Neutral Citation: 1996 ONICDRG 42
ONTARIO INSURANCE COMMISSION
BETWEEN:
Glenn E. Thompson
Applicant
and
Non-Marine Underwriters, Members of Lloyd's of London England
Insurer
DECISION
Issues:
The Applicant, Glenn E. Thompson, was injured in a motor vehicle accident on August 30, 1990. 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 November 4, 1994. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.O.S. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is the Applicant entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from November 4, 1994, onwards?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from November 4, 1994.
The Applicant is entitled to interest pursuant to section 24(4) of the Schedule on overdue payments and his expenses incurred in the hearing.
Hearing:
The hearing was held in Cornwall, Ontario, on January 9, 1996.
Present at the Hearing:
Applicant:
Glenn E. Thompson
Applicant's
Julie Ann Barrett
Representative:
Barrister and Solicitor
Insurer's
Thomas R. Swabey
Representative:
Barrister and Solicitor
Before:
William J. Renahan
Arbitrator
Witness:
Glenn E. Thompson
Exhibits:
The Applicant filed three exhibits including a medical brief.
Preliminary Issue:
At the commencement of the hearing, counsel for Mr. Thompson asked for an adjournment because she had not received Mr. Thompson's income tax summaries for the years prior to the motor vehicle accident. She had requested the tax summaries two months before the hearing and had no information as to when they might be available. I proceeded with the hearing and agreed to wait until February 6, 1996 for the income tax information before issuing this decision. By facsimile transmission of February 6, counsel for Mr. Thompson advised me that she has not received the income tax information.
Background:
Mr. Thompson was 28 years old and self-employed as a drywaller in the construction industry at the time of the motor vehicle accident. On August 30, 1990, while returning home after a long day of work, Mr. Thompson's vehicle left the road. Mr. Thompson was told that he probably fell asleep at the wheel. The parties agreed that Mr. Thompson suffered a serious and permanent brain injury as a result of the motor vehicle accident and that he was highly motivated to recover as much as possible and return to work.
After rehabilitation, Mr. Thompson was given a clerical job in the shipping and receiving department of a company in the automobile parts business.
The Insurer paid weekly income benefits pursuant to section 12 of the Schedule for more than 156 weeks, until November 4, 1994. The issue in this application is whether Mr. Thompson satisfies the test for entitlement to weekly income benefits beyond November 4, 1994. Section 12(5)(b) of the Schedule provides that the insurer is not required to pay a weekly income benefit
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.
Injuries:
From the medical brief and the testimony of Mr. Thompson, I find that Mr. Thompson suffered a closed head injury, lung contusions, heart contusions, ruptured diaphragm and dislocated left shoulder. He was in a coma for six days. He spent two weeks at the Ottawa Civic Hospital and three months at the Cornwall General Hospital. He had to relearn how to walk and talk.
He was left with permanent disabilities. Mr. Thompson suffers from slurred and slow speech. He has balance and coordination problems. He walks with an uneven and broad-based gait. He occasionally sways and staggers when walking and often trips over his right leg. He said that he limps and that he always watches the floor to make sure he does not trip. Mr. Thompson said that he cannot run or play sports.
He said that his speech, balance and co-ordination problems make some people think that he has been drinking.
Mr. Thompson suffered impairment to gross and fine motor dexterity. Before the accident he was right hand dominant. Since the accident he learned to become left hand dominant.
In a work skills assessment dated December 2, 1991, the counsellor wrote that Mr. Thompson's fine dexterity using small tools was too slow to measure. Accuracy, speed and coordination were a problem in the use of large tools. Mr. Thompson had difficulty hitting a nail with a hammer.
Mr. Thompson also has short term memory problems and requires memory aids. He said that he cannot remember where he has put things and that when he worked in the hospital as a janitor, he had difficulty remembering where he left his wash pail.
Education, Training and Experience:
After grade nine, Mr. Thompson worked as a sheet metal worker for four months.
He then got into drywall work and worked as a drywaller for the next twelve years until the accident. He worked as a sub-contractor providing services to drywalling contractors.
For the three year period prior to the accident, Mr. Thompson and his partner obtained most of their work from, Bill Olmstead, a drywalling contractor. They usually worked from March to October or November.
Mr. Thompson said that at the time of the accident he and his partner had never been busier. They had more work than they could do and they worked long days and nights to do as much as possible.
Mr. Thompson and his partner used their own tools and equipment and purchased nails and screws. They spent about $400 per month on nails and screws. Mr. Thompson and his partner were paid eight cents a foot for their work. Mr. Thompson said that they were paid $800 for drywalling a 10,000 foot house. I assume "foot" refers to square foot of drywall. Mr. Thompson said that at the time of the accident he was making $1,200 to $1,300 per week.
I heard little evidence of the specific tasks of a drywaller. Mr. Thompson said that he had to lift fireboard weighing 140 pounds and half inch regular board weighing 80 pounds. He said that the work involved a lot of measuring and math. He also said that for curved applications, he soaked the backs of boards in water in order to bend and apply them.
Mr. Thompson gave examples of his work. He had worked on scaffolding installing a ceiling 30 feet above a swimming pool and he had applied drywall to a three storey circular stairwell.
Mr. Thompson said that Bill Olmstead retired recently and that he had hoped to take over his business.
Current Employment:
Mr. Thompson said he was given a job in the shipping/receiving department of Autopak in October 1993. I heard no evidence on what Autopak did other than it was in the automobile parts business. The evidence was not clear, but it appears that the position at Autopak was arranged through the Kingston General Hospital, Department of Vocational Services.
Mr. Thompson described his duties as checking orders when they came in, putting the order away, making sure shelves were stocked, keeping the back tidy and doing deliveries now and then. He said the work requires no training. He said there is no chance of promotion because the next job would be serving the public at the counter and he does not feel that he is "good enough" to serve the customers.
Financial Evidence:
The only evidence which was disputed, was how much Mr. Thompson earned as a drywaller. Mr. Thompson said that at the time of the accident he made $1,200 to $1,300 per week. He told Dr. Darla Drader, a psychologist, that he made $60,000 per year. He told Jeff O'Neill, a vocational rehabilitation counsellor that he made $25 per hour as a drywaller. Mr. Thompson filed his 1990 Income Tax Return after the accident and reported a gross business income of $19,033 and a net business income of $18,371. This return covers income from mid-March 1990 to August 30, 1990, a period of 24 weeks. These figures result in a net weekly business income of about $765 at the time of the accident. When extrapolated over the 35-week income earning period of mid-March to mid-November, the income tax return figures result in an annual net income of about $26,791. The income tax return does not include all of Mr. Thompson's expenses. He said that he did not keep records of business expenses for nails, screws, vehicle and travelling.
Autopak pays Mr. Thomson $7.75 per hour for a 40-hour work week. With overtime on Saturdays and a safe driving bonus his annual gross income from Autopak is about $18,720.
Other Evidence of Job Suitability:
Mr. Thompson said he would rather work at drywalling or at other jobs in the construction industry than at Autopak. He said that at Autopak he does the same thing every day, the pay is not that good and he will not be promoted.
The psychologist, Dr. Drader, found that Mr. Thompson had an overall level of intellectual function at the bottom ten per cent of the population. It was not clear to her whether he suffered significant intellectual losses since the accident or whether he had always functioned at a low level. She found he had difficulty working with words, ideas and numbers and on visual design kinds of tasks. He had difficulty attending to detail, assembling meaningful objects and working quickly with a pencil.
On June 15, 1992, Jeff O'Neil of the Vocational Rehabilitation Services of the Kingston General Hospital reported:
His borderline intellectual function, minimal academic skills and impaired cognitive ability restrict his potential to learn complex duties and will, in all likelihood, limit him to helper/follower roles rather than to positions where planning and organizational skill, decision making are required. The consequence of the foregoing is that, although Eddie [Mr. Thompson's nick-name] has demonstrated good potential for a return to the competitive work force, he now must compete for employment at the low end of the job market. This means greater competition for work, which was not a factor prior to the accident since Eddie's skills and drive were in demand. It also means that Eddie will have to significantly lower his wage expectations. Where as before the accident he was able to earn $25 per hour plus, he is now seen as being in the $6 to $8 range. So the disability factors must be seen as presenting major vocational limitations.
Submissions:
Counsel for Mr. Thompson argued that Mr. Thompson's work is not suitable. She submitted that Mr. Thompson is overqualified for this work and that he earns significantly less money at his current employment, than he earned prior to the accident.
Counsel for the Insurer argued that the test of entitlement is not satisfied simply by finding that the insured cannot return to his former job. He argued that the current employment is meaningful, permanent and that it pays more than a nominal amount. He submitted that this employment has beneficial features because Mr. Thompson does not have to maintain a car and equipment and he does not have to travel to and from job sites up to an hour each way. Counsel argued that the amount of earnings in the new job is not relevant, but even if it were, Mr. Thompson is now making about the same money as previously if his business expenses are deducted from the income as stated in his 1990 income tax return.
Findings and Conclusion:
The only disputed evidence was whether Mr. Thompson earned less income in his new job at Autopak. Mr. Thompson was a credible witness and his testimony that he earned $1,200 to $1,300 per week was generally consistent with what he told Dr. Drader and Mr. O'Neill and more reliable than what he reported in his income tax return. In my view, the information in the income tax return is not reliable. Mr. Thompson's business expenses have not been taken into account and gross revenue has been minimized. I am satisfied that Mr. Thompson earned significantly more money as a drywaller than he does at Autopak, both on an hourly and yearly basis.
A number of arbitration decisions have commented that levels of remuneration may be relevant in determining whether the new occupation is suitable.2 The test of whether an occupation is suitable does not require that the income from the new employment equal or exceed that from the former employment. The Alberta Court of Appeal commented on the relevance of income in Brooks v. London Life Insurance, 1979 ALTASCAD 155, [1979] ILR 1-1115, a case which dealt with wording similar to section 12(5)(b) of the Schedule, as follows:
In some circumstances that might be one factor in the consideration of whether the new occupation is one for which the employee is reasonably well qualified by education, training or experience. The test in the Blackstone case cannot however be a substitute for the policy test quoted above.
In the present case, the test is whether Mr. Thompson 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. Arbitrator Naylor considered the test in Francis Mills and Canadian General Insurance Company, July 6, 1995, OIC File No. A-005599. I agree with her comments:
Judicial cases have considered similar wording in earlier automobile policies and disability policies. [Appendix of cases omitted]. These cases emphasise that the question of suitable employment in any case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. They have taken into account such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how. The statutory requirement focuses primarily on an applicant's functional limitations, and not on the broader availability of work in the job market.
I am satisfied that Mr. Thompson is motivated to work to the best of his ability and that his current occupation is representative of the type of work he can do. I heard little evidence as to whether Mr. Thompson would benefit from retraining, but I am satisfied that without further training, Mr. Thompson can only do the type of work he is doing now. That work is limited to supervised clerical work which does not require abilities such as good balance, coordination, fine and gross motor skills, clear speech or good memory.
Although Mr. Thompson's current work may be suitable having regard to his disabilities, the work is not suitable having regard to his education, training or experience.
Before the accident Mr. Thompson was a skilled tradesman. He had twelve years' experience as a drywaller and no other skill or training. His work required physical and mental skill. His services were in demand and he could take on as much work as he was physically capable of and earn a significant hourly rate for his services. As a result of injuries sustained in the accident, Mr. Thompson can now only work at unskilled work so long as it does not require physical abilities. His services are not in demand and as a consequence, his hourly rate of pay is significantly less than what it was before the accident.
Before the accident Mr. Thompson was self-employed and worked independently. As a result of the injuries he sustained in the accident, Mr. Thompson can no longer work independently.
Before the accident Mr. Thompson hoped to expand his business. As a result of his injuries, Mr. Thompson currently has little hope of improving his position in the work force.
Although Mr. Thompson's position at Autopak has some beneficial features such as permanence and less travel time, I am satisfied that at present, Mr. Thompson's injuries continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.
Pursuant to section 282(11) of the Insurance Act, I award Mr. Thompson his expenses of the arbitration proceeding.
Order:
The Applicant is entitled to recover from the Insurer weekly income benefits pursuant to section 12(5)(b) of the Schedule from November 4, 1994 and continuing for such period during which the Applicant is continuously prevented from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.
The Applicant is entitled to recover from the Insurer interest on overdue payments calculated in accordance with section 24(4) of the Schedule.
The Applicant is entitled to recover from the Insurer his expenses of the arbitration proceeding.
March 11, 1996
William J. Renahan
Arbitrator
Date
Footnotes
- Prior 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.
- Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158; Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593 and Isabel Pedden and Dominion of Canada General Insurance Company, December 29, 1995, OIC File No. A-008977.