Neutral Citation: 2003 ONFSCDRS 74

FSCO A02-000311

BETWEEN:

VINH THANH DU

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Beth Allen

Heard:

January 20, 21, 22 and 24, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Pamela Blaikie for Mr. Du

Ian D. Kirby for Allstate Insurance Company of Canada

The Applicant, Vinh Thanh Du, was injured in a motor vehicle accident on March 7, 2001. He applied for accident benefits under the Schedule¹. Allstate Insurance Company of Canada ("Allstate") denied his claim for income replacement benefits. Before the commencement of the hearing, the parties resolved the issue of the quantum of income replacement benefits.

The Applicant submits that the March 7, 2001 accident aggravated pre-existing medical conditions and materially contributed to rendering him substantially disabled from performing his pre-accident employment tasks.

Allstate argues, on the other hand, that the Applicant suffered from pre-existing medical problems and further submits that there was no appreciable change in his medical condition as a result of the March 7, 2001 accident. According to this position, the March 7, 2001 accident did not prevent the Applicant from performing his pre-accident employment tasks.

The parties were unable to resolve their disputes through mediation, and Mr. Du 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 dispute in this hearing are:

Is the Applicant entitled to income replacement benefits under section 4 of the Schedule?
Depending on the outcome of issue #1, is Allstate entitled to suspend the Applicant's income replacement benefits under section 33 of the Schedule for failure to provide information reasonably required to establish entitlement?
Is the Applicant entitled to a special award pursuant to subsection 282(10) of the Insurance Act?
Is the Applicant entitled to his arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is Allstate entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

The Applicant claims interest on overdue payments pursuant to section 46 of the Schedule.

The Applicant is not entitled to income replacement benefits under section 4 of the Schedule.
The Applicant is not entitled to a special award pursuant to subsection 282(10) of the Schedule.
I encourage the parties to attempt to settle the expense issue and, failing this, I continue to be seized of the matter.
There are no overdue benefits payments and therefore no interest owing by Allstate.

Factual Background:

The Applicant, 47 years of age at the time, was involved in a motor vehicle accident on March 7, 2001. While stopped at a red light, his 1985 Honda was rear ended by another vehicle. The Applicant testified that his head fell forward with impact and he blacked out for a second. He stated that no part of his body hit the interior of the car. The Applicant testified he had no pain immediately following impact, but days later experienced dizziness, a headache and neck and lower back pain. When that accident occurred, he was en route to an appointment with his family physician, Dr. Alex Donskoy, and following the accident he continued on to his appointment. He reported the accident at a collision reporting centre after the doctor's appointment.

The Applicant had been involved in a previous accident on November 21, 1994 where he sustained soft tissue injuries to his neck and lower back. The evidence reveals that he continued to receive medical treatment for these injuries until his March 7, 2001 accident. However, the Applicant claims that in spite of these injuries he was able to work before the March 7, 2001 accident.

The Applicant applied for income replacement benefits under section 4 of the Schedule. Allstate denied entitlement on June 18, 2001 pursuant to section 33 of the Schedule on the basis that the Applicant had not provided Allstate the information reasonably required to establish benefit entitlement.

The Applicant's Employment and Medical Conditions:

At the time of the March 7, 2001 accident, the Applicant was unemployed. He is required under subsection 4(2), paragraph iv of the Schedule to demonstrate that as a result of the accident he suffers a substantial inability to perform the essential tasks of the employment he spent the most time at during the 52 weeks before the accident.

The Applicant had a varied employment history before the March 7, 2001 accident. He was a welder at the time of the November 21, 1994 accident and was not able to return to that job because of his neck and lower back problems. From February 1998 until February 2000, he worked as an order desk clerk and left that job due to job stress. In March 2000, for two weeks until April 4, 2000, he worked at a job making door trims. Dr. Veronica Kekosz (a physiatrist to whom Dr. Donskoy referred the Applicant), stated in her July 11, 2001 report that the Applicant left the door trim job due to neck and left shoulder pain. Dr. Donskoy confirmed in testimony that the Applicant was doing the door trim job when he began to complain of left shoulder pain. The Applicant denied shoulder problems and testified he quit that job due to back pain caused by repetitive lifting and bending.

At the time of the March 7, 2001 accident, the Applicant had been most recently employed at Arkbro, a company that manufactures railings for mining companies. He started to work there in the summer of 2000, starting out as a welder. He worked five days per week, 40 hours per day. After three weeks, due to his neck and back pain, he could not continue that type of work. He testified that due to his neck condition, he had difficulty bending over to weld and wearing a heavy welding helmet. His boss offered him a job as a painter/labourer which the Applicant did for nine months. On January 19, 2001, two months before the March 7, 2001 accident, the Applicant left his job at Arkbro.

The Applicant spent the most time during the 52 weeks before the accident at the painter/ labourer position. As required by subsection 4(2), paragraph iv of the Schedule, he must therefore establish he is substantially disabled from performing the essential tasks of that position.

As a painter/labourer, the Applicant, who is left-hand dominant, was required to cut 20 to 30 foot solid steel rails into shorter lengths of about two metres to prepare them for welding. He testified that his tasks required some heavy lifting, but if the rails were too heavy, then cranes picked up the rails and delivered them to rail sawing machines. The crane then took the rails to the paint room where the painters were required to first clean them with a blow gun and a solvent, to dry them and then paint them one at a time with a paint gun. The Applicant testified that as a painter he was required to use a paint gun to paint rails overhead; then to flip them over to paint the other side; and to bend down to paint the under side of the rails. He was then required to place the painted rails on a skid from which the crane lifted them to move them on in the process.

The Applicant testified that he was also required to drill holes into plates. That task required him to operate a large drill machine with a lever. He stated that he was required to continuously pull the lever up and down which activated the drill to drill holes in sequence. Each piece required 50 holes to be drilled and then reamed to the appropriate size. He testified that he spent about 20 percent of his time on the drill and that the activities he did at work differed from day to day. He would move back and forth between his various tasks.

I accept the Applicant's evidence and I find that his painter/labourer job required him, as a left-hand dominant person, to extensively use his left hand and arm to carry and lift heavy objects, to reach forward and overhead, to bend at the neck and kneel and bend down.

The Applicant testified that he went to see Dr. Donskoy one week after the March 7, 2001 accident because he was experiencing pain in his neck and back. He indicated that Dr. Donskoy advised him not to return to his painter/labourer job at Arkbro because of his neck and lower back pain. This is confirmed by a Disability Certificate dated May 16, 2001 prepared by Dr. Donskoy. The Applicant testified that his accident-related injuries would prevent him from doing tasks requiring him to stand, to bend, to work overhead or to kneel. He testified that Dr. Donskoy sent him for x-rays and recommended physiotherapy. The Applicant attended physiotherapy three times a week for about two months and received hot water and electro pack treatment and ultrasound on his neck, back and left shoulder. He stated that this treatment helped, but he had to discontinue the treatment when the insurance company stopped funding it.

Causation:

The Applicant argues that his injuries from the March 7, 2001 accident aggravated the injuries to his neck and lower back from the November 21, 1994 accident and rendered him substantially disabled from performing the tasks of his painter/labourer job.

The Applicant conceded that the injuries to his neck and lower back from his November 21, 1994 accident sometimes caused him pain when working as a painter/labourer. He testified that in mid-2000 his neck and back would hurt when he performed his tasks, but his boss, who was aware of his condition, would allow breaks and permit him to change tasks. The Applicant asserted that despite his pain, he was able to continue at this job because of his boss's flexibility in accommodating him. The Applicant testified that he did not leave that job because of the neck and lower back conditions.

Allstate submits that if the Applicant were disabled from doing his painter/labourer job, that it would be the result of his pre-existing neck, back and left shoulder conditions.

On cross-examination, Allstate's counsel challenged the Applicant's testimony about the extent of his disability before his March 7, 2001 accident. Allstate's counsel questioned the Applicant about the entries in Dr. Donskoy's clinical notes and records for the period March 2000 to March 2001 where they note that the Applicant continued to have problems with his neck and back and was prescribed pain medication during that period. The Applicant testified that he saw Dr. Donskoy every couple of weeks for six and a half years and that Dr. Donskoy treated him for other conditions besides his neck, back and shoulder problems, which latter conditions he described as "not serious."

For instance, the December 11, 2000 entry in Dr. Donskoy's notes refer to neck, back and left shoulder pain and comment that the Applicant is worried about losing his job. Dr. Donskoy explained that the Applicant was worried because his work performance was being affected by his neck, back and shoulder pain. Further, Dr. Donskoy's clinical note dated January 11, 2001, eight days before the Applicant left his job at Arkbro, records complaints of back pain, stiff neck and anxiety.

The Applicant testified, and the evidence reveals, that he began to suffer from the left shoulder problem in June 2000. On cross-examination, Allstate's counsel directed the Applicant's attention to a report by Dr. R. Reuven Lexier, dated August 9, 2000, where Dr. Lexier diagnosed left rotator cuff tendonitis and left tennis elbow. Dr. Lexier administered a cortisone injection to the Applicant's shoulder at that time. Allstate's counsel questioned the Applicant whether he aggravated his shoulder condition at Arkbro because of the repetitive use of his left hand and arm for extensive overhead reaching and pulling down when operating the drill. The Applicant denied this and stated that he did not know what caused his shoulder problem. He testified that his shoulder condition "bothered him here and there" but did not prevent him from performing any of the tasks as a painter/labourer. The Applicant stated that he could not recall any of his tasks causing increased pain in his shoulder.

The Applicant stated that he did not leave Arkbro because of his shoulder pain. He testified that the work at Arkbro slowed down in January 2001 and that his boss agreed that he could take the opportunity at that time to go for physiotherapy treatment on his shoulder. The Applicant stated that he intended to return to the painter/labourer job and that Dr. Donskoy said he could resume that position after he underwent physiotherapy treatment. He stated that he did not set a return date with his boss; that his job was waiting for him; and that he would return when his shoulder was better. The Applicant applied for and received Employment Insurance medical benefits from February to May 2001 after he left Arkbro.

Allstate argues, and I accept, that the medical evidence shows that the Applicant's shoulder problem was a major cause of him leaving his painter/labourer job at Arkbro. Dr. Kekosz and Dr. Donskoy, in their respective July 11 and July 31, 2001 reports, state and Dr. Donskoy testified, that the Applicant left his job because of problems with his left shoulder.

Allstate's counsel argues that Dr. Donskoy's clinical notes and records also contradict the Applicant's evidence about the extent of his left shoulder condition. The January 11, 2001 entry in the clinical notes refers to shoulder pain and comments that the Applicant's left shoulder is worse; that he was depressed and afraid of losing his job and might have to quit his job because he had taken ten days off since Christmas because of pain. That entry also notes that the Applicant would have "to change his job to office work because physical work will aggravate his left shoulder condition." The February 14, 2001 entry, about two weeks before the accident, notes no improvement and a very painful left shoulder.

Allstate's counsel also pointed out that in February 2001, one month after the Applicant left Arkbro, Dr. Lexier assessed a left shoulder fracture (report not before me). The Applicant indicated familiarity with that opinion and pointed out that Dr. Donskoy disagreed with that diagnosis. Dr. Donskoy testified that a September 2001 MRI showed a left shoulder muscle tear and his November 11, 2002 report confirms that finding.

Allstate's counsel also pointed to medical reports by Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon the Applicant retained to assess him in relation to both his November 21, 1994 and March 7, 2001 accidents. He prepared reports dated September 5, 1996, August 8, 2000, November 13, 2001 and November 7, 2002. In his August 8, 2000 report, prepared several months after the Applicant started his painter/labourer position at Arkbro, Dr. Ogilvie-Harris assessed the Applicant for his ability to do the welding job he was doing at the time of the November 21, 1994 accident. The report assessed a decreased range of motion in the Applicant's cervical spine and states that the Applicant will, among other problems, have difficulty lifting, carrying, reaching forward and overhead, and bending his neck forward over his work. Allstate's counsel argued, and I accept, that the functional abilities assessed for his welding job are common to the tasks of the painter/labourer job as described earlier in the decision.

Dr. Ogilvie-Harris concludes in August 2000: "He has now had this problem for over 5 years. It's unl ikely that there is going to be any resolution of the symptoms." It was Dr. Ogilvie-Harris's further opinion in his November 13, 2001 report that the Applicant continued to suffer ongoing neck and back problems from his November 21, 1994 accident at the time of his March 7, 2001 accident and that the effect of the latter accident was to aggravate his pre-existing conditions rendering him disabled from performing his painter/labourer job at Arkbro.

Dr. Kekosz saw the Applicant in relation to his November 1994 accident in 1995, 1996, 1997, and, in relation to his March 7, 2001 accident, in 2001 and 2002. Her reports comment on the pre-existing neck, lower back and left shoulder problems.

Like Dr. Ogilvie-Harris, Dr. Kekosz opines in her July 11, 2001 report that the March 7, 2001 accident exacerbated his neck, lower back and left shoulder problems.

I accept Dr. Ogilvie-Harris's assessment in his August 8, 2000 report and find that in August 2000, only months after the Applicant began his job at Arkbro, the Applicant was having difficulty with a substantial number of the essential functions of his job as a painter/labourer – lifting, carrying, reaching forward and overhead, and bending his neck forward over his work - and would continue to have those problems into the future

Contrary to the opinions of Dr. Ogilvie-Harris and Dr. Kekosz, Allstate's counsel argues that there is no evidence that the Applicant 's pre-existing medical conditions were aggravated or appreciably changed by the March 7, 2001 accident.

Allstate's counsel relied on Dr. Donskoy's oral evidence that the Applicant's complaints after the March 7, 2001 accident were the same kinds of complaints he had made just before the accident. On cross-examination, Dr. Donskoy conceded that the Applicant continued after the accident to take the same medication as before the accident; that he recommended an active physical program just as before the accident; and that just as he did before the accident, he recommended that the Applicant get an office job.

Allstate's counsel put to Dr. Donskoy that his opinion of the Applicant's abilities in his pre-accident September 22, 1998 report is essentially the same opinion expressed in his post-accident November 11, 2002 report. Dr. Donskoy disagreed, pointing out that in the former report he was specific in restricting lifting to not exceed 35 lbs., whereas in the latter report he gave a general restriction of "no heavy lifting." I do not find Dr. Donskoy's evidence on this point of much assistance in establishing an increase in functional disability caused by the March 7, 2001 accident.

Allstate's counsel challenged Dr. Ogilvie-Harris's opinion that the March 7, 2001 accident exacerbated the Applicant's pre-existing injuries, particularly his cervical spine. As noted above, in August 2000, Dr. Ogilvie-Harris assessed that the physical injury to the Applicant's neck was serious and permanent. He testified that the Applicant complained of increased pain after the March 7, 2001 accident. While Dr. Ogilvie-Harris acknowledged that he had to rely on the Applicant's subjective self-report of his pain, he pointed out that the Waddell Test he conducted in November 2001 could test the reliability of reports of the existence of pain. Dr. Ogilvie-Harris testified that he did not do a Waddell Test in August 2000 and conceded that this test does not test changes in the severity of pain. Allstate's counsel submitted, and I find, that the Waddell Test does not provide a reliable assessment of the Applicant's claim to increased pain after the March 7, 2001 accident.

Dr. Ogilvie-Harris also referred to neck flexion tests to establish the development of increased disability after the March 7, 2001 accident. He testified that with the increased neck pain caused by the March 7, 2001 accident, the Applicant experienced decreased range of motion in his neck. I did not find this evidence very helpful in establishing increased disability. On cross-examination of Dr. Ogilvie-Harris, Allstate's counsel raised the possibility that the changes in neck flexion, before and after the March 7, 2001 accident, were subtle and might, as likely as not, simply reflect the differences in ability between a good day and a bad day. Dr. Ogilvie-Harris conceded that this was possible. I am therefore not persuaded that the March 7, 2001 accident materially worsened the Applicant's pre-existing neck condition.

Conclusion on Entitlement to Income Replacement Benefits:

I conclude that the evidence compels a finding that the Applicant's pre-existing neck, back and left shoulder conditions were the principal, if not the only, cause for his leaving his pre-accident painter/labourer job at Arkbro several weeks before the accident, and that these conditions prevented him from performing the essential tasks of the job and would continue to do so into the future. I find the evidence reveals that before the Applicant started his position at Arkbro, and while he worked at Arkbro, his neck, back and left shoulder conditions presented barriers to carrying and lifting heavy objects, reaching forward and overhead, bending at the neck, kneeling and bending down. I do not find credible the Applicant's evidence that his left shoulder "just bothered him here and there" and did not cause him to leave his job. I find his doctors' pre-accident medical records on that point present a more accurate reflection of the Applicant's pre-existing problems. Their pre-accident records reveal recommendations for a lighter job and note numerous incidents of complaints by the Applicant of neck, back and left shoulder pain and expressions of fear about losing his job at Arkbro because of this.

I accept Allstate's position that the March 7, 2001 accident did not change or worsen in any appreciable way the status of the Applicant's pre-accident disabilities. I do not accept the Applicant's oral evidence about his worsened condition following the March 7, 2001 accident. Nor am I satisfied that Dr. Donkoy's and Dr. Ogilvie-Harris's evidence about the Applicant's decreased function in the areas of lifting and neck mobility establishes that the March 7, 2001 accident aggravated the pre-existing conditions so as to substantially disable him from performing the painter/labourer tasks.

I therefore find that the Applicant is not entitled to income replacement benefits under section 4 of the Schedule.

Section 33 of the Schedule

I have decided the substantive issue of entitlement to income replacement benefits under section 4 of the Schedule. I therefore need not decide the procedural issue under section 33 which permits a suspension of an applicant's accident benefits for any period during which he has failed to provide information reasonably required for the insurer to establish entitlement to benefits. However, in the event I am wrong on the substantive issue, I will decide the section 33 issue.

In a letter from Allstate dated June 12, 2001, Allstate identified the documents it had received and, among other things, requested copies of the Applicant's "prior clinical notes and records and his disability insurance file, as well as a copy of all medicals pertaining to his prior motor vehicle accident." In a subsequent letter dated June 18, 2001, Allstate commented on the Applicant's pre-existing injuries and reiterated its request for medical documents. The Applicant's counsel's office responded by letter dated June 19, 2001 that it was happy to provide relevant documentation to assist with processing the claim, upon receipt of confirmation from Allstate to cover the cost for obtaining the documents. In a further letter dated June 19, 2001, Allstate again reiterated its request for medical records and requested pre-accident income and unemployment benefit documentation. Enclosed with the latter letter was an Explanation of Benefits Payable by Insurance Company which denies income replacement benefits due to the Applicant's non-compliance with section 33. A further letter from Allstate's counsel dated September 3, 2001 repeated its requests for medical and employment information to permit an assessment of quantum and benefit entitlement. A letter from Allstate dated March 22, 2002 itemized its requests for particular medical and employment documentation.

Dr. Donskoy's evidence is that he had forwarded the requested clinical notes and records to the Applicant's counsel by August 1, 2001. It was not until August 2002, one year later, that the Applicant's counsel provided its brief of documents containing the documents requested by Allstate, under cover of a letter dated August 7, 2002. The Applicant's counsel provided no explanation for the delay.

Allstate's counsel argues that the medical and employment documents requested from the Applicant were reasonably required to establish the Applicant's entitlement to benefits. Allstate further submits, if the Applicant were found to be entitled to income replacement benefits, that the benefits should be suspended until August 7, 2002 when he provided the documents to Allstate.

The Applicant 's counsel submits that the evidence establishes the Applicant 's ongoing entitlement to income replacement benefits. She argues, however, that if the Applicant's benefits were to be suspended for a period due to non-compliance with section 33, the benefits should not be suspended after July 12, 2001.

Dr. C.B. Paitich, an orthopaedic surgeon who conducted an insurer's examination on behalf of Allstate, opined in his July 12, 2001 report that the Applicant was not disabled from performing his pre-accident employment tasks. According to the Applicant's counsel's argument, based on Dr. Paitich's opinion, the medical and employment information sought by Allstate would not be reasonably required to establish entitlement after July 12, 2001. She further submitted that the purpose of section 33 is to address prejudice to the parties caused by failure to produce vital documentation. According to this submission, since Allstate had assessed the Applicant in July 2001 as not disabled, then the lack of the requested information after that date did not prejudice Allstate.

I find that the employment and medical information requested by Allstate would be reasonably required to establish the Applicant 's entitlement to benefits and that there would be a period during which benefits would be suspended. However, I accept the Applicant 's counsel 's argument and find that if there were a finding of entitlement to income replacement benefits during the pertinent period, it would not be reasonable to require the Applicant to provide Allstate with the requested documentation once the insurer's examination had concluded the Applicant was not disabled. Therefore Allstate would not be permitted to suspend income replacement benefits after July 12, 2001.

Special Award:

A special award under subsection 282(10) of the Insurance Act is based on a finding of benefit entitlement. Since I did not make such a finding, this is not an appropriate case to consider a special award.

EXPENSES:

The parties seek their arbitration expenses under subsection 282(11) of the Insurance Act.

The parties did not present full submissions or evidence on this issue. I encourage the parties to settle this matter and, failing this, I remain seized to conduct an expense assessment hearing.

May 13, 2003

Beth Allen Arbitrator

Date