Neutral Citation: 1996 ONICDRG 206

OIC A96-000037

ONTARIO INSURANCE COMMISSION

BETWEEN:

NELSON HENRIQUES

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION

Issues:

The Applicant, Nelson Henriques, was injured in a motor vehicle accident on June 27, 1990. He applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund - Ontario Insurance Commission ("Insurer"), payable under Ontario Regulation 672.¹Weekly income benefits were terminated by the Insurer on November 6, 1994. The parties were unable to resolve their disputes through mediation and Mr. Henriques applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The sole issue in this hearing is:

1. Is Mr. Henriques entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after November 6, 1994?

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

Result:

1. Mr. Henriques is not entitled to weekly income benefits for the period November 6, 1994 to November 21, 1996.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 19, 20 and 21, 1996.

Present at the Hearing:

Applicant:

Nelson Henriques

Mr. Henriques's Representative:

David S. Wilson

Barrister and Solicitor

Insurer's Representative:

Barry Brown

Barrister and Solicitor

Insurer's Officer:

Denise St. Amant

Senior Examiner

Overview:

Mr. Henriques is 25 years old now. He sustained leg and hip fractures in a motorcycle accident on June 27, 1990 when he was 18 years old. At the time he worked as an unskilled general labourer in construction. His hip fractures did not heal and he underwent a left hip replacement operation two years later in August 1992. Mr. Henriques also suffered injury to his left sciatic nerve which affects his ability to dorsiflex his left foot. The Insurer paid weekly income benefits pursuant to sections 12(1) and 12(5)(b) of the Schedule until November 6, 1994, a period of nearly four and a half years.

Mr. Henriques' surgeon testified that the artificial hip joint will loosen and will have to be replaced if Mr. Henriques lives a normal life span. The results of a second hip replacement will not be as good as in terms of pain, functional abilities and lifespan. He therefore directs Mr. Henriques to avoid certain physical activities in order to prolong the life of his artificial hip.

The broad question is whether Mr. Henriques could engage in suitable employment after the Insurer terminated weekly income benefits and involves a consideration of Mr. Henriques' education, training and experience, the limitations imposed on him because of his injuries and consideration of post-accident testing, activities and expert opinions.

Education, training and experience:

Mr. Henriques' parents immigrated to Canada from Portugal in 1970 and Mr. Henriques was born the next year. His father worked in construction. In 1982 his parents decided to return to Portugal. Mr. Henriques left grade 5 in Toronto and enrolled in school in the Portuguese fishing town where the family lived. Although Mr. Henriques had learned Portuguese at home in Toronto, he had difficulty in school and left when he was 14 or 15 to work as a masonry helper.

He earned the equivalent of $1 Canadian a day mixing mortar, assembling scaffolding and carrying bricks and mortar to the mason. After about a year of this work he worked as a fisherman. He worked long days at sea, setting and pulling in traps. After an accident in which a boat sank, Mr. Henriques decided he did not want to endure the risks of fishing. In the fall of 1988, when he was 17, Mr. Henriques returned to Canada by himself.

He immediately found work as a dishwasher. After one week, with the help of his cousin, he found work as a general labourer in construction. In 1989 he earned $15,040 gross from four jobs with different construction contractors. His work as a masonry helper was similar to what he did in Portugal, except that instead of supplying one bricklayer, he supplied six or seven bricklayers. He also had one job as a rough carpenter building framing for houses. Mr. Henriques was fired from one job as a masonry helper because he could not do the work and laid off from the other three jobs when the work was completed. Mr. Henriques took six weeks off in the summer of 1989 to visit his parents when he could not find work. Mr. Henriques admitted that the construction industry was slowing down at this time. Mr. Henriques' work was unskilled, physical, seasonal and subject to layoff.

At the beginning of 1990, Mr. Henriques received unemployment insurance. In April he started work with a crew making sidewalks. He worked about 50 hours per week making molds for curbs and sidewalks. He used a pick and shovel to move earth and rock. He lifted, carried, cut and nailed wood for the molds and then after the concrete set, took the molds apart, took out nails and knocked off cement. He also installed steel guide rods for a curb-setting machine to follow. He said that he normally earned $14 or $15 per hour but for this job he earned $17 per hour.

At the time of the accident on June 27, 1990, Mr. Henriques had done this sidewalk work for just less than three months and had earned $12,111 for an average gross income of $973 for a 50-hour work week. Mr. Henriques did not know how long the job was to last.

Injuries:

In the first days after the motorcycle accident Mr. Henriques underwent two surgeries to repair his fractured pelvis, fibula and tibula. The surgeries were performed by Dr. Davey, an orthopaedic surgeon.

Mr. Henriques spent five months at a rehabilitation centre as an inpatient. He returned to Portugal in April 1991. He returned to Canada one year later and complained to Dr. Davey of pain in the left buttock. Dr. Davey discovered that the head of the femur had collapsed due to avascular necrosis. Dr. Davey performed a cementless total left hip replacement on August 25, 1992. Dr. Davey explained that in the case of a young person, the artificial joint is designed so that the artificial socket and ball can be pressure fitted into position in the pelvis and femur without the use of cement in the expectation that new bone growth will hold the artificial parts in place. As well, it is easier to replace a cementless joint when it inevitably loosens. Mr. Henriques convalesced in Riverdale Hospital for two or three months and returned to Portugal in December 1992. Since then, Mr. Henriques has returned to Canada on three occasions, each time for about three months, for medical examinations and assessments.

At this time, Mr. Henriques feels that his sciatic nerve injury is more of a problem than his hip because he cannot dorsiflex his left foot completely and cannot resist downward pressure. He trips occasionally because of the partial foot drop and has to be careful to lift his foot fully when climbing stairs. As well, he cannot run, although he should not run in any case because running will wear out the hip replacement prematurely.

Dr. Davey said that Mr. Henriques had a good recovery in terms of pain, function and anticipated life span of the hip joint. He has no problem in the hip now. The sciatic nerve palsy appears permanent.

Dr. Davey explained that although Mr. Henriques currently has full and painless function in the hip joint, it is "definite" that it will loosen and have to be replaced in as soon as five years or as late as 15 or 20 years. He advises older patients to remain active in order to maintain muscle tone because the hip will outlast older patients. He advises younger patients to be less active so as to prolong the life of the joint and postpone revision surgery. In the case of younger patients, stresses on the joint loosen the parts. As well, the action of the plastic ball rubbing against the metal socket causes bits of plastic to wear off. The resulting inflammatory reactions in the body causes further loosening.

Dr. Davey advised Mr. Henriques to avoid activities that put excessive load on the hip, including running, repetitive lifting of more than 25 pounds, squatting and bending. He also told Mr. Henriques not to work at heights because falling on his hip or leg from a height would be "catastrophic."

Post-accident activities:

Mr. Henriques has no brothers or sisters and lives with his parents in Portugal. He became engaged to a woman he met in his town. He and his father built a second storey on the family home which Mr. Henriques and his wife will use as their residence. He used about $45,000 of the weekly income benefits he received to build the home. Mr. Henriques said it is not unusual for a child to build onto his parents' home in his town.

Mr. Henriques has not looked for employment. He said he is waiting to hear about any openings. He met a person and the two took some steps to start a promotion and advertising business. They made plans to renovate a building owned by Mr. Henriques' father but never followed through because Mr. Henriques changed his opinion about his partner. He said that he felt capable of looking for clients for the business.

Mr. Henriques has a good relationship with his father. He said that since his money was going into the construction of his residence, his father paid him an allowance of about $150 per week. Mr. Henriques felt that he should do something for the payment so, since November 1993, he has helped his father in his gas distribution business. Mr. Henriques explained that the allowance of $150 per week is about twice what his father would have to pay an employee to do the same work.

The father has had the business for 11 years. He has no employees. He distributes propane and butane gas tanks to customers. Mr. Henriques drives a truck to his father's roofless garage where the supplier has left a delivery of gas tanks on a loading dock. The filled tanks weight 28 kilograms each and are piled in tandem. Mr. Henriques does not lift the tanks because of his hip. His father lifts the top tank off and puts it on the floor. Mr. Henriques then wheels the tank on its edge into the truck. When 60 or 70 tanks have been loaded onto the truck, the two depart to deliver them to customers. Mr. Henriques drives. The father unloads the tank at the customer's address and Mr. Henriques rolls it to the door. He rolls the empty tanks back to the truck where his father lifts them and puts them on the truck.

Mr. Henriques and his father work a maximum of 20 hours a week at this work, four to six days a week. The business is "steady" and the father earns about $3,000 per month. Mr. Henriques' father is 59 years old and is happy to have his son in the business. Mr. Henriques and his father have discussed Mr. Henriques taking over the business but no definite plans have been made.

In March 1996, Mr. Henriques enrolled in an introductory computer course in his home town. The course took place on Saturdays and recently finished. Mr. Henriques has taken no other courses. The kinesiologist who tested Mr. Henriques testified that he told her that he was not interested in further schooling and Mr. Henriques confirmed this at the hearing.

Mr. Henriques said that he plans to live in Portugal unless some possibilities are identified for him in Canada. He testified that he wants a job that pays well and that he is not interested in working indoors.

Post-accident assessments and opinions:

Dr. Davey performed 170 hip replacements last year which, according to a colleague doing research in the area, is more hip replacement surgeries than any other surgeon in Ontario. Dr. Davey said Mr. Henriques should avoid heavy and repetitive lifting, bending and squatting to prolong the life of his artificial joint. He said that sedentary work with some walking and some climbing would satisfy these restrictions. He also said that light delivery work was suitable, as was gas bar attendant.

Dr. Urovitz, an orthopaedic surgeon, examined Mr. Henriques for the Insurer and generally agreed with Dr. Davey.

Dr. Lacroix is a psychologist who examined and tested Mr. Henriques for the Insurer. He testified that Mr. Henriques' verbal IQ was in the 21 per centile range and his non-verbal IQ was at the 50 per centile range. His English verbal, spelling and comprehensive skills were between grades 2 and 3. His arithmetic skills were at a grade 6 level. Dr. Lacroix reported that Mr. Henriques could perform some light assembly work without retraining such as frame and mirror, light fixture or printed circuit board assembly. His report was contradictory as to whether Mr. Henriques required upgrading for clerical occupations. He explained that he should have said that Mr. Henriques would require upgrading for "some" clerical work but that he would not require retraining for some clerical occupations such as box office cashier or gas bar cashier.

The evidence of the physiotherapist and kinesiologist hired by the Insurer to test Mr. Henriques was not helpful. The physiotherapist said that she did not test Mr. Henriques to determine whether he could do any particular type of job. The kinesiologist admitted that Mr. Henriques' ability to perform the movements she asked him to perform was not indicative of whether he could perform those movements over a period of time without injuring himself.

Mr. Henriques retained Kent Bowman, a rehabilitation consultant , to comment on Dr. Lacroix's report. Mr. Bowman did not interview Mr. Henriques. He concluded that Mr. Henriques could not find suitable work without retraining and that retraining would take three years to obtain high school equivalency followed by one year of business school or two years of community college. Mr. Bowman admitted that there were many jobs Mr. Henriques was physically able to do but that he would not be able to get those jobs because there is a great deal of competition for unskilled light work and employers prefer employees with more education than Mr. Henriques has.

Law:

Section 12(5)(b) 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.

Burden of Proof:

The Applicant argued that the burden was on the Insurer to prove that he could engage in suitable employment. He also argued that since the Insurer paid weekly income benefits for nearly four and a half years, it had conceded that he was disabled from suitable employment for that period and had the additional burden of proving that it terminated weekly income benefits because his ability to work improved so that he could engage in suitable employment. The Applicant relied on Lefebvre v. C.N.A. Assurance Co. 1978 CanLII 1353 (ON HCJ), 20 O.R. (2d) 37, Penny v. Manitoba Public Insurance Corporation, 7 C.C.L.I. 31 and Taffe v. Sun Life Assurance Company of Canada, 1979 CanLII 1877 (ON HCJ), 24 O.R. (2d) 790, and argued that the Ontario Court of Appeal appears to have approved of the reasoning of Lefebvre in Coombe v. Constitution Insurance Company, 1980 CanLII 1715 (ON CA), [1980] I.L.R. 1-1278. Coombe dealt with the effect of an order for ongoing periodic disability benefits and is not directly applicable to this fact situation.

The Insurer argued that the Commission cases have followed the reasoning expressed in Riley v. Pilot Insurance Company (April 15, 1996), OIC A-007940, where Senior Arbitrator Rotter said:

. . . subsequent Ontario cases [Walls v. Constellation Assurance Co. (1986), 1986 CanLII 7790 (ON HCJ), 17 C.C.L.I. 212 (H.C.J.), Andersen v. Great-West Life Assurance Co. (1987), 1988 CanLII 10389 (ON HCJ), 30 C.C.L.I. 85 (H.C.J.), etc.] have affirmed that the onus is on an insured to prove disability and corresponding entitlement to benefits. I accept that it remains settled law in Ontario that the onus is indeed on an applicant to establish entitlement to benefits. Certainly numerous decisions of the Commission have upheld this view, with which I agree.

Other Commission cases have commented on the obligation of the insured to produce some evidence of disability. In Murray v. Wawanesa Mutual Insurance Company (August 23, 1996), OIC A-003224, Arbitrator Blackman commented on some of these cases:

The question as to an applicant's onus regarding the post-156 week entitlement test has been the subject of considerable comment. It has been accepted that "Applicants are not required to prove a negative: that there is no job that they can do." [Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995), OIC A-005714.] Arbitrator Manji in Caruso states that "the applicant is not required to demonstrate that he or she is incapable of any other conceivable and commensurate employment or occupation."

Recent arbitration decisions have grappled with what is the "positive obligation" [Gagnon and Jevco Insurance Company (May 1, 1996), OIC A-015357] on insureds. Arbitrator Evans stated that applicants as part of discharging the onus of proof "must explore career options." Arbitrator Seife held that "the applicant must identify some sort of 'suitable' employment, describe the physical demands of the work and demonstrate with credible evidence that their injuries continuously prevent them from engaging in such employment. "[Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312] Arbitrator Manji in the Caruso decision required the Applicant (if unable to adduce strong medical evidence of total disability) to provide some evidence that he or she "has made a bona fide effort to identify, try to find or attempt some sort of suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment."

In The Law of Evidence in Canada², the authors distinguish between the legal burden of proof and the evidential burden of proof.

The incidence of the legal burden of proof means that the party has the obligation to prove or disprove the existence or non-existence of a fact or issue to the civil or criminal standard; otherwise that party loses on that issue.

In civil proceedings, the legal burden does not play a part in the decision-making process if the trier of fact can come to a determinate conclusion on the evidence. If, however, the evidence leaves the trier of fact in a state of uncertainty, the legal burden is applied to determine the outcome.

The incidence of an evidential burden means that a party has the obligation to adduce evidence or to ensure that there is sufficient evidence of a fact in the record to raise an issue. Like the legal burden of proof, an evidential burden relates to a particular fact or issue, and where multiple facts or issues are disputed, the evidential burden in relation to different facts or issues may be distributed between the parties.[emphasis added]

A major source of confusion is the failure to describe the effect of the satisfaction of an evidential burden. A party who has the evidential burden is required by law to adduce evidence of a particular quality or cogency to the satisfaction of the trial judge, but the party is not required to prove a fact or issue either on a balance of probabilities or beyond a reasonable doubt. In this sense, "the discharge of an evidential burden proves nothing - it merely raises an issue."

The two possible effects of satisfying an evidential burden must be underlined. When a party satisfies some evidential burdens, the trier of fact may make a determination favourable to that party on that issue. Where a party satisfies other evidential burdens, in the absence of evidence to the contrary, the trier of fact must make a determination in accordance with the mandated conclusion. The satisfaction of the second type of evidential burden has the effect of casting an evidential burden upon the opponent to adduce some evidence or he or she will lose on that issue.[emphasis in original]

The consequences of failing to satisfy an evidential burden will vary depending upon which party the burden rests, upon the nature of the burden, and upon the stage of the proceedings at which the burden arises.

Unfortunately, legislation sometimes fails to discriminate between the burdens or to stipulate the evidenciary effect of a provision and it is often silent or unclear as to the incidence of a burden. In these circumstances, the courts must examine the legislation and resolve these problems on a case-by-case basis.

The cases the Applicant relies upon appear to recognize the distinction between the legal and evidential burden of proof. In Lefebvre v. C.N.A. Assurance Co. 1978 CanLII 1353 (ON HCJ), 20 O.R. (2d) 37 the Ontario High Court of Justice recognized different burdens of proof when it said "the onus shifts to the defendant to explain on a preponderance of evidence why the payments should be stopped" and then followed this by stating "It of course follows from what I have said that if the defendant is unable to meet that requirement that [sic] the original evidentiary onus shifts back to the plaintiff, who must still prove his case on the balance of probabilities."

In Penny v. Manitoba Public Insurance Corporation, 7 C.C.L.I. 31 the Court recognized different burdens of proof when it said that the onus of proof shifted to the defendant when the plaintiff met the primary burden of showing that he was totally disabled.

In Taffe v. Sun Life Assurance Company of Canada, 1979 CanLII 1877 (ON HCJ), 24 O.R. (2d) 790, Mr. Justice Goodman held that the onus was on the insurer to show on a balance of probabilities that the plaintiff had ceased to be "totally disabled" within the meaning of the policy. However, the Court did not come to this conclusion until after it had reviewed the efforts the insured had made to find suitable employment and determined that he was well motivated to obtain suitable employment and had made a number of efforts to find suitable employment. It therefore appears that the Court was satisfied that the insured had met an initial evidential burden of establishing disability before it determined that the evidential burden was on the insurer to prove that the plaintiff had ceased to be totally disabled.

In my view, what appears to be two approaches as to who has the burden of proof in a case such as this can be reconciled. In my opinion, the insured has the legal burden of proving that he is prevented from engaging in suitable employment. This burden only plays a part in the process where the evidence leaves the arbitrator in a state of uncertainty. The insured also has a evidential burden to prove that he is prevented from engaging in suitable employment. The evidence must address the test set out in section 12(5)(b) of the Schedule. If it is credible and unopposed it is likely that the arbitrator will decide that the insured meets the test. However, if the insurer raises the issue that there is specific employment which is suitable for the insured and which the insured can engage in, the insurer has the evidential burden of proving that such is the case. If the insurer satisfies this evidential burden, the evidential burden is cast upon the insured to adduce evidence that the employment is not suitable or that he cannot do it, otherwise he will lose on that issue and will not meet the test set out in section 12(5)(b).

The Applicant's second argument that the Insurer conceded disability by paying benefits pursuant to section 12(5)(b) for a year and a half, and therefore had the additional burden of proving that Mr. Henriques' ability to work changed, has little merit. If accepted, this argument would discourage insurers from making payment because, in nearly every case, evidence of payment would cast upon the insurer the burden of proving that the insured was not entitled to further payments. However, even if the duration of payments casts an evidential burden on the Insurer in this case, the Insurer satisfied it by explaining that it terminated weekly benefits after four and a half years on November 6, 1994 as a result of assessments which were conducted in September 1994.

I have addressed the issue of burden of proof because it is an important issue and the parties argued it in detail. However, in this case, the evidence as to whether Mr. Henriques could probably engage in suitable employment was such that I was not left in a state of uncertainty and I could make findings on the various evidential issues without having to consider who had the burden of proof.

Applicable test:

In the present case, the test is whether Mr. Henriques has established that his injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Mr. Henriques presented evidence that tended to show that he would have difficulty obtaining light employment in either clerical or light assembly jobs because of the current high degree of competition for those jobs due to a high unemployment rate.

A number of arbitrators have commented on the relevance of the availability of jobs in determining whether an insured is prevented from engaging in suitable employment.

In MacPherson v. Pilot Insurance Company (June 30, 1995), OIC A-006195, Arbitrator Makepeace said:

Court decisions under the predecessor provisions have stated that the Insurer need not show that a suitable job is actually available. Since section 12(5)(b) makes no reference to job availability, I am inclined to think the same principle applies. Nonetheless, the "employment or occupation for which the insured person is reasonably suited" must be an actual job, and not one that is merely notional.

Senior Arbitrator Naylor said: "The statutory requirement focuses primarily on an applicant's functional limitations, and not on the broader availability of work in the job market."³ Arbitrator Draper said: "The focus of the inquiry must be on the applicant's injuries, not the availability of jobs."⁴

Analysis:

Mr. Henriques' short work history between the ages of 15 and 18 involved unskilled heavy physical work in both Portugal and Canada. He earned $1 a day as a 15 year old mason's helper in Portugal. As a fisherman he worked from sunrise to sunset and earned $150 to $200 Canadian a week. He left that work because of the danger of drowning. In Canada Mr. Henriques earned $14 to $17 an hour as an unskilled labourer. In 1989 he earned $15,000 from four construction jobs in Canada. His most significant income was $12,000 he earned in the three months before the accident working 50 hours a week building sidewalks. In 1989 Mr. Henriques was laid off from three jobs and fired from one job.

Mr. Bowman admitted that there was very little activity in the construction industry from 1989 until 1995 and jobs were "extremely limited." Mr. Henriques was unemployed for significant periods while he worked in construction in Canada. I am therefore not satisfied that the $12,000 Mr. Henriques earned in the three months before the accident represents his usual or average income.

Mr. Henriques plans to remain in Portugal although he does not rule out the possibility that he may return to Canada. I heard no evidence that he has decided to remain in Portugal because of his physical restrictions and I conclude that he remains in Portugal because of his commitment to his current lifestyle.⁵ He is currently helping his father with light deliveries a maximum of 20 hours per week. Although he does not lift the propane tanks, he is able to drive the truck and roll the tanks. I heard no evidence that Mr. Henriques could not work full-time at light deliveries if the work was available and I accept Dr. Davey's opinion that light delivery work is suitable having regard to Mr. Henriques' medical restrictions.

Mr. Bowman testified that because of the high degree of competition for unskilled light work, employers demand high school education. Mr. Bowman said that he does not maintain a list of job openings and that in the last three years he has placed three or four individuals in jobs. Dr. Lacroix said that his placement service has placed individuals without high school education in the types of unskilled jobs under consideration in this case. Workable Inc., the rehabilitation organization he is associated with, works with employers and maintains a list of job openings which is updated weekly. The current list contains 840 jobs. Dr. Lacroix and Workable appear to have more contact with employers than does Mr. Bowman and I prefer Dr. Lacroix's evidence that Mr. Henriques does not require high school education for the light unskilled jobs which the Insurer has proposed as suitable employment.

Dr. Lacroix reported that Mr. Henriques could do some jobs without retraining and I find that Mr. Henriques can perform some of the jobs listed in Dr. Lacroix's report without retraining. Those are: gas bar cashier, frame and mirror assembler, light assembler, light fixture assembler or printed circuit board assembler. Mr. Morrow reported that the average weekly salary for these jobs ranged from $280 to $394. The question is whether these jobs are suitable having regard to Mr. Henriques' physical restrictions and his education, training and experience.

The fact that Mr. Henriques has no training or experience in unskilled light jobs does not make the jobs unsuitable for that reason alone. In my view, it is unreasonable for a young person who has worked for less than three years at unskilled physically demanding work to argue that unskilled light work is unsuitable because he has no training or experience in unskilled light work. Further, Mr. Henriques provided no evidence that the jobs proposed by the Insurer were unsuitable because he had no experience in those jobs.

Mr. Morrow reported that the weekly income for the light jobs I have found Mr. Henriques capable of performing is between $280 and $394. Mr. Henriques argued that this remuneration shows that the proposed employment is unsuitable. The evidence of Mr. Henriques' employment history and economic conditions in the construction industry does not satisfy me that the $12,000 he earned in the three months before the accident represents his usual or average level of income. Considering Mr. Henriques' short employment history and the vagaries of employment as a labourer in the construction industry and the amounts Mr. Henriques earned in Canada and Portugal, I am not satisfied that light assembly work or driving is unsuitable because it pays $280 to $394 per week.

Before the accident Mr. Henriques performed unskilled, seasonal and physical work which was subject to lay off and which he obtained through the people he knew. His ability to find employment was largely dependent on his ability to do heavy physical work, his persistence and the economy. As a result of injuries sustained in the accident, Mr. Henriques can no longer perform physically demanding work. According to the restrictions recommended by Dr. Davey, he should now limit his work to sedentary work which may involve some walking and climbing. Due to his lack of skills and education, he is only capable of performing unskilled assembly and delivery work. His ability to find employment is dependent on his ability to do light physical work, his persistence, the economy and the people he knows.

I find that the injuries Mr. Henriques suffered do not continuously prevent him from engaging in the following employment: driver making light deliveries, gas bar attendant, frame and mirror assembler, light assembler, light fixture assembler and printed board assembler. I am satisfied that these jobs are the type of sedentary work with some walking and climbing recommended by Dr. Davey and that these jobs will not unreasonably shorten the life of Mr. Henriques' artificial hip. Having regard to the nature and status of the work Mr. Henriques did before the accident, the various amounts Mr. Henriques earned from that work in Canada and Portugal, Mr. Henriques' limited employment experience, his youth and lack of skills and education, I am satisfied that he is reasonably suited by education, training and experience for these jobs.

Future Claims:

Although I have found that Mr. Henriques is not entitled to weekly income benefits at this time, he may, subject to the limitations contained in the Insurance Act and Regulations, have claims for weekly income benefits in the future arising out of loosening of his hip joint, future surgeries and any future disabilities arising from injuries sustained in the accident of June 27, 1990. As well, he may have claims for supplementary medical benefits, devices, aids and rehabilitation aimed at prolonging the life of his artificial hip.

The Applicant argued that he was entitled to rehabilitation and vocational assistance. Rehabilitation and vocational assistance is not an issue in this hearing. Further, Mr. Henriques said that he has never asked for rehabilitation or vocational assistance. Other than wanting a job that pays well, he does not have any specific career goals or suggestions for retraining. The Insurer explained that it's adjuster, Lindsey Morden Claim Services Limited, did not provide a caseworker or offer rehabilitation and vocational assistance because Mr. Henriques moved to Portugal after he notified the Insurer of his claim. I accept that Mr. Henriques may have difficulty finding suitable employment because of his low skill level and the current high degree of unemployment. Although I have followed authority that the number of actual job openings in suitable employment is not the focus of the determination of entitlement to weekly income benefits, it may be relevant to whether Mr. Henriques is entitled to retraining for employment.

Expenses:

The application was brought in good faith and had merit. The Applicant is entitled to his expenses.

Order:

1. The Applicant is not entitled to weekly income benefits from the Insurer pursuant to section 12(5)(b) of the Schedule for the period November 6, 1994 to November 21, 1996.

2. The Applicant is entitled to his expenses of the hearing.

December 12, 1996

William J. Renahan

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. 2The Law of Evidence in Canada, Sopinka, Lederman and Bryant, Butterworths Canada Ltd., 1992.
3. 3Mills and Canadian General Insurance Company (July 6, 1995), OIC A-005599.
4. 4Spicer and State Farm Automobile Insurance Company ( May 24, 1995), OIC A-010158.
5. 5The relevance of a change of lifestyle was considered in Wilson and Jevco Insurance Company (January 13, 1995), OIC A-008409, where a university educated 50 year old insured with a varied employment background chose to work without pay on a farm owned by his common-law spouse. Arbitrator Draper concluded that the decision to work on the farm had more to do with the insured's commitment to this lifestyle than to his physical restrictions.