Neutral Citation: 1996 ONICDRG 15

File No.: A-015141

ONTARIO INSURANCE COMMISSION

BETWEEN:

IVAN MAYBEE

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ivan Maybee, was injured in a motor vehicle accident on August 23, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on September 8, 1994. The Applicant disputes the termination of benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mr. Maybee entitled to weekly income benefits after September 8, 1994 according to the provisions of section 12(5) of the Schedule?

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

Result:

1. Mr. Maybee is entitled to benefits under section 12(5)(b) of the Schedule.

2. Mr. Maybee is entitled to interest, according to the provisions of section 24(4) of the Schedule, and to his expenses of the arbitration.

Hearing:

The hearing was held in Belleville on November 22, 1995 before me, K. Julaine Palmer, arbitrator.

Present at the Hearing:

Applicant:

Ivan Maybee

Applicant's

R.Steven Baldwin

Representative:

Barrister and Solicitor

Insurer's

Barney W. Brucker

Representative:

Barrister and Solicitor

Witnesses:

Ivan Maybee, Heather Mitchell

The parties filed seven exhibits, including a medical and rehabilitation brief.

Evidence and Findings:

Background:

Ivan Maybee is now 42 years old. On August 23, 1991 he was travelling on his motorcycle in the city of Belleville when he was involved in an accident with a motor vehicle. As a result of the impact, Mr. Maybee slid into another vehicle. When he put out his hands to attempt to break the second impact, his left hand broke the headlight of the second vehicle. He received lacerations to his wrist, arm and palm which severed tendons and nerves. Surgery was undertaken to repair the tendons and nerves. The hospital operative report notes that the median nerve of his left wrist was totally severed, as were six tendons.

Mr. Maybee described the recovery of his hand. He testified that he cannot distinguish hot and cold with the whole of his left hand, especially the fingers and palm. His left hand is not as strong as it was previously—he can pick up a ten-pound bag of potatoes with his left hand, but can only hold it for a few seconds, and would likely drop it. Mr. Maybee described diminished sensation in his fingers. He testified that it is hard for him to pick up coins from the table with his left hand or to pull items out of his pocket—he cannot feel with his fingertips. Mr. Maybee stated that he suffers from a dull ache continuously in his left hand and occasionally experiences soreness in the hand or sharp, piercing pains. The hand is always cold and stiff. In winter he needs a good mitten on the hand to protect it. When he is around hot objects, he pays particular attention to his hand to avoid burns. He also avoids sharp objects and when in public, puts his hand in his pocket, to avoid injuries.

Dr. David R. Pichora, an orthopedic specialist in hand and reconstructive microsurgery at Queen's University, examined Mr. Maybee in April 1993 at the request of Dr. David Birchard, the Belleville orthopaedic and hand surgeon who carried out the surgery on Mr. Maybee's wrist. Dr. Pichora found that Mr. Maybee had good function of the abductor pollicus longus and profundus flexors tendons which were repaired to the index and long fingers. He found poor sensation in the median distribution and that sensation was confused between various fingers—Mr. Maybee could not tell which finger was being stimulated when a light touch was made to his index finger. Dr. Pichora found that EMG studies confirmed the presence of diffuse diabetic neuropathy in addition to the traumatic changes in the nerves. Dr. Pichora did not recommend a further microneurosurgical graft to reconstruct the medial nerve, given Mr. Maybee's age and diabetic condition as well as the fact that he has made some functional recovery with the first nerve repair. Dr. Pichora wrote:

He will, therefore, have some degree of permanent disability with respect to sensation in the hand which will also affect grip and pinch functions. He may have some permanent loss of gross grip strength and there will be significant permanent loss of fine activity. ... With respect to future work he may not be able to undertake demanding physical activities requiring heavy lifting or highly repetitive grip activity. It may be necessary to avoid certain environmental hazards such as sharp objects or extreme temperatures because of the diminished sensation. He will likely have difficulty with highly repetitive activities or activities requiring fine dexterity.

Dr. Birchard made similar comments in a letter of October 22, 1993 after an interview with a rehabilitation consultant.

The Issue

After 156 weeks, the eligibility test for weekly income benefits changes. In Mr. Maybee's case, the Insurer is not required to pay these benefits

...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.²

In Mr. Maybee's case, the Insurer does not dispute the continuous nature of his disability. It says, however, that he is reasonably suited for a number of occupations. Mr. Maybee contends that he is not capable of performing any work for which he is reasonably suited by his education, training or experience, because of the ongoing disability of his hand.

The evidence about Mr. Maybee's educational and employment background can be summarized as follows.

Education

Mr. Maybee stated that he began school at age six and finished grade 11 at age 20. He did not pass every school year. Mr. Maybee attended high school from 1968 to 1973. A transcript of his marks shows that he attained a total of 21 credits. Mr. Maybee received a grade of 50% in English in grades 9, 10 and 11. He attained grades of 79%, 80%, 57% and 58% in grades 9, 10, and two grade 11 Mathematics courses, respectively. His best mark overall was 83% in grade 10 Auto Mechanics. In his grade 11 courses, his average achievement was 54%.

Training and Experience

Mr. Maybee testified that he commenced full-time employment in 1973 at age 20. He worked for a car dealership and a rental car company for nearly three years cleaning used vehicles, operating a tow truck, delivering automobiles to clients, and performing oil changes and minor repairs such as changing headlights. He left that employment for work in the foundry department of a lock manufacturer. Mr. Maybee spent 11 years in that job melting brass and bronze for locks, preparing moulds to be poured, pouring molten metal, and cleaning the cast locks. Mr. Maybee's next employment was with a chemical manufacturer in its stillroom, where he was responsible for the production and transfer of resins from the still to storage tanks or tanker trucks. He remained at that job for three years. In 1989, Mr. Maybee again began to work in a foundry operation, this time for a maker of machine and aircraft engine parts. In that job, he again worked as a furnace operator and moulder. He also operated an overhead crane and a fork-lift truck as part of his duties.

Mr. Maybee testified that he left his first foundry job only when the plant was closing. He also left the chemical manufacturer because its plant was closing. From 1973 to 1991, he estimated that he was away sick from work only three or four days. His longest period without work was about one month between the first foundry job and the chemical manufacturer job. When he changed jobs on other occasions, Mr. Maybee left one workplace on a Friday and began at the next job the following Monday.

Mr. Maybee testified that the only course he took over the period of his employment was the WHMIS course regarding the handling of hazardous materials. He testified that none of his jobs involved much "paperwork" and that he achieved no level of management or supervisory responsibility. He was never called upon to give presentations to other employees or to management. His résumé shows that he received St. John Ambulance training in 1983.

Post-accident education and training

Since the accident, Mr. Maybee testified that he attempted to upgrade his education by getting his grade 12 diploma, for which he believes he needs four more courses. He enrolled in one course, a grade 11 mathematics course, through the adult education section of Quinte Secondary School. He did not complete the course; after three months he quit, as "the stuff was not coming to me and it was very hard. "The rehabilitation reports describe two failed attempts by Mr. Maybee to gain mathematics credits, in the summer of 1992 and the fall of 1993.

The Insurer paid for Mr. Maybee to undergo some aptitude and interest testing in December 1993, which revealed an interest in trades and more technical types of occupations, such as janitor, sheet metal worker, auto mechanic, pipefitter/plumber, machinist, printer, tool and die maker, truck driver, telephone repairman, painter, carpenter, electrician, bus driver and farmer. Dr. C.M. Cooper, the psychologist who performed the testing reported that:

He does appear to have quite solid abilities and the real limitations here would appear to be imposed by the injury itself in respect to the bilateral use of his hands. One could not rule out college-level training although, again, one suspects that this would be more skills-oriented and perhaps more in the nature of a program such as computer repair.

Mr. Maybee filed a copy of his résumé. He testified that this document was prepared by his rehabilitation caseworker and a typing service, from information supplied by him.

Insurer's Evidence

Ms. Heather Mitchell testified on behalf of the Insurer. Ms. Mitchell is employed by Medex Vocational Management Group. In August 1994 she prepared a Hypothetical Employability Evaluation of Mr. Maybee's employment potential in an alternate career field. Ms. Mitchell based her report on a Vocational Potential Report and Labor Market Analysis obtained from AIHRS (American International Health & Rehabilitation Services, Inc.) and a report from a Canadian database called Choices.

In her report, Ms. Mitchell took account of Mr. Maybee's functional capabilities which she had deduced from a review of his medical and rehabilitation file. I agree that the following limitations are appropriate given Mr. Maybee's physical condition following the accident:

A. Sit, stand and walk 8 hrs/day

B. No extremes in temperatures

C. No sharp objects

D. No chemicals, no outside work

E. No driving

F. Predictable work hours

G. Occasional lifting to 50 lbs

H. No overhead reaching

I. Left hand dominant w/ limited sensation/grip strength

J. poor left grip strength

However, Ms. Mitchell also concluded that Mr. Maybee's general educational development would leave him capable of performing complex algebraic mathematics, capable of reading novels, journals, manuals, dictionaries, thesauruses, and encyclopedias, and capable of writing business letters, expositions, summaries and reports. She believed he would be able to participate in panel discussions, dramatizations, and debates and to speak extemporaneously on a variety of subjects. In my opinion, on reviewing the evidence of Dr. Cooper, the transcript of Mr. Maybee's educational achievements, Mr. Maybee's oral evidence and my own observation, Ms. Mitchell's conclusion overstates his capabilities in these areas.

Ms. Mitchell concluded that Mr. Maybee could be considered "a qualified applicant by virtue of his transferable skills, given his present functional capacitites, experience, and age" for nine different positions. She presented the following job alternatives in her report for Mr. Maybee's consideration as future career options:

1. Charge Account Clerk

2. Order Caller (Mail Order Filler)

3. Call out Operator (Credit Clerk)

4. Investigator, Dealer Accounts

5. Real Estate Guide

6. School Bus Monitor

7. Surveillance System Monitor

8. Managing Supervisor, Real Estate

9. Engine Dispatcher

At the hearing, Ms. Mitchell candidly admitted that Mr. Maybee would not be able to manage a real estate office without more education. I note that a licence is required, as well as study in the field of realty appraisal. The job profile Ms. Mitchell produced, itself, suggests over four years of training are required to fulfill the position. As for the other jobs, Ms. Mitchell maintained that they are reasonable occupations which could be considered.

The positions of charge-account clerk, call out operator (credit clerk), investigator-dealer accounts, and real estate guide all involve extensive contact with the public, in person, or by telephone and, thus, good communication skills. Mr. Maybee testified that his work has always been physical in nature and he has no experience in this area. This was confirmed by the formal career and aptitude testing carried out by Dr. C.M.Cooper who observed that Mr. Maybee's test scores "suggest a strong preference for working with things, more than with people, and this tends to be more typical of individuals in skilled trades and technical occupations."

The American focus of the data-base is observed in some of the occupations with unfamiliar names listed as possibilities for Mr. Maybee. I accept the submission of the Applicant's counsel that the occupation of school bus monitor may not even exist in Ontario. The occupation of surveillance-system monitor appears to describe the work of someone involved in viewing closed circuit television monitors to monitor the premises of public transportation terminals. In my opinion, the occupation does not equate with "security guard," as the Insurer's counsel submitted.

Ms. Mitchell described the Choices database as being Canadian, but out of date, with occupation information from the 1970's. I find that the description of "engine dispatcher" requires training which Mr. Maybee does not possess, as is noted in the "training required" section of the description itself.

In short, none of the occupational alternatives which the Insurer has presented appear to match Mr. Maybee's present abilities as a result of his education, training, and experience.

Conclusion

The picture which Mr. Maybee presents in 1995 is of a man in a trap. His past education, training and experience has not equipped him for employment in the more sedentary, light work or service occupations to which he is now restricted by his injuries. Mr. Maybee was never very academically inclined and completing senior high school subjects by way of independent study has been too difficult for him to manage on his own. I have not been asked to consider any rehabilitation issues with respect to Mr. Maybee, but I make the following observations, since I have had the opportunity to review extensive material filed which makes reference to this issue.

Mr. Maybee appears to be a quiet and cooperative person who had an admirable work history of more than 18 years, until his life and career were changed forever by the accident of August 23, 1991. The financial devastation the accident caused was moderated by his receipt of weekly income benefits from this Insurer and a disability carrier and more recently, from the Canada Pension Plan. In my estimation, there are many areas where Mr. Maybee could successfully work, but his education, training and experience have not provided him with the background necessary to attempt such employment. Mr. Maybee needs more training and vocational rehabilitation assistance. The reports filed at the hearing suggest that Mr. Maybee was making slow progress in investigating and planning for future employment in January and February 1994. But, in mid-February the adjuster told the rehabilitation consultant that "the client's change of definition date is August, 1994 and that the insurance company's obligation with respect to returning the client to work changes significantly at that time." This "information" was apparently communicated to Mr. Maybee on February 24, 1994.

Later in the spring of 1994, the rehabilitation consultant recommended that Mr. Maybee concentrate on the retail business sector and suggested that Mr. Maybee undergo a work placement in order to assess his employability within the retail business field."

The rehabilitation reports abruptly end in May 1994. I have no information that Mr. Maybee was told whether the Insurer would or would not pay for his attendance at such a work placement. As I stated above, that issue is not before me.

In my view, however, Mr. Maybee still needs ongoing vocational rehabilitation assistance, and occupational counselling and training in order to return to the workforce, and this is his right under the policy, until August 23, 2001 or until the maximum under section 6(8) of the Schedule has been expended. In my judgment, until he receives such training, he will be entitled to weekly income benefits under section 12(5)(b).

This case bears some similarity, in my opinion, to the case of G. Brett Marry and Sun Alliance Insurance Company, March 7, 1995, OIC File no. A-006752. In that case, I also dealt with a claim under section 12(5)(b) by a man who had sustained a serious injury to his hand. Mr. Marry was many years younger than Mr. Maybee, but he had a similar level of education. In that case, as well, there appeared to be confusion over the extent of the Insurer's obligations with respect to the occupational counselling and training as the insured person approached the end of benefits under section 12(1) of the Schedule. I observe that although a permanent injury to a hand may seem to be less serious to some than a permanent injury to another part of the body, for those insured persons whose work experience is in physical labour and whose educational level is not high, it is a very signficant barrier to employability.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule F of the Dispute Resolution Practice Code-1995 Release and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the Ralph McCormick and Economical Mutual Insurance Company case, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

The Applicant is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 Release. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. Mr. Maybee is entitled to benefits under section 12(5)(b) of the Schedule.

2. Mr. Maybee is entitled to interest, according to the provisions of section 24(4) of the Schedule, and to his expenses of the arbitration.

January 29, 1996

K. Julaine Palmer

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 section 12(5) of the Schedule (paragraph 2.26 of the policy).