Neutral Citation: 1995 ONICDRG 19
File No. A-006752
ONTARIO INSURANCE COMMISSION
BETWEEN:
G. BRETT MARRY
Applicant
and
SUN ALLIANCE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, G. Brett Marry, was injured in a motor vehicle accident on August 20, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on September 2, 1993. 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 the Applicant entitled to income benefits under section 12(2) (ii) of the Schedule in the sum of $562.87 per week from September 2, 1993 to August 27, 1994?
Is the Applicant entitled to income benefits, under section 12(5)(b) of the Schedule, in the sum of $562.87 per week, after August 27, 1994?
Is the Applicant entitled to a comprehensive rehabilitation assessment and vocational retraining under section 6(1)(c) of the Schedule?
The Applicant also claims interest on any amounts owing and his expenses of the arbitration.
Result:
Brett Marry is entitled to weekly income benefits under section 12(2) (ii) of the Schedule in the amount of $562.87 for the period September 2, 1993, to August 27, 1994, plus interest as set out in section 24 of the Schedule.
The Applicant is entitled to weekly income benefits under section 12(5)(b) of the Schedule in the amount of $562.87 from August 27, 1994, forward. These weekly income benefits are payable biweekly as set out in the Schedule and interest is owing on them according to the provisions of section 24.
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.
The Applicant is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in London, Ontario, on January 16 and 17, 1995, before me, K. Julaine Palmer, arbitrator. I received written argument from both lawyers, ending on January 27, 1995.
Present at the Hearing:
Applicant:
G. Brett Marry
Applicant's Representative:
David J. Ashford Barrister and Solicitor
Insurer's Representative:
William J. McCorriston Barrister and Solicitor
The proceedings were recorded by Joan Howe, Triune Reporting Services.
Witnesses:
Brett Marry, Dr. Michael C. Hall, Dr. Ralph Pototschnik, Robert Nenicka, Barbara Luck-Baker, James McNamee, and Dr. Stuart Patterson.
Exhibits:
The parties filed a medical brief, an employment brief, a clinical notes and records brief, and nine other exhibits at the hearing.
1 Entitlement to August 27, 1994
Mr. Marry is now 31 years old, single, with no dependants. He has lived in London, Ontario, since the age of 12 or 13. He left high school at age 19 when he was in grade 11. He testified that he needs two more credits to receive his grade 12 diploma.
During the summers of 1990 and 1991, Mr. Marry worked at installing swimming pools. He last worked on August 8, 1991. I accept his evidence that he was on a temporary lay-off at that time, because his employer, Robert Nenicka, was taking a vacation during a slow period, and wanted to give work to college students who would be leaving his employ at the end of August. I accept that had the accident of August 20, 1991 not occurred, Mr. Marry would have returned to his job by September 3, 1991.
I do not accept the evidence of the Applicant's employer, Robert Nenicka, that Mr. Marry left his employment because of injuries suffered in a motorcycle accident after August 8, 1991, but before August 20, 1991. It is my view that Mr. Nenicka is confused in his evidence with respect to when the motorcycle accident involving Mr. Marry took place, since Mr. Marry had been in a motorcycle accident earlier in the spring of 1991. I accept the documentary evidence of the employer's confirmation of income statement which confirms Mr. Marry's employment with J. & R. Pool Installations. This form was signed on September 5, 1991, long before any statements were given by Mr. Nenicka to insurance adjusters and before any testimony was required in an arbitration brought by Joseph Marry against Sun Alliance Insurance Company (March 12, 1993, OIC File # A-002329). I find that Mr. Nenicka's recollection that Brett Marry called him after a motorcycle accident, about August 13, and told him that he could not return to work, followed by another telephone call after the August 20, 1991 motor vehicle accident, reiterating that he would not be back to work, to be nonsensical.
I accept the evidence of Brett Marry and Dr. Stuart Patterson as to the mechanism of injury which caused the transcaphoid perilunate injury to Mr. Marry's right wrist and the hyperextension of his right thumb. I accept that this injury occurred during the accident of August 20, 1991, when Mr. Marry's hand was injured by impacting the car's armrest and door handle.
I accept that Mr. Marry did not know that his wrist was seriously injured when he attended at the Ernest Walk-in Clinic shortly after the accident, although he felt pain in his entire arm from his shoulder to his finger tips. When Dr. Dunn examined Mr. Marry on August 22, 1991, he noted tenderness over the tendon at the base of the right thumb.
I accept the evidence of Brett Marry with respect to the nature of his employment as a pool installer. This evidence was largely corroborated by the testimony of Robert Nenicka. The job is physically demanding, requiring heavy metal sheets and piping to be lifted and carried; the loading, unloading and propelling of wheelbarrows of concrete, soil, sod, and other material is also required. The pool liner must be lifted and stretched into place.
I accept the evidence of Dr. Stuart Patterson and Mr. Marry that because of the injuries sustained in the accident of August 20, 1991, Mr. Marry is no longer able to carry out any job which requires "heavy manual activity using the right upper extremity". This includes working as a swimming pool installer.
Accordingly, Mr. Marry is entitled to receive accident benefits in the sum of $562.87 per week from September 2, 1993, to August 27, 1994, together with interest as set out in section 24 of the Schedule.
Issues 2 and 3: Post-156 weeks Weekly Income and Rehabilitation
Mr. Marry has a grade 11 education. After the accident, the rehabilitation consultant engaged by the Insurer attempted to interest Mr. Marry in returning to complete the credits required for his grade 12 diploma. For various reasons, Mr. Marry did not attend Wheable Adult Education Centre, not the least of which was the confusion in his mind and in the mind of the rehabilitation consultant, with respect to the continuation of his weekly income benefits if he returned to school. Although the rehabilitation consultant was engaged to assist Mr. Marry, she showed a remarkable lack of understanding with respect to the continuation of weekly income benefits during the rehabilitation process. In one of her reports to the Insurer, she wrote as follows:
On September 9th, Mr. Marry contacted our office to confirm whether or not the Psychological/vocational testing report had been completed. Confirmed that it was and arranged to meet with him on September 10, 1992, to review the results.
Mr. Marry presented as being very positive about the overall findings. He believed that the information would assist him in focusing on future employment goals. He was advised that he was more than capable of moving into sedentary employment where on-the-job training could be provided. Conversely, he could choose to pursue post secondary studies. Based on the results of the testing, he should prove quite successful in either situation providing he was motivated to complete programs undertaken.
In response to his question, it was explained to Mr. Marry that if he opted to pursue post secondary studies, it would not necessarily be the case that Sun Alliance would continue his weekly benefits as his respective physicians would most likely release him to alternative physically appropriate employment. Reiterated that, intellectually, he was capable of readily learning a new occupation. Mr. Marry was also given information about accessing the Ontario Student Assistance Program (OSAP) etcetera.
The underlined portion of the above paragraph shows the profound lack of understanding of the provisions regarding weekly benefits under the Schedule. Mr. Marry had further surgery scheduled for September 30, 1992, with an anticipated recovery period of two months thereafter. Such misinformation by the rehabilitation consultant did not assist him in an early return to an upgrading program. In my view, the rehabilitation consultant's report confirms her ignorance of the eligibility tests for weekly income benefits under the Schedule. Until August 27, 1994, Brett Marry could be entitled to weekly income benefits as long as he was unable to perform the essential tasks of his former employment as a pool installer.
I also accept Mr. Marry's comments that when he inquired into returning to school and told the rehabilitation consultant that he could not make notes in class because of his cast, that no active measures were taken to provide him with alternative support to enable him to take classes. Mr. Marry was largely left on his own and this resulted in him doing nothing further about his upgrading program.
I find this evidence is confirmed by the consultant's comments in her report of November 24, 1992:
At conclusion of the meeting, Mr. Marry was encouraged to physically attend Wheable to obtain information for upgrading courses. It was further suggested to Mr. Marry that it would be best if he set some goals for his own future rather than waiting for input or a decision from the insurance company. It should be noted that the claimant has frequently commented in either our meetings or telephone discussions that he was hesitant to make a commitment to a particular course of action. He stated this was because of his concern that he might do something which would, in turn, jeopardize his relationship with Sun Alliance.
The evidence of the rehabilitation consultants and Mr. Marry, himself, with respect to Mr. Marry's education, training and experience is that he has a grade 11 education and he has worked as a furniture mover, in landscaping, as a short order cook, and as a gas jockey.
I accept Mr. Marry's evidence that furniture moving and working at landscaping is heavy manual labour. I also accept his evidence that as a cook, he would be required to lift heavy objects such as grocery deliveries, and to use his right arm repeatedly and dextrously in this occupation. I further accept his evidence that working as a gas jockey, outside, and using his right arm to pump gas, would aggravate his wrist. The Insurer called no evidence to refute Mr. Marry's evidence nor to suggest alternate employment for which he would be reasonably suited. I find that Mr. Marry has established that his right wrist injury continuously prevents him from engaging in any employment for which he is reasonably suited by education, training, or experience. Accordingly, by the terms of section 12(5)(b) of the Schedule, he is entitled to income benefits of $562.87 per week after August 27, 1994.
The Schedule provides at section 6(1)(c) that an insured person who is injured in an accident is entitled to receive payment of all reasonable expenses, resulting from the accident, for "rehabilitation, life-skills training and occupational counselling and training". I have found that Mr. Marry's wrist injury leaves him unsuited to heavy manual labour and also to outside work as a gas jockey. Although I consider it to be an integral part of the rehabilitation process that an insured person sets goals for himself as far as his future occupation is concerned, in this case, the misinformation provided by the rehabilitation consultant and the lack of concrete assistance provided largely explains Mr. Marry's lack of success at returning to the work force.
I find that the rehabilitation consultant engaged by the Applicant's solicitor for an assessment of his rehabilitation potential should be hired to assist Mr. Marry to return to work at a job appropriate to his physical tolerances, interests, and educational level. I have no doubt that Mr. Marry would work hard to complete a program initiated and supervised by a rehabilitation consultant in whom he can have some confidence. In a relatively short period of time he will be successful in obtaining a level of education and training which will enable him to find suitable employment.
Finally, I record that I have placed little weight on the evidence of the two expert witnesses called by the Insurer. A great deal was made of an accident which supposedly occurred on August 8, 1991, and the testimony of both experts was tainted by an overreliance on this supposed accident. In fact, I find that the initial confusion over the date of the accident stemmed from sources within the Insurer's own organization, when the date of August 8, 1991 was mistakenly communicated to the rehabilitation consultant at the time the assignment was given to her by the Insurer. At all times, Mr. Marry has confirmed the accident date of August 20, 1991.
Expenses:
The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
The Applicant is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Brett Marry is entitled to weekly income benefits under section 12(2) (ii) of the Schedule in the amount of $562.87 per week for the period September 2, 1993, to August 27, 1994, plus interest as set out in section 24 of the Schedule.
The Applicant is entitled to weekly income benefits under section 12(5)(b) of the Schedule in the amount of $562.87 from August 27, 1994, forward. These weekly income benefits are payable biweekly as set out in the Schedule and interest is owing on them according to the provisions of section 24.
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.
The Applicant is entitled to his expenses of the arbitration.
March 7, 1995
K. Julaine Palmer Arbitrator
Date