Neutral Citation: 2008 ONFSCDRS 93

FSCO A06-000771

BETWEEN:

JOSEPH RICHARD OVILA GODARD

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Elizabeth Nastasi

Heard: October 1, 2, 3 and November 28, 29, 2007

Appearances: Mr. Godard represented himself Debbie Orth for York Fire & Casualty Insurance Company

Issues:

The Applicant, Joseph Richard Ovila Godard, was injured in a motor vehicle accident on May 14, 1999. He applied for statutory accident benefits from York Fire & Casualty Insurance Company (“York”), payable under the Schedule.¹ Disputes arose with respect to Mr. Godard’s claim for benefits. The parties were unable to resolve their disputes through mediation, and Mr. Godard 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. Godard entitled to receive a weekly income replacement benefit ongoing from May 21, 1999, pursuant to section 4 and paragraph 5(2)(b) of the Schedule?
What is the amount of the weekly income replacement benefit that Mr. Godard is entitled to receive pursuant to section 6 of the Schedule?
In the alternative, is Mr. Godard entitled to receive a non-earner benefit of $185 per week ongoing from November 12, 1999 pursuant to section 12 of the Schedule?
Is York liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is York liable to pay Mr. Godard’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Godard liable to pay York’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Godard entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Godard is not entitled to receive a weekly income replacement benefit.
Mr. Godard is not entitled to receive a non-earner benefit.
York is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.

SUMMARY:

Mr. Godard made a claim for both income replacement benefits and non-earner benefits. York did not object to Mr. Godard proceeding in this manner as opposed to making an election for one of the benefits pursuant to section 36 of the Schedule. As such, I heard evidence with respect to both claims.

I did not find Mr. Godard to be entitled to income replacement benefits as I did not find him to be employed or self-employed at the time of the accident. At the time of the accident, Mr. Godard was in the process of setting up a pawn shop. Based on the evidence provided by the Applicant and his witnesses, the business was effectively open and operating sometime between September and December 1999 – more than four months post-accident.

Mr. Godard was not successful in his claim for non-earner benefits as he failed to establish, on a balance of probabilities, that the motor vehicle accident caused or materially contributed to the injuries of which he complains. Mr. Godard had extensive pre-accident medical conditions and complaints of a similar nature to his post-accident complaints. I found that the medical evidence did not support the assertion that his current condition was caused by the motor vehicle accident of May 14, 1999.

I will deal with the evidence that led me to these conclusions in more detail below.

EVIDENCE & ANALYSIS:

Income Replacement Benefits

Section 4 of the Schedule provides that an insured who sustains an impairment as a result of an accident shall be paid an income replacement benefit if the insured was employed at the time of the accident or was employed for at least 26 weeks during the 52 weeks before the accident or was entitled at the time of the accident to start work within one year under a legitimate contract of employment made before the accident and evidenced in writing. The burden of proof rests with Mr. Godard to prove on a balance of probabilities that pursuant to section 4 of the Schedule he was employed at the time of the accident. For the reasons that follow I find that Mr. Godard has not discharged his onus.

At the time of the accident, Mr. Godard was in the process of setting up his own business – a pawn shop. The Insurer took the position that Mr. Godard’s business came into fruition after the accident. The vendor’s permit was issued on September 2, 1999.² The commercial lease was signed on September 16, 1999.³ The business insurance period began November 11, 1999 ⁴ and his business bank account was opened on August 30, 1999.⁵ Mr. Godard did not dispute any of this evidence.

The Disability Certificate prepared by Dr. Randlett, Mr. Godard’s family doctor, dated June 24, 1999 notes: “was not employed.”⁶ In the clinical notes and records of Dr. Randlett, there was a reference on October 6, 1999 that read: “plan to open store.”⁷ There was no reference in her notes at the time of the accident or up until this October 6, 1999 entry to any employment activity.

Mr. Godard submitted two separate Applications for Accident Benefits. The first was received by P.C.A. Adjusters on July 14, 1999.⁸ The second Application was received on March 14, 2004.⁹ These two Applications provide very different accounts of Mr. Godard’s employment status at the time of the accident. In the initial Application for Accident Benefits, both Part 5 (Applicant Status) and Part 8 (Income Replacement Determination) were left blank. Part 9 of the Application (Other Insurance or Collateral payments) indicated that since May 19, 1992 Mr. Godard had been receiving a disability benefit of $930 per month. This amount was later confirmed to be Ontario Disability Support Program (ODSP) and Canada Pension Plan (CPP) disability benefits. Further, the OCF-2 Employer’s Confirmation of Income had a line drawn through the page. Mr. Godard’s evidence was that he did not fill out the Application himself but he did sign it on July 13, 1999. Ms. Linda Ravary, an independent adjuster with P.C.A. Adjusters Limited, gave evidence that she filled out the Application during her initial meeting with Mr. Godard at her office. Mr. Godard initialed each page and signed the Application.

In a report dated June 18, 1999, Ms. Ravary sent a summary report to York detailing her initial contact with Mr. Godard.¹⁰ There is no reference to any employment or business activity in her report. Ms. Ravary does note that Mr. Godard had advised her that he had been in receipt of a permanent disability pension since May 1992 and had not worked since this time. Further, the report notes that Mr. Godard was still in receipt of these benefits at the time of the accident. At no time during this initial Application for Accident Benefits did Mr. Godard make a claim for income replacement benefits.

Ms. Ravary testified that after a lack of activity on the file she made several unsuccessful attempts at communicating with Mr. Godard about whether he would be pursuing an accident benefits claim. Ms. Ravary wrote to him on December 8, 1999 and advised him that his file would be retired due to lack of activity – there was no response.¹¹

On April 10, 2003, almost four years post-accident, Mr. Godard walked into Hunt Insurance Brokers Ltd. complaining of a sore back and advised that he required back surgery. Mr. Godard felt that his back injury and the loss of his business were the result of the May 14, 1999 accident.¹² Mr. Godard’s accident benefits file with York was re-opened and a second Application for Accident Benefits was completed. In a reporting letter to York dated February 9, 2004, Ms. Ravary notes that Mr. Godard advised her that he had started the pawn business eight months prior to the accident.¹³

Mr. Godard took the position that since he was actively setting up the shop and doing renovations to the store location at the time of the accident, he was in fact self-employed. Mr. Godard called two witnesses to support his clam - his brother-in-law, Charles Dorie, who later bought the business from him in approximately September 2000; and his brother, Pierre Godard who assisted with the store renovations. Both witnesses confirmed Mr. Godard’s pawn shop was not open and operating until approximately December 1999 – almost 7 months after the accident.

York called Ms. Esther Young, an accountant with the accounting firm Matson, Driscoll & Damico Ltd., as a witness. Ms. Young was retained by York in approximately September 2004 to calculate an income replacement benefit for Mr. Godard. After reviewing all of the financial documentation provided by Mr. Godard,¹⁴ Ms. Young concluded that he was neither employed nor self-employed at the time of the accident. She stated that there was no evidence that the pawn business was open and operating at the time of the accident.

Mr. Godard testified that he had bought and sold items from flea markets prior to the actual official opening of the pawn shop and that this is how he got the money to do the renovations. Further, his evidence was that he did have business records which tracked his expenses and sales during this pre-accident time period, however, the records had been lost in a move. Neither of his witnesses confirmed this information and there were no business records to support this assertion. Further, Ms. Young testified that she did not recall Mr. Godard ever advising her about any pre-accident sales or additional lost business records that tracked these sales. She had no notes or records in this regard.

When Mr. Godard was asked on cross-examination whether his tax returns for the 1999 tax year reflected any of the income that he said he made prior to the store officially opening, Mr. Godard replied “no comment.” An examination of Mr. Godard’s income tax returns for the relevant period reveal that the only income declared for both the 1999 and 2000 tax year was from CPP benefits and social assistance payments – they do not make any reference to any employment income.¹⁵

FSCO case law is clear that an intention to be self-employed or a declaration of self-employment, even coupled with a written business plan, does not necessarily create employment or work.¹⁶ In determining whether or not the Applicant was on a temporary lay-off at the time of the accident, Arbitrator Palmer in Sharma and Cooperators General Insurance ¹⁷ stated that although the intention of the parties is important, it should not govern the question. The determination of whether someone is “employed” requires an “…objective, reasoned interpretation of the individual circumstances” at the time of the accident.

In Palumbo and Dominion of Canada General Insurance Company, Arbitrator Miller, adopting the approach in Sharma, states that: “It is not always necessary for a person to be working in his business in order to be found self-employed: at times because of illness or a downturn in the economy, a person may not be able to work. Nevertheless, something more is needed than a subjective intention, or the declaration of a person that he is self-employed.” ¹⁸

Adopting the approach in Sharma and Palumbo, I find that Mr. Godard’s evidence was clear: at the time of the accident he had not yet started his business in any concrete way. I therefore find that Mr. Godard was not employed at the time of the accident and therefore not entitled to income replacement benefits.

Non-Earner Benefits

Non-earner benefits are payable where an insured person sustains an impairment as a result of an accident and as a result of and within 104 weeks after the accident “suffers a complete inability to carry on a normal life.”¹⁹ The latter is defined as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”²⁰ This “complete inability” test is strict. It represents a higher degree of disability than “substantial inability.”²¹

Mr. Godard’s evidence was that as a result of the accident he suffers from headaches, neck pain, back pain, problems with concentration, difficulty sleeping and depression. Most, if not all, of the symptoms and complaints that Mr. Godard experienced post-accident were also complaints that he had pre-accident and are documented in Dr. Randlett’s clinical notes and records and the reports of the various medical specialists who have treated him over the years. After reviewing Mr. Godard’s pre and post accident medical records, I am unable to find, on the balance of probabilities, that the accident caused or materially contributed to the injuries of which he complains.

Pre-Accident Medical Condition

Mr. Godard has been in two previous car accidents in his life. One which he described occurred when he was 17 years old and left him in a coma for 21 days. He suffered multiple injuries and broke most of the bones in his left arm and had to go through extensive rehabilitation. There is reference in Dr. Randlett’s medical records to another car accident in which Mr. Godard suffered from a neck injury, however it is not clear exactly when this accident occurred.²²

In or about November 1992, Mr. Godard was diagnosed with myofascial pain syndrome following an assessment by Dr. Acharya at the Saint-Vincent Hospital in Ottawa. Over the years he has been treated mainly with narcotics and analgesics. In addition to the specific pain complaints noted above, he has also regularly suffered from depression, headaches and chest pains. In 1996, after complaints of “low back pain”, Mr. Godard had lower back surgery to have his coccyx removed.

The medical records before me in evidence refer to neck pain, headaches and periods of depression at various times pre-accident. They also note pre-existing pain and injuries related to Mr. Godard’s left side. In addition, a CPP Impairment Evaluation Form filled out by his family doctor in March 1999, two months before the accident, notes depression and coccyx pain and stated that his physical stamina had decreased because of chronic pain and limitations on his left side and that he now had more pain and stiffness on his right side.²³

Post-Accident Medical Condition

The first medical treatment that Mr. Godard sought was two weeks after the accident on May 28, 1999. He went to Cornwall General Hospital and was treated by an emergency room doctor. He stated that immediately prior to the accident he had taken some pain medication so he was groggy and it probably took care of the pain. The hospital report notes Mr. Godard as reporting: pain at the back of his head, blurry eyes on and off, and pain down the right side of his neck and shoulder.²⁴ The x-rays taken of his cervical spine showed no fractures and were marked as “no abnormality.” There was no mention of back pain in this report and no x-rays were taken of any other part of his back.

It was not until June 24, 1999, almost six weeks post-accident, that Mr. Godard went to see his family doctor. Dr. Randlett’s notes state that Mr. Godard was complaining of “headaches, blurred vision, memory lapses, neck pain, increased pain in back and numbness in shoulders.” ²⁵

Prior to the accident, Mr. Godard had been regularly taking pain medication. He was taking Tylenol-3 once or twice per day and a muscle relaxer called Baclofen. After the June 24, 1999 visit with Mr. Godard, Dr. Randlett did not increase his pain medication at this time or refer him to any kind of rehabilitation therapy.

Mr. Godard’s next post-accident visit to his family doctor was four months later on October 6, 1999. Dr. Randlett makes reference to the motor vehicle accident and notes “headaches still has pain side.” There is also a notation that states “said no to send 10 years of notes to IR.”

On cross-examination, Mr. Godard stated that he did not know why that notation would be in her notes and that he did not tell Dr. Randlett that she could not send his medical records to the Insurer. The clinical notes on this date also indicate that he was “starting a business.” ²⁶

The next visit to his family doctor was on December 8, 1999 – this would have been shortly after Mr. Godard opened the pawn shop. Dr. Randlett notes that he was “working daily” and “very busy, no time off.”²⁷ Six months later on June 15, 2000 at the next visit, Dr. Randlett notes “working very hard, pain on his left side worse and right side weak.”²⁸

During the same period of time that Dr. Randlett notes Mr. Godard as working very hard setting up his business, she also prepares a Disability Certificate. The October 6, 1999 Disability Certificate notes that overall Mr. Godard had “returned to his pre-accident status” with respect to housekeeping, however, in terms of pain she notes that although he had improved he had not returned to his pre-accident status. She checked off the box related to non-earner benefit – “suffers an impairment that prevents him from carrying on substantially all his normal pre-accident activities.”

It appears as though a full year passes before Mr. Godard sees his family doctor again on June 6, 2001. In this entry, Dr. Randlett notes that the “business was sold to his sister - he never got paid - feeling very ill.”²⁹ After the June 27, 2001 visit, Dr. Randlett notes “sharp pain in his middle back.” Then on December 20, 2001 she notes “upper back hurts bad.” There is no reference to the motor vehicle accident in either of these entries in relation to Mr. Godard’s back pain or any other pain complaint noted.

It appears as though Mr. Godard continues to visit with his doctor approximately every six months with prescription renewals in between. During a January 16, 2003 visit, Dr. Randlett makes reference to an MRI completed and notes a work related injury 15 years prior.³⁰ There is no reference to the motor vehicle accident.

Mr. Godard submitted two separate Applications for Accident Benefits. The first was received by P.C.A. Adjusters on July 14, 1999.³¹ This file was closed due to lack of activity in December 1999.³² On April 10, 2003, almost four years post-accident, Mr. Godard walked into Hunt Insurance Brokers Ltd. complaining of a sore back and advised that he required back surgery. Mr. Godard felt that his back injury and the loss of his business were the result of the May 14, 1999 accident.³³

There is limited reference to back pain in the period immediately following the accident. There is no reference to a complaint of back pain in the emergency room report and only a neck x-ray was conducted. When Mr. Godard filled out the SABS supplementary questionnaire, there was no mention of back pain in the section where he describes his injury.³⁴

In a July 16, 2003 Consultation Report at the St. Joseph Health Centre of Cornwall, Mr. Godard reported that he had a motor vehicle accident about two years prior which led to complaints of back pain.³⁵ I find that this statement is not accurate as there are several references to back pain pre-accident. The following are examples of the existence of pre-accident back pain:

July 22, 1992 Dr. DeYoung notes mild tenderness over the thoracic spine and very severe tenderness over the left costal chondral junction C 5-7;³⁶
July 5, 1995 Dr. Achar, orthopaedic surgeon, examined Mr. Godard’s coccyx. Mr. Godard reported that he had pain for many years in that region. X-rays were taken which showed L5-S1 disc degeneration and coccydemia; ³⁷
February 21, 1996 Dr. Achar recommends surgery for the coccyx; ³⁸ and
April 8, 1998 a consultation record of Dr. G. C. Navaneelan notes that Mr. Godard had a history of low back pain that had been present since the surgery to have his coccyx removed and that the pain is often worsened by sitting or walking fast. Dr. Navaneelan also notes tender spots in his L3 and L4 spines and recommends an injection of cortisone in those areas.³⁹

Having myofascial pain syndrome Mr. Godard had attended with numerous medical specialists both pre and post-accident. There is no reference in any of these reports that link his impairments to the motor vehicle accident or show an exacerbation of any pre-existing conditions to the accident. As it was his back pain that led Mr. Godard to request that his accident benefits file be re-opened, of note is the fact that that there is no reference in any of the reports that link his back pain with the motor vehicle accident. For example:

In an August 3, 2000 report by Dr. A. Redda, internal medicine & rheumatology, there is reference to a “long history of generalized pain” but no reference to Mr. Godard’s May 14, 1999 accident or to any specific back pain complaint. She does note that “On exam today the range of motion of the LS spines and peripheral joints appear to be quite normal.”⁴⁰
Mr. Godard had an x-ray of his lumbar and thoracic spine on December 20, 2001 which notes mild disc space narrowing at L4 and L5 and signs of facet arthropathy of L4-5 and L5-S1. ⁴¹
Dr. Randlett ordered a bone scan which took place on January 18, 2002. The bone scan report noted “no abnormalities” and “minimal increased uptake in the posterior elements at the level of L4 - L5 suggesting early facet degenerative changes.”⁴² Dr. Randlett’s handwritten notes say “old injury to back current scan shows early OA lower back.”⁴³ Again there is no reference to the accident in her clinical notes and records during the period when these x-rays were being conducted.
An MRI of the lumbosacral spine was conducted on November 26, 2002 which stated “Impression: degenerative changes as described, most severe at L 4/5. No acute vertebral body fractures identified. At L 4/5 there is a broad based disc bulge.” ⁴⁴ The disc bulge in this area of L 4/5 is the same area that Dr. Achar found L5-S1 disc degeneration and coccydemia in 1995 pre-accident. ⁴⁵ Dr. G. C. Navaneelan reported tender spots in his L3 and L4 pre-accident.⁴⁶
On January 21, 2003 a thoracic and cervical spine x-ray was conducted. The results stated: “Impression - normal study.”⁴⁷
On January 12, 2004 an MRI of the thoracic and cervical spine was conducted which found “multilevel mild degenerative disc disease.” ⁴⁸

None of the above-noted post accident examinations and assessments make any causal reference to the May 14, 1999 accident and Mr. Godard’s impairments.

It is not until November 24, 2004 when a treatment plan was submitted to York by Dr. Nanji for injections that any causal link is made between Mr. Godard’s back pain and the accident of May 14, 1999.⁴⁹ The Treatment Plan had been returned to Mr. Godard as it had not been filled out correctly. The injury was listed as “lumbar disk left sciatica” and recommends injections. This is the same lower back area that Mr. Godard had complained about pre-accident. Dr. Nanji was not called as a witness and, as such, there was no additional evidence presented with respect to the November 22, 2004 Treatment Plan.

Activities of Daily Living

Mr. Godard acknowledged that he was found to be “disabled” prior to the accident and was in receipt of ODSP and CPP disability benefits. His evidence was that his pain would come and go and his muscles would “lock up and twist”, however sometimes he could go three months with no pain. He testified that prior to the accident, his “attacks” were mainly in his arms, left side chest and stomach. On cross-examination, he stated that his pain before the accident would vary. Some days his pain would be 12 out of 10, however, in the six months before the accident he stated that his pain had subsided. He testified that at the time of the accident he “wanted to go back to work and felt a lot better.”

During cross-examination, Mr. Godard refused to answer any questions related to the Activities of Normal Life Questionnaire that he had completed on or about June 14, 1999.⁵⁰ On that form Mr. Godard reported his pre-accident life as waking around 8 or 9 a.m., going to a friend’s house for a coffee, returning home for lunch, running errands, playing computer games, reading, doing housework and watching TV. After the accident he reported that he stayed home more. Due to his pre-existing condition there were several activities he had not been able to do before the accident such as walking up stairs, sitting or standing for long periods of time. After the accident, he reported making three small trips for groceries instead of one and that he was still able to complete meal preparation. He reported that he was totally independent in terms of personal care. ⁵¹

By his own testimony, Mr. Godard stated that he was involved in all of the store renovations, set-up and then daily business operations. When Mr. Godard was cross-examined on how active he appeared to be post-accident, he testified that he was “working through the pain.” He stated that at times the pain would be so severe that he would pass out on the street and had visited the emergency room several times as a result. There was no reference to these fainting spells in his family doctor’s clinical notes and records. Further, there is no reference to this in any of the reports of the specialists that he had seen post-accident. Mr. Godard did not produce any medical documentation or hospital reports to support these claims.

Dr. Randlett prepared three separate Disability Certificates. In all three Certificates she notes Mr. Godard’s impairment as “pain stiffness neck shoulders upper back headaches.”⁵² Under “Diagnosis” she writes: “soft tissue injury neck / shoulder / upper back.” In the October 6, 1999 Disability Certificate she wrote that Mr. Godard was doing all his own self-care and all of his own housekeeping with pacing.⁵³ Further, she notes that in terms of pain Mr. Godard had improved but he had not returned to his pre-accident status. She notes that “He still was experiencing almost daily headaches and more stiffness and pain in his neck than was usual for him.”

The third Disability Certificate was dated December 3, 2004 – more than five years after the second. Dr. Randlett checks off “non-earner benefits” and noted “daily pain / stiffness inhibit all but essentials of daily living.” ⁵⁴ She notes that he has permanent additional difficulties because of the accident and that he did not return to his pre-accident level of pain control or function despite meds and consultations.

I have not given much weight to the Disability Certificates prepared by Dr. Randlett for the reasons set out below.

Causation:

Taking into consideration his pre-accident impairment, Mr. Godard must show that the accident caused or materially contributed to the disability or impairment that gives rise to the claim for benefits.⁵⁵

The thrust of Mr. Godard’s case is that, just before the May 1999 accident, he was more active than he had been for many months, despite a long history of severe pain and total disability. Mr. Godard testified that as a result of the accident he suffers from headaches, neck pain, back pain, problems with concentration, difficulty sleeping and depression. Most, if not all, of the symptoms and complaints that Mr. Godard experienced post-accident were also complaints that he had pre-accident and are documented in Dr. Randlett’s clinical notes and records and the reports of the various medical specialists that have treated him over the years.

Taking into account the full spectrum of pre and post-accident evidence into consideration, I do not find that Mr. Godard has proved that his current impairments were caused by the accident. I base my conclusion on the following:

Mr. Godard did not respond when his file was closed due to lack of activity in December 1999. He made no claim for accident benefits and made no contact with the Insurer for almost four years until April 2003.
When Mr. Godard did contact the Insurer to have his file re-opened his specific complaint was his back pain and claimed that he needed surgery. During a surgical consult on October 21, 2003, Dr. Chow notes: “… he has normal degenerative changes one would expect in the cervical and lumbar spine for a 55-year old man, I do not see any changes that would result in significant need for spinal surgery.”⁵⁶
The medical evidence revealed pre-existing back pain. In addition, an examination of the x-rays and MRIs that were conducted of Mr. Godard’s back revealed degenerative types of disease found in similar areas that had been identified pre-accident in his lower back.
In respect of Mr. Godard’s other more general pain complaints and depression, the medical records show a longstanding pre-existing history of musculoskeletal pain dating back to a serious car accident at age 17 and a diagnosis of myofascial pain syndrome in 1992.
None of the medical reports make reference to the May 14, 1999 accident in relation to Mr. Godard’s back pain or any other impairment. There were no medical witnesses called to give evidence which linked his back pain or any other impairments to the accident.

Apart from Mr. Godard’s testimony, the only significant evidence in support of his claim for non-earner benefits are the Disability Certificates completed by Dr. Randlett. In the most recent Certificate dated December 3, 2004 she indicates “non-earner benefits” and notes that Mr. Godard has permanent additional difficulties because of the accident and that he did not return to his pre-accident level of pain control or function despite meds and consultations. In light of all of the evidence presented I have given this evidence very little weight relative to the other evidence before me for the following reasons:

The December 3, 2004 Disability Certificate notes “daily pain and stiffness.” These are complaints that Mr. Godard has been experiencing since 1992 or longer and are the same complaints Dr. Randlett listed on the CPP Impairment Evaluation Form two months prior to the accident. ⁵⁷
In the period immediately following the accident Mr. Godard actually seems to have been more active than in the years prior. He gave evidence that he was actively setting up his business and working long hours. Dr. Randlett’s notes indicate that Mr. Godard is working very hard and setting up his business, however at the exact same time she completed a Disability Certificate that indicated non-earner benefits.
In the period between the October 6, 1999 Disability Certificate and the December 3, 2004 Disability Certificate, there is no reference in Dr. Randlett’s clinical notes and records to the accident in relation to any of Mr. Godard’s impairments or pain complaints. Oddly however, she does make reference to a work related injury from 15 years prior.
Dr. Randlett does not give any explanation for how she links Mr. Godard’s pain to the accident given that it would appear that in the years prior to the accident Mr. Godard had similar levels of pain and similar types of complaints.
Dr. Randlett was not called as a witness in order to provide a better explanation of her notes and her position with respect to Mr. Godard’s impairment.

In summary, the Disability Certificates and Dr. Randlett’s clinical notes and records do not adequately address the issue of causation.

Based on the above, I find that Mr. Godard does not meet the non-earner test. I find that his abilities to carry out his activities of daily living were not significantly altered by any impairments he may have suffered as a result of the accident. Although there is no doubt that today, Mr. Godard suffers from various impairments, given his extensive pre-existing medical condition, he did not prove on the balance of probabilities that his current condition is the result of the motor vehicle accident of May 14, 1999.

SPECIAL AWARD:

A special award under subsection 282(10) of the Insurance Act is predicated upon a finding of entitlement to benefits. As Mr. Godard is not entitled to benefits, I need not consider the issue of a special award.

EXPENSES:

I encourage the parties to settle the matter of expenses between themselves. However, if they are unable to reach an agreement, they may request a determination of the issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.

June 13, 2008

Elizabeth Nastasi Arbitrator

Date

ARBITRATION ORDER

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

Mr. Godard’s Application for Arbitration is dismissed.