Neutral Citation: 1995 ONICDRG 102
File No. A-006022
ONTARIO INSURANCE COMMISSION
BETWEEN:
SHIRLEY A. REID
Applicant
and
CONTINENTAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Shirley A. Reid, was injured in a motor vehicle accident on July 5, 1990. Mrs. Reid received weekly income benefits from the Continental Insurance Company ("Continental"), payable under Ontario Regulation 6721, until July 12, 1993. Mrs. Reid's claim for ongoing weekly income benefits was not resolved through mediation and she applied for an arbitrator to determine her entitlement under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is Mrs. Reid entitled to weekly income benefits after July 12, 1993?
She also claims interest on any amounts owing, and her expenses incurred in the process.
Result:
Mrs. Reid is entitled to ongoing weekly income benefits.
Mrs. Reid is entitled to her expenses of the arbitration
Hearing:
The hearing was held at North York, Ontario, on February 20, 21, 22, 1995, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant:
Shirley A. Reid
Applicant's Representative:
Michael Brown Barrister and Solicitor
Insurer's Representative:
Patrick Mazurek Barrister and Solicitor
Insurer's Officer:
Nancy Stiso Accident Benefits Manager
Witnesses:
Shirley Reid and Nancy Stiso
The parties filed 26 exhibits, and referred to a number of Court precedents during their submissions.
Evidence and Findings:
Shirley Reid is a 47 year old registered nurse, who resides with her husband in Edmonton, Alberta. Her injury can be fairly characterized as a well healed fracture/dislocation of the cervical spine, which resulted from a serious head-on collision five years ago. Mrs. Reid claims that this spinal cord injury continues to cause her fatigue, muscle spasms and occasional dizziness, and that despite her motivation to return to work, she cannot find suitable employment in Alberta's health care industry without further education or training.
Section 12 of the Schedule provides for payment of a weekly income benefit to insured persons who are considered employed or self-employed at the time of the accident, and sustain injuries in an accident that prevent their return to their former job. However, after three years the Schedule provides for a change in the eligibility test:
(5) The insurer is not required to pay a weekly benefit under subsection (1),
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
Although Continental agrees that Mrs. Reid cannot return to her pre-accident nurse-instructor position, it maintains that the residual effects of the accident do not prevent Mrs. Reid from returning to part-time, less demanding employment. She is thereby disqualified from receiving weekly income benefits after July 12, 1993.
The Accident:
On July 5, 1990, Shirley Reid was on vacation in Ontario with her husband and her two school-age children. She was a front seat passenger in the family van, which was hit head on by a vehicle that crossed the centerline on Highway 6 near Kenilworth. Three of the four Reid family members sustained significant injuries. The two individuals riding in the oncoming auto were fatally injured in the crash.
Before the ambulance arrived on the scene, Mrs. Reid reported numbness and tingling in her limbs. By the time the ambulance arrived at the site, Mrs. Reid had regained some feeling and use of her legs, but she complained of neck, shoulder and upper chest pain.
At Louise Marshall Hospital in nearby Mount Forest, the tests on Mrs. Reid indicated a fracture of the C6/C7 vertebrae, with some possible injury to the spinal cord. She was immobilized, medicated and transferred by air ambulance to Sunnybrook Medical Centre in Toronto.
Treatment and Recovery:
On July 6, 1990 Mrs. Reid underwent back surgery at Sunnybrook Hospital to repair the fracture/dislocation of the C6/C7 disc. Over the next several weeks in hospital, Mrs. Reid recovered quite well. She was first in bed with halo traction, then progressed to a wheelchair, and later was able to use a walker. By the time of Mrs. Reid's transfer to a rehabilitation facility on July 26, 1990, she had regained some use of all four limbs, though upper extremity movements, feeling and endurance were particularly limited. Mrs. Reid made remarkable progress during her seven weeks of intensive rehabilitation at Lyndhurst Hospital. She regained almost normal bowel and bladder functions, began to use a walker to ambulate, and changed to a neck brace. When Mrs. Reid returned to Alberta on September 14, 1990, she no longer needed a walker, used a wheelchair occasionally, and a neck collar for driving only.
By all accounts, Mrs. Reid's speedy and successful recovery from this relatively severe injury is due in part to her excellent physical health at the time of the accident. Mrs. Reid and her family actively participated in downhill and cross country skiing, swimming, squash, racketball, canoeing and backpacking before the accident. In addition, she and her husband had many social activities. Mrs. Reid served charitable, church and youth organizations for many years before the accident.
Some portion of Mrs. Reid's rapid recovery can also be attributed to her attitude. The progress notes and summaries of her treatment show that Mrs. Reid maintained a positive outlook, even during the rather bleak early stages of her hospitalization.
In sum, Mrs. Reid is a well-motivated, strong-willed person, who was resolved to make the best of her situation. I find Mrs. Reid is forthright, candid, honest and entirely reliable. I accept her evidence describing her history and abilities.
Despite Mrs. Reid's remarkable recovery, she has not been able to resume many of her pre-accident sports and civic activities. For example, Mrs. Reid testified that before the accident she could swim a mile, and hike or ski in the mountains with a heavy pack for many kilometres.
Since the accident, Mrs. Reid has given up downhill skiing, racketball and other demanding sports. She now goes car camping with her family.
Mrs. Reid can cross country ski for several kilometres, taking breaks, and is able to swim four pool lengths.
Mrs. Reid has curtailed many social activities. Her walking difficulties have caused her to cease canvasing for the charities. Socializing with friends is more restricted due to her fatigue. However, Mrs. Reid has managed volunteer babysitting at a local women's shelter, participated in less strenuous Girl Guide activities and has also counselled other accident victims for the Northern Alberta Brain Injury Society since this accident.
Mrs. Reid's testimony about her abilities is consistent with the evidence from medical and rehabilitation experts. At the time Mrs. Reid returned home to Alberta, the reports from Glenrose Rehabilitation Hospital in Edmonton indicate that she could independently care for herself. She continued with physiotherapy in Alberta at Glenrose Hospital, and also exercised at home and at a spa. The Glenrose records indicate that Mrs. Reid reported fatigue after housework and that she required assistance for the heavier household chores. At the time of Mrs. Reid's August 2, 1991 discharge from the physiotherapy program at Glenrose, the records show that her muscle strength and range of motion had improved considerably, but she still lacked endurance for most work.
Dr. Bellamy, Mrs. Reid's physician at Glenrose, thought this disability would be permanent, and that she might manage half-time work. The doctor's opinion had not changed in April 1993, when Dr. Bellamy last examined Mrs. Reid.
I do not find Dr. Bellamy's conclusion inconsistent with the results of a June 1993 functional capacity evaluation conducted by the University of Alberta's occupational therapy department. The testing, at Continental's request, is particularly relevant because of its proximity to the three year anniversary of the accident and the changed eligibility requirements. Over the two days of testing, Mrs. Reid demonstrated a sincere effort, but encountered balance difficulties, muscle cramping in her hands and visible shaking when pushing or pulling against resistance. The testing revealed that Mrs. Reid had a 45 minute maximum sitting tolerance, could stand 20 minutes, and walk for up to 21 minutes over a level surface if she could take breaks. At the hearing, I observed that Mrs. Reid sat for up to an hour, often changing positions.
After Mrs. Reid performed push/pull tests, she was seen visibly shaking. Tremors were also observed when Mrs. Reid lifted 15 pounds. She was able to carry ten pounds on a level surface, but when Mrs. Reid carried weight up a flight of stairs, she leaned against the railing and the wall for support.
Her fine hand coordination was also limited. During overhead arm and shoulder work Mrs. Reid's hands became spastic and she began to breathe hard. At table top level, however, Mrs. Reid's coordination was normal. There were no observable restrictions in bending, stooping, kneeling and crouching.
Generally, this testing found that Mrs. Reid had decreased endurance even at a sedentary level. Using these work tolerances, the University report suggests that Mrs. Reid is capable of working as a residence counsellor, nursing consultant, or hospital-insurance representative. It is worthwhile to read the department's summation:
Mrs. Reid presents as determined to provide her best effort to resume her life as it was prior to her injury. She has attempted to adapt to her limitations and has endeavoured to improve her physical abilities through a self-directed rehabilitation program. While her residual disability is a limiting factor, she strives to maintain meaningful participation in her daily life.
The results of this testing revealed Mrs. Reid's limited endurance. Objective findings of this evaluation support the client's self-report in this regard.
Opinion: Mrs. Reid is able to perform work at a sedentary level of physical demand, subject to the following restrictions:
able to change position as required from sitting, standing and walking
work a maximum of 4 hours in any one day
work a maximum of one four-hour day in a row
If Mrs. Reid were to be employed, the cumulative demands of work plus homemaking would exceed her functional capacity; her leisure lifestyle would also be affected. If employed, she would require increased assistance with homemaking tasks in order to maintain performance in her productive role at work and at home. [emphasis added]
Mrs. Reid's restrictions, set out in the University of Alberta report, are documented by other reliable evidence. Dr. Morrissey is Mrs. Reid's long-time family physician. His clinical notes and records confirm Mrs. Reid's complaints of fatigue and muscle spasms after strenuous activity. The medical reports of Dr. Morrissey indicate that Mrs. Reid experienced numbness in her hands, shoulders, abdomen, thighs and calves. He thought that Mrs. Reid would have difficulty with fine motor function too, and that prolonged use of any muscles would cause cramps and fatigue. Confirming the condition, is Mrs. Reid's testimony that she takes an anti-spasmodic (Lioresol) nightly.
Altogether, the evidence from the health care professionals overwhelmingly indicates that the residual effects of Mrs. Reid's spinal cord injury continue to plague her. She has reached a plateau in her recovery, and there is little likelihood of any significant improvement in her condition. Her condition appears permanent. I am prepared to accept the findings and conclusions of the University of Alberta; I find that since June 1993, Mrs. Reid is able to work alternating four hour days, performing sedentary work, one hour at a time, with breaks. Although the report speculates that Mrs. Reid may require additional home assistance if she works, that is not the issue here.
Re-entering the Workforce:
Mrs. Reid and Continental embarked upon a job search at an early date. Originally, when Mrs. Reid returned to Alberta, she anticipated returning to her former position at Grant MacEwan College, University of Alberta, where she had been a nursing instructor for 15 years. Before that, Mrs. Reid had worked in paediatrics, intensive care, OB-GYN, and as a hospital unit supervisor since her 1970 graduation with a Bachelor of Science in nursing.
Mrs. Reid's nursing instructor job required her to plan, prepare and conduct classroom lectures, evaluate and advise students, and to physically conduct demonstrations of patient care, medical techniques and clinical procedures. She worked anywhere from 40 to 70 hours a week. It is not disputed that Mrs. Reid has been continuously unable to perform the physical portion of this job since the accident, and by the end of 1992, after Mrs. Reid's recovery slowed, both parties assumed some career change to accommodate the apparent long-term disability.
Mrs. Reid's entire working history, over 20 years since her graduation from University, has been in nursing. Consequently, it is appropriate that she re-enter the workforce in the area of health care.
Mrs. Reid considered using her former medical experience to become a part-time medical/rehabilitation counsellor, conducting assessments or teaching. To further this interest, Mrs. Reid completed a number of college/university courses during 1991/1992: Physical Health Assessment, Business Administration, Fundamentals of Adult Education, Advanced Composition and Introduction to Guidance. At the same time, Continental hired Crawford and Company to assist in Mrs. Reid's reintegration to the workforce.
This situation is somewhat analogous to that of another public health nurse who was granted ongoing weekly income benefits after 156 weeks. In Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158, the applicant sustained soft tissue injuries, which she claimed physically prevented her return to nursing. Ms. Spicer's enrolment in a Masters counselling program was commented on favourably by Arbitrator Draper.
Although Continental allows that Mrs. Reid could not resume her former full-time nursing position, it felt that nursing skills could transfer to another part-time, health care job. Nancy Stiso, Continental's accident benefits coordinator in Toronto, testified that when she assumed responsibility for Mrs. Reid's rehabilitation in late 1992, Mrs. Reid was already looking for part-time work in health care.
Mrs. Reid testified that between 1992 and 1993 she applied for about 50 jobs. Mrs. Reid wrote numerous letters to Crawford and Company to report on her job search. At Continental's request, Mrs. Reid attended a "work shadowing program", to judge how well she might adjust to working. According to Mrs. Reid, observing and following other health care workers for a full day greatly aggravated her symptoms. Both Mrs. Reid and the medical experts agree that regular working hours would not be possible.
Essentially, Mrs. Reid claims she was not successful in her job search because she lacked proper training or education. Mrs. Reid testified, and the documentary evidence supports, that she diligently reviewed want ads, applied for jobs, pursued leads and followed up contacts, all without success.
Mrs. Reid attributed her lack of success in finding work, in part, to provincial government lay-offs due to cutbacks to the Alberta health system, which have increased the number of highly skilled health professionals looking for full-time work. I accept Mrs. Reid's evidence that the current regional labour market is more competitive, and that considering her disability, she is considerably less qualified. It is clear that Mrs. Reid made sincere and concerted efforts to find part-time employment appropriate to her education, training and employment history.
While Continental does not dispute that Mrs. Reid has made sincere and concerted efforts to find appropriate part-time employment, it argues that I should disregard the job market. I agree that section 12(5) eligibility is initially determined through a consideration of the insured's disability. However, in my opinion, the disability cannot be seen in a vacuum, but should be viewed in the context of the insured's competitiveness in the existing marketplace. This may not be static. For example, a strong case might be made for additional education or training where, during the period of a person's disability, new professional qualifications are required by law. Similarly, retraining might be appropriate if the marketplace requires additional credentials in order for a person to assume a new position. In that limited context, I find that the job market is relevant to a section 12 determination.
My view of the requirement for job retraining is implicit in the reasoning used by Senior Arbitrator Naylor in Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593. In that instance, Ms. Rodway appeared to suffer writers' cramp from an accident which prevented her from returning to her field of bookkeeping/auditing. Ms. Rodway's plans for a six month computer training course seemed appropriate in order to build on her previous experience and provide her the skills to re-enter the workforce with her disability. Based on the reasoning in Spicer and Rodway, I find that the job market is relevant to a section 12 determination here. Though the parties did not refer to these arbitration decisions, I find them relevant to these facts.
Mrs. Reid claims that she lacks adequate training to become a health counsellor or assessor. As early as September 1992, when she was enrolled in college courses, Mrs. Reid wrote to Nancy Stiso requesting retraining in occupational health. Mrs. Reid had explored this option further by 1993, when she proposed that Continental fund a two year college course in occupational health, to enable her to become a trained counsellor. Mrs. Reid stated that she never received any written answer to her request, and was likewise told by Continental that she had sufficient education and training.
In contrast to Mrs. Reid's evidence, Ms. Stiso testified that she agreed, on Continental's behalf, to fund retraining for two years. However, she agreed that Continental did not send a written confirmation of this offer. This offer is not mentioned anywhere in the numerous letters that Mrs. Reid sent Continental. It seems logical that Mrs. Reid would have either acted upon or remarked about such a significant matter during a time when she sought the very same employment retraining option allegedly offered.
While the issue of entitlement to weekly benefits does not directly turn on this point, I consider retraining significant in this particular case. Based upon all of the medical evidence and given the nature and permanence of Mrs. Reid's restrictions, I find that she could not return to full or part-time employment in health care, counselling or teaching, without retraining.
In Mrs. Reid's case, none of the experts dispute that she suffered a severe injury or that she is motivated to overcome her remaining problems and return to work. In a nutshell, Continental believes that regardless of the job market, a registered nurse such as Mrs. Reid should be able to find alternative part-time work appropriate to her changed abilities. I cannot agree with Continental. In my view, the job market and Mrs. Reid's disability combined make it unlikely that she can resume work now.
Mrs. Reid is not competitive at this time and it is unfortunate that two years have elapsed since her decision to retrain. However any delay is not attributable to Mrs. Reid. I accept that it would have been financially unwise to obtain a loan or use retirement savings to fund her training when the family was solely dependent upon her husband's income. It was Continental's responsibility to provide retraining for Mrs. Reid. In conclusion, I find that until Mrs. Reid retrains, she continues to suffer injuries which continuously prevent her from working at any job for which she is reasonably suited by education, training or employment. I find that she is eligible for ongoing weekly income benefits after July 12, 1993. I hope the parties should be able to conclude this matter.
Expenses:
In most arbitration decisions, the applicant is awarded his or her expenses, pursuant to section 282(11) of the Insurance Act. Mrs. Reid's claim is certainly meritorious, and I exercise my discretion to grant her her arbitration expenses.
Order:
Continental shall pay Mrs. Reid ongoing weekly benefits after July 12, 1993.
Continental shall pay Mrs. Reid her expenses of the arbitration.
July 27, 1995
Fred Sampliner Arbitrator
Date