Neutral Citation: 1995 ONICDRG 4
File No. A-008409
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARTIN WILSON
Applicant
and
JEVCO INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Martin Wilson, was injured in a motor vehicle accident on July 7, 1990. He applied for and received statutory accident benefits from the Insurer, Jevco Insurance Company ("Jevco"), payable under Ontario Regulation 6721. Jevco terminated his weekly income benefits, effective October 16, 1993, on the basis that he did not meet the post-156 week eligibility test set out in section 12(5)(b) of the Schedule. Mr. Wilson claims that he continues to be eligible for weekly income benefits.
The parties were unable to resolve their dispute through mediation. Mr. Wilson then applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8., as amended.
The issue in this hearing is:
Is Mr. Wilson entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period from October 16, 1993, onwards?
Mr. Wilson also claims interest on any benefits owing, and his expenses incurred in the hearing.
Result:
Mr. Wilson is not entitled to any additional weekly income benefits.
Mr. Wilson is entitled to his expenses related to this arbitration.
Hearing:
The hearing was held in North York, Ontario, on October 12, 1994, before me, David R. Draper, arbitrator.
Present at the Hearing:
Applicant:
Martin Wilson
Applicant's Representative:
Lawrence A. Berg Barrister and Solicitor
Insurer's Representative:
Barney Brucker Barrister and Solicitor
Insurer's Officer:
Mike Zurowski
Witnesses:
The Applicant, Martin Wilson, was the only witness.
Exhibits:
The Exhibits and the other documents before the arbitrator are listed in Appendix A to this decision.
Cases considered:
Campbell v. Canada Life Assurance Co. (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man. C.A.);
Constitution Insurance Co. of Canada v. Coombe (1993), 515 C.I.L.R. Par.1-2983 (Ont. Ct. Gen. Div.);
Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198.
Reasons for Decision:
As a result of Mr. Wilson's motor vehicle accident on July 7, 1990, Jevco paid him weekly income benefits under section 12(1), which provides:
12.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment ... [emphasis added]
According to section 12(5)(b), the test for determining eligibility for weekly income benefits changes to a stricter test after 156 weeks. Jevco paid weekly income benefits until October 16, 1993, a period of more than 156 weeks. It was agreed, however, that this was an oversight, and not an acknowledgement that Mr. Wilson met the stricter post-156 week test. Section 12(5)(b) states:
12.--(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. [emphasis added]
The issue, therefore, is whether Mr. Wilson's injuries from the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.
1. The Background Facts
Mr. Wilson is nearly 50 years old. He received a general B.A. from the University of Guelph in 1970. Since his graduation, he has done a variety of work, including working in a factory, driving trucks, and managing a number of rental units in Florida, along with his wife (they are now divorced). In or about 1985, he started working as a correctional officer, primarily with young offenders. After approximately five years in this field, he decided that he was ready for a change. In April or May of 1990, he started working at Sal's T.V., doing television repairs.
Mr. Wilson was not entirely new to television repair work. Prior to working in corrections, he had taken an electronics course and had done some television repairs. His primary duty at Sal's was to respond to residential calls. His job was to visit the customer's home and check the television. If he was able to repair the set on site, he did so. If not, he brought it back to the shop, where he or the owner did the necessary repairs.
Mr. Wilson had only been working at Sal's for two or three months when he was involved in a motor vehicle accident. On July 7, 1990, he was riding his motorcycle northbound on a street near his home in Ajax, Ontario. He testified that he was unable to avoid a southbound automobile that turned left across his path. His body collided with the automobile and he fell to the road. He was taken by ambulance to the Ajax and Pickering General Hospital, where he was diagnosed with multiple injuries, including a fractured nose, multiple bruises, cuts to his face, a fractured jaw, damage to his teeth, a fractured left wrist and pain in his left knee.
Mr. Wilson underwent surgery on July 12, 1990, five days after the accident. Dr. Earl Williams wired his broken jaw and repaired his nose to some extent. Dr. A.T. Apostolopoulos set his left wrist using a metal plate and screws: an "open reduction and internal fixation of his left distal radius."
On September 6, 1990, Dr. Apostolopoulos reported that Mr. Wilson's cast had been removed, and that he had started physiotherapy. Dr. Apostolopoulos continued to provide follow-up orthopaedic care. On March 21, 1991, eight months after the accident, he still felt that it was too early to provide a long-term prognosis, but stated:
With respect to his work, I feel that over the next month or two he should try returning to work at his previous type of job. I explained to Mr. Wilson that if he cannot perform that type of work, then one would have to consider the options of retraining or upgrading his skills.
Dr. Apostolopoulos also noted that Mr. Wilson's left knee problems were "resolving quite nicely to being almost completely resolved now." Mr. Wilson testified that he could not recall saying this.
Dr. Apostolopoulos planned to see Mr. Wilson again in about six months in order to assess his recovery. Before this follow-up visit, however, Dr. Apostolopoulos moved his practice to the United States. Mr. Wilson's orthopaedic care was assumed by Dr. Bernard J. Woolford, another orthopaedic surgeon in the Toronto area, who first saw him on August 27, 1991.
By this time, Mr. Wilson had separated from his wife, and moved from Ajax, Ontario, to a 36 acre farm in Arundel, Quebec, approximately 50 kilometres from Ottawa. The farm is owned by Ms. Carolyn Vetter, who is the president of Refuge Rehabilitation Retraite pour chevaux ("the Refuge"), a non-profit charitable organization that takes in horses. People who are no longer able to take care of their horses give them to the Refuge. Ms. Vetter keeps approximately 17 horses on the farm and cares for them. The Refuge depends on donations for its operation, and pays no wages.
Mr. Wilson started doing some work for the Refuge on a voluntary basis. He also developed a relationship with Ms. Vetter, who he now describes as his common-law spouse. He continues to live on the farm with Ms. Vetter and their daughter. He and Ms. Vetter run the farm and the Refuge, but do not receive any income. They have relied on his weekly income benefits and the settlement from his related tort action.
Dr. Woolford prepared a report, dated August 27, 1991, but felt that it was too early to give a long-term prognosis. One significant aspect of his report is that Dr. Woolford did thermographic testing, the results of which were consistent with Mr. Wilson's complaints about problems with his nose, left wrist and forearm, and his left knee. Despite Dr. Apostolopoulos's earlier report, therefore, I find that Mr. Wilson had ongoing problems with his left knee.
Dr. Woolford saw Mr. Wilson again on April 14, 1992. He noted that Mr. Wilson was doing some work on the farm, but was still having problems with his jaw, left wrist, nose and left knee. Dr. Woolford concluded that it was "unlikely that his symptoms are going to resolve significantly beyond this current point."
Mr. Wilson testified that his condition has been quite stable. He has not been under regular medical care, except for periodic visits with Dr. Woolford, since moving to Quebec. Nor has he been involved in any type of rehabilitation program, taken any medication for his injuries, or used a wrist or knee brace.
At Jevco's request, Mr. Wilson saw Dr. John Evans on June 25, 1992. Dr. Evans noted that Mr. Wilson "tried back in heavy work in construction throughout the first three months of 1992 and found considerable weakness in his left wrist, moderate on the right side, and a pair of sore knees so that he could just not cope with the demands from heavy construction." Mr. Wilson explained that he has a cousin in the area who does renovations. I accept his evidence that he tried to help his cousin with two small roofing jobs, but found the work too heavy.
Dr. Evans concluded that Mr. Wilson was unable to do any heavy work, and recommended that he pursue upgrading in television or electronics for a lighter "bench" job.
On November 6, 1992, Ms. Vetter wrote a letter setting out Mr. Wilson's role with the Refuge:
This is to acknowledge that Mr. Martin P Wilson works at this refuge - a registered non-profit charitable organization - on a voluntary basis. He helps to feed the horses and shows visitors the facilities and the horses. He helps raise funds by manning the occasional kiosk. He spends two to four hours per day in this regard. His help is greatly appreciated.
Mr. Wilson agreed that this description is reasonably accurate, although he could only remember manning a kiosk on one occasion. He also testified that the amount of work varies depending on the time of year. He stated that he sometimes works as much as two to four hours per day, but, generally, it is less.
Jevco arranged for Mr. Wilson to see Dr. Lyndon F. Mascarenhas, a specialist in disability evaluation and management, on January 28, 1993. Dr. Mascarenhas concluded that Mr. Wilson had reached his "maximal medical improvement", but would continue to have symptoms "well into the future". In his opinion, Mr. Wilson was not capable of returning to his previous work as a television repairman, or working with young offenders. He concluded that:
I certainly feel that Mr. Wilson is capable of doing electronic work in a repair capacity while sitting at a bench, i.e. sedentary type of work, however he is unable to do the actual physical responsibilities such as lifting televisions, etc., given his ongoing left wrist symptomatology.
Mr. Wilson described his current activities around the farm. I found his testimony straightforward and convincing. He explained that the horses are left to roam in the pastures from approximately May to November. During the winter, however, they must be fed twice each day. This involves taking bales of hay, each weighing approximately 35 to 40 pounds, from the shed to the horses' enclosure, a distance of approximately 20 yards. Mr. Wilson testified that he is able to lift the hay bales, but sometimes uses a wheelbarrow or toboggan to move them to the enclosure. He also testified that he does the following:
Periodic fence repairs
Moving the horses using a trailer
Some trimming of the horses' hooves
Cutting and chopping wood for heat using a chain saw and splitter for approximately one hour per day.
According to Mr. Wilson, these activities cause pain in his left arm and left knee, but the pain is not debilitating. He is able to manage as long as he limits and paces his work. His concern is that if he overextends himself, his left knee will deteriorate.
Mr. Wilson also complained of pain in his lower back. He felt that this resulted from favouring his left knee. This seems plausible, but no medical evidence was provided to link his back pain to the accident. Therefore, I have not considered Mr. Wilson's complaints of back pain in reaching my decision.
2. Analysis and Conclusions
The evidence establishes that as a result of the automobile accident, Mr. Wilson has chronic injuries to his left wrist and left knee that limit his ability to do heavy, sustained physical work. It is clear, however, that there are many things that he is able to do. The issue is whether his injuries meet the test in section 12(5)(b) of the Schedule: do they continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience? For the following reasons, I conclude that they do not.
Mr. Wilson is a university educated man who has had a variety of jobs in different geographical locations. He is not someone with a limited education and a narrow range of work experiences and skills. I was left with the impression that through the years, Mr. Wilson has found work that interested him and was compatible with his current personal circumstances.
Shortly before the accident, Mr. Wilson decided to make another career change, and found a job as a television repairman. The doctors conclude that his injuries prevent him from returning to this job, but only because of the lifting involved in transporting the television sets. They seem to agree that he would be capable of shop or "bench" work, but that he might need some vocational upgrading in order to qualify for that type of work. Just two months after the accident, Dr. Apostolopoulos expressed the view that if Mr. Wilson could not perform the physical aspects of his pre-accident job, he should consider retraining or upgrading his skills. This was echoed by Dr. Evans in June 1992, and by Dr. Mascarenhas in January 1993.
Mr. Wilson testified that he is interested in working in electronics, or computer repair. I find, however, that he has done little to pursue any vocational upgrading other than obtaining literature about one or two electronics courses. On March 4, 1993, his lawyer wrote to Jevco, as follows:
Mr. Wilson is interested in carrying on electronic work which would involve sedentary type work. Needless to say, he would have to be retrained for something in that field, following which he would have to find employment. The work environment today, with today's economy, is simply so poor that one cannot predict whether Mr. Wilson would be able to find employment, assuming he could be retrained.
This might have been intended as a formal request for vocational rehabilitation, but it was not pursued. I find that Mr. Wilson's focus has been on his new relationship, the farm, and the work of the Refuge. He has made significant decisions about his life that have affected his rehabilitation and employment options. He moved from a suburban area to a rural setting, and has become quite committed to his current lifestyle, including the work of the Refuge. When he was asked if he would move away from the farm to take a job, he said that he would, as long as he could arrange to move the horses.
I do not intend to criticize Mr. Wilson's decisions in any way. He is certainly free to live where and how he chooses. However, I do not feel that I can ignore these choices in determining his entitlement to weekly income benefits.
Mr. Wilson continues to work for the Refuge, and to do chores around the farm, because he wants to, even though it involves precisely the kind of physical work that the doctors agree will cause him problems. He has done little to pursue less demanding work. Looking at the entire situation, I conclude that this has more to do with his commitment to his current lifestyle than his physical restrictions. I find no evidence to support a conclusion that he would be unable to do less physically demanding work that would be consistent with his education and experience, and would be reasonably comparable to the type of work that he has done in the past.
Jevco referred Mr. Wilson to the Medex Vocational Management Group ("Medex") for an "employability evaluation". My understanding is that Mr. Ron Caron of Medex interviewed Mr. Wilson and reviewed various reports. He then requested a "Vocational Potential Report and Labor Market Analysis" from American International Health & Rehabilitation Services, Inc. (AIHRS). AIHRS provided job descriptions, labour market information and salary estimates of about 21 jobs that were felt to be appropriate alternatives for Mr. Wilson.
Medex then used the information from AIHRS to prepare its report, dated September 20, 1993, concluding that Mr. Wilson was qualified for and capable of engaging in a variety of light or sedentary jobs, with minimal training and job modifications. Thirteen jobs were provided as examples of possible career options (see Appendix B). Although I have some questions about the methodology used in preparing the Medex report, it supports other evidence that Mr. Wilson is capable of performing a range of jobs.
Mr. Wilson testified that he had read the list of jobs suggested in the Medex report, although not the full job descriptions. I find that he did not give any serious consideration to pursuing any of these positions. However, he applied for a job as a municipal inspector. He testified that he felt that he would be able to handle the duties, which involved driving around the municipality and checking on roads and buildings. I am reluctant to penalize someone for looking for work, but in my view, this is consistent with the type of jobs Medex included on its list of options.
For all of these reasons, I conclude that Mr. Wilson does not meet the test in section 12(5)(b) of the Schedule; his injuries do not continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training, or experience. Therefore, he is not entitled to any additional weekly income benefits.
3. Expenses
An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
282 (11) 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.
Arbitrators have consistently granted expenses unless the claim was fraudulent, manifestly frivolous or vexatious, or the applicant's conduct unduly prolonged the proceedings. None of those concerns arise in this case. Mr. Wilson raised a legitimate issue and presented his case in an appropriate manner. I conclude, therefore, that I should exercise my discretion to award Mr. Wilson his expenses related to the arbitration, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
The parties are encouraged to reach an agreement as to the amount of the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
Mr. Wilson is not entitled any additional weekly income benefits.
Mr. Wilson is entitled to his expenses related to this arbitration.
January 13, 1995
David R. Draper Arbitrator
Date
APPENDIX A
Exhibit 1
A "Joint Medical Brief containing photocopies of the following documents:
Tab 1
Report of Dr. A.T. Apostolopoulos, dated September 6, 1990.
Tab 2
Report of Dr. A.T. Apostolopoulos, dated March 21, 1991.
Tab 3
Report of Dr. Bernard J. Woolford, dated August 27, 1991.
Tab 4
Report of Dr. Bernard J. Woolford, dated April 14, 1992.
Tab 5
Report of Dr. John G. Evans, dated June 30, 1992.
Tab 6
Report of Dr. Lyndon F. Mascarenhas, dated January 28, 1993.
Tab 7
Medex Vocational Management Group, initial evaluation, dated July 19, 1993.
Tab 8
Medex Vocational Management Group, employability evaluation, dated September 20, 1993, with enclosures.
Tab 9
Report of Dr. Bernard J. Woolford, dated January 6, 1994.
Tab 10
Report of Dr. Bernard J. Woolford, dated July 13, 1994.
Exhibit 2
Photocopy of the surveillance report of Jean-Louis Le Cavalier.
Exhibit 3
The professional resume of Ron Caron.
Exhibit 4
Photocopy of a letter, dated November 6, 1992, from Carolyn Vetter to whom it may concern.
Exhibit 5
Photocopy of a letter, dated March 4, 1993, from Mr. Berg to Jevco.
APPENDIX B
Job options identified by Medex:
Residential Counsellor (Community and Social Services Workers)
Radio Repairman (Telecommunications, Installation and Repair Workers)
Motor Transport and Regulation Officer (Engineering Inspectors and Regulatory Officers)
Salesman - Furniture and Appliances (Retail Sales Persons and Sales Clerks)
Hearing Aid Sales Person (Retail Sales Persons and Sales Clerks)
Tester - Electronic Components (Electronic Assemblers, Fabrication Inspectors and Testers)
Inspector - Components (Electronic Assemblers, Fabrication Inspectors and Testers)
Process Inspectors and Testers (Electronic Assemblers, Fabrication Inspectors and Testers)
Tester - Dry Cell Battery (Machine Operators and Inspectors, Electrical Apparatus Manufacturing)
Gate Attendant (Security Guard and Related Occupations)
Reservation Clerk (Airline Sales and Service Agents)
Purser (Purser and Flight Attendants)
Horse Identifier (Sports Officials and Referees)