Neutral Citation: 1995 ONICDRG 160
ONTARIO INSURANCE COMMISSION
BETWEEN:
LESLIE REISER
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Leslie Reiser, was seriously injured in a motor vehicle accident on June 23, 1990. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on the basis that she did not meet the eligibility test for benefits after 156 weeks set out in section 12(5)(b) of the Schedule. Ms. Reiser claims that she continues to be eligible for weekly income benefits. 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 issue in this hearing is:
- Is the Applicant entitled to weekly income benefits under section 12(5)(b) of the Schedule, on the basis that the injuries she sustained in the June 23, 1990 motor vehicle accident continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience?
The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to weekly income benefits under section 12(5)(b) of the Schedule. .
The Applicant is entitled to her expenses related to this arbitration.
Hearing:
The hearing was held in Ottawa, Ontario on June 28, 29 and 30, 1995 before me, David K.L. Starkman, arbitrator.
Present at the Hearing
Applicant:
Leslie Reiser
Applicant's Representative:
Anne Mullins Barrister and Solicitor
Insurer's Representative:
Peter Hagen Barrister and Solicitor
Witnesses:
Dr. Ouchterlony, Joanne Heffernan, Karl Botterbusch, Tricia Sands, Leslie Reiser, John Reiser, Heather Hill, Margot Bell
The exhibits entered at the hearing are listed in Schedule 'A' to this decision.
Reasons for Decision:
The Nature of the Injuries Sustained in the Accident
On June 23, 1990, the Applicant was involved in a motor vehicle accident on Highway 11 near Huntsville, Ontario. The vehicle she was driving was rear-ended and pushed into the oncoming traffic, where she was broadsided by a truck. She was transported by ambulance to the Huntsville District Memorial Hospital where she was examined, and then transported to the Sunnybrook Trauma Centre in Toronto.
Ms. Reiser remained at Sunnybrook until July 19, 1990. While at the medical centre, she underwent a number of procedures and the discharge diagnosis identified her condition as follows:
Closed head injury - right frontotemporal contusion
Right zygomatic arch fracture
Left distal radius fracture
Pelvic fracture
Pulmonary contusion
Following her discharge from Sunnybrook, the Applicant convalesced at The Riverdale Hospital until September 7, 1990. The summary of her condition while at the Hospital indicates as follows:
In hospital the patient was treated on the Neurorehabilitation Unit, and she progressed well. By the time of discharge, she was walking with an improved gait but was still not normal. She had passive range of motion which was limited in the wrist, mostly extension and supination, and combined MCP, DIP and PIP flexion. There was tightness in long wrist extensors but these were responding well to treatment. She had made significant progress. Her memory continued to demonstrate mild impairment functionally. Reasoning skills appeared normal, as did problem-solving. She continued to have decreased coordination on the right, limiting her abilities to perform fine motor activities, such as typing and writing. He left hand fixator was taken off during the latter part of her stay, and she continued to have significant problems with range of motion at the wrist and hand. She was independent in all self care activities, but was limited in performing higher level activities, such as home-making tasks.
She was discharged home to continue her programme in France, as her husband was being transferred there with his job.
Evidence was given at the hearing by Dr. Donna Ouchterlony, the Chief of Staff at Riverdale Hospital, who was involved with the Applicant's care and treatment while she was at the Hospital.
Dr. Ouchterlony testified that persons, such as the Applicant, who presented with head injuries, never have a complete recovery. Prior to the accident Ms. Reiser was athletic, and a highly motivated individual who could undertake and accomplish a number of diverse tasks simultaneously.
As a result of the head injury she sustained in the accident, Ms. Reiser has lost fluidity of movement, cannot stay focussed and her cognitive functioning is within the low normal range. Everything she does requires more energy than prior to the accident. She has an information retrieval problem and problems performing high level gross motor and intellectual tasks. Ms. Reiser can drive an automobile and is not experiencing problems with depression.
According to Dr. Ouchterlony, Ms. Reiser's deficits will get worse with age, although her adjustments and ability to cope with these deficits will hopefully improve.
Dr. Ouchterlony testified that, because of Ms. Reiser's condition, she cannot compete for employment opportunities in the workplace. While prior to the accident Ms. Reiser could be described as an "over-achiever", as a result of her injuries, she is not able to cope with both her family responsibilities and a return to work.
In response to questions from counsel for the Insurer, Dr. Ouchterlony identified a combination of the following factors which, in her opinion, made Ms. Reiser unemployable: short-term memory losses, fatigue, balance problems, irritability, high level cognitive and physical deficits, and continuing problems with her wrist.
Ms. Joanne Heffernan, the Applicant's elder sister, testified that prior to the accident, Ms. Reiser had been extremely active She graduated from university in 1985 with a degree in math and computer science. She stated that since the accident her sister cannot run, cannot walk easily on uneven surfaces, and her energy levels are much reduced.
Mr. Karl Botterbusch, vocational consultant, testified that it would be appropriate if Ms. Reiser could return to work in the field of computers in which she was working prior to the motor vehicle accident. He expressed concern, however, that because of fatigue, she could not work a forty-hour week. He therefore recommended part-time work, preferably in an area of computers that was not as complex as the field the Applicant had been working in prior to the accident.
When questioned by counsel for the Insurer, Mr. Botterbusch expressed the opinion that Ms. Reiser remained approximately 25 per cent disabled and that she probably could not work more than 30 hours per week. He acknowledged that there are a considerable number of less complex jobs in the computer industry that Ms. Reiser might be able to do. Some positions allow people to work at home and to set their own hours to some extent.
Ms. Tricia Sands, who worked with Ms. Reiser between 1987 and 1990 at Humber College in Toronto, stated that Ms. Reiser was a first class computer analyst who had high energy. In 1987, when her husband moved to Huntsville, Ontario for business reasons, Ms. Reiser was reluctant to go because of the lack of business opportunities for herself in that area. Ms. Reiser was trying to figure out how to combine a family with a career at that time.
Ms. Reiser testified that she married in 1985. In the fall of 1990, she and her husband moved to France, returning to Canada in November 1991. She and her husband have been living in Appleton, Wisconsin since January 1992.
Their first child was born in early May 1991 and their second in November 1992.
With respect to her present physical condition, Ms. Reiser stated that she cannot run, has trouble walking up and down stairs without holding onto something, cannot sit or stand for long periods of time, and cannot participate in sports because her overall coordination is poor.
She takes muscle relaxants for aggravation of scar tissue, and has headaches when she gets tired. Every day she has a rest period or a nap in the early afternoon. If she does not have a nap, she becomes irritable. Her vision is not as good because of fatigue. As well, when she is fatigued, she cannot absorb written or visual material.
Everything she does requires a greater effort than before the accident. She cannot do more than one thing at a time. She stated that she went to school to have a career in computers and should not be forced by virtue of a motor vehicle accident to look to other vocations which she never chose.
Ms. Reiser stated that prior to the accident her ambition had been to have children and work part-time. She planned to return to full-time work when the children were in school. Prior to the accident, neither she nor her husband had any interest in moving to Wisconsin because she could not work there.
Ms. Reiser advised that she was in the process of acquiring a green card and hoped to be in a position to work in Wisconsin in the fall of 1995. She did not initiate the application procedure earlier because she was not physically or mentally capable of working. She indicated that in the years 1987 through 1990 she earned, as a computer consultant, between $19,000 and $36,000 per year. She stated that because of her condition, she did not feel she had the stamina to work full days five days a week.
She stated that in recent years she has taken a computer upgrading course and briefly did some volunteer computer programming for St. Elizabeth Hospital. She said that this volunteer work took her longer than usual and she found it very tiring.
The Medical Reports
Ms. Reiser has undergone a considerable number of neuropsychological and vocational evaluation tests. On June 25, 1992. Mr. Mark Marnocha, psychologist, after assessing Ms. Reiser, reported:
...Thus, it was my feeling that the patient was continuing to show significant improvements. However, my assessment did suggest that the patient was likely to have continued difficulties in recall of complex verbal materials, both immediate and delayed. Further, the patient's efficiency and speed of processing multiple complex inputs is likely to be poorer than her pre-morbid functions also.
It would appear that Mrs. Reiser is likely to be able to perform many of the essential duties of her previous occupation. However, it is likely she may have some residual disability or difficulty due to her limitations with complex verbal materials, which are going to be essential in complex cognitive employment such as that prior to her accident. Further, her difficulties with fatigability [sic], difficulties processing complex multiple inputs, and some possible nonspecific inefficiency of memory functions overall are likely to contribute some substantial disabling impact on Mrs. Reiser's future professional activities....
In the winter of 1993 Ms. Reiser was examined by Brian J. Yore who submitted a report which concluded as follows:
SUMMARY: Results of cognitive testing, with one exception, basically fall within the normal range. The one exception is in the area of psychomotor speed. There is residual evidence here of the injury more than likely sustained in the automobile accident in 1990. Specifically, motor speed with the dominant right hand is slower than that with the non-dominant left. This test score, although isolated, is consistent with left cerebral hemisphere involvement, more anterior. While I have not seen any actual medical report, this is consistent with Mrs. Reiser's personal summary of the data. The slowing appears to impact her writing skills and I assume keyboard work. Even though the low scores still fall in the low average range, they would be inconsistent with expected premorbid ability.
Personality testing revealed somatic concerns, which may, in Mrs. Reiser's case, be reality based. There are indications, however, of some confusion as to how she should incorporate these deficits in her own self understanding and identity. She may be making more or less of their true impact. There is evidence of limited insight as to the causes of her own behaviour and this probably impacts her struggle to incorporate the meanings of her residual disabilities.
Although I do not have detailed reports, my interpretation of these results is one of continued general improvement. As stated above, there is really only one residual that is clearly identified; i.e. psychomotor speed on the right side. According to the patient's report, this is consistent with sight of injury in the left hemisphere. In terms of personality assessment, I think she continues to experience an adjustment problem, specifically as to how to incorporate the residual deficits in her own self understanding and how that is to impact not only how she sees herself but what she feels that she can accomplish in the future. Certainly not all that surprising. She has constant everyday reminders of a serious traumatic experience. On the bright side, there are a number of strengths here and if [sic] would appear that she is making considerable strides in compensating for the remaining deficits. As we stand nearly three years status post accident, the prospect of further recovery is dim. It is my opinion that recovery is near complete and there will remain deficits, however isolated, to be compensated for. Certainly, it is my opinion that Mrs. Reiser's prospect for gainful employment are [sic] quite good. I would doubt, however, that she could immediately resume duties which she was able to handle quite readily premorbidly. This has as much to do with her residual problems, however isolated and mild-to-moderate in degree, as it does with the ever changing nature of the field of employment in which she was involved. She basically has been out of the computer/software business for three years which many might consider six generations. For her own reassurance, she is well advised to return to the work place, if she should so desire, at an appropriate level, with an eye on being promoted as opposed to demanding too much of herself initially and, as a result, failing. [emphasis in original]
Ms. Deborah D. Thompson, vocational evaluation specialist, examined Ms. Reiser, and in a report dated October 20, 1993 concluded as follows:
Based upon the results of this evaluation, it is this Evaluator's professional opinion that a vocational rehabilitation plan for Leslie, having the greatest potential for success, would include the following recommendations:
With regard to the question of whether Leslie could return to consulting or computer operations, it should be noted that based on her timed test results, a transferable skills analysis was completed. Consultant and supervisor computer operations were not included in this list of jobs. She would need adaptation to return to [work] a as a [sic] consultant or a computer programmer. Perhaps if she could locate an employer who would be willing to offer her work that did not necessarily require immediate results, it would allow her some time to work on the program. This may be more in line with her abilities at this time.
With regard to being employed as a computer trainer, if she could obtain employment that would allow her to do training on two half-day basis as opposed to one full day, she may be better able to compensate physically for this type of work....
..Apparently, Leslie feels that her greatest road block to returning to the labour market at this time is her physical tolerances for work. She does not feel that she can work 8 hour days, and then cope with life after work including the care of her 2 small children and a husband. With regard to these physical tolerances, again it would be beneficial if she could locate an employer who allowed a flexible schedule or if she could return to work on a part time basis.
In a report dated September 26, 1994 Mr. D.F. Thomas, licensed psychologist, concluded as follows:
Summary and Recommendations: On the basis of a recent interview and review of records, it appears as though Leslie continues to suffer from residuals of both cognitive and physical related functional limitations resulting from the automobile accident in question. Although she exhibits functional skills in memory, attention and concentration, and intellectual skills, she is functioning at a reduced level of efficiency from where she had been prior to this accident. Because of the fatigue factor, she also will demonstrate additional limitations. The physical restrictions that she exhibits should not seriously affect the type of work that she had done before, but because she now processes information into memory storage at a less efficient rate than previously, and because of problems with distractibility, a decrease in speed of mental processing, and inability to split attention, she likely will need to focus her job finding efforts in a related area. Restrictions from a physical standpoint, therefore may be more critical than if she were to return to her previous line of work. In considering vocational limitations, one needs to keep in mind the fact that she is likely to learn information better if it is highly related to what she has learned before, although her present rate of learning will be at a much reduced rate of efficiency. She is likely to be able to tolerate less in terms of stress, and ability to generalize what she has learned to a lesser degree because of problems with long term storage of information, and because of problems with fatiguability. It is quite likely that as she becomes fatigued, cognitive problems will become intensified and more of a disabling factor if she is working full-time than if she is working part-time.
Submissions of the Parties
Counsel for the Applicant submitted that Ms. Reiser remained totally disabled in the sense that she was either unable to perform substantial portions of her pre-accident work or was unable to perform these tasks to the standard of a reasonable employer. Counsel referred to a number of court decisions which are set out in Appendix 'A' to this decision and in particular to the decision in Foden v. Co-operators Insurance Association (Guelph) (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728 (Ont. H.C.J.), where at p. 733 Mr. Justice Reid states:
These decisions provide an impressive underpinning for the proposition that if a person is unable to perform a substantial portion of his work, or an essential or material aspect of it, or in general, be able to perform his task to the standard of a reasonable employer, that person is totally disabled.
Reference was also made to the decision in Paul Revere Life Insurance Co. v. Sucharov, 1983 CanLII 168 (SCC), [1983] 2 S.C.R. 541 where at p. 546 the Court cites Couch on Insurance (1983), 2d (Rev. ed.) 53:118, concerning the test for total disability as follows:
The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one's occupation, but rather that there is a total disability if the insured's injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.
The Insurer submitted that the medical and psychological reports did not support the conclusion that the Applicant's injuries from the motor vehicle accident prevented her from returning to work in the computer field. According to the Insurer, the Applicant's fatigue was related to her child-rearing responsibilities. The Insurer claimed that the Applicant's inability to work was primarily related to her lack of effort to find work, the fact that she did not have a green card to work in the United States, and the rapidly changing nature of work in the computer area.
Conclusion
There is no doubt that Ms. Reiser was very seriously injured in a motor vehicle accident on June 23, 1990. She was 28 years old then and was working as a computer programmer, systems analyst and trainer. She was energetic, active and successful in her work.
Ms. Reiser suffered severe injuries and, as noted by many of the examining physicians, made a remarkable recovery because of her determination and because of the support of her friends and family.
At the time of the accident, Ms. Reiser had made a decision to accompany her spouse to France for a year.
Following her return from France in November 1991, she decided to relocate with her spouse to Appleton, Wisconsin. Ms. Reiser testified that this decision was made in large part because she was not able to work. If she had been able to work, then her husband would not have accepted the job transfer.
Ms. Reiser has two children, born in 1991 and 1992. She has not been able to work while in Wisconsin because she does not have the requisite work papers from the American authorities.
There was general agreement that more than four years after the accident Ms. Reiser's condition has stabilized. Ms. Reiser indicates that she continues to suffer from fatigue, irritability, headaches, overall problems of co-ordination, concentration and memory difficulties.
The issue that I am required to determine is whether Ms. Reiser's condition prevents her from engaging in any occupation or employment for which she is reasonably suited. This issue involves an interpretation of section 12(5)(b) of the Schedule. Accordingly, reported Court decisions about the interpretation to be given to the words 'total disability' made in the context of other legislation or insurance contracts are not directly applicable.
The various medical practitioners, psychologists and vocational rehabilitation counsellors who have examined Ms. Reiser have all expressed the opinion that Ms. Reiser's return to work in the computer field was her most desirable option. They also recognize that Ms. Reiser's skills may be rusty, and that the residual effects of the accident may preclude her from working as a consultant or independent contractor. Therefore, work as an employee and/or on a part-time basis may be preferable.
Section 12(5)(b) of the Schedule provides that the insurer is not required to pay a weekly benefit 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 clear to me from the evidence presented, that Ms. Reiser is reasonably suited by education, training and experience to work in the computer field. She may need some upgrading of her skills, but this is a continual necessity in the computer field given the rapid changes that occur.
I also find that such employment would be suitable to Ms. Reiser, because the field offers many different types of jobs on a full and part-time basis, with the opportunity to work at home or set one's own hours.
I am satisfied from the evidence that Ms. Reiser is capable of working in the computer field as a trainer, systems analyst or technical support specialist, and that she could perform such work on a full-time basis after a brief period of familiarization and training.
Other than one brief attempt at volunteer work, the Applicant has made no serious attempt to return to any kind of employment since her accident. In part, this may be attributable to the fact that Ms. Reiser does not have a permit to work in Wisconsin, and in part it may be attributable to the fact that she is the primary caregiver for two young children.
Ms. Reiser's focus has understandably been on her family and not on making efforts to return to the workplace.
In conclusion therefore, I find that Ms. Reiser has not established, on the balance of probabilities, that the injuries sustained in the motor vehicle accident of June 23, 1990 continuously prevent her from engaging in employment in the computer field. I appreciate that Ms. Reiser may continue to have disabilities residual to her injuries sustained in the motor vehicle accident. These deficiencies perhaps may prevent her from returning to the consulting work she was involved in prior to the accident. To the extent that this is true, I appreciate that it would be extremely frustrating for a person who was just embarking on a career path, to have that goal frustrated or delayed by the motor vehicle accident. In addition, as more than four years have now passed since the accident, and the computer field is a rapidly changing one, the challenge of returning to work may be even more formidable to Ms. Reiser.
On the other hand, the evidence is clear that Ms. Reiser is an extremely capable person. She has made a remarkable recovery from very serious injuries. The evidence indicates that she is capable of returning to employment in the computer field in some capacity, and this work is gainful employment for which she is reasonably suited by education, training and experience. It may be that Ms. Reiser will have to work in an area of the computer field which is not her first choice, or that initially she will have to work on a flexible or reduced number of hours. I am satisfied, however, that such work would be available to Ms. Reiser if she had a green card to work in the United States and if she made the appropriate efforts to find the work.
For these reasons the application is dismissed. Ms. Reiser is not entitled to further weekly income benefits under section 12(5)(b) of the Schedule.
Order
The Applicant is not entitled to weekly income benefits under section 12(5)(b) of the Schedule. .
The Applicant is entitled to her expenses related to this arbitration.
November 3, 1995
David K.L. Starkman Arbitrator
Date
APPENDIX 'A'
Exhibits:
1Tab 1
Ambulance Call Report
2
Huntsville District Memorial Hospital Records
3
Sunnybrook Medical Centre Trauma Assessment Record
4
Sunnybrook Medical Centre Records Dated June 23, 1990
5
Ontario Automobile Insurance Medical or Psychological Report dated June 23, 1990
6
Riverdale Hospital Records dated July 20, 1990
7
Letter from Dr. Collins to Zurich Insurance dated August 8, 1990
8
Handwritten memorandum dated August 14, 1990
9
Initial report from Neuro-Rehabilitation Consultants dated August 15, 1990
10
Update report from Neuro-Rehabilitation Consultants dated October 17, 1990
11
Update report from Neuro-Rehabilitation Consultants dated November 19, 1990
12
Report from Dr. Paul L. Wang dated December 31, 1991
13
Physiotherapy records from St. Elizabeth Hospital Rehabilitation Centre
14
Report from Dr. M.D. Ouchterlony dated June 2, 1992
15
Report from Dr. Mark Marnocha dated June 25, 1992
16
Report from Dr. Timothy A. Mjos dated July 6, 1992
17
Riverdale Hospital Records
18
St. Elizabeth Hospital Records
19
Neuropsychological Evaluation
20
Vocational Evaluation Report (Zurich)
21
Records from Maternite Regionale de France
22
Med-Voc-Associates, Inc. Report dated December 29, 1993
23
Psychological Consultation from D.F. Thomas & Associates dated September 26, 1994
24
Vocational Consulting Associates, Vocational Report dated September 27, 1994
25
St. Elizabeth Hospital Department of Radiology Clinical notes of Dr. Marie Weber
- Tab 1
Initial Report of MVA Med-Voc Associates dated August 27, 1993
2
Status Report of MVA Med-Voc Associates dated September 30, 1993
3
Letter dated September 30, 1993 from MVA Med-Voc Associates to Voc-Eval Associates
4
Status Report of MVA Med-Voc Associates dated November 23, 1993
5
Status Report of MVA Med-Voc Associates dated December 29, 1993
6
Labour Market Information
- Tab 1
June 28, 1980 - Summary of successful secondary school progress for Leslie Reiser
2
1987 Revenue Canada Records of Income
3
1988 Revenue Canada Records of Income
4
1989 Revenue Canada Records of Income
5
1990 Revenue Canada Records of Income
6
June 23, 1990 - Ontario Provincial Police Motor Vehicle Accident Report
7
July 11, 1990 letter from George Brown College to Zurich Insurance
8
July 17, 1990 Abitibi-Price confirmation of self-employed earnings
9
July 20, 1990 Domtar Packaging confirmation of self-employed earnings
10
October 15, 1990 Letter from Ontario Provincial Police enclosing witness statements
11
October 21, 1990 Application for Accident Benefits
12
September 12, 1991 Letter from George Brown College
13
November 16, 1991 University of Waterloo Transcript of Academic Record
Cases referred to:
Campbell v. Canada Life Assurance Co. (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73;
Labelle v. The Great West Life Assurance Company (1986), 1986 CanLII 7786 (BC SC), 17 C.C.L.I. 173;
Brooks v. London Life, 1979 ALTASCAD 155, [1979] I.L.R. 1-1115;
Dale v. Commercial Union Assurance Co. of Canada, [1980] I.L.R. 1-1271;
DePape v. The Manitoba Public Insurance Corporation, [1980] I.L.R. 1-1351;
Paul Revere Life Insurance Co. v. Sucharov, [1983] 2 R.C.S. (Man. C.A.);
Fast v. Insurance Corporation of B.C., [1976] I.L.R. 1-745 (B.C.S.C.);
Kenni v. Insurance Corporation of B.C. (1993), 1993 CanLII 1877 (BC SC), 14 C.C.L.I. (2d) 62;
Foden v. Co-operators Insurance Association (Guelph) (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728 (Ont. H.C.J.);
McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412; Hiscock v. Metropolitan Life Insurance Co.(unreported), Nov. 2, 1988 (Nfld. S.C.).
Commission Decisions:
Vicenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198;
Martin Wilson and Jevco Insurance Company, January 13, 1995, OIC File No. A-007652.