Neutral Citation: 1995 ONICDRG 49
File No. A-005714
ONTARIO INSURANCE COMMISSION
BETWEEN:
SANDRA SINGH
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Sandra Singh, was injured in a motor vehicle accident on September 1, 1990. She received statutory accident benefits, including weekly income benefits, from State Farm Mutual Automobile Insurance Company (State Farm), payable under Ontario Regulation 6721. Her weekly income benefits were terminated on March 26, 1993.
The issues in this hearing are:
Is Ms. Singh entitled to weekly income benefits from March 26, 1993 until September 1, 1993, under section 12(1) of the Schedule?
Is Ms. Singh entitled to ongoing weekly income benefits after September 1, 1993, under section 12(5)(b) of the Schedule ?
Is Ms. Singh entitled to retraining under section 6 of the Schedule?
Ms. Singh also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Ms. Singh is entitled to weekly income benefits under section 12(1) of the Schedule from March 26, 1993 until September 1, 1993, with interest.
Ms. Singh is not entitled to continued weekly income benefits under section 12(5)(b) of the Schedule.
I make no order with respect to vocational training for Ms. Singh.
Hearing:
The hearing was held on February 21 and February 22, 1994, in Hamilton, Ontario before me, Susan Naylor, Senior Arbitrator. Counsel for the Applicant filed additional written submissions on March 18, 1994. State Farm filed written submissions in response on April 6, 1994, with a Reply filed on behalf of the Applicant on April 14, 1994.
Present at the Hearing:
Applicant:
Sandra Singh
Applicant's Representative:
Paul Barrafato Barrister and Solicitor
Insurer's Representative:
Joseph Sullivan Barrister and Solicitor
Peter Robinson Claims Superintendent
Witnesses:
There were seven witnesses. They were:
Ms. Singh
Dr. Ali T. Ghouse, M.D., F.R.C.P. (C), FAAEM, physiatrist
Susan Paquette, R.N., Associative Rehabilitation Inc.,
Dr. Giam Tjeng, M.D., F.R.C.P.(C), family practitioner, pediatrics,
Dr. Kenneth Dunn, Ph. D., C.Psych., psychologist
Kimberley Terpstra, B.A., Employment Consultant, Crawford & Company Dr. John Darracott, D. Phys., F.R.C.P(C), physiatrist
Exhibits
Ten exhibits were filed. They consisted of a medical brief (Exhibit 2), an employment brief, (Exhibit 3), curricula vitae of the health professionals giving evidence, (Exhibits 1, 5,7-10), a list of health services from OHIP (Exhibit 4), and an additional rehabilitation report, dated February 3, 1994, from Susan Paquette, Associative Rehabilitation Inc., (Exhibit 6).
A number of judicial cases and arbitration decisions were referred to in the course of the hearing. They are listed in Appendix 1.
Evidence and Findings:
Before the accident
At the time of the accident on September 1, 1990, Ms. Singh was 28 years old. She was married with two children (seven and eight years old), and was nine months pregnant with her third child. She was employed full-time as an industrial sewing machine operator by the Coppley Apparel Group - Cambridge Clothes, where she had worked since 1983. At the time of the accident, Ms. Singh had been on maternity leave for about a month and planned to be off work for two more months after the baby was born, although she had every intention of returning to her job after this.
Details of the requirements of Ms. Singh's job as a sewing machine operator were drawn from a variety of sources, including Ms. Singh's own testimony and from reports done by the two rehabilitation management companies involved: Crawford & Company and Associative Rehabilitation Inc.
The factory where Ms. Singh worked made men's jackets and winter coats. Ms. Singh operated a high speed industrial sewing machine in a line of sewing machine operators. Her job was to baste the bottoms of the garments - sewing the lining to the coat. Most of the time she worked on men's suit jackets, but from time to time, on a seasonal basis, she sewed longer top coats. The garments, in bundles of up to ten garments at a time, were pushed along the railing between operators. The winter coats were heavier, and were moved along the rail one by one. The rail, which was about four and a half feet high, hung from the ceiling, and ran the length of the shop floor. It was positioned about three feet from the operator's sewing machine. Ms. Singh operated the sewing machine sitting down. The sewing machine was on a table that extended another two and a half feet in length and was about three and a half feet high. The work space around Ms. Singh's chair was approximately three to four feet in area.
When the person behind Ms. Singh finished their work on the garments in the bundle, the person would push the bundle forward on the rail towards Ms. Singh. Ms. Singh would reach over to the rack, remaining seated. She would grab a jacket or coat off the hanger, and position the article under the sewing machine needle in front of her.
Ms. Singh operated the sewing machine using a foot pedal - she had to press the pedal forward to start the machine, and backwards to stop it. She had to use both feet to operate the pedal because otherwise the machine would run too fast. At the same time, she leaned forward to feed the article under the needle from left to right. She basted the inside lining of the jacket to the outer lining, turning it around as necessary, and breaking the thread with her fingers. When she had finished the item, she would lean over to the rail and put the garment back on the hanger, taking another garment off to work on. When she had completed all the garments in the bundle, she reached over to push the bundle along the rail to the operator in front of her for the next stage of production.
Sewing machine operators were paid under a piecework incentive scheme. I did not receive evidence about the precise details of the compensation scheme, although I understand that each worker was dependent on his or her co-workers to keep up with the work pace in order to meet the company's targets and maximize production. Ms. Singh was earning about $10.13 per hour, just before the accident. She estimated that she worked on about 400 jackets a day, taking less than a minute to deal with each one.
Ms. Singh worked a 39 hour work week: from 7.30 a.m. to 4.15 p.m. Mondays to Thursdays, and one hour less on Fridays, when she left work at 3.15 p.m. Workers were given a ten minute break every two hours, and a 45 minute break for lunch. Except for these breaks, Ms. Singh sat for the entire work day. The chairs provided were hard wooden chairs, with straight backs. Although Ms. Singh theoretically could have stood up to get the garments off the rack, this would have slowed her pace down, and rendered her uncompetitive.
I find that Ms. Singh's job was demanding.
The jackets themselves did not weigh much, about three pounds, although the winter coats were several pounds more. However, Ms. Singh was constantly manoeuvring them: reaching to the rack, positioning the garment on the machine, replacing it on the rack, and pushing the finished bundle forward to the next operator. She had to twist her upper body and extend her arms at shoulder height to do this. The sewing itself required her to lean forward and to bend and straighten her neck all the time. She had to use her feet to operate the machine, and the work required continuous foot, hand, and eye coordination.
I find that the operations described above represented the essential tasks of Ms. Singh's employment.
The accident
Ms. Singh was a passenger in the front seat of a car when it was hit by another vehicle. She was wearing a chest and lap seatbelt, but was holding it away from her abdomen because of her pregnancy. The car was stopped at a red light, when it was hit on the passenger front side by a car involved in a four car collision. Ms. Singh saw the collision coming, and leaned forward to protect herself. She did not hit her head or suffer any abrasions but felt the onset of back pain immediately. She was taken to hospital, where she went into labour. She delivered a healthy baby that day.
Since the accident, Ms. Singh has experienced mid- and low back pain, sometimes radiating to her legs. She has also complained of headaches. I find that she did not experience any significant health problems of this nature before the accident. Ms. Singh has not returned to work and has found her housework more difficult, particularly the heavier tasks such as vacuuming. She feels that she cannot go back to her job as a sewing machine operator, principally because it requires sitting for prolonged periods of time. The pressure of working in a piecework system makes it impossible for her to get up and change positions or move around intermittently, to alleviate her back pain.
Ms. Singh has seen various health practitioners and other professionals in connection with her medical condition and rehabilitation. She has undergone numerous tests and assessments. The tests, including x-rays and a bone scan, show no organic abnormalities. The doctors are in agreement that in the accident Ms. Singh suffered soft tissue injuries, which have been described variously as a lumbar sprain or a fibro-ligamentous strain. However, they disagree whether her continuing problems prevent her from returning to her job as a sewing machine operator.
Ms. Singh received weekly income benefits for approximately two and a half years after the accident, until they were terminated on March 26, 1993. This arbitration concerns Ms. Singh's ability to return to work after that date.
For the first three years, entitlement to weekly income benefits is based on an applicant's ability to do the job he or she was doing before the accident. Under section 12(1) of the Schedule, benefits are payable where an applicant is substantially unable to perform the essential tasks of his or her employment or occupation. After the three year mark, September 1, 1993 in this case, applicants must meet a more stringent qualification for benefit - that they cannot engage in any occupation or employment for which they are reasonably suited by education, training or experience.
Ms. Singh was under the care of her family doctor, Dr. Tjeng, for the year after the accident. During this time, she took pain medication and muscle relaxants and received some therapy of a largely passive nature. She also saw two orthopaedic specialists, Dr. Jeremias and Dr. Brox, both of whom felt that she should be involved in a more active exercise program. Dr. Brox, who saw her in May 1991, concluded that, after completing an exercise program, Ms. Singh would be ready to return to work on a graduated, part-time basis. However, she might need the help of a rehabilitation counsellor to coordinate this.
Ms. Singh did not receive the recommended therapy at that time nor did State Farm assign a caseworker to coordinate her rehabilitation. With the benefit of hindsight, this was unfortunate and may well have affected the length and overall course of Ms. Singh's rehabilitation.
When Ms. Singh's symptoms persisted, Dr. Tjeng referred her to the Traffic Injury Rehabilitation Clinic (which I will refer to as "the Clinic"), which she started to attend in the fall of 1991.
Ms. Singh attended at the Clinic for a lengthy period of time from September 1991 until March or April 1993. She was under the care of a multi-disciplinary health team, headed by Dr. S. W. Dermer. She completed the program at the end of 1991. According to her January 1992 functional abilities assessment, she had made "remarkable gains" and her range of motion had significantly improved. At the recommendation of the Clinic, she started an advanced exercise program to build up her sitting tolerance and improve her posture. From the results, Ms. Singh's rehabilitation plan seemed to be working; by early February 1992, she was ready to begin a work trial with her employer, to test her capabilities.
Unfortunately, when the personnel from the Clinic contacted Ms. Singh's employer, they were told that due to the economic climate, there was no position available at that time. According to the evidence, Ms. Singh had been let go earlier that month and had arranged with her employer that she would reapply when she was able to return to work.
Dr. Dermer felt that a return to Ms. Singh's old job was "somewhat in doubt, given her residual symptomatology". Since he could not arrange a work trial in a concrete job setting, he decided to have Ms. Singh's capabilities assessed at the Chedoke Vocational Assessment Unit. In the event, Ms. Singh was assessed by the Ontario March of Dimes but it was not until November 1992.
In March 1992, at State Farm's request, Ms. Singh was seen by Dr. Darracott, a specialist in physical medicine and rehabilitation. He felt that Ms. Singh's low back pain was mechanical in nature, and that she needed an aggressive reconditioning exercise program. He felt that this should resolve her problems, within three to four months at the outside.
These findings were echoed by Dr. Ghouse, the Clinic's physical medicine and rehabilitation consultant. Ms. Singh therefore was sent for a further six week exercise program. She was re-assessed at the end of it in July 1992, at which time her symptoms, effort tolerance and range of motion were found to be significantly improved: her ranges of motion were within 80 to 90 per cent of normal values.
Dr. Ghouse agreed that a structured work trial through an assessment centre was a good idea in order to test Ms. Singh's capabilities, and so Ms. Singh was ultimately assessed at the March of Dimes in November 1992.
The March of Dimes conducted a functional abilities assessment, followed by a vocational assessment. The FAE report is dated November 6, 1992. It indicated that Ms. Singh had a demonstrated sitting tolerance of 60 to 90 minutes with back support, with a change in position needed at that time. Her overall sustained activity tolerance without a scheduled break was 90 to 120 minutes on a recurrent basis for a total of six hours at light level work. Because of these limitations, the report recommended that Ms. Singh should be allowed to change position at will throughout the work day.
In other areas such as tasks requiring fine to medium dexterity or repetitive handling or grasping, Ms. Singh was found to be at a competitive industrial level.
The vocational assessment took place afterwards. According to Dr. Kenneth Dunn, the psychologist in charge of the assessment, it was intended to help Ms. Singh identify realistic vocational goals, within her physical limitations, based on her interests, aptitudes and abilities. Jobs in industrial settings were essentially ruled out because of the results of the functional abilities assessment. In particular, office settings allowed for greater flexibility and freedom of movement. The career goals identified in Ms. Singh's case oriented towards an office setting because that better matched her physical capabilities, her interests and her aptitudes. At the end of the assessment, Ms. Singh identified the positions of receptionist and telephone operator, secretary, file clerk, and customer service representative as her vocational goals.
The report recommended that Ms. Singh take basic computer training and office procedure, possibly through night school at a local high school, to make her more marketable in these areas. Subsequently, at the request of Ms. Singh's lawyer, the March of Dimes provided details of secretarial programs, ranging in length from six months to two years. These were filed at the hearing.
Shortly before the March of Dimes' assessments, State Farm had appointed Crawford & Company to coordinate Ms. Singh's rehabilitation and to assist her in finding suitable work. Ms. Kimberley Terpstra, an employment consultant with Crawford, was put in charge of Ms. Singh's file. Ms. Terpstra was concerned that the March of Dimes seemed to have ruled out any return to Ms. Singh's old job. She visited the personnel manager at Coppley's to conduct an analysis of the job site and to determine whether the job was still available. She learned that the company was willing to put Ms. Singh on the waiting list for the next opening in her former job once Ms. Singh was medically cleared to work. The company was also open to accommodating Ms. Singh's back problems by installing an ergonomic chair, at State Farm's expense. Ms. Terpstra asked the March of Dimes to prepare a final report, comparing their findings against her job demands analysis.
In the meantime, under Ms. Terpstra's guidance, Ms. Singh embarked upon a structured job search which largely focused on entry level clerical and office positions.
In its final report dated January 11, 1993, the March of Dimes concluded that Ms. Singh could perform the lifting, handling and sitting components of her job as a sewing machine operator, but outlined a number of areas of concern:
the type of chair that Ms. Singh had to use and the fact that her work involved frequent neck and trunk flexion, which could possibly result in increased back pain;
pushing in a seated position requiring trunk rotation and extended horizontal reaching extended horizontal and diagonal reaching beyond arms length the fact that piecework offered her limited practical opportunity to change position throughout the workday due to risk of slowing down the line and affecting productivity.
The report recommended a second job site analysis to determine whether modifications could be made to accommodate for these areas of concern. This never took place.
In December 1992, Ms. Singh was sent back to Dr. Darracott for re-evaluation. She reported intermittent low back pain after standing, walking or sitting for two hours straight.
Dr. Darracott found Ms. Singh's range of movement to be within normal limits. He felt that nothing was stopping Ms. Singh from returning to her normal job as a sewing machine operator. He concluded that, for practical purposes, further reconditioning could only be accomplished within the context of an actual return to work - by "jumping right in" to normal work activities. However by this time, Ms. Singh was convinced that she would never be able to go back to her job as a sewing machine operator. She did not return to work. At this point, her benefits were terminated.
Ms. Singh went back to Dr. Ghouse for a final assessment at the end of March 1993. Dr. Ghouse suggested a graduated return to work in Ms. Singh's old job, which he characterized as a work trial designed to test her full capacity. Dr. Ghouse recommended that Ms. Singh return to work gradually, starting at four hours a day and working up to the full eight hours a day by increasing her time at work an hour a week. He imposed restrictions on her activity: no prolonged sitting for more than two hours at a time, with a five to ten minute break in between to allow Ms. Singh to get up and move about, or perform some stretching exercises, and a three month temporary restriction on heavy lifting or bending.
As Dr. Ghouse testified, it appears that by the time he saw Ms. Singh, she had improved since the time of her assessment at the March of Dimes. Her sitting tolerance in particular had increased to two hours, without a break being needed, since the assessment of the March of Dimes.
I accept these findings in regards to Ms. Singh's capabilities. I note that she subsequently saw another orthopaedic specialist, Dr. Otsuka, in December 1993, who suggested that she had suffered from an exacerbation of her lumbar strain at that time. He recommended additional medication and physiotherapy, which Ms. Singh was taking at the time of the hearing. I heard little evidence about the circumstances of the exacerbation found by Dr. Otsuka. In my view, the findings of Dr. Ghouse and Dr. Darracott remain the most reliable measure of Ms. Singh's capabilities after March 26, 1993.
The issue before me is whether Ms. Singh was substantially unable to perform the essential tasks of her job as a sewing machine operator for the six month period after March 26, 1993 until September 1, 1993.
The doctors have not found any pathology that would explain Ms. Singh's continued back pain. No clear diagnosis has been advanced. According to psychological testing, Ms. Singh's continuing pain symptomatology does not have a significant psychological overlay.
Ms. Singh's condition has substantially and progressively improved over most of the course of her rehabilitation. The medical evidence indicates that, by the spring of 1993, Ms. Singh was able to perform most of her tasks as a sewing machine operator. The functional assessment report of the March of Dimes indicated an overall sustained work tolerance of six hours light work, including a sitting tolerance of 90 to 120 minutes, without a break, throughout the workday. However, Ms. Singh improved after that time, and when both Dr. Darracott and Dr. Ghouse saw her, the range of motion in her lumbar and thoracic spine showed no restrictions, and they both felt that she was ready to try to return to her job as a sewing machine operator, working up to the goal of a full eight hour day.
The medical evidence, including the reports of Dr. Jeremias, Dr. Brox, Dr. Darracott, and Dr. Ghouse, has stressed the need for Ms. Singh to become more active and so interrupt the cycle of inactivity - deconditioning - intervention - reconditioning, that has marked her rehabilitation. However, while Dr. Darracott was of the view that Ms. Singh was capable of returning to her normal work routine, Dr. Ghouse espoused a more cautious view. He felt that Ms. Singh was ready to work but on a trial basis. He hypothesized that there may be continuing ligament weakness, which could be susceptible to reinjury, given the particular demands of Ms. Singh's pre-accident job. He therefore adopted a more cautious approach to Ms. Singh's return to full-time work.
In his testimony, Dr. Ghouse agreed that the restrictions he imposed on Ms. Singh's work, for the most part, would not have interfered with her job as a sewing machine operator. No heavy lifting or bending was required in the job. Employees had a ten minute break every two hours, with a 45 minute break for lunch. However, Dr. Ghouse was concerned about her sitting tolerance and the combined effect of the body motions that Ms. Singh had to perform in the course of her job. He testified that these motions required use of ligaments to stabilize the pelvis, subjecting the strained ligaments to additional stress. All in all, he felt that a gradual and supervised return to work lessened the risk of reinjury.
Dr. Ghouse felt that a work trial was advisable to evaluate Ms. Singh's capacity and work tolerance. Pending the results of any such trial, he felt that Ms. Singh could not be considered to be capable of performing her essential tasks.
Ms. Singh's credibility is not in issue here. Ms. Singh was straightforward and forthright in the information she provided to the health professionals who dealt with her, and at the hearing. There was no suggestion that she was exaggerating her symptoms or their effect on her. If she had convinced herself that she could not return to her old job, she may have felt that she was reinforced in her views by the health practitioners at the Clinic, by the scope of the vocational assessment at the March of Dimes, and by the direction of the job search she was encouraged to carry out.
Ms. Singh's capabilities must be measured against the particular demands of her specific job as a sewing machine operator with Coppley's. I find that Ms. Singh's job as a sewing machine operator was demanding. An essential part of Ms. Singh's job was the ability to work, sitting down uninterrupted for periods of 120 minutes at a time. The job involved continuous sitting, twisting and reaching movements. I accept Dr. Ghouse's view that the synergistic effect of these movements might place more stress on her back, reducing her tolerance to perform them on a sustained basis. Added to this, was the fact that Ms. Singh worked as part of a line of sewing machine operators, under a piecework system. Although Ms. Singh physically could get up and stretch, change position or move about from time to time in the job, from an economic perspective, the demands of piecework limited her flexibility.
Given the demands of Ms. Singh's job and the fact that she had been away from the workplace for some time, in the particular circumstances, I find that Dr. Ghouse's cautious approach was not unreasonable. His bottom line was not that Ms. Singh could never return to her job as a sewing machine operator, but that, given the particular demands of her job, he did not really know whether she could. I find myself in much the same position.
Ms. Singh did not go back to work as a sewing machine operator. It is not clear from the evidence whether there was a job available for her to do at this time. I heard evidence that, in the fall of 1992, her former employer was willing to place Ms. Singh on a waiting list for the first available job, but I received no evidence of the probability of employment or the likely timeframe involved. I note that, after benefits were terminated, Ms. Singh was left to her own resources. Dr. Ghouse, who had been responsible for Ms. Singh's care in the past year, was not consulted in regards to the termination of benefits. By the time he saw Ms. Singh in March 1993 and recommended a work trial, she did not have the benefit of a rehabilitation caseworker to assist in setting up any modified work opportunity.
Weekly income benefits are payable during periods of disability resulting from the accident. They do not extend to applicants who have fully recovered from their injuries but whose job is no longer available due to downsizing or the economy. However, that is not the situation in this case.
On balance, I am not prepared to find that Ms. Singh was able to return to this demanding position as of March 1993, when benefits were terminated. Given the particular job, her continued symptomatology and the results of the functional assessment, I accept Dr. Ghouse's view that there was still some reasonable measure of uncertainty as to Ms. Singh's capacity to return to her normal duties.
In reaching this conclusion, I place considerable weight on the fact that, in what seems to have been a prolonged course of rehabilitation, Dr. Ghouse had the most complete picture of Ms. Singh's physical condition and rehabilitation. He had the benefit of seeing Ms. Singh over a substantial period of time; in addition, his information about her situation was informed by the results of the many assessments that were done, and by his interaction with members of the multi-disciplinary team at the Clinic who participated in her rehabilitation. For this reason, I place the greatest reliance on his views.
I find therefore that Ms. Singh was not capable of performing the essential tasks of her employment at the point when benefits were terminated, and that her condition did not materially change in this regard between March 26, 1993 and September 1993. Therefore, I find that Ms. Singh is entitled to benefits under section 12(1) of the Schedule for a further six months until September 1, 1993.
Continued benefits under section 12(5) of the Schedule.
To be entitled to benefits after September 1, 1993, it is not sufficient to show that Ms. Singh cannot do the job she did before the accident. An applicant must meet a tougher, broader test of disability. Section 12(5) states that:
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 language of section 12(5)(b) of the Schedule is very similar to that of predecessor automobile insurance legislation. Similar language can also be found in accident and sickness insurance policies. A wealth of jurisprudence under these provisions can provide guidance in the interpretation and application of the post-1990 Schedule.
The policy underlying the change to a stricter disability test after a certain number of weeks on benefits was articulated by Mr. Justice Watt in Roberts v. Safeco, cited in Constitution Insurance Company of Canada v. Coombe, 1993 CanLII 5461 (ON CTGD), [1993] I.L.R. 1-2983 (Ont. Ct. Gen. Div.) at page 2522:
Clause (c) does, however, at least implicitly, recognise that, in any case of bodily injury, there may arise a point at which an insured, on account of such injury, may no longer be able to resume his former occupation or her previous employment. The clause would seem further to recognize that education, training and experience are generally neither so singular nor limited as to be incapable of transfer or adaptation to another occupation or employment. In addition, the provision would appear to reflect the legislative intention to encourage rehabilitative efforts in a return to work, at least to an occupation or employment for which the insured is reasonably suited by education, training or experience, if not to the occupation or employment held at the onset of the disability.
Counsel provided me with a number of court decisions that considered these predecessor provisions. These are listed in Appendix 1. The cases make it clear that the question of suitable employment in any case is a question of fact, and that each case turns upon its own set of circumstances, and the applicant's particular background.
The cases have rejected the concept that the language imports a standard in which suitable employment is any job within an applicant's physical or mental capabilities. The courts have held instead that the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. The remedial nature of the regulatory scheme dictates a broad and liberal interpretation of its language.
In the words of the Manitoba Court of Appeal in Campbell v. Canada Life Assurance Co. (1990), 45 C.C.L.I. 79 (Man. C.A.) a decision involving similar but not identical wording in an accident and sickness insurance policy:
The test is not whether it is a job within his capability, but whether it is one for which he is reasonably fitted by what he has done before....
In my view, the cases cited to me do not create a rigid rule that is applicable across the board. Each case turns upon its own facts: what can an applicant reasonably and realistically be expected to do, given their background and individual circumstances.
Findings in this case
Ms. Singh was 28 years old at the time of the accident. She immigrated to Canada from Guyana in 1981. In Guyana, she had completed her school education to Grade 3. According to testing, Ms. Singh's education level ranged between Grade 6 and Grade 10 in Canada. Ms. Singh went to secretarial school in Guyana, which she successfully completed. I did not receive any evidence about the nature of the courses she took, but apparently she never worked as a secretary.
In Canada, she started a two year program at Sheridan College to upgrade her skills. She took typing, English and bookkeeping. However, she gave up the program after a year, to start a family. This was over ten years ago. Her only work experience since then has been as a sewing machine operator.
In the vocational assessment conducted by the March of Dimes, Ms. Singh identified vocational goals of a clerical or secretarial nature. The March of Dimes has suggested that she needs to upgrade her computing and office skills to compete effectively at any of these occupations. Ms. Singh herself has conducted a job search involving largely clerical jobs, but has been unsuccessful. Her counsel submits that, given Ms. Singh's education level and limited work experience, there is no suitable work for her until she is retrained, as recommended.
The issue before me is whether Ms. Singh is entitled to ongoing weekly income benefits on the basis that she is continuously prevented from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. In considering this issue, I have considered the factors set out in the cases.
According to the report of the March of Dimes, Ms. Singh's choice of occupation as a secretary or clerk is realistic and attainable. I accept that, were Ms. Singh limited to such occupations, some upgrading of her academic skills would be necessary, along the lines suggested by Dr. Dunn. I accept Dr. Dunn's opinion that, given her limited experience and educational background, Ms. Singh would likely not be competitive in applying for or maintaining any jobs within her chosen fields, without such retraining.
However, the March of Dimes report ruled out any kind of light industrial work, based on its understanding of Ms. Singh's physical capabilities, in particular her sitting tolerance and the need for flexibility to change positions through out the work day. But the subsequent reports of Dr. Darracott and Dr. Ghouse indicate that, by the time Ms. Singh saw them, her physical limitations were relatively minor. Her range of motion was full; she was capable of sitting for two hours at a stretch, without a break, and only temporary restrictions on lifting and bending were imposed. Because of the particular demands of her job - the constant body manipulation and limited flexibility due to piecework - I agreed with Dr. Ghouse that there was a reasonable element of uncertainty about her ability to perform her regular job. In the particular circumstances, therefore, she qualified for continued benefits under section 12(1) of the Schedule. However, I am not satisfied that Ms. Singh is, in fact, physically incapable of other light industrial work, similar to, but less demanding than, the job she did before.
Applicants are not required to prove a negative: that there is no job that they can do. However, where, as here, the applicant's physical condition is relatively unrestricted, the scope of potentially suitable work is that much broader.
I heard no evidence to indicate that Ms. Singh is incapable of work similar to the work she did before, such as light industrial work in a factory or other setting. Nor do I have evidence that such work would not be suitable for her.
For these reasons, I find that Ms. Singh is not entitled to weekly income benefits after the 156 week mark, under section 12(5)(b) of the Schedule.
Ms. Singh filed details of secretarial training programs and requested retraining under section 6 of the Schedule. I have found that Ms. Singh is not able to perform her former job as a sewing machine operator. However, the evidence indicates that her limitations do not rule out other jobs in a light industrial or similar setting. I anticipate that some retraining may be required to reintegrate Ms. Singh to the workforce. However, there is insufficient evidence before me to enable me to determine what retraining is reasonable for Ms. Singh, in the circumstances.
Expenses
Ms. Singh is entitled to her arbitration expenses under section 282(11) of the Insurance Act, and Ontario Regulation 668.
Order
Ms. Singh is entitled to weekly income benefits under section 12(1) of the Schedule from March 26, 1993 until September 1, 1993, with interest.
Ms. Singh is not entitled to continued weekly income benefits under section 12(5)(b) of the Schedule.
I make no order with respect to vocational training for Ms. Singh.
May 8, 1995
Susan Naylor Senior Arbitrator
Date
APPENDIX 1
Authorities referred to:
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 CanLII 5461 (ON CTGD), [1993] I.L.R. 1-2983 (Ont. Ct. (Gen. Div.))
Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271 (Ont. H.C.)
Lefebvre v. C.N.A. Assurance Co. (1978), 1978 CanLII 1353 (ON HCJ), 20 O.R. (2d) 37 (H.C.J.)
McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-412 (S.C.)
Life Insurance Law In Canada (Richard DeBuo, 1987), David Norwood
Norwood on Life Insurance Law in Canada (Carswell, 1983) David Norwood, John P. Weir
Commission Decisions:
David Bress and Erica Bress and State Farm Mutual Automobile Insurance Company, March 23, 1992, OIC File Nos. A-000191 & A-000192
Rekha Vasdani and The Personal Insurance Company of Canada, April 27, 1993, OIC File No. A-002148