Neutral Citation: 2003 ONFSCDRS 33

FSCO A02-000171

BETWEEN:

VAUGHAN ELLIS

Applicant

and

PEEL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

October 2 and 3, 2002, in Brampton, Ontario.

Appearances:

Ava M. Hillier for Mr. Ellis

S.J. Chip Petrillo for Peel Mutual Insurance Company

The Applicant, Vaughan Ellis, was injured in a motor vehicle accident on March 2, 2000. He applied for and received statutory accident benefits from Peel Mutual Insurance Company ("Peel"), payable under the Schedule.¹ Peel terminated weekly income replacement benefits on February 27, 2001, and denied the Applicant's claims for a radiology test and medical assessments. The parties were unable to resolve these disputes through mediation, and Mr. Ellis 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. Ellis entitled to income replacement benefits under Part II of the Schedule from February 28, 2001 to September 10, 2001?
Is Mr. Ellis entitled to $1,325 for medical assessments under section 24 of the Schedule?
Is Mr. Ellis entitled to $825 for an MRI² test under section 14 or 24 of the Schedule?
Is Mr. Ellis entitled to a special award under subsection 282(10) of the Insurance Act?
Is Mr. Ellis entitled to interest on overdue payments under subsection 46(2) of the Schedule?
Is Mr. Ellis or Peel entitled to their expenses of this arbitration?

Mr. Ellis is entitled to income replacement benefits under Part II the Schedule from February 28, 2001 to September 10, 2001.
Mr. Ellis is not entitled to payment of $1,325 for medical assessments under section 24 of the Schedule.
Mr. Ellis is not entitled to payment of $825 for an MRI as an expense under section 14 or 24 of the Schedule.
Mr. Ellis is not entitled to a special award under subsection 282(10) of the Insurance Act.
Mr. Ellis is entitled to interest on overdue income replacement benefits in accordance with subsection 46(2) of the Schedule.
The parties may apply for an assessment of entitlement to and amount of expenses if they cannot agree.

Mr. Vaughan Ellis was 42 years old at the time his work van was struck on the rear passenger door by a tow truck while he was travelling on Highway 50 near Brampton on March 2, 2000. His vehicle spun around from the impact and sustained considerable property damage.

Mr. Ellis initially complained of low back pain radiating down through his left hip to the knee, headaches, neck pain and left shoulder/arm pain. He received physiotherapy and massage treatments for approximately six months after the accident, and took medication. Epidural injections had little effect. Mr. Ellis reduced the anti-inflammatory and pain medication in March 2001, but he continues to use a corset for back support.

Mr. Ellis' upper extremity complaints and neck pain resolved, but his low back/hip/left leg symptoms have continued, along with headaches. The radiological images reveal a mild disc bulge and degenerative changes in his low back, with no nerve root compression or other physical abnormality to explain his continuing symptoms. The consensus of experts diagnose chronic mechanical back pain.

At the time of the accident, Mr. Ellis was employed as a full-time plumber and service manager by Roland Plumbing. Subsequently, he twice tried unsuccessfully to resume work for his pre-accident employer, and also met with difficulty in a third attempt working for a friend's plumbing company. He successfully resumed full-time work at another plumbing company on September 11, 2001.

Mr. Ellis claims entitlement to a $376.75 per week³ income replacement benefit from the time that Peel terminated his benefits on February 27, 2001 until he resumed working on September 11, 2001. Under Part II of the Schedule, he must establish that he suffered a substantial inability to perform the essential tasks of his plumbing job during this period.⁴

The Job:

Mr. Ellis testified that he began working full-time for Roland Plumbing about 5 or 6 years before the accident. He travelled about 5,000 kilometres a month for work, attending at up to 30 homes per day in new subdivisions in an area from Bracebridge south to Lake Ontario, and from west to east between London and Pickering. Mr. Ellis called customers to make appointments for himself and other plumbers the evening prior to each workday. In the morning, he loaded the necessary materials into his van, and drove to new subdivision homes, where he replaced faulty water taps, toilets, sinks, bathtubs and leaky pipes.

At the time of the accident Mr. Ellis worked 8 hours per day, 5 days a week, during which he carried all materials, tools and ladders by himself, except for the bathtubs. He held materials/tools and his torch at arms length, often bending, twisting or crawling into awkward positions to remove and affix the pipes and new plumbing fixtures.

Mr. Ellis acknowledged he was on modified light duties at the time of the accident due to his pre-existing back problem.⁵ His back pain began in 1985 when he fell off scaffolding while working in the Northwest Territories. He returned to full-time work after two months. In 1996, Mr. Ellis missed a week after he re-injured his low back, falling off a step ladder working at home. In 1998, he took a month off from work when he strained his back carrying drywall.

Mr. Ellis admitted that he still had back pain and took medication at the time of the accident. He required periodic breaks, was careful lifting heavy items such as sinks and toilets, needing help only with carrying cumbersome bathtubs.

The medical records are consistent with Mr. Ellis' evidence about his pre-existing condition, and the work site report confirms his job requirements. Thus, I find that at the time of the accident Mr. Ellis' main duties consisted of extensive driving back and forth to job sites over a large part of Southern Ontario, where he needed to stoop, squat, reach forward, twist his back or neck while using his hands to manipulate tools and materials, frequently handle 10 pounds, occasionally lift up to 30 pounds, and less frequently carry up to 50 pounds. I further find that Mr. Ellis suffered from chronic back pain at the time of the accident, which interfered with his ability to perform heavy lifting, requiring that he take periodic time-outs from his full-time work and have assistance with heavy or cumbersome lifting and carrying.

Post-Accident Condition:

Mr. Ellis testified that his back pain doubled after the accident, that he felt "pins and needles" in his left leg which were never there before, and he increased the frequency and dosage of his medication after the accident. The experts agree that the accident aggravated Mr. Ellis' pre-accident low back condition.

Mr. Ellis' evidence is that increased back pain and radiating symptoms into his left hip/leg made lifting and carrying heavy materials more difficult, such as the rolls of copper pipe. He also encountered new difficulties in that he could not drive long distances, repetitively bend or work in tight spaces. Since returning to work in September 2001, Mr. Ellis testified that he works in the Brampton area near his home so as to avoid long distance driving.

Mr. Ellis' evidence is that he made three attempts to return to work during the period he claims benefits. In his first attempt in February 2000, he was unable to tolerate work after one day on the job for his pre-accident employer. On his second attempt, Mr. Ellis' evidence is that in May 2000 he made 10 service calls over three days, but was unable to complete some of the assigned repairs due to his back pain. Mr. Ellis testified that he received no compensation for these two attempts, but admitted he received $200 for his third work attempt in June 2001.

Mr. Ellis' evidence respecting his attempted work returns is that he could not hold a torch, tools and materials while crouching or laying on his back for extended periods in order to install sinks in cabinets, and the medication made him feel it was unsafe to work on pipes from the step ladder. Peel did not tender evidence to dispute that Mr. Ellis tried three times to resume work, and I accept that he made three good-faith attempts at plumbing work after the accident and before September 11, 2001.

Mr. Ellis stated that since resuming work on September 11, 2001, he assigns heavy lifting and carrying, such as rolls of copper piping, to apprentices and only works with lighter plastic pipe. On the evidence that Mr. Ellis does not work regularly with metal pipe, I am persuaded that his lifting ability deteriorated after the accident.

The remaining thrust of Mr. Ellis' disability claim derives from his inability to drive long distances due to his leg symptoms and problems working in odd and cramped positions for prolonged periods. While Mr. Ellis did not introduce evidence from his pre-accident employer to support his testimony that Roland Plumbing would have reduced his pay if he had returned to work under further modifications, the report from experts at the Designated Assessment Centre ("DAC") confirms that he experienced sensory changes in his left leg. On this evidence, I accept that Mr. Ellis suffered new symptoms in his left leg, which caused him considerable pain to drive the long distances to job sites around Southern Ontario and to contort into awkward positions in confined work spaces.

All of the experts found Mr. Ellis to be forthright, candid and consistent about the nature and extent of his injuries and abilities during tests and interviews. I find that none of the surveillance showing Mr. Ellis walking, driving his car on errands and to appointments around town impeaches or in any way detracts from his credibility. None of the activities shown in the videotape and described in the investigative reports show him conducting activities similar to his work duties or physical activities that are inconsistent with his evidence.

While Mr. Ellis angrily blamed Peel for the revocation of his driving privileges and his financial troubles, on cross-examination, he candidly admitted the suspension was not Peel's fault, and that his finances were poor before his benefits were terminated. Considering the turmoil of events and his health problems, I reject Peel's submission that Mr. Ellis' erroneous accusation undermines his credibility.

Rather, I find Mr. Ellis' testimony on the pertinent issues in the hearing consistent, straightforward and logical. I find Mr. Ellis' evidence is reliable and credible in areas relevant to his claims in this hearing.

Expert Evidence:

Dr. Louis Weisleder is an orthopaedic surgeon who performed an insurer medical examination of Mr. Ellis and filed reports in May and September 2000. He reviewed the radiological evidence showing that Mr. Ellis did not have a herniated lumbar disc, and opined that he would suffer no physical harm from returning to work.

Dr. Weisleder fails to realistically address the critical issue of Mr. Ellis' mechanical back pain or the overlay of his accident injuries on his previous condition. The relevant test is not whether Mr. Ellis will suffer harm if he returns to work,⁶ and I give his opinion little weight.

In December 2000, Mr. Ellis underwent a disability and medical/rehabilitation evaluation by experts at a DAC. The neurologist and general practitioner at the DAC accepted that Mr. Ellis' back pain was aggravated by this accident. It is significant that the DAC found sensory changes in his left leg caused by nerve root irritation.

The DAC's physiotherapist and sports medicine physician found that Mr. Ellis suffered lower back dysfunction, recommending he undergo a six month gym/swim program. He "needed lots of stretching and strengthening of his abdominals (sic) and lower back." The DAC experts concluded that Mr. Ellis suffered a mild functional restriction from lifting, bending and heavy activities, that his disability could be accommodated by his pre-accident employer and that he did not suffer a substantial inability to perform his work tasks.

Mr. Ellis contends that the DAC testing was not similar to the contorted positions he had to work in over long periods. No one from the DAC testified, but the kinesiologist report that Mr. Ellis had headaches, upper neck and shoulder tightness reaching for pipefitting, left leg symptoms and should not perform heavy lifting, and that he did not meet his job demands for kneeling are consistent with Mr. Ellis' testimony. The weakness in the DAC report is its acceptance of Mr. Ellis' symptoms, and conclusions that fail to discuss his demonstrated limitations in the work trials.

In March 2001, Mr. Ellis' family physician reported his patient was unable to bend sufficiently to get into restricted spaces, and also could not carry standard plumbing hardware. Dr. Paul Carabott testified that Mr. Ellis made slow progress through 2000, but continued to complain of increased leg and back pain after the termination of his benefits. Dr. Carabott's clinical notes are not particularly legible, but one late summer of 2001 notation I am able to read coincides with Mr. Ellis' third work attempt. That entry indicates Mr. Ellis suffered increased pain after working flat on his back.

Dr. John Newall is an orthopaedic surgeon who has consulted with Mr. Ellis and his family doctor about his low back problem since 1987. Dr. Newall testified at the hearing and his reports are in evidence.

Dr. Newall accepts that, although the medical tests provide no determination of the cause for the low back, groin, left hip and left leg pain complaints, Mr. Ellis' symptoms are consistent with his professional experience dealing with similarly afflicted patients. Dr. Newall reported that Mr. Ellis' condition is probably due to aggravation of his mild pre-existing degenerative changes shown on the radiological reports.

Although Dr. Newall agreed during his evidence that it was not unreasonable for Mr. Ellis to attempt work, he was impressed by his patient's repeated attempts to tolerate his job for extended periods. He trusted Mr. Ellis' forthright characterization of his symptoms in the actual day-to-day work environment, accepting his stated degree of pain as a genuine deterrent to his repetitive activities.

Disability Conclusion:

Mr. Ellis' reports of his job difficulties dovetails with Dr. Carabott's evidence, and supports that he suffered sufficient increased pain as a result of this accident to make it difficult to drive long distances and be unable to work for prolonged periods in awkward positions since the accident. Dr. Newall's opinion based on Mr. Ellis' credible reports is preferable over the DAC opinion, which is based on an artificial and less accurate approximation of his work. I rely on Dr. Newall's opinion.

There is no better evidence of Mr. Ellis' incapacity to perform his work tasks than his three honest and sustained attempts to resume his job.⁷ I find on a balance of probabilities that from February 28, 2001 through September 10, 2001 Mr. Ellis suffered hip/left leg pain as a result of the accident, causing his inability to tolerate continuous sitting in order to drive long distances or work with materials in awkward crowded positions at his plumbing job.

Peel argues that as a supervisor Mr. Ellis could have resumed modified work because he was able to choose the jobs he wanted. I do not accept this argument based on Mr. Ellis' evidence that his employer would significantly reduce his wages if he had asked for further accommodation of his condition. Mr. Ellis' explanation makes sense because there is no evidence indicating that Roland Plumbing would take him back when he could not drive the long distances to the various housing developments or that Peel would concede entitlement and make up the wage difference between his income replacement benefit and post-accident income.⁸

Consequently, I find that Mr. Ellis suffered a substantial inability to perform essential tasks of his plumbing job during this period. Accordingly, he is entitled to income replacement benefits from February 28, 2001 through September 10, 2001 under Part II of the Schedule, together with overdue interest pursuant to subsection 46(2) of the Schedule.

Dr. Newall's Examinations and Reports:

At the commencement of the hearing, Mr. Ellis maintained that Dr. Newall's $1,125 and $200 invoices for his May and July 2001 examinations and reports should be reimbursed as assessment expenses under section 24 of the Schedule. However, Mr. Ellis conceded in closing argument that these claims are more properly characterized as his expenses of the arbitration process.

I agree with Mr. Ellis that Dr. Newall's reports are arbitration expenses. The invoices indicate the services are for medical-legal reports. They were prepared after the termination of Mr. Ellis benefits at his lawyer's request in preparation for the mediation and adjudication phase of his disputes with Peel.⁹ Therefore, I find that Dr. Newall's reports are not assessments or examinations for purpose of the Regulation under section 24 of the Schedule.

I find that Dr. Newall's opinions were pursued in the litigation context. My ruling is not intended to affect Mr. Ellis ability to claim these costs as expenses of the arbitration.

MRI Expense:

Dr. Newall recommended in May 2001 that Mr. Ellis undergo an MRI to rule out any structural spinal abnormality. Mr. Ellis was unsure whether the $825 expense was a section 24 expense, a section 14 medical expense or an expense of the arbitration.

There is no evidence that Mr. Ellis followed the claims procedures by submitting an application for reimbursement of this radiology test as a medical expense or that he submitted the required recommendation from his health care professional.¹⁰ There is also no evidence that Peel accepted or rejected the MRI as a medical expense.¹¹

I cannot ignore the Schedule's claims procedures for medical expenses. I find that the MRI was not claimed as a medical expense under section 14 of the Schedule and that Mr. Ellis is, therefore, not entitled to the $825 reimbursement under that section.

I reject Mr. Ellis' claim that the MRI could also be considered a section 24 expense. It was authorized during the dispute stage by the physician conducting his medical-legal reports, and I find that Mr. Ellis is not entitled to the $825 for the MRI as an assessment benefit under section 24 of the Schedule.

Special Award:

In opening remarks, Mr. Ellis claimed that he was entitled to a special award based on Peel's lawsuit against him. In February 2002, Peel filed a Court action seeking recovery of $18,000 in collateral benefits Mr. Ellis had received from another insurer. Peel's lawsuit was dismissed shortly before the hearing, and the parties agree that these collateral benefits were not deductible.

Although there is some evidence to support Mr. Ellis' contention that Peel knew or should have known the collateral benefits were not deductible before it filed suit, the fact does not impact on the payment of any benefit. I have jurisdiction to make a special award if Peel unreasonably withheld or delayed payment of Mr. Ellis' benefits.¹² I find the disability DAC opinion provided a justifiable basis to support termination of Mr. Ellis' income replacement benefits, and that he is not entitled to a special award on the termination or withholding of his benefits under Part II of the Schedule.

The medical and rehabilitation DAC recommended that Mr. Ellis needed a gym program for strengthening, and he argues for a special award because Peel did not fund the proposed program. None of the evidence contradicts the DAC recommendation that Mr. Ellis undergo a six-month gym program initially to be set up by a physiotherapist and monitored once a month.

Mr. Ellis proposes three sessions per week with a physiotherapist over nine weeks, progressing from passive to more active therapy and followed by instructions for home exercises. I find that his $3,390 plan does not conform to the more limited DAC recommendation for a periodically monitored gym program.

Dr. Newell specifically testified he did not think an exercise program would help Mr. Ellis. Based on this, I find that Mr. Ellis physiotherapy proposal is not reasonable and necessary and, therefore, he is not entitled to a special award for this rehabilitation claim under Part V of the Schedule.

EXPENSES:

The parties should attempt to resolve entitlement to and amount of expenses. Failing that, they should follow the procedures and criteria set out in the Dispute Resolution Practice Code before contacting the case administrator to convene a teleconference for an assessment of the expenses.

March 7, 2003

Fred Sampliner Arbitrator

Date