Neutral Citation: 1995 ONICDRG 123
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARK CAMILLERI
Applicant
and
MIC GENERAL INSURANCE CORP.
Insurer
DECISION
Issues:
The Applicant, Mark Camilleri, was injured in a motor vehicle accident on January 9, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. The Insurer paid weekly income benefits for 156 weeks after the accident. Mr. Camilleri believes that his weekly income benefits should continue after this period. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Camilleri entitled to weekly income benefits under section 12(5)(b) of the Schedule? (post-156 weeks' benefits)
Is Mr. Camilleri entitled to rehabilitation and occupational counselling and training under the provisions of section 6 (1)(c) of the Schedule?
The Applicant also claims interest on any amounts owing and his expenses incurred in the hearing.
Result:
Mr. Camilleri is entitled to weekly income benefits under the provisions of section 12(5)(b) of the Schedule, in the amount of $185.60 per week, plus interest on the outstanding benefits, as provided in section 24(4) of the Schedule.
The Insurer will pay for a comprehensive vocational rehabilitation assessment, including interest and aptitude testing for Mr. Camilleri.
The Insurer will pay a special award of 35% of the weekly income benefits outstanding at the date of this decision, plus interest, as set out in section 282(10) of the Insurance Act.
The Applicant is entitled to his expenses incurred with respect to the arbitration.
Hearing:
The hearing was held in Oshawa, on August 16, 1995, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Mark Camilleri
Applicant's
Lawrence A. Berg
Representative:
Barrister and Solicitor
Insurer's
James Dunn
Representative:
Barrister and Solicitor
Witnesses:
Mark Camilleri, Dr. Bernard John Woolford
The parties filed a medical brief and nine other exhibits at the hearing.
Evidence and Findings:
Issue 1: Weekly Income Benefits
Mark Camilleri, 25, was a pedestrian on January 9, 1991 when he was hit by a car. He sustained a fracture of the lower third of the tibia and fibula of his right leg. At the time of the accident, Mr. Camilleri was working intermittently in labouring and industrial assembly line work. He qualified for weekly income benefits under section 12(1) of the Schedule and received those benefits, at a rate of $185.60, for 156 weeks.
Now, Mr. Camilleri seeks weekly income benefits for a further period. He claims these benefits under section 12(5)(b) of the Schedule, which reads as follows:
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.
It is common ground that the Applicant bears the onus of proof in establishing that, because of his injuries, he is unable to work at any job for which he is reasonably suited. Mr. Camilleri testified at the hearing. His treating orthopaedic specialist, Dr. Bernard Woolford, also testified. In addition, I reviewed five narrative reports and one form report prepared by Dr. Woolford over the period from September 1991 to August 1994. I received a comprehensive report by physiotherapist Ricardo Tarzia and occupational therapist Heather Sloman of F.I.T. For Work Centre ("F.I.T.") following a work capacity evaluation of Mr. Camilleri in October 1992. I also studied two reports of physiotherapist Nancy Ameis following a functional capacity evaluation of Mr. Camilleri in September 1994. Finally, I received two reports from Dr. Fred Langer, orthopaedic surgeon, to whom Mr. Camilleri was sent for an assessment by two different insurers, once in June 1993 and once in October 1994.
In determining Mr. Camilleri's eligibility for weekly income benefits under section 12(5)(b), I must assess the residual restrictions from which he suffers as a result of the car accident. I must consider evidence about his pre-accident level of education and his work and training background. It is helpful to know about his level of ability, intelligence and his interests.
In Mr. Camilleri's case, no question was raised about the continuous nature of his injuries. His leg injury is such that he feels its effects constantly, although his symptoms increase with prolonged standing or walking. Mr. Camilleri has endured four surgeries, including an osteotomy and bone grafting, and months in casts and on crutches.
All the health professionals who have examined and observed Mr. Camilleri agree that he has, to quote Ms. Ameis, "profound weakness in the right lower extremity". They agree that he has a limited work tolerance and that the effects of his injury leave him suited only to a sedentary job. The single exception to this general opinion is Dr. Langer's, in his second report of October 1994.
Dr. Langer's closing recommendation in his report of June 1993 was for Mr. Camilleri to be assessed "to determine his workability with respect to duration of standing and walking, stair climbing, ladder climbing, squatting, etc." Dr. Langer would appear not to have had access to the F.I.T. report of the previous autumn. I do not have any comments from Dr. Langer in relation to Ms. Ameis' report of October 28, 1994 which post-dated his second examination of Mr. Camilleri on October 26, 1994. In the light of the thorough and detailed testing by F.I.T. and Ms. Ameis and the differing opinion of a treating orthopaedic surgeon, Dr. Woolford, I cannot accept Dr. Langer's opinion that Mr. Camilleri "could be doing his job as a labourer."
Dr. Woolford has examined Mr. Camilleri in his office on at least 14 occasions over three years and has operated on his leg twice. I accept his opinion that:
this patient's injury has left him with a significant impairment would [sic, read which] has seriously affected his ability to earn an income in the construction business. It has also affected his normal everyday living and enjoyment in life...
(report of August 24, 1994, p.2)
Mr. Camilleri has a grade 11 education. He left school and pursued a number of service and labouring jobs over the years leading up to his accident, which occurred when he was 20 years old. Mr. Camilleri described his job duties at Pizza Pizza where he worked as a driver, head cook, and manager. He described his self-employment as a drywall installer and his job as a labourer in swimming pool construction. He gave detailed testimony about why he could no longer do such work. He also explained why he believed he could not work on an assembly line - his experience was on a line making door skins for automobiles and on a line assembling stereo speakers - nor as a shipper operating a fork lift. He also testified that he could not perform the physical work required as an employee in a group home for physically and developmentally challenged residents.
The Insurer in this case presented no evidence of any occupations suitable for Mr. Camilleri. Its only evidence in this regard was Dr. Langer's assessment that he could work as a labourer. Ms. Ameis did, however, briefly touch on the question in her letter of March 10, 1995. She commented:
In answer to your further inquiry as to what type of job Mr. Camilleri is reasonably suited to by education training and experience, I am required to tell you that his options are quite limited as his experience as a labourer and his education is Grade 11.
At the time I saw Mr. Camilleri, he was taking some courses to further his education. At the time, he mentioned he was taking courses in english and entrepreneurship.
It is in this area where I feel that his best opportunity lies. If Mr. Camilleri could operate a successful business, this would be within his physical capabilities.
He may be capable of computer work, although he would have to take additional training. He does have a limited sitting tolerance of approximately 1/2 hour so his job would have to allow him the flexibility to change position as needed.
He could conceivably work as a parking lot attendant although he would have to be able to sit or stand as necessary for his comfort. He could not perform a job that required significant walking or lifting.
Neither party presented any evidence of the duties of a parking lot attendant nor any analysis of the physical demands of such a job. I accept, however, the test results of Mr. Camilleri's functional capacity evaluation, which show very limited standing and walking tolerances and decreased maximum sitting time, especially in a forward flexed position. I make no comment as to whether this job would fall within the range of jobs for which Mr. Camilleri would be reasonably suited by education, training, or experience. However, I do find that, on a balance of probabilities, Mr. Camilleri could not perform such a job on the sustained basis required for full-time work, as a result of the injuries he received in the accident.
When the evidence of Mr. Camilleri's education, training, and experience is coupled with the evidence of the residual restrictions he suffers as a result of the accident, I find he has met the test of section 12(5)(b) of the Schedule and is eligible for ongoing weekly income benefits at a rate of $185.60 per week.
Issue 2: Rehabilitation and Occupational Counselling and Training
Section 6 of the Schedule sets out the Insurer's obligation to pay supplementary medical and rehabilitation benefits to persons injured as a result of an accident. Both physical and psychological injuries are covered. The Insurer's duty is to pay "all reasonable expenses resulting from the accident" during a period of ten years from the accident up to a limit of $500,000.
In this case, Mr. Camilleri claims he requires rehabilitation and occupational counselling and training. Although the objectives of such training are not set out in the Schedule, implicitly it would appear that one of its goals would be to reduce or eliminate the need for an Insurer to pay ongoing benefits under section 12(5)(b) of the Schedule. To the extent possible, a person injured in a motor vehicle accident would, thus, be assisted to return to appropriate employment and a productive life.
In this case, the impression I received after hearing the testimony of the witnesses and reading the reports was that the focus of both the Insurer and the Applicant has been more upon the continuation of weekly income benefits after 156 weeks, than upon rehabilitation and occupational training. However, Dr. Woolford, in his second report, dated January 28, 1992, just one year after the accident, concluded his report by stating:
This patient is obviously going to have some long term deficits. He has been advised to plan ahead. He has a Grade 11 education. I have advised him to go back to school and upgrade his education and perhaps get into something like computer technology. It is very unlikely that he is going to get back to work laboring and he needs to plan ahead for his career.
Arrangements can be made for him to be assisted with this.
A further report will be indicated at a later date. (emphasis added)
No one picked up on this recommendation from Dr. Woolford, who, at that time, was speaking from 25 years' experience as an orthopaedic specialist in Canada.
In the fall of 1992 the Insurer must have wanted to know about Mr. Camilleri's potential to return to work, since it requested he undergo a work capacity evaluation at F.I.T. The Centre's comprehensive report begins by stating the objectives of the evaluation.
A plan was developed in order to address the following questions:
What physical deficits are actively demonstrated by the client?
What is the impact of these physical deficits on the [sic] Mr. Camilleri's ability to function?
What is the [sic] Mr. Camilleri's level of employability?
What are the client's work related tolerances over a three day period?
What treatment approach would maximize the client's work capacity?
Ten pages later, after reviewing the results of the testing, the physical therapist and occupation therapist authors of the report recommended as follows to the Insurer:
That Mr. Camilleri be provided with a comprehensive and graduated physical reconditioning program;
That the client's maladapted movement and weight bearing patterns be addressed by a physical therapist;
That Mr. Camilleri be referred to a vocational rehabilitation consultant, who would assist him to obtain work consistent with his current functional abilities and deficits. Since Mr. Camilleri has always worked in physically demanding, manual jobs, he will likely require retraining for a sedentary position; and
That Mr. Camilleri be provided with an ergonomically sound chair with low back support, a foot stool and a desk slope to be used when he is working in a seated position.
(emphasis added)
These recommendations were ignored. I do not know when Mr. Camilleri received a copy of this report. However, two years later physiotherapist Ameis advised Mr. Camilleri to cut 1½ inches from the end of his cane and recommended professional advice on the use of his cane and therapy to correct a faulty gait pattern.
These two reports were requested by the Insurer directly, or through its counsel. Dr. Woolford also submitted a report on Form 4 to the Insurer, dated August 25, 1992. In that report Dr. Woolford states at paragraph 7:
Duration of Disability
The patient is going to have definite, permanent disability with restriction of ankle movement and weakness in the foot and calf.
Dr. Woolford also believed Mr. Camilleri required both an active rehabilitation program and retraining and he reported this to Mr. Camilleri's counsel in several reports. I have no evidence of when those reports reached the attention of the Insurer.
Dr. Woolford wrote in his report of February 9, 1993:
(On January 20, 1993)... I also arranged for him to continue with an active course of physiotherapy including not only stretching and strengthening of his right leg, but an overall fitness program that he could get himself as fit as possible. (...) (On February 9, 1993)...I felt this patient still required a significant amount of rehabilitation. He is taking a week off for a holiday in Florida which I think is quite reasonable, but he is going to return to a very active rehabilitation program after this.
In his report of November 17, 1993 he wrote:
(On May 17, 1993)...I arranged for the patient to have further treatment in the Physiotherapy Department to strengthen his leg. I noted at that time this patient was definitely going to require some help with job re-training and job placement. He said he had always done things on a physical side and he was considerably frustrated by his restrictions.
(On November 18, 1993)...In the light of this patients [sic] current disability and his future prognosis, I do not think that he is capable of working at the present time. He needs to upgrade his education and obtain new sedentary working skills.
Finally, on August 24, 1994 he wrote:
...as I have already stated, I feel this patient requires significant assistance in getting into a Retraining Program at some time in the near future.
At the hearing, Dr. Woolford stated that Mr. Camilleri had not followed through with his recommendations regarding physiotherapy as fully as he would have liked. He believed this was partly because Mr. Camilleri was depressed about his condition. Dr. Woolford believes that Mr. Camilleri would have had some improvement in his condition if he had done so, for example, he would make less use of his cane. However, he considered it unlikely that Mr. Camilleri would have been able to return to heavy work in any event because of the mal-uniting of the tibia.
Mr. Camilleri testified that he had seen a psychiatrist, at Dr. Woolford's suggestion, for five or six sessions. He could not recall when this therapy had taken place.
On his own initiative, Mr. Camilleri did attempt a return to school in September 1994. He took six courses at Oshawa's Adult Learning Centre, in an effort to obtain a grade 12 diploma. However, he experienced difficulties with the amount of sitting required and the number of stairs he had to climb to attend classes. He also had some financial difficulty with transportation costs and school supply costs - the tuition was free. He did not contact the Insurer with respect to financing his education: at that time the Insurer had stopped paying weekly income benefits and Mr. Camilleri was receiving general welfare assistance. Mr. Camilleri testified he stayed at school for approximately two months.
Mr. Camilleri has no idea of what training he wishes to pursue. He had some ideas about police work or work in the medical field, but agrees that these careers are unrealistic given his residual physical disabilities and need for lengthy education. He is not interested in computer technology. He has not looked for work since the accident. He has made some inquiries with an employment counsellor at Employment Canada, who suggested he finish grade 12 then try community college. He has not looked into that, nor does he intend to return to school this fall.
The Applicant filed a letter from his counsel to the Insurer's claims examiner dated July 27, 1993. In that letter, Mr. Berg refers to the examiner's suggestions that Mr. Camilleri work at "door-to-door newspaper delivery or light assembly work and/or light industrial work." Mr. Berg reiterates the Applicant's position that Mr. Camilleri cannot walk or remain on his feet for any lengthy period of time. In the final paragraph of his letter Mr. Berg refers to the need to continue Mr. Camilleri's benefits beyond 156 weeks or to retrain him "in a field that he will be able to work at, considering his disabilities".
In his closing argument, the Applicant's counsel suggested that the rehabilitation issue boiled down to whose obligation is it - the Insurer's or the Insured's? He has presented no plan for Mr. Camilleri, but suggests that I make the same order as in the case of G. Brett Marry and Sun Alliance Insurance, March 7, 1995, OIC File No. A-006752. In that case counsel for the Applicant presented a preliminary assessment from a vocational rehabilitation specialist. Significantly, in that case however, the Insurer had previously engaged rehabilitation counsellors to work with the Applicant, one of whom had provided misinformation to him about the continuation of his weekly income benefits if he returned to school. My order in that case stated:
- The Applicant is entitled to a comprehensive program of rehabilitation, occupational counselling and training under the provisions of section 6(1)(c) of the Schedule. These services will be coordinated by the rehabilitation consultant retained by the Applicant's solicitor.
In this case, however, Mr. Camilleri has presented no plan. Mr. Berg suggested that Mr. Camilleri undergo a functional abilities evaluation and follow up on its recommendations, which may be to complete grade 12, and undergo retraining. In my view, Mr. Camilleri's assessments by F.I.T. and Ms. Ameis are sufficient to establish his functional capacity. He requires the assistance of a good vocational rehabilitation counsellor and testing to determine his interests. It would appear that the first two recommendations of the F.I.T. report for a program of progressive conditioning and a gait assessment are also required.
Mr. Dunn, for the Insurer, submitted that this insurance policy is primarily one of indemnity, and that in the absence of special circumstances, reimbursement is provided only for expenses and claims incurred. I disagree. In previous decisions I have written about the partnership which should exist between an injured person, his family, counsel, health care professionals and his Insurer and its advisors. In my view, an Insurer which solicits and receives a report like the F.I.T. report, coupled with a report from a treating orthopaedic specialist which talks about permanent disability, has positive obligations to make "rehabilitation, life-skills training and occupational counselling and training" available. This obligation is particularly strong when an insured person has become depressed after suffering injuries in a motor vehicle accident. The Insurer in this case never even appointed an adjuster to meet with the Applicant, investigate and report on his claims.
In my opinion, it is patently unfair for an insurer to ask an insured to undergo an assessment like the one provided at F.I.T., then ignore its recommendations.
The Ontario Insurance Commission mediation and arbitration units offer insured persons and their insurers the opportunity to work together to achieve resolutions of disputes - not just disputes about weekly income benefits, but also claims for supplementary medical and rehabilitation benefits. Once the Insurer had received Ms. Ameis' report, another opportunity arose to provide this Insured with physical therapy and retraining.
In this case, I know that serious settlement discussions did take place - the hearing adjourned in March 1995 when it seemed settlement was imminent. This Insured has had an advocate working on his behalf since quite soon after the accident. I am troubled that no preliminary vocational assessment has ever been performed on the Applicant. Precious time has been wasted.
In my view, Mr. Camilleri is entitled to a comprehensive vocational rehabilitation assessment including interest and aptitude testing, as a result of the injuries he received in the accident of January 9, 1991. I expect the parties to agree on an appropriate professional to assist Mr. Camilleri in this manner. If they cannot, then either party may apply to the Registrar to resume this matter before me. If, following the assessment, the parties cannot agree on the nature or extent of any further education or training for Mr. Camilleri, the parties should immediately apply for mediation of the dispute.
Special Award
Section 282(10) provides for an additional payment to an insured person, where an arbitrator finds that an insurer has unreasonably withheld or delayed payments. The subsection reads as follows:
If the arbitrator finds 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 the benefits first became payable under the Schedule.
The Insurer in this case refused to pay weekly income benefits to Mr. Camilleri after 156 weeks of benefits had been paid to him. It did not acknowledge that he met the test of eligibility found in section 12(5)(b) of the Schedule. In so doing, in my view, the Insurer has acted unreasonably.
In the case of Wayne Plowright and Wellington Insurance, October 29, 1993, OIC File No. A-003985, I set out what I considered unreasonable conduct by an Insurer to mean:
"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
At the time the decision to terminate Mr. Camilleri's weekly income benefits was made, at the latest in late December 1993 or early January 1994, the Insurer had the report of F.I.T. of October 27, 1992, which it had commissioned. It had at least the Form 4 report of Dr. Woolford of August 25, 1992 and perhaps other reports authored by him. I have no evidence that it had any report from any medical practitioner to whom Mr. Camilleri had been sent under the provisions of section 23(2) of the Schedule, expressing any contrary opinion to that of F.I.T. and Dr. Woolford. It is not clear whether the Insurer would have received Dr. Langer's first report, dated June 16, 1993, since this was commissioned by another insurer through different counsel. In any event, Dr. Langer states in that report that Mr. Camilleri's "prognosis at this point is unclear" and recommends a rehabilitation assessment to determine his fitness for work.
Accordingly, I find, at the time the decision to terminate Mr. Camilleri's weekly income benefits was made, that action by the Insurer was unreasonable. Since weekly income benefits are owing to Mr. Camilleri, he will receive a special award. Special awards are limited to a maximum of 50% of the amount to which the person is entitled at the time of the award; I find this termination to be a serious one and find Mr. Camilleri entitled to a 35% special award, on the weekly income benefits outstanding, plus interest as set out in section 282(10) of the Insurance Act.
I have considered whether that award should be calculated on the amount owing for the entire period from January 1994 until the date of this decision, or whether the intervening report of Dr. Langer of October 26, 1994 somehow ameliorates the Insurer's position. I find it does not, when coupled with the report, also commissioned by the Insurer, of Ms. Ameis who concluded that "Mr. Camilleri has not improved in functional capacity since his last functional capacity evaluation at F.I.T. on October 26, 1992." In addition, the language of section 282(10) does not lend itself to an interpretation which would order a special award for part of a period of benefits which have been unreasonably withheld.
Order:
Mr. Camilleri is entitled to weekly income benefits under the provisions of section 12(5)(b) of the Schedule, in the amount of $185.60 per week, plus interest on the outstanding benefits, as provided in section 24(4) of the Schedule.
The Insurer will pay for a comprehensive vocational rehabilitation assessment for Mr. Camilleri, including interest and aptitude testing.
The Insurer will pay a special award of 35% of the weekly income benefits outstanding at the date of this decision, plus interest, as set out in section 282(10) of the Insurance Act.
The Applicant is entitled to his expenses incurred with respect to the arbitration.
September 8, 1995
K. Julaine Palmer Arbitrator
Date