Rene G. Lafleur v. Zurich Insurance Company, 1995 ONICDRG 203

Ontario Insurance Commission

Neutral Citation: 1995 ONICDRG 203

File No. A-004141

BETWEEN:

RENE G. LAFLEUR Applicant

and

ZURICH INSURANCE COMPANY Insurer

DECISION

Issues:

The Applicant, Rene G. Lafleur, was injured in a motor vehicle accident on September 27, 1990. He applied for and received statutory accident benefits from Zurich Insurance Company, payable under Ontario Regulation 672¹. Weekly income benefits were terminated by Zurich on August 1, 1992, when the Applicant returned to work full-time.

In January 1993, Mr. Lafleur claimed he could no longer carry on working, due to his injuries from his accident, and asked that his weekly income benefits be reinstated. Zurich refused to reinstate the benefits. Mr. Lafleur also claimed certain vocational and rehabilitation benefits.

The parties were unable to resolve their disputes through mediation and Mr. Lafleur applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Lafleur entitled to ongoing weekly income benefits after January 23, 1993?

2. Is Mr. Lafleur entitled to the vocational and rehabilitation benefits claimed?

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

Result:

1. Mr. Lafleur is entitled to weekly income benefits from January 23, 1993 to September 26, 1993.

2. Mr. Lafleur is entitled to vocational rehabilitation benefits, as outlined in the body of this decision.

Hearing:

The hearing was held in Windsor, Ontario, on March 22, 1994, before me, Frederika Rotter, Senior Arbitrator.

Present at the Hearing:

Applicant: Rene G. Lafleur

Applicant's Representative: James A. Porter Barrister and Solicitor

Insurer's Representative: Patrick Furlong Barrister and Solicitor

Witnesses: Rene Lafleur, Applicant Dr. Kenneth Shwery Dr. G. Stiller

Documents before the Arbitrator:

Exhibits:

Exhibit 1 Medical Brief

Exhibit 2 Supplementary Brief

Exhibit 3 Letter from Wolverine Freight System confirming Rene Lafleur's income, dated March 16, 1994

Exhibit 4 Workers' Compensation Board receipts

Exhibit 5 Course Description - Cambrian College

Exhibit 6 Curriculum Vitae of Dr. Kenneth Shwery

Exhibit 7 Curriculum Vitae of Dr. Michel Lacerte

Exhibit 8 Curriculum Vitae of Dr. Srinivas Chakravarthi

Cases referred to:

Pina Coles and Dominion of Canada General Insurance Company, February 13, 1995, OIC File No. A-007416 (under appeal)

Pedro Correal and Jevco Insurance Company, May 6, 1993, OIC File No. A-001994

Sharon Lee and Unifund Assurance Company, August 28, 1992, OIC File No. A-000078

Kathleen Lyons and Metropolitan Insurance Company, March 7, 1995, OIC File No. A-009824 (under appeal)

Earl Joseph Russell and Co-operators General Insurance Company, December 20, 1993, OIC File No. A-005417

Joe Theuma Sr. and Halifax Insurance Company, April 28, 1994, OIC File No. A-006496

Martin Wilson and Jevco Insurance Company, January 13, 1995, OIC File No. A-008409

Dowling v. Phoenix Continental Management Ltd. (1989), 1989 CanLII 4364 (ON HCJ), 70 O.R. 2d 311 (H.C.J.)

Re Howe and Economical Mutual Insurance Company (1989), 1989 CanLII 4246 (ON HCJ), 70 O.R. 2d 305

McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412 398 (S.C.)

Evidence and Findings:

The Applicant, Mr. Rene Lafleur, was involved in a motor vehicle accident on September 27, 1990. He had left work early, and was on his way to an appointment, when he was involved in a collision at an intersection -- his car was hit on the right-hand side.

Mr. Lafleur was a professional tractor-trailer driver. At the time of the accident, he was employed by Wolverine Freight Systems as a driver and delivery person.

After the accident, Mr. Lafleur immediately attended at a medical clinic. He was hurt and upset. He had injured his left knee, which hit the door of his car in the collision, and he had also injured his left shoulder, neck, and lower back. He subsequently suffered headaches, and found he had problems walking and moving.

As a result of the accident, Mr. Lafleur was off work for 15 months, until January 1992. After that, he returned to work part-time, working two to three hours a day at the outset. He said that he felt compelled to continue working, otherwise Zurich threatened to cut him off benefits entirely. He worked part-time for approximately seven months, until July 31, 1992. Throughout this period, he continued to receive weekly income benefits from Zurich.

Mr. Lafleur testified that he returned to work full-time on August 1, 1992, since Zurich had advised him that his benefits would be terminated on that date. Mr. Lafleur then worked full-time for almost six months, until January 23, 1993. He stopped working on the advice of his doctor, who concluded that his work was aggravating his injuries.

Mr. Lafleur had not worked from January 23, 1993 until the date of the hearing. He is claiming weekly income benefits from January 23, 1993 onwards. He is also claiming vocational rehabilitation and training, to qualify him for less physically demanding work, as his doctors advise him that he cannot to return to driving trucks for a living.

Claim for weekly income benefits:

Zurich opposes Mr. Lafleur's claim for weekly income benefits after January 23, 1993 on two grounds. First, Zurich claims Mr. Lafleur is precluded from receiving further weekly income benefits under section 16(2) of the Schedule. That section provides that two years post-accident, a person may return to work for periods of up to 90 days "without affecting his or her benefits." It is not disputed that Mr. Lafleur returned to work and remained working for more than 90 days after the two-year anniversary of his accident. Accordingly, Zurich submits that Mr. Lafleur can no longer receive benefits.

Second, Zurich states that in any event, Mr. Lafleur is no longer substantially disabled from performing his essential tasks as a truck driver.

I will deal with each of these arguments in turn.

(1) Effect of section 16(2)

Section 16 of the Schedule states as follows:

Temporary Return to School or Work

2.39.116.-(1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.

2.39.2(2) Subject to section 15 and subsection (3), after the two year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.

2.39.3(3) The insurer is not required to pay weekly benefits under section 13 for any week in which the insured person attends school.

Zurich argues that because Mr. Lafleur worked for a period of more than 90 days after the first two years following his accident, under section 16(2) he is not entitled to receive further benefits.

Counsel for Mr. Lafleur submits that section 16(2) does not automatically disqualify Mr. Lafleur from receiving further benefits, and relies on the case Dowling v. Phoenix Continental Management Ltd. (1989), 1989 CanLII 4364 (ON HCJ), 70 O.R. 2d 311 (H.C.J.), in support of this argument.

Dowling was a case that considered a claim for "no fault" benefits under an earlier version of the Insurance Act. The claimant in Dowling had returned to work after an accident and had worked for five months. She then found she could not continue. The provisions for "no fault" benefits in effect at the time stated:

a person receiving a weekly payment who, within 30 days of resuming his occupation or employment is unable to continue such occupation or employment as a result of such injury, is not precluded from receiving further weekly payments ...

Sutherland J. held in Dowling that individuals should not be penalized or discouraged from attempting to return to work by being automatically precluded from receiving benefits, if they had worked for more than the stipulated 30 days. He found that no express language precluded the claimant from receiving benefits, since the provision was phrased in the negative. He concluded that the issue of disability (and entitlement to benefits) remained a question of fact to be determined in each case.

I find that the reasoning in Dowling is applicable to the present case, even though, in Dowling, significantly different regulatory language and conditions were being considered. The relevant provision, in Dowling, dealt with whether someone was precluded from receiving further weekly payments, after having resumed employment for more than 30 days.

The provisions in the current Schedule refer to whether someone can resume his or her schooling or employment "without affecting his or her benefits." Furthermore, section 16 is much more liberal than its predecessor provision. It allows for a return to school or work under section 16(1) Aat any time during the first two years following the accident for any period of time without affecting ... benefits."

After the two-year anniversary of the accident, under section 16(2), a person can return to school or work "for periods of up to 90 days without affecting his or her benefits."

As counsel for Zurich has properly observed, it follows that if a person has worked for more than 90 days in this post-two-year period, benefits are affected. Otherwise, section 16(2) would have no meaning at all. There would be no logical distinction, or difference in treatment, between a return to work in the first two years post-accident, and a subsequent return to work.

Zurich submits, therefore, that Mr. Lafleur is precluded from receiving benefits, since he returned to work for more than 90 days in the post two-year period. According to Zurich, the only meaningful and sensible interpretation of subsection 16(2), in terms of affecting benefits, would be to deny further benefits.

However, I find that subsection 16(2) does not stipulate clearly that a person in Mr. Lafleur's situation is precluded or prohibited from receiving benefits. The legislation does not provide for this even by negative implication -- as did the wording under consideration in Dowling. It provides only (and by negative implication) that benefits are affected: it does not state how, or in what manner they are affected.

In my view, if the Legislature had intended that benefits in respect of an accident be permanently terminated in the situation described in section 16(2), it would have said so, in clear and precise language. The old wording -- which referred to being precluded from receiving benefits - could have been utilized.

I note also that section 16(3) provides that the insurer "is not required to pay weekly benefits"'under section 13, for a week where the insured person attends school. If it had been intended that the insurer was not required to pay benefits in a section 16(2) situation, similar language could have been used to make that intention clear.

I conclude therefore that it is general eligibility for benefits that is affected by the operation of section 16(2), and not entitlement to payments in a specific period. An examination of the interaction between sections 16(1) and 16(3) may help to make my reasoning clearer.

Section 16(1) provides that a person may, at any time within the first two-year period following the accident, return to school or work without affecting his or her benefits, if he or she is subsequently unable to continue at school or work, as a result of the accident.

Thus, the insurer need not pay benefits pursuant to section 16(3), although the legislation states that a person can return to school "without affecting his or her benefits."

This seeming contradiction is resolved if the return to school is viewed as a situation which does not affect the presumption of ongoing eligibility for benefits, but does affect the entitlement, that week, to receive weekly benefits. Similarly, a return to work within the first two years might affect entitlement to receive weekly benefits (in terms of the amount payable), but would not negatively affect the ongoing eligibility for benefits.

However, in a post-two-year situation, under section 16(2), where a person has returned to work for more than 90 days, it can be inferred that benefits are affected. I conclude that this means that the presumption of ongoing eligibility for benefits is affected.

Following the reasoning in Dowling, I find that the person is not necessarily precluded from receiving benefits. In effect, a "rebuttable presumption" that the person does not remain disabled has been created. Nevertheless, as stated in Dowling, the issue of ongoing disability and entitlement to benefits remains "a question of fact to be determined."

Mr. Lafleur bears the onus of rebutting the presumption that he has become ineligible for benefits. He can do so by establishing a substantial disability to do his essential tasks as a result of the accident. In effect, the nexus or connection between the accident and the disability must be reestablished, and cannot be presumed to continue to exist, in contrast to the situation under section 16(1).

I note that my reasoning here represents somewhat of a departure from previous cases concerning this section. Arbitrator Draper in Earl Joseph Russell and Co-operators General Insurance Company, December 20, 1993, OIC File No. A-005417 concluded:

... reading section 16(1) and 16(2) together, and within the context of the No Fault Benefits Schedule ... the protection of section 16 is lost if the person is able to work for more than ninety days after the two-year anniversary. Section 16(1) extends eligibility during any period worked up to the two year anniversary of the accident. Section 16(2) extends eligibility "after the two year period referred to in subsection but only for periods of up to ninety days.

Arbitrator Draper found that the Applicant in Russell was no longer eligible to receive weekly income benefits, as he had lost the protection of section 16, having worked for more than 90 days. However, in fairness, I note that the issue in Russell was whether, on the facts, section 16(2) was or was not applicable. The parties in Russell did not debate or specifically consider the effect of section 16(2), and how it was meant to be applied.

The decision in Russell was followed in the case Joe Theuma Sr. and Halifax Insurance Company, April 28, 1994, OIC File No. A-006496. In that case again the Applicant made no submissions about how section 16(2) should be interpreted. Arbitrator Makepeace heard no evidence to suggest that the Applicant was substantially unable to perform his essential tasks after the return to work, and she concluded, in accordance with the reasoning in Russell, that the Applicant was precluded from claiming weekly income benefits.

I find that the Russell and Theuma cases are distinguishable for the reasons outlined above: namely, the arbitrators in those cases did not closely consider how section 16(2) should be interpreted. Neither did they consider the effect of Dowling, argued before me.

I conclude therefore that Mr. Lafleur may be eligible for weekly income benefits under the Schedule if he can reestablish his claim that, as a result of the accident, he is substantially disabled from doing his essential pre-accident tasks as a truck driver.

(2) Ability to perform essential tasks

Mr. Lafleur testified that he returned to his job at Wolverine Freight Services full-time on August 1, 1992, because at that point Zurich terminated his benefits, and he felt he had no choice. Mr. Lafleur has the equivalent of a grade 10 education. He is now 44 years old, and has always done physical labour to earn his living. At the time of the accident, he had been working as a transport driver for about nine years, although he had only been working with Wolverine for about one and a half years.

His work included driving trucks on long and short hauls, connecting and disconnecting the rigs, and loading and unloading them, either by hand or using a lift truck. Mr. Lafleur stated that his job required constant physical activity, including the physical act of driving a heavy rig, and the reaching, stretching and lifting required to connect, disconnect, load and unload the rigs. The driving itself subjected his body to constant jarring and jerking. It was not disputed that Mr. Lafleur's job as a tractor-trailer driver was heavy and physically demanding.

Mr. Lafleur testified that his injuries from the accident of September 1990 kept him totally off work for about 15 months, until January 1992. During that time, his medical care was managed by his family physician, Dr. Liang. He received various treatments and therapies for his neck and back pain, including chiropractic treatment and a course at the Canadian Back Institute. He was also seen by a neurologist, Dr. Jeun, for his headaches.

In a letter dated December 18, 1991, Dr. Liang indicated that the nature of Mr. Lafleur's job as a truck driver would cause a great deal of discomfort to his neck. Dr. Liang suggested that Mr. Lafleur will likely be able to return to a desk type job that does not require any jerking up and down or forward or backward or any heavy lifting job that requires him to working overhead [sic] ...

In January 1992, Mr. Lafleur returned to his former job at Wolverine Transport on a part-time basis. He started working about two to three hours a day. His plan was to gradually build up his hours to full-time. Mr. Lafleur testified that he started by just driving lighter trucks, doing no lifting.

Mr. Lafleur testified that in his opinion, even part-time driving aggravated his condition -- the jarring and shaking of the truck often caused him pain. He suffered from continuous pounding headaches, which seemed to get worse, with the passage of time. After his return to work, he continued to see his family doctor at least every two weeks, for complaints of pain. He also continued his regular chiropractic treatments, two or three times a week.

Mr. Lafleur explained that when he first returned to work part-time, his employer accommodated him somewhat, with lighter jobs requiring less lifting and unloading of cargo. At one point, he hurt his back unloading barrels -- after that, he refused to do heavy unloading, but still carried on working.

Mr. Lafleur started working full-time again on August 1, 1992, after being advised that Zurich felt he was fit to resume his duties, and that his weekly income benefits would be terminated.

He testified that even after he had returned to work full-time, he was unable to do much highway driving -- his headaches were so severe that they caused him to stop frequently. He felt that the attention and concentration required for highway driving exacerbated his headaches. Therefore he tried to limit his work to local runs, for the most part.

Mr. Lafleur confirmed that during the period August 1992 through January 23, 1993, he was absent from work on at least two occasions, due to work-related accidents and injuries. He injured his knee at the end of August 1992, and was off work, receiving compensation, for two weeks. After this, on the recommendation of Dr. Liang, he returned to modified duties to accommodate this injury. He was given a job driving a jitney, or lift truck.

On November 23, 1992 he cut his chin and was off work for a day or so.

Mr. Lafleur then returned to work driving the jitney. He confirmed that although jitney-driving accommodated his knee problem, it aggravated his neck and back, and caused headaches. To operate the jitney, he had to align it with a dock plate, or ramp, which entailed constant jarring and banging.

Mr. Lafleur saw Dr. S. Chakravarthi, a neurosurgeon, on various occasions in 1992. Dr. Chakravarthi investigated Mr. Lafleur's ongoing complaints of pain. On January 23, 1993, (Exhibit 1) Dr. Chakravarthi wrote to Dr. Liang:

He is persistently symptomatic and unable to function in his job as a truck driver. ...

Before embarking on aggressive invasive investigations, it would be in the best interest of the patient to avoid his present work which involves severe jarring movements of the neck. It would be best if he were able to undergo job retraining or rehabilitation. If job modification or retraining does not help, then we would proceed with further investigations.

Dr. Chakravarthi forwarded a copy of this letter to Zurich.

Mr. Lafleur quit work on January 23, 1993, on the advice of Dr. Chakravarthi. He testified that he had not worked since that date: he has looked for less physically demanding employment, but has been unable to find anything suitable.

Mr. Lafleur started seeing Dr. Gabriele Stiller in February 1993. Dr. Stiller testified that she has since seen Mr. Lafleur two to four times every month. At the hearing, she agreed with the opinion of Dr. Chakravarthi that Mr. Lafleur "definitely" cannot and should not go back to work as a truck driver. In a note dated March 5, 1993, she indicated "the patient is permanently disabled from trucking and needs vocational rehabilitation".

I note that a letter from Dr. Liang dated March 10, 1993 also indicates that Mr. Lafleur "continues to suffer from severe back pain and neck pain and is unable to work".

Dr. Stiller testified that truck driving would aggravate Mr. Lafleur's condition. She said the jarring and bouncing would cause him recurrent problems and flare-ups of neck pain. She indicated that Mr. Lafleur could not work at a job where he might jar, sprain or strain his neck. He also was to avoid prolonged sitting, and lifting heavy weights.

She indicated that Mr. Lafleur could not drive a jitney, since such vehicles have very little cushioning. She confirmed her view, expressed in a letter dated November 16, 1993, that Mr. Lafleur "is permanently restricted, and totally disabled from truck driving." She testified that Mr. Lafleur's condition is now chronic, and he requires rehabilitation and retraining, to help him cope with his pain, and to function in a job within his physical restrictions.

Dr. Chakravarthi, supports this view, in a report on a follow-up visit of November 23, 1993. He states:

My final impression, which has not changed, is that he will not be able to return to his previous occupation of driving a truck, based on his whiplash injury and chronic pain syndrome. As I suggested previously, the only option we have is job retraining or rehabilitation.

Dr. Michel Lacerte, a specialist in physical medicine and rehabilitation, saw Mr. Lafleur in December 1993 and January 1994, to assess his physical functioning. Dr. Lacerte reported on January 13, 1994:

I do believe that his work capacity would preclude to continue [sic] his employment as a truck driver but other options remain open and should be explored by a vocational rehabilitation case worker.

I have reviewed this medical evidence at length, because I find that it overwhelmingly supports Mr. Lafleur's position that as of January 23, 1993, he was unable to continue performing his essential tasks as a truck driver.

Zurich argued that Mr. Lafleur was not disabled from performing his essential tasks as a truck driver, and relied on the evidence of Dr. Kenneth Shwery, a chiropractor who had been treating Mr. Lafleur's injuries from the accident since October 4, 1990.

Dr. Shwery testified that he continued to see Mr. Lafleur throughout 1992, when he was working. He said that Mr. Lafleur's problems never really resolved: he was getting only symptomatic relief from the chiropractic treatments. Dr. Shwery confirmed that working long hours aggravated Mr. Lafleur's low back pain, as did sitting and bouncing in a truck. He commented that Mr. Lafleur never really had good days -- just bad and less bad days. He made some functional gains, which was why he could go back to work part-time and then full-time. But he never recovered full, pain-free movement.

Dr. Shwery confirmed that he continued to treat Mr. Lafleur for chronic pain into 1993. Dr. Shwery reported on January 25, 1993 (Exhibit 1) that Mr. Lafleur "presents with now chronic neck pain. He is not disabled from work." Dr. Shwery testified that he had prepared this report based on tests performed December 16, 1992, when Mr. Lafleur was still working. He was not aware, when the report was being typed on January 25, 1993, that Mr. Lafleur had stopped working two days earlier. At that time he had not had the opportunity to review and consider the opinions of Dr. Chakravarthi.

When asked in cross-examination whether his opinion about Mr. Lafleur's ability to work would have changed had he been aware of Dr. Chakravarthi's views, Dr. Shwery commented "Hindsight is 20/20.

My opinion was based on information I had up to that point. He was working". However, he confirmed that Dr. Chakravarthi's recommendation "would have carried some weight" and added "I don't deny that Mr. Lafleur had pain and continued to have pain". He also indicated that at that time, he wanted a neurologist to review Mr. Lafleur's case.

Dr. Shwery acknowledged that psychological factors play a role in a chronic pain condition. However he testified that, in his view, Mr. Lafleur is not a malingerer.

Dr. Shwery's evidence does not persuade me that Mr. Lafleur was capable of continuing to work after January 23, 1993. Dr. Shwery himself indicated that his opinion was based on the information that at the time in question, Mr. Lafleur was working. Dr. Shwery did not, at the hearing, give an opinion about Mr. Lafleur's ability to work after January 1993, and he certainly suggested, in his testimony, that he might defer to the views of a neurologist or other medical specialist.

I find the views of the many medical practitioners consulted by Mr. Lafleur more persuasive than the chiropractic opinion relied on by Zurich. Further, Mr. Lafleur impressed me as an honest and straightforward individual, who made a serious and sincere effort to return to work and to "work through" his pain.

Zurich also argued that Mr. Lafleur was not substantially disabled from working because he had in fact been working at his job for 13 months prior to quitting in January 1993.

Although Mr. Lafleur did continue to work for some months, he eventually found it impossible to continue. This case can be distinguished from the situation in Sharon Lee and Unifund Assurance Company, August 28, 1992, OIC File No. A-000078, cited by Zurich, where I held that the Applicant was not entitled to benefits. In that case, the Applicant's abilities were limited by her injuries from the accident, but the evidence was that she continued to perform her essential tasks, albeit with pain and difficulty. She never did stop performing those tasks. In Mr. Lafleur's case, I am satisfied that as of January 23, 1993, he was not able to continue working.

I find that the evidence presented by Mr. Lafleur effectively rebuts the presumption, created under section 16(2), that he was ineligible for benefits as he was not substantially disabled from doing his job, having worked at it for more than 90 consecutive days after the two year anniversary of the accident. Accordingly, I find he is entitled to weekly income benefits under section 12(1) of the Schedule, from January 23, 1993 onwards.

Quantum and Duration of section 12(1) Benefits

Mr. Lafleur submits that his weekly income benefits were wrongfully terminated by Zurich on August 1, 1992. He claimed to be entitled to weekly income benefits of $508 per week from January 1993 forward, for up to 156 weeks of benefits.

At the conclusion of the hearing, I requested submissions in writing from the parties, specifically addressing the issue of how the initial 156 week benefit period is to be calculated: whether that period runs consecutively from the date of the loss until the third anniversary of the loss, or whether it is an aggregate period during which benefits may be paid, and which may be interrupted by intervening periods of non-payment.

Counsel for Mr. Lafleur submitted that, pursuant to the decision in Re Howe and Economical Mutual Insurance Company (1989), 1989 CanLII 4246 (ON HCJ), 70 O.R. 2d 305, the initial period of eligibility for benefits should not be measured in consecutive fashion. In Howe it was held that the initial period "should be interpreted as a limit on the amount to be paid rather than as a time-limit during which the loss of income must take place."

Counsel accordingly submitted that the initial benefit period of 156 weeks should not be deemed to run during the period from August 1, 1992 onwards, when the Insurer suspended benefits. He further submitted that "partial payments" made by the Insurer should be added together to establish the number of weeks they represent in total.

Counsel for Zurich submitted that the reasoning in Re Howe can be distinguished, because that case dealt with the provisions of the pre-OMPP insurance policy. I agree with this submission.

The earlier policy did not have a section analogous to section 15 of the Schedule, which permits the insurer to deduct from the amount of benefits payable any income received or available from any occupation subsequent to the accident.

Further, the much broader return to work provisions in section 16, as discussed above, contemplate that an individual, at least during the first two years following the accident may return to work for any period of time without affecting his or her benefits.

As I pointed out above, in my discussion of how section 16 is to be interpreted, even a temporary part-time return to work in the first two years will normally affect the amount of the benefit payable, since 80% of earnings are deductible pursuant to section 15. Where an individual earns more than the weekly income benefit, no benefit will be payable. This is so, even though benefits are not affected, under the legislation, if the person is unable to continue working.

In the context of this provision, I do not find it logical that an initial benefit period would continue to run while an individual was collecting a weekly benefit adjusted to reflect a part-time earning, but would stop running as soon as the person started to earn more than the benefit payable. Nor do I find any merit in the suggestion of counsel for the Applicant, that so-called "partial payments", which take into account Mr. Lafleur's earnings, pursuant to section 15, should not count as payments in respect of a full week.

I conclude therefore that the initial 156-week benefit period referred to in the Schedule runs for three years consecutively, and expires on the third anniversary after the accident. I find that the reasoning in Howe [supra], can be distinguished, based on the substantive changes in the legislation.

I also note that my result differs from that reached by my colleague, Arbitrator Palmer, in Pina Coles and Dominion of Canada General Insurance Company, February 13, 1995, OIC File No. A-007416 (under appeal). However, the fact situation in Coles is not similar to the facts in the present case. In particular, Arbitrator Palmer was not called upon to consider the impact and effect of section 16 on the initial benefit period. For these reasons, I differ from the conclusion reached by Arbitrator Palmer.

Accordingly, I find that Mr. Lafleur is entitled to weekly income benefits under section 12(1) of the Schedule from January 23, 1993, until September 26, 1993, the three-year anniversary of the accident.

At the hearing, Mr Lafleur also claimed ongoing "top up" benefits for the period August 1, 1992 to January 22, 1993, when he was working full-time at Wolverine, on the basis that he continued to be substantially disabled from performing his essential tasks during this period. I heard no evidence to substantiate this claim.

Mr. Lafleur testified that he returned to work full-time on August 1, 1992 because he was advised his weekly benefits would be terminated at that time. However, he also testified that it was his intention since January 1992 to gradually return to work full-time. Although Mr. Lafleur complained that he was "forced" to work by Zurich, I find from the evidence that his full-time return to work was anticipated. Mr. Lafleur testified that at the time he wanted to work, and felt he could work full-time "within reason".

The evidence indicates that Mr. Lafleur could and indeed did substantially perform his essential tasks during the period of his return to work. Therefore, he is not entitled to benefits during this period - from August 1992 to January 22, 1993.

However, I find that as a consequence of his work, by January 23, 1993, as the evidence has shown, he was no longer able to continue in his employment. Accordingly, at that point he again became entitled to receive weekly income benefits, under the initial disability period.

Section 12(5)(b) Benefits

Mr. Lafleur claims to be entitled to benefits past the initial 156 week period, under section 12(5)(b). That section provides:

(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.

In order to be entitled to benefits past the initial benefit period of 156 weeks, therefore, Mr. Lafleur must establish that the injury continuously prevents him from working at "any occupation or employment for which he is reasonably suited by education, training or experience".

I heard very little evidence and submissions specifically directed at the claim for benefits under section 12(5)(b). Mr. Lafleur did not testify about his job search activities, nor did he give evidence about the type of work he felt he could or could not do. None of the medical evidence dealt with the question of whether his injury continuously prevents Mr. Lafleur from performing any employment for which he was reasonably suited by education, training or experience.

As has been pointed out in previous arbitration decisions², the test for benefits under section 12(5) of the Schedule is significantly stricter than the test for benefits during the first 156 weeks of disability. Mr. Lafleur must prove that he is continuously prevented, by his injuries, from doing any job that may be suitable for him.

I find from the evidence that Mr. Lafleur has failed to prove this. None of his doctors indicate that Mr. Lafleur is disabled from any suitable occupation or employment. On the contrary, all his doctors suggest that Mr. Lafleur could work at something other than his old job. Dr. Liang suggested a "desk-type" job, in December 1991. Dr. Chakravarthi suggested job retraining and rehabilitation on various occasions. Dr. Lacerte, in January 1994, said that although Mr. Lafleur could not go back to truck driving "other options remain open and should be explored".

Most importantly, Mr. Lafleur in his own evidence and through his actions indicated that he felt he could work at something other than driving a truck. He testified that he looked for other jobs, unsuccessfully. However, he provided no details about his job search.

There was no evidence that Mr. Lafleur's failure to find a job resulted from his disability or injuries, rather than from a poor job market. He has requested vocational retraining, which would involve, in part, working as a trainee in his chosen field. Mr. Lafleur felt he could do this.

Arbitrators have consistently found that an applicant for benefits has the onus of proving his or her claim. I find, in his claim for benefits past 156 weeks, Mr. Lafleur has not presented sufficient evidence to discharge that onus.

I conclude that although Mr. Lafleur has not been able to find suitable alternate employment, he has not proved, on the balance of probabilities, that this is because his injuries continuously prevent him from performing any work for which he is reasonably suited.

Neither counsel for Mr. Lafleur nor counsel for Zurich referred me to significant or helpful case law to deal with this issue. In written submissions, counsel for Mr. Lafleur cited the case of McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412, which he claimed dealt with a situation similar to Mr. Lafleur's. In that case, a 47 year old man who had worked most of his life as a fuel oil delivery driver was granted ongoing "total disability" benefits (under the former legislation), as it was found that he was unable to engage in any occupation for which he was suited, as a result of his injuries.

However, the plaintiff in McKenzie suffered much more serious injuries than did Mr. Lafleur. In addition to multiple fractures, he sustained serious damage to his heart, which left him essentially unable to engage in any activity. Mr. McKenzie -- formerly a healthy and active man -- was restricted, because of his heart condition, to purely sedentary activities. Additionally, he had made unsuccessful efforts to retrain himself, had failed grade nine twice, and did not like book work. In the circumstances, Mr. McKenzie was found eligible for "total disability" benefits.

I find the present case, on the facts, is distinguishable from the situation in McKenzie. In the present case, Mr. Lafleur is not restricted to sedentary activities only, and the medical evidence does not establish that he is disabled from performing any work for which he might be suited. Therefore, I do not find the reasoning in McKenzie applicable to Mr. Lafleur's situation.

I conclude Mr. Lafleur is not entitled to benefits after the initial benefit period of 156 weeks, under section 12(5)(b) of the Schedule.

Supplementary Medical and Rehabilitation Benefits

(1) Occupational Retraining

Mr. Lafleur has requested that Zurich fund an occupational training program. Mr. Lafleur wishes to take a course in restaurant management, so that he may eventually pursue a career in the restaurant business. He testified that he has always enjoyed cooking, and that his ultimate goal is to open his own restaurant. However, before he can do this, he requires practical training.

Mr. Lafleur wishes to pursue a two year course at Cambrian College, in Sudbury. He testified that he had already applied for this program and was accepted into it. He is originally from Sudbury and has family there. He wishes to do his retraining program there, and plans to stay in Sudbury after completing his course. The cost of the course is $3,500, including tuition and books.

Mr. Lafleur has investigated the program and described the contents of the courses he would be taking. A description of the program and the various courses and subjects to be covered was filed as Exhibit 5. Mr. Lafleur testified that he would have to participate in practical work and training while also doing theoretical courses. Mr. Lafleur has consulted his medical advisors, Drs. Shwery and Lacerte, and both have supported this retraining plan.

Eligibility for occupational retraining is determined under section 6 of the Schedule which provides as follows:

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

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

As has been pointed out in previous arbitral decisions dealing with this section of the Schedule, in order to succeed, Mr. Lafleur must:

1. show the training program requested is a reasonable expense resulting from the accident; and

2. if the insurer requires, provide a signed statement by a medical or psychiatric advisor, stating that the expense is necessary for his rehabilitation.

There is no evidence that Zurich requested a statement from Mr. Lafleur's physicians, regarding the proposed training. Therefore, the absence of such a statement is not fatal to Mr. Lafleur's claim.

Zurich opposed Mr. Lafleur's request for retraining. It relies on the case of Pedro Correal and Jevco Insurance Company, May 6, 1993, OIC File No. A-001994 and submits that the training requested is not a reasonable expense resulting from the accident.

In particular, Zurich argues that the cost of the program requested is not reasonable. It also submits that the physical demands of restaurant work are such that Mr. Lafleur would probably have difficulty completing his program. Finally, it submits that the likelihood of Mr. Lafleur finding employment in the restaurant business is not great, and that his plan of eventually opening his own restaurant is neither realistic nor attainable.

I do not accept the arguments of Zurich, nor do I find that the reasoning in Correal is applicable to the present case. In Correal, the applicant was requesting that the insurer pay for a $30,000 training program as a commercial airline pilot. Arbitrator Draper found that the retraining program was not required, primarily because he was satisfied that the applicant was physically capable of returning to work at his pre-accident employment as a truck driver.

In the present case, however, I am satisfied that Mr. Lafleur is not able to return to work as a truck driver. I find in this case, it is reasonable and necessary for him to pursue vocational retraining, since, on the evidence, he has not been successful in securing suitable employment on his own.

I do not find the provision of vocational retraining benefits under section 6 of the Schedule inconsistent with a denial of ongoing weekly benefits under section 12(5)(b). In my view, Mr. Lafleur has not established that the accident has caused him injuries which continuously prevent or disable him from pursuing any employment for which he may be suited by education, training or experience.

Nevertheless, it is clear that the accident has negatively affected his situation in the job market. He is suffering from physical limitations which make performance of his old job impossible. He is physically prevented, as a result of the accident, from engaging in many other types of demanding physical labour. Mr. Lafleur is a gentleman in his 40s, who has been involved in heavy physical work for most of his working life. He has the equivalent of a grade 10 education.

I heard little evidence, from either party, about what Mr. Lafleur realistically could or could not do. Although he may be physically able to do many light or sedentary types of jobs, his age and job experience means that he is less able to compete successfully for such positions. In order to be competitive in a restricted job market, he reasonably requires further education, and retraining for less physically demanding work.

I find, in the particular circumstances of this case, that the training plan proposed by Mr. Lafleur is reasonable and necessary. I do not find the cost of the proposed program at Cambrian College exorbitant or unreasonable. I agree that costs are a factor to be considered, in determining whether a proposed rehabilitation plan is reasonable. However, I heard no evidence to suggest that the cost of the course at Cambrian College is excessive or inappropriate.

Mr. Lafleur felt that he could cope with the physical demands of restaurant work. Zurich questioned this, while maintaining that Mr. Lafleur is not disabled from returning to work as a trucker.

I did not hear much evidence about the physical demands and requirements of restaurant work. It clearly does not entail the shaking and jarring of the cervical area, which so negatively affected Mr. Lafleur as a trucker. The evidence seems to be that the physical demands of restaurant work are variable and could be flexible. Mr. Lafleur feels that he can undertake this program and his doctors support him. He is interested and motivated to pursue a career in restaurant work. In the circumstances, I am satisfied that the program is one that he can reasonably undertake.

Finally, Zurich suggested that Mr. Lafleur's job prospects may be no better after completing this program. This may be so. Arbitrator Draper, in Correal [supra]commented:

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

I agree with these remarks by Arbitrator Draper. However, Zurich offered no evidence other than speculation about the availability of work for Mr. Lafleur. Zurich suggested that Mr. Lafleur may not be able to accomplish his goal of opening his own restaurant.

This uncertainty must be faced by everyone proposing to be retrained in a new field of endeavour. However, as Mr. Lafleur commented in his testimony, "People will always eat and drink". I conclude that the uncertainty about future job opportunities is not so great that it is unreasonable for Mr. Lafleur to pursue retraining in the restaurant business.

Zurich's course of conduct in this case has not been exemplary. It has opposed the training plan put forward by Mr. Lafleur as unreasonable. However it has not worked with Mr. Lafleur to develop a reasonable alternative plan for his rehabilitation and retraining in a less physically demanding line of work.

Accordingly, I allow the claim for retraining at Cambrian College.

(2) Other Claims

Mr. Lafleur claimed other supplementary medical and rehabilitation expenses including expenses for travel to a doctor's appointment, and the cost of a neck brace, for a total of $120. No evidence was presented to substantiate these expenses, or to verify that they were reasonable and resulting from the accident.

I am prepared to allow these claims providing that Mr. Lafleur can prove, to the satisfaction of Zurich, that the expenses claimed were actually incurred. With respect to the neck brace, Mr. Lafleur must provide a medical certificate or prescription indicating that this item is required.

Mr. Lafleur has also claimed the cost of membership in a fitness club for two years, under section 6(1)(f) of the Schedule. That section provides:

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

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

The cost of the fitness club membership is $391 per year, for a total of $782. Mr. Lafleur presented no evidence to support this claim.

As has been frequently stated in arbitration cases, an applicant bears the onus of proving his claim for benefits. In this case, while intuitively, it might appear that membership in a fitness club is appropriate, the Applicant still must prove that the expense is reasonable -- in the sense that the cost is not excessive or exorbitant. He must also establish that the membership is required as a result of the accident. Since I heard no evidence at all about this particular expense, I am not prepare to grant it in this case.

Expenses

The Applicant has requested his expenses of the hearing, including expenses for medical witnesses and reports. An insured person may be awarded expenses incurred as a result of an arbitration proceeding under section 282(11) of the Insurance Act.

Arbitrators have consistently awarded expenses to insured persons unless their claims were manifestly frivolous or vexatious, or their conduct unreasonably pronged the arbitration proceedings. In this case, I am satisfied that Mr. Lafleur is entitled to his expense as set out in Ontario Regulation 664. The parties may apply to me for an assessment of the expenses in the event that they are unable to agree about the amount payable.

Order:

1. Mr. Lafleur is entitled to weekly income benefits from January 23, 1993 to September 26, 1993.

2. Mr. Lafleur is entitled to vocational rehabilitation benefits, as outlined in the body of this decision.

3. Mr. Lafleur is entitled to his expenses incurred in respect to the arbitration.

Frederika Rotter Senior Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2See Kathleen Lyons and Metropolitan Insurance Company, March 7, 1995, OIC File No. A-009824 and Martin Wilson and Jevco Insurance Company, January 13, 1995, OIC File No. A-008409.