Neutral Citation: 2000 ONFSCDRS 213

FSCO A99-000640

BETWEEN:

DAVID GUTZKE

Applicant

and

DUFFERIN MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

October 2, 3, 4, and 5, 2000, in Hanover, Ontario.

Appearances:

Robert W. Garcia for Mr. Gutzke

Eric K. Grossman for Dufferin Mutual Insurance Company

The Applicant, David Gutzke, was injured in a motor vehicle accident on February 2, 1996. He applied for and received statutory accident benefits from Dufferin Mutual Insurance Company ("Dufferin"), payable under the Schedule.¹ Dufferin terminated weekly income replacement benefits on April 21, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Gutzke 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. Gutzke entitled to receive a weekly income replacement benefit from April 27, 1997, and ongoing pursuant to section 7 of the Schedule on the basis that he suffers a substantial inability to perform the essential tasks of his employment?
Is Mr. Gutzke entitled to rehabilitation benefits for the recommendations made by Rehabilitation Management Inc. claimed pursuant to paragraphs 40(5)(a) and (b) of the Schedule?
Is Dufferin liable to pay for Mr. Gutzke's lost wages resulting from his attendance at therapy and treatment?
Is Dufferin liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is Dufferin liable to pay Mr. Gutzke's expenses in respect of the arbitration?
Is Mr. Gutzke liable to pay Dufferin's expenses in respect of the arbitration?

Mr. Gutzke is entitled to receive a weekly income replacement benefit from April 27, 1997, and ongoing.
Mr. Gutzke is entitled to rehabilitation benefits as outlined in the report of Rehabilitation Management Inc.
Dufferin is not required to pay for Mr. Gutzke's lost wages resulting from attendance at therapy or treatment.
Dufferin is liable to pay a special award.
The issue of expenses is deferred.

Background:

David Gutzke was working as a mason's apprentice at the time of his motor vehicle accident on February 2, 1996. In addition to his work as a mason, Mr. Gutzke was an active person, having built his own house, and being involved in recreational dancing.

Although he was a resident of Neustadt, his employment with Doug's masonry of Neustadt took him to a variety of worksites including, at the time of the accident, Cambridge, Ontario.

In the accident, Mr. Gutzke's GMC "Jimmy" was struck from behind at an intersection in the Kitchener area. There is no dispute that there was serious damage to the vehicle, which was written off by the Insurer. Mr. Gutzke was lucky enough to survive without any obvious serious injuries. Indeed, he felt well enough to be able to continue to join his planned line-dancing excursion to Michigan that evening.

On February 5, 1996, some three days after the accident, Mr. Gutzke attended at the Urgent Care Clinic in Kitchener with complaints of a sore neck and elbow. He attended at the same clinic some three more times in February and March, and received prescription for pain relief. During this time he continued his work as a masonry apprentice.

In April Mr. Gutzke began an "in school" portion of his apprenticeship programme at Mohawk College in Hamilton. Throughout this time he continued to take medication for pain relief and began some physiotherapy treatment. He also continued to consult with his own family physician, Dr. Dworkin.

Following the completion of the classroom portion of his apprenticeship, Mr. Gutzke did not return to his masonry work until September, 1996, when he began to work part time, with modified duties.

From that time until the winter of 2000, Mr. Gutzke continued to work in the masonry trade, albeit, frequently with restrictions, subject to a pattern of normal seasonal layoffs. During this period he continued to take pain and other medications, and explored various forms of treatment such as physiotherapy, massage and acupuncture.

During this period, Mr. Gutzke continued to complain about pain, dizziness and headaches, but he continued to be actively involved in the workforce, and continued to earn a respectable wage from his masonry work.

A complicating factor in the evolution of this case has been Mr. Gutzke's conflicting relationship with some of his treatment providers, and his own difficulty in reconciling himself to personal limitations.

The key issue in this case is whether Mr. Gutzke was disabled, within the meaning of the Schedule, due to his motor vehicle accident on February 2, 1996, notwithstanding the fact that he continued to be actively engaged in the workforce for some four years post-accident.

Section 7(1) of the Schedule provides:

An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

To qualify for income replacement benefits, Mr. Gutzke has the onus of proving, on the balance, that he was disabled, the disability was due to the accident, and it prevented him from performing the essential tasks of his employment.

Disability:

The UrgentCare walk-in clinic records of February 5 and February 22, 1996 document sore neck and sore back as Mr. Gutzke's complaints when he first attended for medical treatment following the accident.

In a June 3, 1996 "signback letter" addressed to Dr. Dworkin, Mr. Gutzke's family physician, Penny Sargent of Total Rehabilitation Management, the organization appointed by the Insurer to coordinate Mr. Gutzke's rehabilitation, confirmed that the Applicant was diagnosed with minor whiplash and lumbar strain.

Dr. Dworkin issued a Certificate of Health Practitioner on July 25, 1996. She concluded, after a summary of her examination results, that "...his symptoms are not in keeping with his physical exam-would prefer to delay return to work until CT scan is obtained."

Mr. Gutzke was assessed by Link With Work in August and September 1996, where he underwent a Functional Abilities Evaluation or FAE as well as an orthopaedic assessment, at the request of the Insurer.

The "Final Summary" of the report concluded that he had suffered a "mild injury to his neck and lower back" and he "...appears capable of meeting the physical demands that could be present as a brick and stone mason..." Dr. Stewart, the examining orthopod, although he apparently concurred with the summary diagnosis of soft tissue injury to the neck and lumbar strain, concluded that:

(H)e has had a myofascial injury to his neck and lower back. His lower back appears to be coming along quite nicely. The most significant problem is now his neck pain.

Dr. Stewart went on to further conclude that: "It appears that this gentleman is not able to perform the heavy work required of a masonry apprentice at the present time."

A further Assessment of Disability form issued by Dr. Dworkin on November 22, 1996 indicated:

Mr. Gutzke has returned to work but under modified conditions. He still has exacerbation of his pain (back, neck) & burning sensation across his upper back. Limitations are:

working from knee>chest only

can not work in confined positions > 1 hr.

No lifting > 30 pounds

No using the wheelbarrow

A referral to Dr. Teasell, a physiatrist in London, on February 11, 1997 revealed that Mr. Gutzke was still complaining of right shoulder neck and lower back pain. Dr. Teasell concluded, following his examination of the Applicant:

This gentleman is suffering from soft tissue strain to the right, upper thoracic posterior neck region as well as the left lower back area. The key to managing his pain in my opinion is proper pacing of activities something that he really struggles with. He is the type of individual who needs to be active all the time and hence I suspect is not pacing his activities well. As well, the emotional sequelae of not being able to (be) highly active and busy is also aggravating pain. In addition, I suspect that his work is problematic in that it requires a lot of heavy physical type labour and getting him back into that on a regular consistent basis is going to be difficult, although possible, as demonstrated from his ability to work until November.

On April 9, 1997, Mr. Gutzke was examined by Dr. E. J. White of Guelph, as part of a disability DAC. Dr. White concluded:

I believe Mr. Gutzke sustained acute soft tissue strain injuries to his neck and lower back with his motor vehicle accident of February 2, 1996.

His symptoms were consistent with the soft tissue strain injuries he sustained. The objective clinical findings on general musculoskeletal examination at this time are essentially normal and unremarkable. It is not to say that he may not have some symptoms which are genuine.

Dr. White further opined that: "there would be no contraindication to, nor is there any substantial musculoskeletal impairment that would prevent him from returning to any employment for which he is reasonably trained."

On May 29, 1998, Dr. Anne Lowe, Mr. Gutzke's new family physician wrote to Total Rehabilitation Management Inc.:

I am the physician for Mr. David Gutzke. He is experiencing pain and muscle spasm in his neck and back due to injuries sustained in the motor vehicle accident. He has muscle spasm of moderate degree in the paraspinal muscles and limitation of cervical movements. He has limitation of lumbrosacral movements. Straight leg movements are negative. He has undergone many physiotherapy treatments.

Dr. Lowe subsequently referred the Applicant to Dr. John Lochead, a rheumatologist who concluded:

This gentleman is left with significant musculoskeletal residua, secondary to a motor vehicle accident that occurred two and a half years ago. Although he has been able to return to work, he is not in his pre-accident state. I have discontinued the Ranitidine, as I think that the Cytitec 200 mcg., t.i.d. is adequate cytoprotection for the Volaren Rapide 100 mg. b.i.d. I think that the time for active physiotherapy has ceased. The patient should be encouraged to seek out his own exercise program, either in aquafit or a gym or activity program that would fit into his schedule.

I think that the time has come to desist from further consultation, unless the patient is unable to work, in which case I would refer him to a chronic pain management centre.

On February 14, 1999, Dr. Paula Dimeck, a psychologist with Kinetex, reported on Mr. Gutzke's status:

Mr. Gutzke presents as a very conscientious, hard working individual whose primary method of dealing with emotional or physical pain is to ignore it. He uses medication to help him in this process of "blocking out," and in fact, becomes very anxious and uncomfortable when he is pushed to get in touch with what he is feeling. For example, Mr. Gutzke reports that he must keep himself constantly busy throughout the day, because he "gets antsy" if he has too much time to think. He likes to keep himself busy right up until bedtime and then take medication to "knock himself right out."

Dr. Dimeck continued:

A related issue is the very heavy labouring work that Mr. Gutzke is involved in. He reports that the only way he can get through a day at work is to use heavy doses of medication, to turn himself into Mr. Machine, block out the pain and "ram" his way through.

On September 3, 1999, Dr. Teasell once again saw Mr. Gutzke and summarized his complaints:

He notes that since then he has been getting worse. His job entails working in a lot of masonry, lifting heavy type stuff and that can sometimes cause his left hand to go numb. He is now getting low back pain to his right leg. Sleep is not as good. He has been hurting more since he has been back to work in the spring, as his job is quite seasonal.

Dr. Teasell concluded:

Overall, I don't think this gentleman's condition has changed radically from when I saw him two years ago. He still has right lower back pain which appears to be mechanical in nature. Even though he is getting right leg pain there is no evidence of any ongoing sciatica per se... He doesn't have a lot of insight into the need to pace himself well. He seems to have a very strong need to remain highly active which overrides pain considerations and needs to be continually addressed by himself.

On November 25, 1999, Mr. Gutzke attended with Dr. A. I. Margulies, a psychiatrist, for an insurer's examination. Dr. Margulies concurred that Mr. Gutzke had initially sustained soft tissue injuries from the accident, but developed a situation where "... his pain became the object of his attention which, in turn, increased his perception of pain." He concluded that Mr. Gutzke continued to experience an adjustment disorder with depressed mood and that "(T)his has also played a major role in his subjective perception of pain as a function of emotional state and, diagnostically, reflective of a co-morbid pain disorder with psychological factors (and possibly an underlying medical condition)."

Mr. Gutzke testified at the hearing. He spoke of the accident and its effects on his life and his ability to work at his profession. I found the Applicant to be an intelligent and credible witness, with a good recall of the events following the motor vehicle accident.

Mr. Gutzke's testimony, taken with the reports of treating medical practitioners and assessors leads inexorably to the conclusion that he suffered an impairment from the accident, namely soft tissue injury to the neck and back, with resulting pain.

As time passed, the focus of Mr. Gutzke's complaints shifted from the specific physical injury to the generalized pain that he associated with the injury, a shift that is often associated with chronic pain complaints.

Mr. Gutzke's evidence, and the medical reports also support the conclusion that in the years between 1996 and 2000, Mr. Gutzke complained consistently of his injuries and the resulting pain, and took medications to moderate the effect of the pain and discomfort on his ability to lead a normal life.

The Insurer called Dr. Goldstein, a family physician, who practices in the area of sports medicine and insurance work to comment on Mr. Gutzke's condition. Dr. Goldstein's adversarial approach and irrelevant references to Mr. Gutzke's previous treatments for work-related respiratory problems seriously weakened his credibility. I give little credence to Dr. Goldstein's opinions.

The balance of the Insurer's medical evidence, produced through Dr. Margulies' report, the testimony of Dr. Dworkin, and various other reports is not inconsistent with the view put forward by the Applicant: that he suffered soft tissue injury from the accident which developed, over time, into debilitating pain that impacted on his ability to carry on working.

On the balance, I prefer Dr. Teasell's reports, as those of a treating consultant and specialist who saw the Applicant over an extended period of time and accept his opinions on Mr. Gutzke's disabilities.

I find that, following the accident, Mr. Gutzke suffered soft tissue injuries to his lower back and neck. I find as well that subsequently, these injuries became associated with a pain condition, that in the words of Dr. Margulies, "... became the object of his attention which, in turn, increased his perception of pain."

The evidence is that, with the possible exception of some minor ailments, and an episode in which he developed some sensitivity to the dust and pollution in an auto body shop environment, Mr. Gutzke was strong and functional prior to the accident.

Section (1) of the Schedule defines "impairment" as: "a loss or abnormality of psychological physiological or anatomical structure or function; (deficience)."

The Canadian Oxford Dictionary defines "impair" as follows:

v.tr. damage or weaken. Impairment n.[Middle English empeire from Old French empeirer (as in Late Latin perjorare from Latin pejor worse)

I find that Mr. Gutzke's soft tissue injuries and resulting pain and discomfort comprised damage, weakening or worsening of his condition. I find as well that this constituted an impairment as defined by the Schedule.

Causation:

While there is little doubt that Mr. Gutzke's soft tissue injuries arose from the accident, the relationship of the pain that lead to his final break with the masonry trade is less direct.

His work involved heavy lifting and much physical exertion. He engaged in this heavy manual labour to varying degrees throughout the period that preceded his ultimate work stoppage. As a potential cause of pain, the physical strain of the bricklayer was far closer in time to his work stoppage than the motor vehicle accident. His pain worsened with work, and became incapacitating after a long day on the job. As Dr. Dimeck noted:

He reports that the only way he can get through a day at work is to use heavy doses of medication, to turn himself into "Mr. Machine," block out the pain, and "ram" his way through.

There is no question that his work aggravated his pain. Indeed he testified that during periods of layoff, his disability lessened. However, he also testified that prior to the accident, he was able to work at his profession, build his own house, line dance, and do heavy equipment and farm work on the side without any significant pain component. But for the accident, this would likely have continued.

I note as well, that I heard no evidence of workplace accidents, or other intervening acts which would suggest that a workplace injury precipitated Mr. Gutzke's pain condition.

Lord Dunedin in Leyland Shipping Company Limited v. Norwich Union Fire Insurance Society ([1918] A.C. 350, House of Lords), examined the concept of proximate cause in insurance matters in a case involving a torpedoed ship which later sank in a storm.

Yet I think the case turns on a pure question of fact to be determined by common-sense principles. What was the cause of the loss of the ship? I do not think the ordinary man would have any difficulty in answering she was lost because she was torpedoed..

Although the severe pain arising from heavy work may have been the immediate cause of Mr. Gutzke's work stoppage, the proximate cause was the injuries suffered in the motor vehicle accident, which the evidence suggests, precipitated the pain complaints.

Arbitrators have found consistently that the motor vehicle accident need not be the sole cause of the injuries and the resulting disability. In most cases there is at least some interaction with pre-existing conditions, or other factors.

As Arbitrator Blackman stated in Hearn and Allianz Insurance Company of Canada (FSCO A97-001667, August 17, 1999):

This Commission has repeatedly held that the accident need not be the only cause of the subsequent injuries, but rather, must significantly or materially contribute to the Applicant's impairment.

Thus, provided that the accident significantly or materially contributed to a condition, an arbitrator may find that an insured sustained an impairment as a result of an accident as provided for in section 7(1) of the Schedule.

Although there was clearly a relationship between the high demands of Mr. Gutzke's work and the claimed disability, I accept Mr. Gutzke's assertion that he would have been able to continue with his chosen career but for the intervention of the accident.

I find that, given the nature of the essential tasks which Mr. Gutzke had to perform as a masonry apprentice, his tenacity and his tolerance for hard work, it was foreseeable, and indeed probable, that there would be a deleterious interaction between his initial injuries and his continued work.

I find that Mr. Gutzke's impairments, including the debilitating pain, were consequential of, and resulted from the motor vehicle accident of February 2, 1996.

Essential Tasks:

Although Mr. Gutzke was actively involved in a variety of work, from farm labour to heavy equipment operation and house building, there is no question that his principal occupation was as an apprentice mason. This occupation took up most of his working time and provided the source of most of his income, both before and after the accident.

Mr. Gutzke testified about the physical challenges of working as a masonry apprentice. In his position at Doug’s Masonry he worked mostly in industrial blocklaying, rather than residential brickwork. In addition to picking up and laying eight to twelve-inch concrete blocks, he prepared the worksite, erected scaffolding, mixed mortar and water, pushed laden wheelbarrows and operated equipment. It was repetitive, brutal work involving lifting in excess of 75 pounds at a time, often at arm’s length and at various heights.

The Employer's Confirmation of Income form listed simply the following description:

Set-up & tear down of scaffolding, also general requirements of bricklayer. Job is very physically demanding. Includes heavy lifting bending & twisting.

On August 12, 1996, Judith Kennedy of Total Rehabilitation Management Inc. produced a job analysis for the Insurer which documented in detail Mr. Gutzke’s job requirements. In essence it agrees with and corroborates Mr. Gutzke’s testimony about his own job requirements. While it does not specifically rate the level of effort required, it leaves the distinct impression that Mr. Gutzke was engaged in heavy, physically challenging work.

I find that Mr. Gutzke's essential tasks were those of a masonry apprentice and blocklayer. His work required strength and endurance, as well as skill and attention. It constitutes a physically demanding occupation that demands the ability to perform a wide variety of tasks efficiently and safely.

Ability to perform essential tasks:

Mr. Gutzke went back to work soon after the accident. There is no question that he could perform at least some of the tasks normally assigned to an apprentice bricklayer. He admits working, and indeed received a level of remuneration from his employer that was not radically different from his situation pre-accident.

Mr. Gutzke submits that, although he worked, he was only able to do so by reason of accommodation by his employer, and by reason of increasing levels of medication that he took to dull the effect of his continuing pain. Effectively, he could not perform his essential tasks without the intervention of pain relief medication, nor without creating the condition of severe and chronic pain that ultimately led him to stop working in the masonry sector.

The Insurer submits that, even if Mr. Gutzke suffered an impairment arising from the accident, the fact that he was able to complete enough of his essential tasks to remain employed with Doug's Masonry over a substantial period of time means that he was not disabled as a result of the accident and did not suffer a substantial inability to perform the essential tasks of his employment.

In its letter of January 15, 1997, notifying Mr. Gutzke of the cessation of income replacement benefits, Dufferin relied upon the Link with Work final summary to conclude that "... you appeared capable of meeting the demands of your pre-injury job duties as an apprentice bricklayer and that you could perform medium to heavy work on a full-time basis... "

Dr. P.G. Stewart, the only physician participating in the Link With Work examination concluded:

It appears that this gentleman is not able to perform the heavy work required of a masonry apprentice, at the present time. I think that, at least for the next six weeks, he should have a modified programme and I think this could be well-instrumented by his family doctor, and apparently this is going to happen.

I accept Mr. Gutzke's evidence that the performance of his blocklaying work created a level of pain that he found unacceptable. It is consistent with the majority of the medical reports, and the chronology of his complaints.

Mr. Gutzke consistently represented to treatment providers and assessors throughout the years following the accident that he was only able to perform his work as a mason at a great personal cost in pain and suffering. The only question to be decided is whether such conditions related to the performance of the work, and, as such, constitute a substantial inability to perform the essential tasks of his employment as provided in section 7(1)1. of the Schedule.

Neither the Schedule nor the Insurance Act defines the phrase "substantial inability." Over the years, however, arbitrators have variously defined this to mean a sizable, considerable or significant inability. As Arbitrator Palmer in Steele and Zurich Insurance Company (OIC A-001024, December 3, 1992) noted: "It is not some inability to perform key tasks, but a sizable inability which is compensable."

The analysis of "substantial inability" involves consideration of a variety of factors by the arbitrator. As Arbitrator Bayevsky observed in Gulevski and Pilot Insurance Company (FSCO A97-001565, October 29, 1999):

In my view, the issue of "substantial inability" must take into account not only the specific tasks of the job, but the number of the hours over which those tasks were performed. The amount of income an insured earns both before and after the accident may also be relevant. Also, in my view, an employer’s willingness to accommodate an insured’s return to work is only significant to the extent that it enables the insured to substantially perform his or her pre-accident tasks.

Mr. Gutzke suggests that, notwithstanding the fact that he performed many of his essential tasks over a period of time, he was, in fact, on any dispassionate evaluation, in a state where the performance of those tasks was deleterious, and only possible through high levels of medication and degradation of his quality of life.

The courts have dealt with similar issues in the context of earlier accident benefit schemes. Although Schedule "E" test of the 1970s was more rigorous than that of the Statutory Accident Benefits Schedule applicable to Mr. Gutzke, the case law is instructive about the interaction between disability and work.

In Foden V. Co-operator's Insurance Association (1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728) Reid J. summarized much of the case law with regard to a return to work notwithstanding an ongoing disability, in the context of a "total disability" requirement in the policy or legislation. He further commented:

These decisions provide an impressive underpinning for the proposition that if a person is unable to perform a substantial portion of his work, or an essential or material aspect of it, in general, be able to perform his task to the standard of a reasonable employer, that person is disabled.

Mr. Gutzke’s testimony was that he ultimately stopped work because the pain became too much, and interfered both with his ability to perform the work efficiently, and to lead a normal life. His complaint was consistent and was corroborated by the comments of his treatment providers over the period between his accident and his decision to finally cease trying to perform the work of a masonry apprentice in the winter of 2000.

Pain, in itself is not compensable under the Schedule. It is, however, recognized as a factor in disability, even if it is not in tandem with an underlying physical impairment. As Arbitrator Blackman observed in Lopez and State Farm Mutual Automobile Insurance Company, (OIC A97-000378, June 16, 1998):

The test that I am obliged to consider is that which is set out in the Schedule. I agree with Arbitrator Makepeace that under this particular statutory accident benefit scheme, "an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment.

Although over three years elapsed between the accident and the end of Mr. Gutzke's career as a masonry apprentice, it should be remembered that only a limited portion of that time was spent in his full duties as a blocklayer.

The records of Dr. Dworkin, and Mr. Gutzke's testimony show that his return to work at first was to modified tasks, with restrictions on what he could do. As well, he had breaks for classroom portions of his apprenticeship, and for normal winter layoffs. Throughout this entire period he complained of pain and discomfort and sought treatment without satisfaction.

He continued to work, because, as he told Dr. Dimeck, he "...expressed fears that he would not be able to manage financially earning less money and so he had no choice but to carry on with this line of work."

Mr. Gutzke testified that he was able to keep working through the use of large amounts of pain medication. References to this also appear in Dr. Dimeck's and Dr. Dworkin's notes.

Mr. Gutzke testified that the level of such medication was such that he was stopped by the police on suspicion of driving while impaired, even though he was a non-drinker. Dr. Lowe, in her testimony acknowledged being contacted by a representative of the OPP in this regard.

Jurisprudence at the Commission has long supported the notion that an analysis of a person's ability to perform his or her essential tasks includes a consideration of whether they are able to perform these tasks in an efficient and effective manner.

As Arbitrator Naylor noted in Flemming and Wawanesa Mutual Insurance, (OIC A-000406, April 28, 1992):

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

Mr. Gutzke's family physician, Dr. Teasell, and many of the examining physicians, identified his heavy work as problematic. Dr. Dworkin sent him back to work with restrictions.

Mr. Gutzke testified that he used up his supply of "banked" days to provide an opportunity to recover from the strains of working. He also testified that his co-workers began to resent his lighter duties, and that he could not continue to work with modified duties.

Dr. Dworkin's list of activities that Mr. Gutzke could not perform upon his return to work includes many of the same activities described in the workplace assessment. Even though he returned to the workplace, he, at least at first, did not return to his own duties.

When he attempted to do full duties, he found that he had to take extra painkillers to keep going, and needed to draw on more of his "rainy day bank" to take time off to recover. Mr. Gutzke also testified that his boss had expressed increasing dissatisfaction with the quality of his work.

His shortfall in workplace capacity is underlined by the experience of the Toronto job. Mr. Gutzke testified that he was unable to last more than three days at full duties, notwithstanding the inducement of a higher rate of pay.

In spite of loading up with painkillers and "ramming" through, it is evident that, even when Mr. Gutzke turned up at his worksite, he was unable to perform his full day's work efficiently or in a remunerative manner.

The Insurer has argued at length that Mr. Gutzke's presence at various worksites, working in masonry, after the motor vehicle accident, meant that he was in fact able to perform his essential tasks.

However, I accept Mr. Gutzke's evidence, which, taken in conjunction with the medical reports, indicates to me that, although he was able to perform elements of the job of a masonry apprentice over an extended time, he was unable to perform all the essential tasks of his pre-accident employment in the period between the accident and his withdrawal from masonry work in the winter of 2000.

In so finding, I adopt the comments of Reid J. in Foden v. Co-operator's (supra):

No one, in my opinion, should be discouraged from attempting to take up their former work, or any work, out of fear that the attempt might be held against him. Far from necessarily proving that an insured has the capacity to perform his task, it may, as in my opinion it does here, prove the reverse. There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.

I find that Mr. Gutzke has satisfied the onus of proving, on the balance, that he suffered from an impairment arising from the accident, and that this impairment prevented him from undertaking the essential tasks of his pre-accident employment as a masonry apprentice.

I find, therefore, that Mr. Gutzke is entitled to receive a weekly income replacement benefit from April 27, 1998 and ongoing, pursuant to section 7 of the Schedule, subject to adjustment to account for his post-accident income.

Lost wages due to attendance at therapy and treatment:

Mr. Gutzke has claimed compensation from the Insurer for time spent attending treatment and assessments. Associated with this is a claim for reimbursement of" banked hours" used by Mr. Gutzke in attending treatment and in pacing his work duties.

It is trite law that statutory accident benefits are a creation of statute, and an insurance company's obligations to an insured in this regard are framed by the legislation, and the contract of insurance.

I am aware of no provision within the Insurance Act or the Schedule which specifically provides for reimbursement of wages lost due to examinations. The Schedule makes allowance for a great variety of claims but specifically omits such a provision.

This omission may be due to the fact that time spent at treatment can be compensated to some degree by section 7(1) of the Schedule, where there is a finding that an insured has suffered a substantial inability to perform the essential tasks of his or her employment, and such treatment occurred during the period of disability.

I have found that Mr. Gutzke was disabled from April 27, 1997, and find, consequentially, that Mr. Gutzke’s claim for lost income for that period is moot. Since he is entitled to income replacement benefits for that period, he is already compensated for loss of income due to the accident, whether due to days spent in treatment or otherwise. To separately compensate him for days of treatment would be to permit a double recovery that is not contemplated by the Schedule.

"Rainy Day" payments:

Mr. Gutzke submitted that a portion of his post-accident income involved the use of "banked hours." These were banked payments for time worked in excess of normal requirements that could be drawn upon to provide an income on days when he could not work for whatever reason. Mr. Gutzke testified that he had over 200 hours banked, which he used, post-accident, to supplement his income. He stated that the drawing-down of this bank of hours made his earnings appear to be full time, when he, in fact, he was drawing on the previous year’s earnings.

No representative from Doug’s Masonry was called by either party to clarify the arrangements made with regard to Mr. Gutzke’s rainy day fund. An "employee earning record," apparently relating to the Applicant’s work was submitted as an exhibit.

The document is a ledger accounting for employee earnings and remittances to the government made on behalf of Mr. Gutzke. It also lists a number which seems to correlate to the hours worked by Mr. Gutzke in any pay period, with 44 hours about the average. The entries for October and November 1996 show two figures in the space normally occupied by the number "44."

Mr. Gutzke submits that this is some evidence that he was drawing down his "rainy day fund" of banked hours to receive income during this period. It is certainly consistent with his evidence and provides some corroboration of his claim in the absence of the testimony of his employer. Subsection 10(3) of the Schedule provides that:

The insured may deduct from the amount of the weekly income replacement benefits payable to an insured person a percentage of the net income received by the insured person in respect of any employment subsequent to the accident.

If there was a "rainy day fund," the question must then be asked whether a withdrawal from such a fund was income from employment, subsequent to the accident for the purposes of the Schedule.

Mr. Gutzke has testified that "overtime" hours were banked to be drawn down at a later time, if so desired. There are some obvious reasons that such an arrangement might be attractive to both an employer and an employee, mostly having to do with the immediate tax implications and the provision of some sort of income security for an employee, and, as well, obviating the need for an employer to pay strict attention to employment standards regulations affecting overtime employment. Small businesses are known to make unconventional compensation arrangements with employees. This may well have been such an arrangement.

For whatever reason the scheme was created, the uncontradicted evidence of Mr. Gutzke is that such a scheme existed. He testified that he had some 200 hours banked from before the accident. Patently, the employment that generated these banked hours took place before the accident. I find that wage amounts attributed to a drawing down of Mr. Gutzke’s "rainy day fund" were wages attributable to employment prior to the motor vehicle accident, even though paid subsequent to the accident.

Section 75 of the Schedule provides that an insurer may deduct collateral benefits from any amount payable to an insured, including weekly income replacement benefits. The section includes payments for loss of income received by an insured, whether received or not, but excludes unemployment benefits or a sick leave plan that was not accessed by an applicant as well as a worker’s compensation plan under which an applicant elected to bring an action.

If the Insurer is alleging that it may deduct payments covered by this fund, then it has the onus of proving that they, indeed, are payments covered by Section 75 of the Schedule.

I have already found that the "rainy day fund" constituted payment for work performed prior to the accident. Presumably, if Mr. Gutzke left the employ of Doug's Masonry, the amounts in the fund would be payable to Mr. Gutzke in any event. Use of the banked time was not contingent on illness or accident. It was not a conventional sick leave plan, even though it could have the effect of cushioning the effect of an absence of work due to sickness.

If Mr. Gutzke had been paid for pre-accident overtime in cash and deposited the monies into a chartered bank, there could be no argument that withdrawals, post-accident, constituted income for the purposes of the Schedule. In the present case, Mr. Gutzke banked his earned hours, which had a monetary value with his employer, and withdrew them in time of need. It was clearly a withdrawal of a capital amount that took place in the period after the accident, however it was treated for income tax purposes.

As Arbitrator Baltman observed in Glionna and Allstate Insurance Company of Canada (FSCO A97-001498, July 14, 1999), a decision involving the issue of whether the payment of banked sick leave constituted income at the time of pay-out:

I was more persuaded by Allstate's point that if Mrs. Glionna is correct, a most peculiar result will befall an insured person who, in a similar employment situation, was seriously injured rather than killed in an accident. If following the accident he opted to retire and cash his sick bank, the Insurer would be entitled under Section 10 of the Schedule, to consider that payment post-accident income and deduct it from any income replacement benefit payable. I believe that the legislators did not intend such a result, but instead anticipated that income would be recognized in connection with the employment process itself, and not as an isolated payment made on a remote date.

I find that the Insurer has not met the onus of proving that any banked payments from the "rainy day fund" constituted a valid deduction pursuant to Section 75 of the Schedule. Whatever the banked time was, I find that it accrued prior to the accident and was not a collateral benefit that the Insurer is entitled to deduct.

However, having examined the employment records, and Mr. Gutzke's testimony, I am unable to determine with any accuracy the amounts of Mr. Gutzke's post-accident income that were made up of banked payments. Should the parties not be able to agree upon an amount within 30 days of the issuance of this decision, either party may apply to me for a determination of this amount.

Rehabilitation Benefits:

Mr. Gutzke has claimed entitlement to rehabilitation benefits based on the recommendations made by Rehabilitation Management Inc.

Rehabilitation Management Inc. was involved with Mr. Guzke at the request of the Insurer. Their assessor reviewed the medical brief supplied by the Insurer and met with the Applicant on December 21, 1998. Following a review and an analysis of Mr. Gutzke's case, Rehabilitation Management Inc. developed two rehabilitation goals:

To restore Mr. Gutzke's level of emotional well-being, enabling participation in day-to-day roles and activities...
The development of a vocational exploration plan and a recommended vocational re-direction.

In essence, Mr. Gutzke is claiming an entitlement to vocational retraining, as well as assistance in rebuilding his personal life, and in the process bringing Dufferin's treatment of its rehabilitation obligation into question.

Subsection 40(1) of the Schedule provides:

If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) to reduce or eliminate the effects of any disability resulting from the impairment; and

(b) to facilitate the insured person’s reintegration into his or her family, the labour market and the rest of society.

Subsection 40(5) further delineates the types of rehabilitation that may be funded by an insurer and includes: "... vocational rehabilitation, including employment counselling, vocational assessments, vocational training, academic training..." Subsection 40(7) provides that "... the insurer shall pay an expense under subsection (5) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act."

I find that the measures proposed by Rehabilitation Management Inc. come within the definition of rehabilitation benefits contained in Section 40 of the Schedule.

Dufferin Mutual referred Mr. Gutzke to Total Rehabilitation Management on May 21, 1996, "... for the purpose of providing rehabilitation services." Total Rehabilitation, in turn retained the services of Penny Sargent, a nurse, as case manager.

Ms. Sargent interviewed Mr. Gutzke by telephone, followed by a home visit on May 28, 1996. She noted in her first report:

In the two weeks prior to our meeting, he had attended the Career Change Program at Canada Employment and feels certain that he cannot continue in his present field. He also went to Waterloo on May 27, 1996 and obtained as much information on "tool and Die Maker" course that he could and is expecting more by mail. He is certain that the outside heavy labour, frequently in cool and damp/wet weather is now not appropriate for him.

Mr. Gutzke was clearly telling the Insurer, as early as 1996, that he would not be able to perform his essential tasks as a masonry apprentice, and that he would require training to reintegrate into the workforce.

Ms. Sargent continued:

When advised that "retraining" was only one option and not the first option considered, he was visibly disappointed. The need to establish his physical status was pointed out as our first consideration.

Ms. Sargent also wrote a "signback letter" addressed to Dr. Dworkin, which was dated June 3, 1996. In the letter, Ms. Sargent states:

We discussed Dave’s desire to obtain retraining which he also addressed with you. Our rehabilitation goal is to return Dave to the functional level of carrying out his job at Doug’s Masonry.

A second letter to Dr. Dworkin, dated June 26, 1996, continued on the same theme.

Dave expressed a great deal of concern regarding his employer's hesitancy to have him return to work after his injury. He feels also that if he does return he is more likely to face future lay-off. As you know, Dave feels that he is being advised that retraining for another field is indicated at this time.

Ms. Sargent went on to discuss Mr. Gutzke's employment situation and added:

A detailed job analysis will be done to document the physical demands of Dave's job- thus outlining our rehabilitation goal. A copy, when available, will be forwarded to your attention.

It is clear that Ms. Sargent defined Dufferin's rehabilitation obligations in the context of Mr. Gutzke’s existing employment, and was not prepared to consider a retraining component, even some five months post-accident.

I have found that Mr. Gutzke’s job requirements were quite physically demanding. It was apparent to Mr. Gutzke, after attempting to work with his injuries, that he would have trouble fully performing his job on a sustained basis. His concerns were echoed by Dr. Dworkin, Dr. Teasell, and indeed, by Dr. Stewart at the FAE. The roadmap for rehabilitation, however, had clearly been created by the Insurer, and it led only to a return to masonry work.

I do not doubt that Mr. Gutzke could have performed innumerable jobs following the accident, but I suspect that a return to his pre-accident work, while still suffering from serious pain, was an invitation to worsening disability. I note that Dufferin appears to have decided against retraining at a time when it did not even possess a detailed summary of his workplace tasks.

I have found that Mr. Gutzke is disabled from performing the essential tasks of a masonry apprentice. I find that Dufferin did not discharge its obligations under Section 40 of the Schedule by attempting to return him to his original work, notwithstanding evidence that he had difficulties meeting its demands.

Given the high level of functioning required for the work, and the ongoing difficulties experienced by Mr. Gutzke, a consideration of retraining would have been a "reasonable measure" that Dufferin should have considered, and I so find.

Likewise, I find that the other measures outlined in the Rehabilitation Management report of January 26, 1999, for psychological counselling, and psychovocational assessment were reasonably necessary to "...facilitate the insured person's reintegration into his or her family, the labour market and the rest of society."

I find, therefore, that Mr. Gutzke is entitled to rehabilitation benefits for the recommendations made by Rehabilitation Management Inc.

Special Award:

Subsection 282 (10) of the Insurance Act provides:

If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

If Dufferin unreasonably withheld any benefits from Mr. Gutzke, then I am under an obligation to order a special award against it. Once the finding of unreasonableness is made, my only discretion is with regard to the amount of the award.

Dufferin could well have been perplexed about some aspects of Mr. Gutzke's claim for income replacement benefits. There is something counter-intuitive about a claim for disability benefits at a time when an applicant appears, on the face of the claim, to be working and earning an equivalent income to his pre-accident levels. I find, however, that there was evidence available to Dufferin that could have explained Mr. Gutzke's determination to work, regardless of the consequences, and point to the ultimate consequences of his continued work as a mason.

I also note that Dufferin, through its case manager, Penny Sargent, played a significant role in defining a return to masonry work as the only option available to Mr. Gutzke.

Dufferin relied on the opinions expressed by the multi-disciplinary assessment performed by Link With Work that Mr. Gutzke could return to his work, before it stopped his benefits. The summary conclusion of the report was supported, to some degree, by the speculative comments of his family physician, Dr. Dworkin, who anticipated a recovery and return to work.

As noted previously, however, the report of the only physician involved in the multi-disciplinary assessment, Dr. Stewart, differed substantially from the summary report. The only objective conclusion contained in Dr. Stewart's report was that Mr Gutzke was "... not able to perform the heavy work of a masonry apprentice at the present time." The author of the report summary clearly erred in his or her restatement, an error that should have been readily noticeable upon a reading of the medical portions of the report.

Dufferin relied as well, upon the fact that Mr. Gutzke was engaged in seasonal employment, and would not usually have worked in the winter, as the secondary reason for its notice of termination.

I find that, notwithstanding the unusual aspects of Mr. Gutzke's case, it was not reasonable for Dufferin to cease paying income replacement benefits to him for the reasons outlined in its letter of January 15, 1997.

Dufferin, in effect, misrepresented the meaning of Dr. Stewart's report by implying that he concluded that Mr. Gutzke was fit to perform the essential tasks of his employment at the time of his assessment. If it meant to rely on the prognostications contained in the report, then it should have put them to the test by a further examination by Dr. Stewart, closer to the time it actually ceased paying benefits.

I find that it was not reasonable to rely on the forecasts of fitness contained in the report, without some evidence that the level of fitness for work foreseen in the report was actually achieved by Mr. Gutzke.

That the second ground for the cessation of payments was shaky was recognized in the termination letter. As Dufferin admits in its letter:

There is no section of the Statutory Accident Benefit Schedule which addresses the situation where a claimant is off work due to a seasonal layoff. Clearly, and in light of the above, it would appear that you do not qualify for further benefits beyond the commencement of your lay off.

The Schedule provides a variety of reasons for the stoppage of benefits, and sets out the manner in which this may happen. The arrival of a time of the year when a lay-off might have normally occurred is not one of them.

It is clearly not reasonable for an insurer to rely upon the absence of a ground for stoppage in the Schedule as justification for the stoppage. There is no ambiguity in the Schedule in this regard. Had the legislature intended to allow stoppage of income benefits for a winter layoff, it would have provided for it. The Insurer’s secondary reasons, while creative, were not reasonable.

I find, as well, that Dufferin's lack of insight into the nature of Mr. Gutzke's disability, and unwillingness to appreciate the particular challenges and demands of his work, continued throughout the claims period, and no doubt contributed to Mr. Gutzke’s well-documented frustration and sense of depression.

Dufferin’s failure to deal with the rehabilitation question properly is also subject to a claim for a special award. As noted previously, in spite of warnings by Mr. Gutzke that he would not be able to sustain a return to the heavy work of a mason, the Insurer chose to concentrate on doing just that. In the face of continued suggestions that retraining be considered, Dufferin, through its appointed case manager, Penny Sargent, steered Mr. Gutzke towards a return to his work at Doug's masonry.

The impression created by the notes and letters from Ms. Sargent, especially the signback letters to Dr. Dworkin is that Ms. Sargent identified the goal of rehabilitation as a return to Doug's Masonry, and shared her perception of this goal with others involved in Mr. Gutzke's treatment. To persons less familiar than the Insurer with the Schedule, it may well have seemed that this was the only possible option for Mr. Gutzke.

Although subsection 13(1)(a) of the Schedule provides that a person shall make reasonable eforts to return to the employment "...in which he or she engaged at the time of the accident"; subsection 13(2) further provides that it is not necessary to return to such employment if it "... would be detrimental to the person’s treatment or recovery."

It should have been apparent that, in view of the exceptionally hard work expected of an apprentice mason, it might have been necessary to consider the possibility of retraining to a lighter job. Clearly however, this was not on the Insurer's agenda.

Subsection 40(7) clearly establishes that retraining, as a rehabilitation benefit, is a "pay pending" matter. The insurer must pay for such rehabilitation, even if it is challenging an applicant's right to the benefit. Patently, this was not done.

Had the requests to retrain to a less demanding work been listened to, there would likely not have been the interaction between the physical injuries and Mr. Gutzke’s physically challenging work as a mason, and his resulting claim.

I find therefore, that the Dufferin unreasonably withheld payment of the rehabilitation benefits claimed by Mr. Gutzke

In view of the unreasonableness of the stoppage of income replacement benefits, and the failure to properly deal with rehabilitation benefits, I find that a special award is payable to Mr. Gutzke. I order Dufferin to pay to Mr. Gutzke a special award of $7,500, inclusive of interest.

EXPENSES:

Should the parties not be able to agree on expenses either party may apply to the Commission within 45 days of this decision to have this issue dealt with.

November 27, 2000

John Wilson Arbitrator

Date