 1 and November 27, 1996.

Dr. Fernandes initially referred Mr. Fernandes to Annex Physiotherapy for treatment of cervical and lumbar myofascial injuries in March 1996. Mr. Fernandes was receiving this physiotherapy at the time of the second car accident in May 1996. The second accident exacerbated his neck, back and shoulder pain for a period of time. No clinical notes and records from Annex were submitted into evidence. The evidence indicates that the physiotherapy treatment at Annex related to Mr. Fernandes' neck and back, and not his right shoulder. I am not satisfied that the treatment was related to injuries sustained in the 1993 accident.

Although Mr. Fernandes testified that he had complained of back pain to Dr. Cordeiro, there are no records of these complaints in Dr. Cordeiro's clinical notes and records. It is possible that Mr. Fernandes may have complained about neck and back pain and that Dr. Cordeiro did not record those complaints. However, I am not satisfied that those complaints were of such frequency or of such severity to justify the onset of physiotherapy almost three years after the 1993 accident.

Mr. Fernandes is not entitled to payment of the expenses incurred at Annex Physiotherapy.

Prescription Expenses:

Mr. Fernandes submitted receipts for $1,550.25 in prescription medication expenses incurred between November 4, 1996 to February 15, 1999. Dr. Fernandes confirmed that he prescribed various pain medications and anti-inflammatory medication to Mr. Fernandes.

I am satisfied that these expenses are reasonable and necessary as a result of the 1993 accident.

Dr. Charendoff's report:

There is no evidence in the record regarding the cost of Dr. Charendoff's report and no submissions were made by Mr. Fernandes in respect of this expense. This expenses is denied under section 6 of the Schedule.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. If the parties are unable to agree on entitlement and amount of expenses, they may make written submissions on these issues to me.

September 20, 2000

M. Kaye Joachim Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 170

FSCO A97-001971

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ANTONIO FERNANDES

Applicant

and

ZURICH 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. Zurich shall pay Mr. Fernandes weekly income replacement benefits from June 15, 1996 and ongoing at the rate of $600 per week.

2. Zurich shall pay $3,003.95 for physiotherapy expenses incurred at Multi Rehabilitation.

September 20, 2000

M. Kaye Joachim Arbitrator

Date

Appendix "A"

Late Filing of Medical Report:

On the first day of hearing, Zurich sought to introduce a supplementary medical report from Dr. J. McGonigal. Mr. Fernandes objected to the introduction of this report on the basis that it had been served less than the minimum 10 days before the first day of hearing, as required by Rule 36 of the Dispute Resolution Practice Code. Zurich argued that the service of the report on Monday, April 5, 1999 was in compliance with the Rules, because the tenth day before the hearing fell on Good Friday. Rule 8 provides that when the time for doing an act under these Rules ends on a Saturday, Sunday, or a statutory holiday, the act may be done on the next day that is not a Saturday, Sunday, or a statutory holiday. Zurich argued that the next day after Good Friday which was not a Saturday, Sunday or statutory holiday was Monday April 5, 1999. Zurich also pointed out that the report did not come as a surprise to Mr. Fernandes, since it had been preceded by a request to Mr. Fernandes to attend an examination with Dr. McGonigal. Zurich subsequently withdrew that request, and instead asked Dr. McGonigal to review certain medical information and provide a supplementary opinion.

I concluded that Zurich was in breach of the Rules. Rule 8 does not shorten the 10-day period for giving notice of evidence and witnesses to be relied upon in a hearing. Rather, Rule 8 would only expand the10-day period when the tenth day for doing an act (such as serving a document) ends on a Saturday, Sunday or statutory holiday. Since hearings do not commence on Saturday, Sunday or statutory holidays, Rule 8 does not apply to the obligation to give notice 10 days prior to the hearing.

Nonetheless, I allowed Zurich to file its report, in light of the fact that Mr. Fernandes had been advised that the report was forthcoming. Additionally, I offered Mr. Fernandes the opportunity to have his medical witnesses comment on the updated report, and to submit a further medical report responding to Dr. McGonigal’s report.

Summons for Financial Records:

Mr. Fernandes issued a summons to Dr. McGonigal requiring him to bring his income tax records and financial records relating to his medical practice for the previous four years. Mr. Fernandes argued that these records would indicate the extent to which Dr. McGonigal’s income was derived from providing medical-legal reports to insurers and insurer-defendants. Mr. Fernandes argued that this information was relevant to demonstrate whether Dr. McGonigal had a bias in favour of insurers or defendants.

I quashed the summons on the basis that the documents requested were only tangentially relevant to the issues in this arbitration. The primary issue in this proceeding is Mr. Fernandes entitlement to weekly income benefits. He has been examined by many medical practitioners, at the request of his own doctors and at the request of Zurich. Some of these practitioners may provide services primarily or even exclusively to insureds or insurers. This information, which may marginally affect the weight to be given to a particular medical practitioner’s opinion, can generally be elicited through questioning of the witness. Arbitration proceedings would become unduly protracted if parties were permitted to cross-examine medical practitioners on their financial records. I concluded that the probative value of the documents did not justify the requested production.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 335, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2The Employer's Confirmation of Income from Terra Bella, where he worked as a cleaner, stated that he had worked from June 21, 1993 to July 12, 1993, a total of 3 weeks, five hours (exhibit 4, tab 11).
3. 3Dr. Cordeiro's clinical notes and records indicate that Mr. Fernandes complained of pain on the right side of his neck. Mr. Fernandes testified that initially he felt pain on the left side of his neck, which eventually resolved, but that he gradually developed pain on the right side of his neck. I find that, given the passage of time, Dr. Cordeiro's notes and records written at the time of the events are probably more accurate than Mr. Fernandes' recollection of events.
4. 4While the functional capacity evaluation carried out by Multi Rehabilitation Services Inc. demonstrated that Mr. Fernandes did have the capacity to lift and carry 15 lbs with his right arm, this action was only performed once, and is not indicative of an ability to repetitively lift and carry this weight.
5. 5(OIC A96-000037, December 12, 1996)
6. 6(OIC A-012031, September 20, 1996).
7. 7(FSCO P98-00041, February 29, 2000).
8. 8The average wage for "other elemental service occupations "is $8.00 and the average wage for "food service counter attendants and food preparers" is $8.72.
9. 9Wigle and Royal Insurance company of Canada (OIC A-012312, January 12, 1996)
10. 10I note that Mr. Fernandes' pre-accident earnings were not indexed to inflation. Thus, using his actual pre-accident earnings as a starting point for a reasonable wage undervalues the worth of his pre-accident earnings. However, I heard no evidence on the effect of inflation and therefore cannot estimate the current value of Mr. Fernandes' pre-accident earnings.
11. 11Julio Lopez, a co-worker of Mr. Fernandes, testified that there were people who drove trucks carrying stones, which were then moved into the basement on a conveyor belt. However, the evidence did not demonstrate that the job of driving was full time.
12. 12The Record of Employment confirms an hourly rate of $18 per hour and vacation pay of 6 percent. $18 per hour @ 40 hours per week equals $720 per week. An additional 6 percent for vacation pay equals $763.20 per week.