Neutral Citation: 1996 ONICDRG 215

OIC A95-000558

ONTARIO INSURANCE COMMISSION

BETWEEN:

DOROTHY HURST

Applicant

and

CANADIAN SURETY COMPANY

Insurer

DECISION

Issues:

The Applicant, Dorothy Hurst, was injured in a motor vehicle accident on March 24, 1994. She was walking across the road at an intersection when a car struck her left leg. At the time of the accident, Ms. Hurst was 45 years old and employed in a plastics factory. Following the accident, she continued working until May 7, 1994, when she left her employment, allegedly because of injuries sustained in the car accident.

Canadian Surety paid her income replacement benefits (IRB's) of $237.65 until March 29, 1995,¹ when it terminated benefits on the basis that Ms. Hurst could return to her job as a lead hand. Ms. Hurst disputed the termination, and at mediation the Insurer agreed to reinstate benefits at 150% of her regular rate as of April 6, 1995. Canadian Surety paid benefits at the reduced rate until October 26, 1995, when it terminated benefits entirely.

The issues in dispute are:

1. Is Ms. Hurst entitled to full IRB's from March 29, 1995 to April 6, 1995?

2. Is Ms. Hurst entitled to further IRB's for any period beyond April 6, 1995?

Ms. Hurst seeks interest on any monies found owing, and her expenses of the arbitration.

Although Ms. Hurst claimed medical and housekeeping expenses in this arbitration, she led no evidence nor made any submissions regarding those claims. Consequently, they are dismissed.

Result:

1. Ms. Hurst is entitled to full IRB's for the period of March 29, 1995 to April 6, 1995.

2. Ms. Hurst is not entitled to IRB's for any period beyond April 6, 1995.

3. Ms. Hurst is entitled to 50% of her expenses of the arbitration.

Hearing:

The hearing was held in St. Thomas, Ontario, on June 3, June 4 and June 5, 1996, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Dorothy Hurst

Canadian Surety's Representative:

Gregory Brimblecombe Barrister and Solicitor

Canadian Surety's

Sean McCauley

ADR Coordinator

Witnesses:

The witnesses are listed in Appendix "A."

Exhibits:

The exhibits are listed in Appendix "A."

The Law:

Ms. Hurst claims that she is entitled to ongoing income replacement benefits as a result of her accident on March 24, 1994. Section 7(1) of the Schedule sets out the following entitlement test:

7(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

Therefore, in order for Ms Hurst to recover further benefits, she must show that she:

1. sustained an impairment as a result of an accident, and;

2. suffered a substantial inability to perform the essential tasks of her employment.

Evidence and Findings:

Essential Tasks:

Ms. Hurst, who is now 47 years old, lives on her own in a house in St. Thomas, Ontario. At the time of the accident, Ms. Hurst was employed as a lead hand at J.H. Fowler Ltd., a plastics manufacturer, where she worked the night shift on a full-time basis.

Ms. Hurst gave a somewhat disjointed account of her job duties. However, the parties agreed that Ms. Hurst had a "physically demanding" job, which included "heavy" work. As the lead hand, she was responsible for seeing that all the machines were properly filled and operating smoothly. This required her to monitor between three and five machines, inspect their parts, and fill hoppers with material. When necessary, she would repair a machine. The physical demands of this job included:

• frequent standing and walking

• occasional stooping, twisting and climbing stairs

• repeated lifting and carrying (to fill machine bins)

The parties agreed that in an average eight hour shift, the Applicant lifted between twenty and forty bags, each weighing approximately 50 pounds. The Applicant testified she carried the bags between ten and forty feet before depositing their contents