Neutral Citation: 1993 ONICDRG 26

File No. A-001994

ONTARIO INSURANCE COMMISSION

BETWEEN:

PEDRO CORREAL

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Pedro Correal, was injured in a motor vehicle accident on July 18, 1990. He applied for and received weekly income benefits and benefits for medical rehabilitation from the Jevco Insurance Company. These benefits were paid under the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).

Mr. Correal also asked Jevco to fund occupational training under section 6(1)(c) of the No-Fault Benefits Schedule. Specifically, he requested funding to allow him to retrain as a commercial airline pilot. Jevco did not provide benefits for this purpose. The dispute between Mr. Correal and Jevco was not resolved through mediation and, therefore, Mr. Correal applied for arbitration.

Mr. Correal continued to receive weekly income benefits until July 8, 1992. The termination of his weekly income benefits was not dealt with in the mediation and, at the request of Mr. Correal's representative, this issue was not dealt with in the arbitration.

The issue to be determined is:

Is Mr. Correal entitled to benefits under section 6(1)(c) of the No-Fault Benefits Schedule to allow him to retrain as a commercial airline pilot?

The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Correal did not establish that occupational training to become a commercial airline pilot is a reasonable expense resulting from the accident. Therefore, he is not entitled to benefits under section 6(1)(c) of the No-Fault Benefits Schedule for this purpose.

2. Jevco shall pay Mr. Correal his expenses related to this arbitration, as set out in Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on March 17, 18 and 25, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant: Pedro Correal

Applicant's Representative: Joseph Pileggi, legal assistant

Insurer's Representative: Barney Brucker, Barrister & Solicitor

Witnesses:

1. Pedro Correal, the Applicant
2. Jairus Redhead, Vocational Rehabilitation Services counsellor
3. Stan Short, Humber College
4. Shamus Esmail, Adjuster
5. John Beattie, J.F. Gillespie Trucking
6. Dr. Lori Martyn
7. Dr. Howard Seiden

Exhibits:

39 Exhibits were filed and are listed in Appendix A.

Reasons for Decision:

1. Summary of the Facts

a) Pre-accident:

Mr. Correal was born in Columbia, South America, in 1962. He completed his high school education in Columbia in 1984. In 1985, he came to Canada as a student. Mr. Correal testified that his plan was to learn English and then go the United States to train as a pilot. He took English classes for approximately six months, but then decided to remain in Ontario and study for his pilot's licence. He completed a year-long pilot's course and obtained his private pilot's licence in late 1986 or early 1987. He testified that he has not been able to afford to do any upgrading of his pilot's licence.

Mr. Correal has held a number of different jobs since coming to Canada. According to his evidence, which was not contradicted, he worked for approximately three months in the receiving department of a catalogue store. This job involved heavy lifting. He then worked for two courier companies for a total of approximately one year, but found that "there was no money in it". He obtained his Class "A" driver's licence and found a job driving a dump truck at $12 or $13 an hour. After approximately nine months to a year at this job, he moved to York Disposal Services.

Mr. Correal started at York Disposal Services in January 1988. Based on his testimony, I find that his job was to pick up industrial waste containers and take the garbage to the dump. This involved the following duties:

1. driving a disposal truck with a clutch to the pick-up site;
2. climbing up into the containers, which are approximately eight feet tall, and arranging the load;
3. taking the tarp from the truck and placing it over the container (the tarp weighs up to eighty pounds if it is wet and dirty);
4. connecting the cable from the truck to the container and dumping the garbage into the truck; and, 5.driving the truck to the dump and disposing of the garbage at the dump.

Mr. Correal testified that he carried chains on the truck because the truck sometimes got stuck at the dump. When this happened, he had to hook the truck to some heavy equipment and have it pulled out. He testified that he worked from 5:30 or 6:00 a.m. to 5:00 or 5:30 p.m. and averaged five to eight trips a day to the dump. He stated that prior to his accident, his pay at York Disposal Services increased to $15 an hour. This increase meant that his weekly "take-home pay" was $580 to $610.

b) Post-accident:

On July 18, 1990, Mr. Correal was injured in a motorcycle accident. He was taken by ambulance to York Central Hospital and was seen in the Emergency Department (Exhibit 5). X-rays were taken and he was referred to Dr. Watson, an orthopaedic surgeon. Dr. Watson made the following diagnoses: compound fracture of the left patella, compound laceration of the right knee, multiple lacerations and abrasions and a contusion of the right knee, and a foreign body in the left eye. On the day of the accident, Dr. Watson operated on Mr. Correal's knees and sutured his lacerations. Mr. Correal was discharged from York Central Hospital on July 24, 1990, six days after the accident.

At the time of his accident, Mr. Correal was insured by Jevco. A great deal of evidence was presented about Jevco's handling of Mr. Correal's claims for no-fault benefits. I will set out my findings in some detail, although much of the history of the file is not strictly relevant to my decision.

The firm of Morden & Helwig was retained by Jevco to act as adjusters. Mr. Esmail, an adjuster with Morden & Helwig, met with Mr. Correal on July 26, 1990. I accept his evidence that he briefly explained the weekly income benefits under the No-Fault Benefits Schedule and left some authorization forms for Mr. Correal to complete and return (Exhibit 23). Jevco began to pay Mr. Correal weekly income benefits under section 12 of the No-Fault Benefits Schedule based on his pre-accident income.

When Mr. Correal was discharged from York Central Hospital, Dr. Watson completed a form for the Unemployment Insurance Commission on which he estimated that the earliest that Mr. Correal would be able to return to work was January 15, 1991. Dr. Watson also referred Mr. Correal to York East General Hospital for physiotherapy.

Dr. Watson arranged to continue to see Mr. Correal regularly for follow-up examinations and treatment. He also reviewed Mr. Correal's progress in the physiotherapy program and recommended exercises. In or about November 1991, when Mr. Correal stopped going to the physiotherapy program at York East General Hospital, it is not clear what, if any, further rehabilitation was recommended.

On January 17, 1991, Dr. Watson concluded that Mr. Correal was not ready to attempt a return to his job at York Disposal Services, particularly if he had to resume all of his pre-accident duties. Mr. Correal continued to do exercises on his own in order to improve his physical condition.

By this time, Mr. Esmail had been transferred to another office and Mr. Andrews, the Branch Manager at Morden & Helwig, had assumed responsibility for Mr. Correal's file. On January 24, 1991, Mr. Andrews recommended to Jevco that Mr. Correal be seen by a rehabilitation consultant (Exhibit 26). On March 22, 1991, Dr. Watson referred Mr. Correal to the Toronto Rehabilitation Centre "in a last attempt to improve the knees' endurance" (Exhibits 6 and 8). It was Dr. Watson's opinion that occupational training would be required if this "last attempt" at medical rehabilitation was unsuccessful.

I find that the referral to the Toronto Rehabilitation Centre was made with the support of Jevco. Unfortunately, there was a waiting list for the program and Mr. Correal was not able to start until May 28, 1991. He initially attended two days a week, but over the approximately four months that he spent in the program, his participation was gradually increased to five days a week.

In May 1991, Mr. Esmail returned to his old office and reassumed responsibility for Mr. Correal's file. I accept Mr. Esmail's testimony that he spoke with Mr. Correal on July 8, 1991 about retraining as a commercial airline pilot. Mr. Esmail testified that this was the first time he was made aware of Mr. Correal's pilot's licence or his interest in retraining to become a commercial airline pilot. I note, however, that Mr. Esmail's report to Jevco, dated July 26, 1991, suggests that Mr. Correal had previous discussions about his interests with Mr. Andrews (Exhibit 28). On July 15, 1991, Mr. Correal provided brochures which indicated that the proposed training would cost approximately $11,500. At this time, Mr. Correal was still attending the Toronto Rehabilitation Centre and no decision was made on the need for occupational training.

Jevco instructed Mr. Esmail that, before a decision could be made with respect to Mr. Correal's request for training as a commercial airline pilot, an independent report from a doctor specializing in knee injuries would be required. In late July 1991, Mr. Esmail arranged a medical examination by Dr. Galway, an orthopaedic surgeon. Dr. Galway was asked to provide a "comprehensive report on Mr. Correal's injuries, prognosis, rehabilitation, permanent impairment if any which should be relative to the type of work he was doing at the time of the accident" (Exhibit 30). Dr. Galway saw Mr. Correal on July 31, 1991. Unfortunately, he did not prepare his report until January 9, 1992, over five months later.

On October 4, 1991, the Toronto Rehabilitation Centre concluded that Mr. Correal "would have considerable difficulty if he tried to return to his former employment". It was recommended, therefore, that he participate in the six-week, pre-vocational evaluation program at the Toronto Rehabilitation Centre "for a more detailed assessment of his skills with regard to alternative employment" (Exhibit 4).

At this time, Dr. Watson was not prepared to "close the door" on the possibility of Mr. Correal returning to his previous job. He was sufficiently pessimistic, however, that he supported the referral for a pre-vocational evaluation (Exhibit 8).

Mr. Correal participated in the pre-vocational evaluation program at the Toronto Rehabilitation Centre from September 23 to November 1, 1991. Jevco paid for the program and the resulting report. The report, dated November 13, 1991, indicates that Mr. Correal's general physical limitations were evaluated, but no specific evaluation of his physical capacity to work as either a truck driver or as a commercial airline pilot was done. The evaluation apparently involved general testing of his skills and aptitude, but did not identify or evaluate the particular skills required of an airline pilot.

On October 22, 1991, a "pre-vocational conference" was held with Mr. Correal, staff from the Toronto Rehabilitation Centre and Mr. Jairus Redhead. Mr. Redhead is a Vocational Rehabilitation Services counsellor with the Vocational Rehabilitation Services Branch of the Ministry of Community and Social Services. At the time, he was the liaison between the Ministry and the Toronto Rehabilitation Centre and was regularly referred clients from the Centre.

At this meeting, Mr. Correal expressed an interest in obtaining his commercial pilot's licence. Based on its report, I find that the Toronto Rehabilitation Centre did not specifically evaluate this option, but rather referred further vocational planning to Mr. Redhead.

I find that, unfortunately, the situation became confused at this point due to uncertainty about the relationship between Mr. Correal's request for retraining under his insurance policy and his application for the same services under the Vocational Rehabilitation Services Act. Under this Act and regulations, an application for vocational rehabilitation services must be accompanied by a medical report in the prescribed form. Dr. Watson completed the form on November 14, 1991 (Exhibit 18). In his report, Dr. Watson stated that Mr. Correal needed retraining and was able to participate in retraining as long as it did not involve kneeling, squatting, repetitive stair climbing, prolonged standing or prolonged sitting.

Mr. Correal, Mr. Redhead and Mr. Esmail first met on or about November 22, 1991. The evidence of the three men about this meeting differed significantly. Mr. Correal and Mr. Redhead testified that Mr. Esmail agreed that Jevco would fund the retraining required to qualify Mr. Correal as a commercial airline pilot. Mr. Esmail testified that he was prepared to rely on Mr. Redhead's expertise in developing a retraining plan for Mr. Correal, but did not, and could not, commit Jevco to funding whatever program was proposed.

I prefer Mr. Esmail's evidence about this meeting and find that he did not commit Jevco to funding a program to retrain Mr. Correal as a commercial airline pilot. I have reached this conclusion primarily because, in my view, Mr. Redhead's reports do not support his oral evidence. His report, dated November 22, 1991, is written as a standard assessment of eligibility under the Vocational Rehabilitation Services Act. The report concludes that Mr. Correal "is eligible for V.R. Services". His second report, dated March 17, 1992, states that Mr. Correal "will request Insurance Company in keeping with No Fault Legislation, to pay for required training course". In my view, this is a clear indication that the funding issue was not settled at the first meeting in November.

Mr. Redhead also testified that funding under the Vocational Rehabilitation Services Act was precluded. I note that the regulation which prevented funding under this Act to people who are eligible for no-fault benefits did not come into force until June 19, 1992 (Exhibit 3). It is not clear, therefore, that funding under the Vocational Rehabilitation Services Act was legally precluded.

Although I conclude that Mr. Esmail did not promise funding, I find that he encouraged Mr. Redhead to continue to develop a rehabilitation plan. I accept that Mr. Correal and Mr. Redhead may have genuinely believed that Mr. Esmail had the final authority to approve payments by Jevco. In this case, the lines of communication were complicated because Jevco was working through an independent adjuster who had no decision-making authority. This may have led to some misunderstandings.

On January 8, 1992, Mr. Esmail reported to Jevco (Exhibit 31). He included the reports of the Toronto Rehabilitation Centre and indicated that he was still awaiting a report from Dr. Galway. The report indicates that Mr. Correal was willing to consider vocational options other than commercial airline pilot. Mr. Esmail also indicated that he intended to evaluate Mr. Correal's physical ability to handle truck driving.

Dr. Galway finally produced a report, dated January 9, 1992, based on his examination on July 31, 1991 (Exhibit 9). He stated that he expected that Mr. Correal's condition "will reach a plateau in the next 3 - 4 months and whatever residual after effects he complains about at that time will be permanent." He stated that although Mr. Correal's work activities would need to be modified, "the amount of the modification is of a mild degree and not substantial." In his opinion, Mr. Correal "is capable of other forms of employment and certainly is not incapacitated by his left knee situation in a major way. The major restriction will have to be on the amount of lifting associated with deep knee bending that he will be required to do. Most other activities are within his predicted capabilities."

In a fax to Mr. Esmail, dated April 1, 1992, Mr. L'Heureux at Jevco expressed concerns about the relative physical demands of driving a truck and working as a commercial airline pilot (Exhibit 32). He questioned how someone with bad knees could work as a pilot. Alternatively, he asked if Mr. Correal was able to work as a pilot, why was he unable to drive a truck? Mr. L'Heureux indicated to Mr. Esmail that Jevco would pay for a report from an aviation doctor.

With these instructions from Jevco, Mr. Esmail had a second meeting with Mr. Correal and Mr. Redhead on April 16, 1992. I find that at this meeting, Mr. Redhead provided Mr. Esmail with a copy of his report, dated March 17, 1992 (Exhibit 2). I accept Mr. Esmail's evidence that at his request, Mr. Correal agreed to be examined by an aviation doctor. Mr. Esmail asked Mr. Correal to notify him when he had arranged an appointment so that he could send material for the doctor to review.

Without contacting Mr. Esmail, Mr. Correal arranged to have Dr. Maxmen complete a Civil Aviation Medical Examination Report on April 22, 1992 (Exhibit 9). This report is brief and difficult to interpret. It appears that part of the report was completed on January 22, 1992. Although there is a notation at the top, "Requesting Cat 1", Dr. Maxmen indicated that Mr. Correal was fit for category 3. As I understand it, category 1 is for commercial airline pilots and category 3 is for pilots flying private planes.

In May 1992, Mr. Correal applied for mediation of the occupational training issue. During the mediation, Mr. Esmail arranged for Mr. Correal to be examined by Dr. Seiden. The mediation did not resolve the dispute and, therefore, Mr. Correal applied for arbitration.

2. Summary of the Parties' Positions

Mr. Correal's representative submitted that, as a result of a motorcycle accident on July 18, 1990, Mr. Correal has physical injuries which prevent him from returning to his previous job as a truck driver with York Disposal Services. He submitted that Jevco should have recognized the need for rehabilitation early in the process and should have provided appropriate rehabilitation services. He submitted that, based on Mr. Correal's physical restrictions and skills, it would be a reasonable expense to provide benefits to retrain him to become a commercial airline pilot.

Jevco's representative submitted that the training requested by Mr. Correal is neither necessary nor reasonable. He submitted that the evidence available at the time of the initial decision indicated that Mr. Correal was capable of working as a truck driver, at least for a trial period. He argued that, in fact, Mr. Correal has been working as a truck driver since July 25, 1992 and no medical evidence was presented to show that he cannot continue to do so. He submitted that even if training is required, it would not be reasonable to train Mr. Correal as a commercial airline pilot. First, he already has a marketable skill as a truck driver. Second, working as an airline pilot presents similar physical demands to working as a truck driver. Third, his job prospects as an airline pilot are poor.

3. Eligibility for Occupational Training

Eligibility for occupational training is determined under section 6 of the No-Fault Benefits Schedule:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(c) rehabilitation, life-skills training and occupational counselling and training;

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

Mr. Correal is seeking benefits to allow him to retrain as a commercial airline pilot. He indicated that the retraining program would take one year and would cost approximately $30,000, plus weekly income benefits during the retraining period.

In order to succeed, Mr. Correal must:

1. establish that occupational training to qualify him as a commercial airline pilot is a reasonable expense resulting from the accident;
2. if the insurer so requires, provide a signed statement that the expense of the proposed training is necessary for his rehabilitation.

I am unable to find that Jevco made a specific request under section 6(4) of the No-Fault Benefits Schedule for a report from Mr. Correal's doctor stating that the proposed training was necessary for his rehabilitation. The absence of such a report, therefore, is not fatal to his claim for benefits.

Jevco's representative conceded that Mr. Correal is not physically able to return to his full pre-accident duties at York Disposal Services. He submitted, however, that the proposed training is unreasonable because Mr. Correal is capable of working as a truck driver in a job that involves just driving.

Although he did not cite particular cases, Mr. Correal's representative submitted that a number of arbitration decisions have held that an applicant can choose his or her own rehabilitation program. In my opinion, the decisions do not go that far.

In the case of Balwinder Singh v. Simcoe Erie Group (OIC File No. A-000532, dated December 31, 1992, currently under appeal), Senior Arbitrator Rotter stated that "an insurer has no right to insist that its own choice of product or therapy be adopted, in preference to a reasonable alternative proposed by the Applicant's medical advisors." I accept that an applicant is not bound by the insurer's particular rehabilitation plan. However, the applicant's alternative plan must be evaluated for its reasonableness, including its reasonableness in comparison to any plan proposed by the insurer.

Rehabilitation involves returning the person, as closely as possible, to his or her pre-accident position. What was Mr. Correal's pre-accident position? At the time of the accident, he had been working for approximately three years as a truck driver with a class "A" licence. He had been working at York Disposal Services for approximately two and a half years and was earning approximately $600 a week (net). He had a private pilot's licence which he obtained at least three years earlier, but had not been able to use in any significant way, if at all. I find that in 1990 Mr. Correal still had an interest in becoming a commercial airline pilot, but had no specific plans or expectations that he would be able to afford the necessary training.

Mr. Correal's pre-accident position was that of a healthy, full-time truck driver "taking home" approximately $600 a week. After the accident, he received medical treatment and rehabilitation designed to return him, as closely as possible, to his pre-accident condition. Unfortunately, he has not fully recovered. He continues to have problems with his knees.

I accept that Mr. Correal's aspiration to become a commercial airline pilot could be relevant in determining his rehabilitation needs. If he suffered an injury that prevented him from pursuing a long-term occupational goal of becoming a pilot, he might be eligible for rehabilitation to restore his pre-accident ability to pursue that goal. That, however, is not what he says he needs.

Mr. Correal's position is that he is physically capable of working as a pilot. He is asking for the occupational training that he requires to qualify as a commercial airline pilot. This training would put him in different position than he was in before his accident. In my opinion, retraining for a new occupation is reasonable only if it is unreasonable to expect the insured person to return to his or her pre-accident occupation. Accordingly, if Mr. Correal is able to return to work as a truck driver on a long-term basis, in a position that is reasonably comparable to his pre-accident job, then he is not entitled to retraining under the No-Fault Benefits Schedule.

The most serious problem with Mr. Correal's claim is that, at the time of the hearing, he had been working steadily as a truck driver for almost eight months. Because he is asking for occupational training to be provided now, I conclude that the focus must be on his current needs.

It is recognized, however, that this approach raises two concerns. First, an applicant should not be penalized for making an extraordinary effort to return to work. Second, insurance companies should not be able to delay a reasonable request for rehabilitation until the person no longer needs it. One of the purposes of the no-fault system is to provide benefits at an early date. Ideally, rehabilitation, including occupational training, should start as soon as the person is ready to take advantage of it. The answer, however, cannot be for the arbitrator to order rehabilitation that is no longer reasonable.

For the following reasons, I conclude that Mr. Correal has not established that it is unreasonable for him to work as a truck driver.

My reading of the medical evidence is that, in the summer of 1992, there was a reasonable consensus that Mr. Correal was physically capable of driving a truck, at least for a trial period. Jevco retained Dr. Seiden to examine Mr. Correal. Dr. Seiden saw Mr. Correal on June 3 and 4, 1992, and arranged for a driving test on June 22, 1992. Dr. Seiden concluded (Exhibit 12):

I don't think that it's reasonable to conclude that Mr. Correal would not have problems driving a truck based on an hour and a half of driving one. I think that he should be encouraged to take the refresher course as indicated above and I would hope that Mr. Short's appraisal is correct and that he will indeed be able to drive a truck and earn a good living doing so. From a medical point of view, I see no reason why he should not be able to do this. The alternative, of course, would be for him to find work with any of the many companies, some of which are listed in Mr. Short's letter, that have trucks equipped with automatic transmissions.

In summary, there is really nothing in any of the medical reports of an objective nature to substantiate his claims of being unable to return to his former occupation as a truck driver. From a purely practical point of view, there is little rationale in training him to be become a commercial pilot. Finally, there is the opinion of an expert, namely Mr. Stan Short at the Humber College Centre for Transportation Training, indicating that Mr. Correal should be able to drive a truck and find a job doing that.

Mr. Correal's representative challenged Dr. Seiden's report on the basis that before it was finalized, a copy of the report was sent by fax to Mr. Esmail, the adjuster, for his comments (Exhibit 34). In this case, I do not believe that Dr. Seiden's opinion was compromised by this process. It appears that no changes were made to the draft report. Dr. Seiden testified, and I accept, that he has no record of a report other than the version that was submitted as Exhibit 34. The report is dated June 25, 1992, the day before it was sent to Mr. Esmail. In his fax, Dr. Seiden suggests that perhaps the findings of the Citycore Physiotherapy report should be incorporated into his report, but this was not done.

I note that Dr. Seiden's involvement in this case was more extensive than usual for a doctor conducting a medical examination at the request of an insurance company. In my view, this is largely explained by the fact that his usual practice involves an active, multi-disciplinary approach to helping people return to work.

Dr. Seiden wrote to Dr. Watson, asking him to re-examine Mr. Correal and to address some specific questions about his condition. Dr. Watson examined Mr. Correal on July 24, 1992, with Dr. Martyn present. Unfortunately, Dr. Watson did not prepare his report until December 16, 1992 (Exhibit 8).

In his report, he states:

As we are seldom placed in an ideal situation, and this is even more so when there is a prolonged economic recession (some would call it a depression) - which we've been in for a long time now, reasonable alternatives to the ideal must be considered. The first alternative is having Pedro re-train and obtain his commercial pilot's license. Front-Frederick Health Services have presented compelling arguments as to why this alternative would be impractical; these include the potential stresses that piloting a small plane would place on Pedro's knees, his current age, and the glut of commercial pilots on the market today. While it is probable that Pedro's knees would sustain the stresses which piloting would put on them, there could [sic] certainly seem to be no point in pursuing this option if indeed there was "virtually no market for newly licensed pilots". There was also the argument that being a pilot would be just as disruptive to family and social life as driving long haul truck routes.

The other alternative to be considered is for Pedro to trial [sic] a return to work as a truck driver, and this is indeed what I thought he should do provided the restrictions I mentioned (on page 10, second paragraph) were respected. Assuming the latter, I would think it probable that Pedro would find his knees tolerant of modified truck driving activity both in the short and longer term. A very important consideration, however, would be that whenever Pedro did return to work as a truck driver, for the first 6 months this must be considered a trial return, and not a foregone conclusion without first a trial. If he failed this trial, which I acknowledged did remain a possibility, then the other alternatives discussed earlier would have to be reconsidered (i.e. commercial pilot or white collar sector). For these reasons, I suggested to Pedro and Dr. Zabrok [Dr. Martyn] that perhaps a final settlement of his case should await such a trial - but I will readily recognize that this is primarily a legal, as opposed to medical decision.

Assuming that Pedro's trial return to truck driving proved successful, his longevity in the work force would depend on something mentioned a few paragraphs ago - the amount to which his patellofemoral joints were abused. If the modifications to truck driving (recommended earlier) can be maintained lifetime, then I can foresee Pedro remaining in this line of work until the normal age of retirement (which is currently 65 years, or thereabouts). But if (as is so often the case) the employer gradually "forgets" about the recommendations for permanent modified work, and Pedro is required to indulge frequently in those activities which I said should be minimized, then there would be the distinct likelihood of his knees not allowing him to remain in the truck driving field until the age of 65. In such a scenario, in fact, I would consider it probable that Pedro would seek early retirement by as much as 5 to 10 years.

Mr. Correal's representative submitted that Dr. Watson concludes that the first, or preferable, option is to retrain Mr. Correal as a commercial airline pilot. I do not believe that is a fair reading of the report. In my view, Dr. Watson is simply commenting on two options - retraining as a pilot and returning to trucking. If he expresses any preference in his report, it is my view that he supports a trial period of driving.

Mr. Correal agreed that in July 1992, Dr. Seiden suggested that he could work as a long-haul truck driver. He testified that after one or two weeks of looking for a job, he was hired by D & K Trucking. He passed their driving test and started on July 25, 1992.

After working at D & K Trucking for approximately three months, Mr. Correal went to work for J.F. Gillespie Trucking. Mr. John Beattie, the Operations Manager at J.F. Gillespie Trucking, gave evidence at the hearing that I found to be clear and forthright. He stated that Mr. Correal came to them with good references from D & K Trucking. At J.F. Gillespie Trucking, he worked with a partner and drove long-haul routes to the West Coast. He had no responsibility for maintaining, loading or unloading the truck.

Mr. Beattie found Mr. Correal to be motivated and was pleased with his work. He did not miss any time due to physical problems. Mr. Correal testified that he often had to ask his partner to drive through the cities because he had problems using the clutch. Mr. Beattie said that he was not aware of any such special arrangements and, knowing Mr. Correal's partner, expressed serious doubts that he would have agreed.

At J.F. Gillespie Trucking, Mr. Correal was paid fifteen cents a "book mile". Mr. Beattie testified that the long-haul truckers who worked steadily earned an average of $50,000 a year. Mr. Correal did not provide any record of his income and expenses, but indicated that he experienced serious financial problems during this period.

In late February 1993, Mr. Correal was hired by Menlo Logistics to drive a truck on routes to Quebec and various parts of Ontario. He is to be paid 28 cents a mile, plus $8.50 for each "drop". This means that his income will depend on the routes that he is assigned from week to week. Because he had not yet received a pay cheque, Mr. Correal was unable to provide an accurate estimate of his earnings.

In my view, Mr. Correal's return to trucking was precisely the kind of trial period that Dr. Seiden and Dr. Watson suggested. The jobs that he found were reasonably comparable to his position at York Disposal Services, but did not require climbing or lifting. I find that Mr. Correal was able to work steadily. He agreed that, between July 25, 1992 and the end of the year, a period of 160 days, he was "on the road" for 109 days.

Mr. Correal testified that his physical condition had deteriorated since July 1992, but provided no medical evidence to support his opinion. In fact, Mr. Correal conceded that he had not been examined by any doctor since he saw Dr. Watson on July 24, 1992. Although I do not doubt the sincerity of Mr. Correal's evidence, I do not feel that I can conclude that the trial return to trucking was a failure based only on his self-diagnosis. I accept that his driving schedule may make it difficult to schedule a medical examination, but, in my view, medical evidence is critical to establishing his current need for occupational training.

Mr. Correal's representative submitted that, if I had any uncertainty about Mr. Correal's condition, the matter could be referred to the medical and rehabilitation advisory panel under section 282(5) of the Insurance Act:

282 (5) The Director, on the recommendation of an arbitrator, shall refer to the chair of the medical and rehabilitation advisory panel any question related to the medical condition or treatment of the insured person or related to the insured person's rehabilitation.

Section 282(5) gives arbitrators a discretion to refer medical questions to the medical rehabilitation advisory panel. In my opinion, however, this option is not meant as a substitute for the obligation of the parties to present the evidence that is necessary to prove their case.

In this case, Mr. Correal failed to present medical evidence about the impact that driving has on his knees. The doctors who examined him before he returned to trucking would be in the best position to evaluate this issue. If Mr. Correal is re-examined and the doctors conclude that it is inappropriate for him to continue driving a truck, nothing prevents him from making another request for occupational training, as long as the benefits are to be provided within the ten-year limit set out in section 6(c) of the No-Fault Benefits Schedule.

At present, however, I conclude that Mr. Correal has not established that benefits to enable him to train as a commercial airline pilot are "reasonable expenses resulting from the accident". Therefore, he is not entitled to benefits under section 6(1)(c) of the No-Fault Benefits Schedule for this purpose.

I would like to comment on three other aspects of the reasonableness of retraining Mr. Correal as a commercial airline pilot, although this is not required to reach the decision. First, Mr. Correal's representative suggested that the cost of the training should not be a factor in this case because Jevco will be reimbursed by another insurance company. I cannot agree.

According to section 268(2) of the Insurance Act, Jevco is the company responsible for providing no-fault benefits to Mr. Correal. I must determine Mr. Correal's eligibility under the No-Fault Benefits Schedule. In my opinion, the cost of the proposed rehabilitation program is one of many factors to be considered in evaluating whether or not the program is reasonable. The fact that Jevco may be reimbursed by another insurance company is not relevant and cannot be a factor in this decision.

Second, there are serious questions about the relative physical demands posed by driving a truck and working as a commercial airline pilot. If Mr. Correal is physically unable to work as a truck driver, can he work as a commercial airline pilot? Unfortunately, this issue was not specifically evaluated until Dr. Seiden's involvement, nearly two years after the accident.

Although Mr. Correal had not flown a plane since his accident, Mr. Correal and Mr. Redhead seemed to assume that working as a pilot would be less physically demanding than driving a truck. The opinions of Dr. Seiden and Dr. Martyn cast serious doubt on this assumption. Both doctors stated their opinions, as doctors qualified as Civil Aviation Medical Examiners, that the physical demands of working as a commercial airline pilot, particularly in entry level positions, could be a significant barrier for someone with ongoing knee problems.

Mr. Redhead's conclusion that Mr. Correal should be retrained as a commercial airline pilot appears to have been based primarily on the fact that he already had a private pilot's licence, that he was motivated to become a commercial airline pilot, and that nothing in the reports suggested that it was not a feasible goal. Mr. Redhead testified that counsellors "go with the flow". When asked in cross-examination if he considered other job options, he responded, "Why would I look at other jobs? I look at what he was oriented toward."

In my opinion, this approach is not sufficient for purposes of determining eligibility for occupational training under the No-Fault Benefits Schedule. The issue is not simply whether the occupational training might benefit the person. The No-Fault Benefits Schedule poses a narrower test: is the proposed occupational training a reasonable expense resulting from the accident?

Third, Jevco's representative submitted that it would not be reasonable to train Mr. Correal as a commercial airline pilot because he is not likely to find work in that field. The evidence of Dr. Seiden and Dr. Martyn, although by no means conclusive, suggested that job opportunities are likely to be quite limited for a newly-trained commercial pilot who is over thirty years old and has some physical limitations. Mr. Correal indicated that because he speaks Spanish he might have job opportunities outside of Canada.

In my opinion, the likelihood that occupational training will lead to employment is relevant to deciding whether the proposed occupational training is a reasonable expense. This is not to suggest that retraining should not proceed unless it is certain that it will lead to employment. Such a test would preclude most rehabilitation. Predicting the future demand in various occupations is uncertain. Attempting to predict the marketability of a particular individual with newly acquired skills may be even more speculative. This uncertainty should be taken into account, but, in my opinion, the availability of job opportunities is one measure by which to compare the reasonableness of various training options.

3. Special Award

In his final argument, Mr. Correal's representative submitted that Jevco should be ordered to pay a special award under section 282(10) of the Insurance Act because it unreasonably withheld or delayed payment:

282 (10) If the arbitrator feels that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly from the time of the benefits first becoming payable under the Schedule.

Jevco's representative argued that a special award should not be considered because it was not raised until final argument. The principles of natural justice and fairness require that an insurance company have reasonable notice that a special award is being requested and have a reasonable opportunity to respond. Even if reasonable notice had been given, however, I have no authority to order a special award in this case. A special award must be based on benefits that are found to be owing. No benefits have been found to be owing and, therefore, no special award can be ordered.

I cannot leave this case without expressing a sense of frustration. By all accounts, Mr. Correal is hard-working and motivated to improve his employment situation. This was also my impression of him. A significant amount of time has passed since his accident and, in retrospect, it is not clear that he has been rehabilitated to the extent that he might have been.

Arbitrators have previously commented that the insured person, the insurance company and health professionals must work in a cooperative partnership toward the goal of rehabilitating the insured person (Surbir Singh Gaba v. Allstate Insurance Company, OIC File No. A-000624, dated August 21, 1992; Lawrence Whitney v. Co-operators General Insurance Company, OIC File No. A-001005, dated March 31, 1993). It appears to me that for various reasons the necessary partnership broke down in this case.

Expenses

Under section 282(11) of the Insurance Act, an insured person may be awarded expenses incurred in respect of an arbitration proceeding. Arbitrators have consistently held that expenses should be awarded to the insured person unless the claim was manifestly frivolous or vexatious, or the person's conduct unreasonably prolonged the proceedings.

Although Mr. Correal was unsuccessful, I conclude that he raised a legitimate issue and pursued it reasonably and, therefore, is entitled to his expenses as set out in Ontario Regulation 664, Dispute Resolution Expenses. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Correal did not establish that occupational training to become a commercial airline pilot is a reasonable expense resulting from the accident. Therefore, he is not entitled to benefits under section 6(1)(c) of the No-Fault Benefits Schedule for this purpose.

2. Jevco shall pay Mr. Correal his expenses related to this arbitration, as set out in Ontario Regulation 664, Dispute Resolution Expenses.

May 6, 1993

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1 - Photocopy of the curriculum vitae of Jairus N. Redhead.

Exhibit 2 - Photocopies of two reports from Jairus Redhead, dated November 22, 1991 and March 17, 1992.

Exhibit 3 - Photocopy of a facsimile cover sheet from the Ministry of the Attorney General sending a photocopy of Ontario Regulation 332/92.

Exhibit 4 - Photocopies of three reports from the Toronto Rehabilitation Centre, one dated October 4, 1991 and two dated November 13, 1991.

Exhibit 5 - Photocopies of clinical records from York Central Hospital (10 pages).

Exhibit 6 - Photocopy of a letter, dated July 24, 1991, from Dr. C. Watson to S. Esmail.

Exhibit 7 - Photocopy of a letter, dated December 16, 1992, from Dr. C. Watson to Dr. H. Seiden.

Exhibit 8 - Photocopy of a letter, dated December 16, 1992, from Dr. C. Watson to Mr. Joel Freedman, Barrister and Solicitor.

Exhibit 9 - Photocopy of a Civil Aviation Medical Examination Report, completed by Dr. Maxmen on January 22, 1992.

Exhibit 10 - Photocopy of the medical report of Dr. R. Galway, dated January 9, 1992.

Exhibit 11 - Photocopy of a letter, dated June 25, 1992, from Judie Waters of Citycore Physiotherapy to Dr. H. Seiden.

Exhibit 12 - Photocopy of a letter, dated June 25, 1992, from Dr. H. Seiden to Mr. S. Esmail.

Exhibit 13 - Photocopy of a letter, dated June 25, 1992, from Dr. H. Seiden to York Disposal Services Ltd.

Exhibit 14 - Photocopy of a letter, dated July 23, 1992, from Dr. H. Seiden to Dr. C. Watson.

Exhibit 15 - Photocopy of a letter, dated July 30, 1992, from Dr. L. Zabrok to Mr. S. Esmail.

Exhibit 16 - Photocopy of a letter, dated June 8, 1992, from Judith Blacklock to Mr. Correal.

Exhibit 17 - Photocopy of an Assessment of Claim by Insurer, dated July 15, 1992.

Exhibit 18 - Photocopy of a Consent to the Release of Information, signed by Mr. Correal on November 11, 1991, and the attached medical form, completed by Dr. C. Watson on November 14, 1991.

Exhibit 19 - Photocopy of page 345 of "Job Futures".

Exhibit 20 - Photocopy of the resume of Stan Short.

Exhibit 21 - Photocopy of a letter, dated June 23, 1992, from Stan Short of Humber College to Dr. H. Seiden.

Exhibit 22 - Articles from the Interavian Aerospace Review 9/1989.

Exhibit 23 - Photocopy of an Authorization for Employment Information and an Authorization for Medical Information, signed by Mr. Correal on July 31, 1990.

Exhibit 24 - Photocopy of a letter, dated November 7, 1990, from Goretti Fernandes of King Adjusters Ltd. to Morden & Helwig.

Exhibit 25 - Photocopy of a letter, dated November 26, 1990, from Diana Tsinokas of Morden & Helwig Limited to King Adjusters Limited.

Exhibit 26 - Photocopy of a report, dated January 24, 1991, from J.D. Andrews of Morden & Helwig to Jevco.

Exhibit 27 - Photocopy of a report, dated April 23, 1991, from J.D. Andrews of Morden & Helwig to Jevco.

Exhibit 28 - Photocopy of a report, dated July 26, 1991, from Mr. S. Esmail to Jevco, with attachments.

Exhibit 29 - Photocopy of a letter, dated July 26, 1991, from Mr. Esmail to Mr. Correal.

Exhibit 30 - Photocopy of a letter, dated July 26, 1991, from Mr. Esmail to Dr. R. Galway.

Exhibit 31 - Photocopy of a report, dated January 8, 1992, from Mr. Esmail to Jevco.

Exhibit 32 - Photocopy of a facsimile transmission sheet and note, dated April 1, 1992, from Mr. Jean L'Heureux at Jevco to Mr. Esmail.

Exhibit 33 - Photocopy of a letter, dated June 1, 1992, from Mr. Esmail to Dr. Seaton [sic].

Exhibit 34 - Photocopy of a facsimile transmission from Dr. H. Seiden to Mr. Esmail.

Exhibit 35 - Photocopy of the curriculum vitae of Dr. Lori Martyn.

Exhibit 36 - Photocopy of the curriculum vitae of Dr. Howard Seiden.

Exhibit 37 - Photocopy of the curriculum vitae of Dr. C.H.C. Watson.

Exhibit 38 - Photocopy of the curriculum vitae of Judie Waters, physiotherapist.

Exhibit 39 - Photocopy of the curriculum vitae of Dr. Hugh Galway.