Neutral Citation: 2005 ONFSCDRS 9

FSCO A03-001616

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DANAIL BERRY

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Denise Ashby

Heard:

October 18, 19, 20 and 21, 2004, in person at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gloria Cheon for Mr. Berry

Michelle Brown and Thomas Hudak for Liberty Insurance Company of Canada

Issues:

The Applicant, Danail Berry, was injured in a motor vehicle accident on April 11, 2003. He applied for and received statutory accident benefits from Liberty Insurance Company of Canada ("Liberty Insurance"), now TD Insurance Home and Auto, payable under the Schedule.¹ Liberty Insurance terminated weekly income replacement benefits on December 31, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Berry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Berry entitled to income replacement benefits at the weekly rate of $400.00 from December 31, 2003 and ongoing pursuant to section 4 of the Schedule?

2. Is Liberty Insurance entitled to repayment of the sum of $5,484.77, representing the income replacement benefits paid to Mr. Berry from September 25, 2003 to December 31, 2003?

3. Is Liberty Insurance liable to pay Mr. Berry's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

4. Is Mr. Berry liable to pay Liberty Insurance's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

5. Is Mr. Berry entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Mr. Berry is entitled to income replacement benefits at the weekly rate of $400.00 from December 31, 2003 and ongoing pursuant to section 4 of the Schedule.

2. Liberty Insurance is not entitled to repayment of the sum of $5,484.77, representing the income replacement benefits paid to Mr. Berry from September 25, 2003 to December 31, 2003.

3. Liberty Insurance is liable to pay Mr. Berry's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

4. Mr. Berry is not liable to pay Liberty Insurance's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

5. Mr. Berry is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

EVIDENCE:

Background

Mr. Berry testified that on April 11, 2003 at about 5:30 p.m., he was walking home from his work at Springwall Sleep Products when he was hit by a car while crossing an intersection. He testified that the car was travelling at approximately 20 km. per hour. Mr. Berry was thrown in the air and hit a light post. He fell to the ground landing on the median. As a result of the impact, his forehead, mouth, left thumb, right knee and right shoulder were injured. The police and an ambulance arrived. Mr. Berry was taken by ambulance to the William Osler Health Centre where he was treated. The investigating officer's notes² and ambulance call report³ were entered as documentary evidence. The officer's notes contain purported statements from two independent witnesses, one of whom suggests that the vehicle "clipped his back leg." This description differs from Mr. Berry's testimony. I prefer Mr. Berry's direct evidence to the hearsay contained in the investigating officer's notes.

Pre-Accident Health

Mr. Berry testified that he was very healthy prior to the accident. He did not have a family physician but attended at a walk-in clinic near his home. There, he had been treated by Dr. Dhillon for minor work-related injuries and other health issues. He testified that he had made two Workplace Safety and Insurance Board ("WSIB") claims: the first, in May 2001 when he lost two to three days of work because he had stapled his thumb; the second, in April 2002, when he cut his left index finger on a coil. This injury did not result in lost time from work. Mr. Berry testified that WSIB did not "pay" him for these injuries. He seemed to view compensation as an essential element of a claim. He conceded under cross-examination that he answered some assessors' questions regarding WSIB claims inaccurately. However, he explained that he misunderstood what was being asked.

Mr. Berry did not recall being examined by Dr. Dhillon on January 23, 2002 for right leg pain. However, upon being referred to Dr. Dhillon's medical notes, Mr. Berry conceded that he must have consulted her for that reason.

There was no evidence in either Dr. Dhillon's clinical notes or the employer's records that the foregoing injuries kept him from performing the essential tasks of his employment, except for the absences noted in his evidence, or that those injuries reflected recurring health problems. I therefore find that there were no pre-existing injuries or conditions that prevented Mr. Berry from completing the essential tasks of his employment prior to the accident. I also find that Mr. Berry's failure to recall a consultation with his doctor in January 2002 was a consequence of oversight rather than any attempt to hide relevant evidence. Further, I find that Mr. Berry's failure to report WSIB claims to the assessors was a consequence of misunderstanding.

Post-Accident Treatment

Mr. Berry was assessed at the William Osler Health Centre immediately following the accident. He was provided some treatment and released. He consulted Dr. M. Dhillon on Monday, April 14, 2003. She advised him to return to the hospital for x-rays. He went immediately to the William Osler Health Centre, where x-rays of his shoulder were taken. As a result of this visit, he believed he had a broken bone in his shoulder. The x-ray report supports this belief.⁴ However, subsequent investigations, referred to below, indicate that the shoulder was not broken. He described being given a sling for his shoulder and indicated he used crutches because his knee was injured. He was referred to physiotherapy.⁵ The hospital staff recommended he see a family physician and provided him with a list of area doctors accepting new patients. He chose Dr. Robert Tautkus.

Mr. Berry testified that he stopped using the shoulder sling approximately five to six weeks following the accident and the crutches approximately two months later on the advice of the physiotherapist.

Mr. Berry reported that he was treated with heat on his right shoulder, right knee and lower back. He had massage, physical exercises and weight lifting. His thumb was treated with the application of gel and ultrasound. He also engaged in home exercises. He described the exercises as very painful but he continued because he did not want his body to be "locked up."

Mr. Berry testified that he attended for psychological treatment which he found very helpful in restoring his confidence. He described his present condition as improved but not fully recovered. His right shoulder is the most problematic. He attributed that injury as the reason for not returning to work. He continues to have problems sleeping on occasion due to pain. As well, bending a great deal causes his back to hurt and sometimes his right knee "burns" him. He continues to use Tylenol with codeine on a limited basis, approximately four to five times per week.

Mr. Berry testified that he wanted to return to work and continued to ask Dr. Tautkus to permit him to go back to full-time duties. Mr. Berry indicated that he could not return to his work place on modified duties because none were available unless the injury was sustained at work.

Employment

Mr. Berry gave evidence that he has worked at Springwall Sleep Products since February 2000.⁶ He was hired as a "gluer" and after six months was promoted to the position of mattress builder.

Mr. Berry described his work day in detail. He works Monday to Friday from eight in the morning to four thirty in the afternoon with two ten-minute breaks and thirty minutes for lunch. He is required to build between 35 to 50 mattresses per day. The daily total is influenced by the types of mattresses being produced. For example, a king size mattress takes significantly longer to build than a twin and therefore fewer king size mattresses would be produced in a day. If he exceeds his quota, there is a bonus program. As well, he works overtime.

Mr. Berry estimated his earnings in 2002, the year before the accident, as approximately $33,000.00. He testified that because he is a fast worker he has received bonuses. His evidence is supported by his employer's letter dated May 1, 2003, which reported that the Applicant earned $32,173.95 of which $4,194.83 was piece work, or the bonus described by Mr. Berry.⁷

Mr. Berry detailed the process of building a mattress. The table at which he constructs the mattresses reaches up past his stomach. He is standing throughout the day. There are four other workers in his area. Mattress builders are required to get the materials and place them at their stations. Mr. Berry testified that he would get the materials from the stock area, a short distance from his table, before work started at eight or at his breaks. If necessary, he might get stock at other times during his work day. Occasionally, he must get cotton padding and staples from their storage area in another room. Mr. Berry testified that different sizes and quality of mattresses require different materials. The materials consist of: iron "flexolator" bars, a bundle of which weighs 25 to 35 lbs., cotton quilted pads, different sizes of foam from 3/4 inch to 1½ inches, upholstery and the bed frames. He uses a stapling gun to attach the material to the bed frame.

The procedure for building a mattress was described by Mr. Berry as follows: he lifts the mattress spring off of the line, hoists it over his head and takes it to his table; he puts on the flexolator bars followed by the fire retardant material, then the soft cotton; if required, he puts on the appropriate thickness of foam (from 3/4 inch to 1 1/2 inches); he finishes by attaching a mattress cover. During the building process he flips the mattress to finish the other side. He then lifts the completed mattress and takes it to another line where it goes to the shipping department. During this process he flips the mattress at least twice. Mr. Berry testified that it was difficult to get help lifting the heavier mattresses so he would frequently lift them over his head and transport them to the line upon completion. He drew a distinction between the beginning of the process where he could drag or push the springs along the floor and at the end when he had to keep the mattresses off the floor to prevent them from getting dirty.

An on-site job demands analysis was conducted by F.I.T. Rehabilitation and Assessment Centres Inc. (F.I.T.) and its report is dated June 5, 2003.⁸ The report concludes that the Applicant's job requires strength demands which are "Heavy to Very Heavy."⁹ F.I.T. compared its findings with those of the National Occupational Classification (NOC #9492.1) which describes the job of furniture and fixture assemblers as having medium strength demands. I accept the F.I.T. conclusion and find that Mr. Berry's job strength demands were heavy to very heavy.

Mr. Berry disagreed with various aspects of the F.I.T. report. For example, he suggested 10 minutes was permitted for breaks, the report indicated 15 minutes. He testified the maximum weight lifted was approximately 120 lbs. to 130 lbs. while the report suggested the maximum weight was 115 lbs. I find that Mr. Berry's evidence was informed by his honest belief. Further, such discrepancies did not undermine either the validity of the report or Mr. Berry's credibility.

The F.I.T. report indicates that "occasional assistance is available to carry very heavy mattresses."¹⁰ I find that Mr. Berry could not reasonably be expected to regularly interrupt his fellow workers' production or management, from their duties, to assist him in moving the heavier mattresses. I also find that the assistive devices he described such as trolley cars and tow motors were not reasonably available to him. The Insurer questioned Mr. Berry about his failure to return to work on modified duties. I accept Mr. Berry's evidence supported in the F.I.T. report and his employer's letter¹¹ that he did not have modified work duties available to him.

I find that frequently lifting weights of 50 to 115 lbs. above his shoulder and head are essential tasks of Mr. Berry's employment as a mattress builder.

Mr. Berry was the only witness who gave direct evidence regarding the accident, the work he engaged in and the impact of his injuries on his ability to do the work. I found Mr. Berry to be a very sincere and credible witness. His evidence that the injury to his right shoulder was preventing him from returning to work was consistent with the medical evidence from his family doctor and the orthopaedic surgeon who gave evidence on his behalf. It was their medical opinion that Mr. Berry was substantially disabled from performing the essential duties of his work due to bursitis of the right shoulder.

Medical Evidence

Dr. Tommy K. C. Chan, an orthopaedic surgeon, and Dr. R. F. Tautkus, family physician, appeared as witnesses for Mr. Berry. Dr. R. Lexier, also an orthopaedic surgeon, was the Insurer's only witness. All were qualified as experts in their respective fields of medicine.

Dr. Tautkus' Evidence

Mr. Berry first consulted Dr. Tautkus on April 23, 2003 regarding injuries sustained in a motor vehicle accident on April 11, 2003. Between April 23, 2003 and the date of the hearing Dr. Tautkus had 23 follow-up visits. In Dr. Tautkus' opinion, Mr. Berry was substantially disabled from carrying on the essential tasks of his employment as a mattress builder as a consequence of injuries sustained in the motor vehicle accident of April 11, 2003.

Dr. Tautkus testified that Mr. Berry presented with the following injuries resulting from the motor vehicle accident:

• neck pain

• right shoulder pain, right clavicle and right chest wall

• low back pain

• right knee, lower leg including the foot

• left hand.

Over the period in which Dr. Tautkus saw Mr. Berry, many of the areas became asymptomatic; specifically, the left hand and the lower leg. However, the right knee continued to have some pain at times.

Dr. Tautkus indicated that at the time of the hearing Mr. Berry was complaining of a small degree of pain in his low back and knee which did not interfere with his activities of daily living. He also complained of pain in his right shoulder which does not prevent his participation in his activities of daily living but flares with mild exertion. This pain will sometimes cause sleep disruption.

Dr. Tautkus reviewed the F.I.T. report, particularly the physical demands, and shared Dr. Chan's opinion that the injuries suffered as a result of the motor vehicle accident prevented Mr. Berry from engaging in the work described. Dr. Tautkus was of the opinion that the bursitis of the right shoulder was the basis of the disability which prevented Mr. Berry from resuming his work as a mattress builder.

Dr. Tautkus gave evidence that he understood that modified duties were not available at Mr. Berry's workplace. Therefore, he agreed to authorize his return to full duties in a note dated April 13, 2004. It was Dr. Tautkus' expectation that Mr. Berry would be unable to do all of the essential tasks of his employment. However, he testified that sometimes he could be surprised by a patient who, contrary to medical opinion, made a successful return to work and full duties. Dr. Tautkus was vigorously cross-examined on his note authorizing Mr. Berry to return to work. He maintained that it did not accurately reflect his opinion of Mr. Berry's readiness for work. Rather, it was his response to Mr. Berry's persistent requests that he be permitted to return to work and his recognition that Mr. Berry was suffering significant financial hardship. Further, Dr. Tautkus expressed the opinion that any danger to Mr. Berry's health could be dealt with through close monitoring.

I found Dr. Tautkus' evidence to be helpful and credible. I accept that he honestly believed that his patient, Mr. Berry, could not do the essential tasks of his employment as a consequence of the injuries sustained in the motor vehicle accident. Having balanced risk to his patient's health and the benefits of Mr. Berry trying to return to his work, Dr. Tautkus provided a note which would have facilitated what he believed would be a temporary return to duties for Mr. Berry.

Dr. Chan's Evidence

Dr. Chan examined Mr. Berry on March 1, 2004. As a result of this examination and a subsequent bone scan,¹² and MRI report¹³, he formed the opinion that Mr. Berry was substantially disabled from carrying on the essential tasks of his employment as a mattress assembler due to the injuries sustained in the motor vehicle accident of April 11, 2003. In giving his evidence Dr. Chan referred to his report dated March 8, 2004.¹⁴

Work Description

Dr. Chan had a detailed knowledge of the requirements of Mr. Berry's job from the information provided by Mr. Berry at the examination and the F.I.T. Job Site Analysis. His evidence regarding the work that Mr. Berry did was detailed and essentially consistent with Mr. Berry's testimony and the F.I.T. report.

Medical Symptoms

When Dr. Chan saw Mr. Berry in March 2004 he presented with the following symptoms:

• intermittent headaches about 1 to 2 and sometimes 2 to 3 times weekly

• right shoulder pain in the scapular region which would increase with increased activity

• pain in the right knee which prevented him from trying to run

• back pain which did not restrict his activity.

Dr. Chan testified that the symptoms were consistent with injuries sustained in the 2003 accident as described to him by Mr. Berry.

Mr. Berry's back symptoms included mild lumbosacral tenderness with no signs of muscle spasm. If Mr. Berry extended his back he experienced more pain. Dr. Chan was of the opinion that the accident caused soft tissue trauma to the lower back. Dr. Chan testified that the bone scan report suggested that there was mild activity of degenerative disc disease. He noted that this could be caused by wear and tear and aging. However, in his opinion, the accident aggravated the disc disease causing what was asymptomatic prior to the accident to become problematic.

Dr. Chan commented on Dr. Lexier's report¹⁵ and disagreed with his conclusion that there were no objective findings of impairment. Dr. Chan referred to Dr. Lexier's observation of loss of flexibility with abnormal spinal rhythm. Dr. Chan concluded that this is an objective finding that there was a problem with the lower back. He also noted that Dr. Lexier's report makes reference to the right knee, specifically the patella or knee cap, which was a little tender and there was reduced flexion. Dr. Chan acknowledged that while the x-ray¹⁶ indicated there was no fracture, it was his opinion that Mr. Berry injured the knee as a consequence of the impact of the accident. When Dr. Chan examined Mr. Berry in March 2004, the knee was still painful as it had been when Dr. Lexier examined him.

Dr. Chan noted that Dr. Lexier made a normal finding with respect to the right shoulder. Dr. Chan disagreed with this finding because examinations by both he and Dr. Lexier demonstrated the same flexibility in the left shoulder and the same loss of flexibility in the right. They both note flexibility 140 to 160 degrees in the right and left shoulders respectively. Abduction was reduced 20 degrees on the right whereas there was full abduction on the left. Similarly, they both found that the internal rotation was to the iliac crest (Dr. Chan) and to the L5/L4 (Dr. Lexier's description) on the right compared to the left side which was to the T12 (both reports) which is a couple of inches below the shoulder blade. Dr. Chan concluded that the physical examination findings with respect to the right shoulder are the same in both reports. Therefore, Dr. Lexier's report did not change Dr. Chan's opinion regarding Mr. Berry's disability and its cause.

Dr. Chan reviewed the MRI report.¹⁷ He noted that there is mild to moderate fraying of the supraspinatus tendon. Dr. Chan described it much like a rope, which has been used a long time, breaking down. He noted that there is mild subacromial - subdeltoid bursitis with a small amount of fluid in the bursa. Dr. Chan testified that bursitis causes pain and stiffness particularly where there is use or work above the shoulder level.

In Dr. Chan's opinion, the right shoulder bursitis was caused by the accident rather than wear and tear. Dr. Chan concluded that because Mr. Berry has not worked for the past 1 1/2 years and the bursitis is presently actively inflamed, the probable cause is the direct trauma to the area from the accident. Dr. Chan could not accept that the bursitis would still be present if it were pre-existing the accident. His opinion regarding Mr. Berry's return to work was guarded. Dr. Chan thought that it might be necessary for Mr. Berry to undergo vocational rehabilitation to assist him in finding alternative employment.

Medical Symptoms Applied to Work

Dr. Chan noted that the F.I.T. report indicates that Mr. Berry is required to frequently pick up a mattress of up to 115 lbs. There is a lot of work above the chest level. Dr. Chan noted that picking up a mattress requires extension of arms two to three feet away and is not like picking up a bar bell, which would be held close to the body. In Dr. Chan's opinion, the bursitis in Mr. Berry's right shoulder and the lower back symptoms prevent him from engaging in such tasks. Dr. Chan considered the physical demands section of the F.I.T. report in which it sets out the maximum weight carried as 115 lbs. and the minimum as 18.7 lbs. with frequent lifting of raw materials of 10 lbs. Dr. Chan testified that Mr. Berry could not perform the type of work described. Neither could Mr. Berry frequently lift 115 lbs. from waist to shoulder nor frequently lift 115 lbs. over his head to transfer a mattress between stations. It was Dr. Chan's opinion that Mr. Berry could not fulfill these requirements due to his back and shoulder problems. The carrying (bi-lateral) requirements would be similar to the shoulder lifting requirements and, therefore, Dr. Chan was of the opinion that Mr. Berry would not be able to do those tasks.

I found Dr. Chan's evidence was helpful in applying the medical information respecting Mr. Berry's disability and applying it to the essential tasks of a mattress builder. I found him to be a thoughtful and considered witness.

Dr. Lexier's Evidence

Dr. Lexier referred to his report dated August 3, 2003¹⁸ and its addendum, dated October 13, 2004,¹⁹ in giving his evidence. As well, he commented on the results of the bone scan²⁰ and the MRI.²¹ Dr. Lexier formed the opinion that Mr. Berry was substantially able to resume the essential tasks of his employment as a mattress builder at Springwall Sleep Products as set out in his report of August 2004. Nothing he heard or reviewed since his examination of Mr. Berry changed his opinion.

Dr. Lexier indicated that he did not rely on the F.I.T. report in coming to his conclusions, although it was one of the documents available to him. He relied on Mr. Berry's description of his work.

Mr. Berry identified the following physical complaints when examined in August 2003 in decreasing order of severity:

• low back pain

• posterior right shoulder pain

• right knee pain

• left thumb pain

Dr. Lexier noted that Mr. Berry exhibited pain behaviour with respect to his low back and that his extension was diminished by 25%. He attributed any back pain experienced by Mr. Berry to the degenerative disc disease, a "significantly increased lumbar lordosis" and the fact that Mr. Berry is a big man. Dr. Lexier was of the opinion that the lordosis predisposed Mr. Berry to low back pain without the accident.²²

The symptoms in the right knee as described by Mr. Berry were attributed to pain behaviour with no objective findings of an ongoing process. Dr. Lexier discussed the x-ray taken on April 14, 2003 which suggested early signs of osteo-arthritis (o.a.). He testified that in his opinion it takes 5-10 years for osteo-arthritis to develop and therefore it could not be attributed to the motor vehicle accident.

Dr. Lexier reviewed the MRI report and indicated that it showed mild degenerative changes, such as fraying of the supraspinatus tendon and bursitis. When asked whether bursitis can occur for reasons other than trauma, he testified that the idiopathic type "can come out of the air", or repetitive lifting might account for it, or an inflammatory condition of which there are over 100 types. Under cross-examination, Dr. Lexier conceded that bursitis could be caused by trauma from the motor vehicle accident.

Notwithstanding the MRI report, it was Dr. Lexier's opinion that it was unlikely Mr. Berry had bursitis unless it developed after March 17, 2004, the date of the bone scan. He had acknowledged that while bursitis could have been caused by the type of work Mr. Berry did, it was more likely that there was some other cause after the bone scan was conducted. He suggested that a bone scan is a highly effective tool. He noted that an MRI may give false positives 5 to 10% of the time. In re-examination, Dr. Lexier compared diagnostic procedures in Canada to those in the United States suggesting that in Canada there is greater reliance on history taking and physical examination rather than gadgets like MRIs.

I did not find Dr. Lexier's evidence as helpful as that of either Dr. Chan or Dr. Tautkus. He seemed unwilling to acknowledge that Mr. Berry had bursitis, maintaining that there was a likelihood that there was a false positive on the MRI. In the alternative, Dr. Lexier's opinion was if Mr. Berry had bursitis, it developed after the bone scan.

ANALYSIS

Mr. Berry claims entitlement to a weekly income replacement benefit pursuant to Part II, Section 4(1) of the Regulation as follows:

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

5. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.²³

Mr. Berry is required to prove on a balance of probabilities that the injuries he sustained as a result of the accident on April 11, 2003 render him substantially unable to perform the essential tasks of his employment at Springwall Sleep Products from September 25, 2003 onward. Counsel for Mr. Berry argued that Mr. Berry's evidence and that of Dr. Chan and Dr. Tautkus meet the tests set out in Flemming and Wawanesa Mutual Insurance²⁴ and Lopez and State Farm Mutual Automobile Insurance Co.²⁵ including the appeal decision in Lopez²⁶ respecting "substantial inability" and the "essential tasks" of his employment.

In Flemming, the arbitrator in considering the elements necessary to establish entitlement noted: "It is necessary to identify these tasks and measure the Applicant's ability or inability to perform them. This is necessarily an individualised inquiry."²⁷ I concur with Arbitrator Blackman's analysis of "essential tasks" as stated in Lopez, upheld on appeal, as follows:

"Essential tasks" are the "necessary and key" tasks of one's employment. Essential tasks include those duties which a person must be able to perform as a prerequisite to being hired for a position."²⁸

What then are the necessary and key tasks of Mr. Berry's employment as a mattress builder at Springwall Sleep Products? Mr. Berry's testimony and the F.I.T. report were the only evidence before me to establish these elements. I find Mr. Berry to be a credible witness. Insurer's counsel submitted that because Mr. Berry took issue with certain aspects of the F.I.T. report, it was flawed by inaccuracies and was therefore unreliable. Counsel extended this analysis to Dr. Chan and Dr. Tautkus who relied on the report and whose evidence was therefore "infected by the same inaccuracies." I do not agree. I reiterate my earlier finding that the differences between Mr. Berry's evidence and the F.I.T. report are not so significant as to undermine either the credibility of the Applicant's evidence or the accuracy of F.I.T.'s report.

Liberty's counsel in his closing argument referred to a number of reports submitted in evidence, as follows:

1. The Functional Capacity Evaluation report dated July 4, 2003 in which the team concluded that the results were not representative of Mr. Berry's functional ability because he did not fully participate.²⁹

2. The Medical Rehabilitation DAC report dated November 14, 2003 which concludes that Mr. Berry was magnifying symptoms and not putting forward sufficient effort.³⁰

3. The Disability DAC report dated November 11, 2003 which gives a diagnosis of a soft tissue injury to the neck, with possible "trigger points of the right trapezii and rhomboids." The report suggests that usually soft tissue injuries "resolve with or without treatment within 4-12 weeks." The Disability DAC report goes on to note that there was no objective impairment noted on assessment. The report suggests that Mr. Berry should be counselled as to hurt vs. harm.³¹

4. The discharge note, dated March 18, 2004, of North Peel Rehabilitation & Treatment Clinic, which provided physiotherapy to Mr. Berry, was relied on. He was discharged to a home exercise program. The note refers to Mr. Berry being able to "bring his right arm overhead to the left shoulder, he was able to reach the back of the opposite shoulder from the front and achieved full external and internal rotation with arm at 90 degrees of abduction." The note also refers to tenderness of the right trapezius. Mr. Berry was discharged from physiotherapy with instructions to contact a therapist if the shoulder problem did not resolve.³² Insurer's counsel noted that there is no record of Mr. Berry contacting the therapist since his discharge and no record of further treatment.

All of the reports cited by Insurer's counsel were produced without the benefit of the MRI report which indicated that Mr. Berry had bursitis in the right shoulder: "Subacromial-subdeltoid Bursa: Bursitis." Dorland's Illustrated Medical Dictionary, 28th Edition, at page 240, defines bursitis as: "inflammation of a bursa, occasionally accompanied by a calcific deposit in the underlying supraspinatus tendon; the most common site is the subdeltoid bursa."

The Disability DAC was conducted at the William Osler Health Centre from November 6, 2003 to November 28, 2003. This is the same facility that assessed Mr. Berry immediately following the accident on April 11 and again on April 14, 2003 when x-rays were taken of his shoulder. The assessment team consisted of a physician, a physiotherapist, a psychologist and a kinesiologist. It concluded that Mr. Berry was not medically disabled from performing the essential tasks of his pre-accident employment. However, the report also stated: "From a functional perspective, due to inconsistencies and self-limiting behaviour, the client's true functional capabilities are unknown."³³

I find that Mr. Berry's self-limiting behaviours consistently noted in the various assessments, including the Disability DAC, were his response to the pain caused by the then undiagnosed bursitis.

Dr. Lexier, an expert in orthopaedic surgery, maintained throughout his testimony that Mr. Berry was able to perform the essential tasks of his employment even in the face of independent and objective evidence which much suggest otherwise. Dr. Lexier suggested at one point that he had not seen the F.I.T. report at the time of his initial assessment. This, notwithstanding, it was listed as a document provided to him at the time and he indicated he would have reviewed all of the reports set out in his report. I believe that he relied on Mr. Berry's description of his work. However, it was apparent that he did not have a detailed appreciation of the pace or strength requirements of Mr. Berry's work.

Dr. Lexier suggested the MRI report is suspect given there is a 5 to 10% chance of a false positive. Thus, he refused to accept that Mr. Berry had bursitis. However, if he was wrong in this opinion, then it was his opinion that it must have occurred after the bone scan. Under cross-examination he conceded that it was "possible" it could have been caused by the trauma of the motor vehicle accident but he could only accept this if all other possible reasons had been explored and excluded. I do not accept that the MRI report contains a false positive result with respect to bursitis. From the date of the accident to the date of his testimony Mr. Berry consistently complained of pain in the right shoulder. He limited his activity in various assessments in a manner which was consistent with pain in the right shoulder. Therefore, I find that, on a balance of probabilities, Mr. Berry had bursitis at the time of the report.

As between the evidence of Dr. Chan and Dr. Lexier I prefer that of Dr. Chan. I found that Dr. Chan had a detailed appreciation of the essential tasks of Mr. Berry's work and applied his medical findings to those tasks to reach the conclusion that Mr. Berry could not perform them.

The evidence of Dr. Chan and Dr. Tautkus was essentially consistent. They both formed the opinion that Mr. Berry was substantially unable to perform the essential tasks of his employment as a mattress builder as a result of injuries sustained in the accident of April 11, 2003.

In reviewing the medical evidence, I am impressed by the consistency of Mr. Berry's complaints from April 11, 2003, the date of the accident, to the date of his testimony before me. I note particularly the similarity of Dr. Lexier's findings with respect to the right shoulder in August 2003 and Dr. Chan in March 2004. They both document the same results with respect to loss of flexibility and both report that Mr. Berry commented on pain. I find that the cause of the pain and loss of flexibility was, on a balance of probabilities, the bursitis which was finally diagnosed through the MRI conducted in August 2004. I find that the bursitis was caused by the trauma of the motor vehicle accident. The bursitis prevents Mr. Berry from frequently lifting weights of 50 to 115 lbs. above his shoulder and head. I reiterate my previous finding that the ability to frequently lift such weights is an essential task of Mr. Berry's employment. Therefore, Mr. Berry suffers a substantial inability to perform the essential tasks of his employment. Further, I find that the motor vehicle accident exacerbated Mr. Berry's predisposition to lower back pain which has resulted in significant pain when he undertakes frequent bending. This factor would further diminish Mr. Berry's ability to perform and meet production targets of 35 to 50 mattresses per day.

Insurer's counsel implied that either the help of colleagues or the use of assistive devices such as trolley carts or tow motors would permit Mr. Berry to carry out the essential tasks of his employment. I find that it would be unreasonable for Mr. Berry to seek assistance lifting mattress frames or finished mattresses from either his co-workers or management to the extent his injuries would require. I accept Mr. Berry's evidence that trolley carts and tow motors were not reasonably available to him. Therefore, I find that assistive devices would not permit Mr. Berry to carry on the essential tasks of his employment.

On the basis of the foregoing, I conclude that Mr. Berry suffers a substantial inability to perform the essential tasks of his employment as a mattress builder.

Repayment of Income Replacement Benefits

The Insurer paid Mr. Berry income replacement benefits for the period September 25, 2003 to December 31, 2003 and claimed repayment of those benefits. As I have found that Mr. Berry was substantially disabled from performing the essential tasks of his employment from April 11, 2003 to present pursuant to the test in Part II, Section 4(1) of the Regulation, the Insurer is not entitled to repayment of the benefits paid between September 25, 2003 to December 31, 2003.

For the foregoing reasons I find:

1. Mr. Berry is entitled to a weekly income replacement benefit pursuant to the Schedule at the weekly rate of $400.00 from January 1, 2004 and ongoing.

2. Liberty is not entitled to repayment of the income replacement benefits it paid to Mr. Berry for the period September 25, 2003 to December 31, 2003.

3. Mr. Berry is entitled to interest from January 1, 2004 and ongoing.

4. Mr. Berry is entitled to his expenses in this matter.

EXPENSES:

The parties agreed that the issue of expenses would be dealt with following the release of this decision. Further, they agreed that if they are unable to settle the issue they will seek an expense hearing pursuant to the Dispute Resolution Practice Code.

January 26, 2005

Denise Ashby Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 9

FSCO A03-001616

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DANAIL BERRY

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Berry is entitled to income replacement benefits at the weekly rate of $400.00 from December 31, 2003 and ongoing pursuant to section 4 of the Schedule.

2. Liberty Insurance is not entitled to repayment of the sum of $5,484.77, representing the income replacement benefits paid to Mr. Berry from September 25, 2003 to December 31, 2003.

3. Liberty Insurance is liable to pay Mr. Berry's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

4. Mr. Berry is not liable to pay Liberty Insurance's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

5. Mr. Berry is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

January 26, 2005

Denise Ashby Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab M(2) Page 422
3. 3Exhibit 1, Tab E, Page 219
4. 4Exhibit 1, Tab G(1), page 274, William Osler Health Centre, X-ray report dated April 15, 2003
5. 5Ibid, page 275
6. 6Ibid, Tab C(3) pages 88, 90, 92, 94, 102, 109
7. 7Ibid, Tab C(3) page 109
8. 8Exhibit 1, Tab C(1) pages 69 to 78
9. 9Ibid, page 76
10. 10Ibid, page 74
11. 11Footnote 8, supra., Page 76, Tab C(3), page 80
12. 12Exhibit 1, Tab L2, page 418
13. 13Ibid, Tab L3, page 419
14. 14Exhibit 1, Tab H2, pages 280 to 284
15. 15Exhibit 3, Tab 108, page 618
16. 16Exhibit 1, Tab F(1), page 228
17. 17Footnote 13, supra., page 419
18. 18Exhibit 3, Volume 3, Tab 108, pages 614 to 620
19. 19Exhibit 8
20. 20Footnote 15, supra
21. 21Footnote 16, supra
22. 22Footnote 21, supra., page 619
23. 23Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996
24. 24(OIC A-000406, April 28, 1992)
25. 25(OIC A97-000378, June 16, 1998)
26. 26(FSCO P98-00031, September 20, 1999) appeal
27. 27Footnote 24, supra, page 9.
28. 28Footnote 25, supra, page 4.
29. 29Exhibit 3, Tab 103, page 566
30. 30Ibid, Tab 117, pages 664 to 666
31. 31Ibid, Tab 118, pages 685 to 686
32. 32Exhibit 1, Tab F(1), pages 250 and 251
33. 33Footnote 31, supra., page 675