Neutral Citation: 1996 ONICDRG 51

File No.: A-007940

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHARON RILEY

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Sharon Riley, was injured in a motor vehicle accident on October 13, 1990. She applied for and received statutory accident benefits from the Pilot Insurance Company, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer after 156 weeks. Ms. Riley disputes the termination of her benefits.

The issue in this hearing is:

1. Is Ms. Riley entitled to ongoing weekly income benefits under subsection 12(5)(b) of the Schedule?

2. Is Ms. Riley entitled to a special award under subsection 282(10) of the Insurance Act?

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

Result:

1. Ms. Riley is entitled to ongoing weekly income benefits under subsection 12(5)(b) of the Schedule.

2. Ms. Riley is entitled to a special award in the amount of $2,000.

Ms. Riley is entitled to her expenses incurred in the arbitration hearing, and interest on all amounts owing.

Hearing:

The hearing was held in NorthYork, Ontario, on January 23 and 24, 1995, before me, Frederika M. Rotter, Senior Arbitrator.

Present at the Hearing:

Applicant:

Sharon Riley

Applicant's Representative:

Antonio Azevedo Barrister and Solicitor

Insurer's Representative:

Rudolph Lobl Barrister and Solicitor

Exhibits:

The exhibits and other documents before me are listed at Appendix A.

Evidence and Findings:

(a) Background:

The Applicant, Ms. Sharon Riley, was seriously injured in a motor vehicle accident which occurred on October 13, 1990, near Ingersoll, Ontario. At the time of the accident, Ms. Riley was 26 years old. She was a front-seat passenger in a vehicle being driven by her friend. The driver apparently fell asleep and lost control of the car. Ms. Riley was also asleep. She remembers "seeing sparks." She woke up in a "swamp," a fair distance from the car, having been ejected from the rear window when the car apparently hit a guard rail.

Ms. Riley suffered multiple injuries in the accident. The most serious were fractures of the left side of her pelvis and hip, and open fractures of the right tibia and fibula (bones in the lower leg). She was initially treated at the local Ingersoll Hospital and then transported, the same day, to Sunnybrook Medical Centre in Toronto, where she remained until November 21, 1990.

Ms. Riley was transferred from Sunnybrook to St. John's Rehabilitation Hospital, and was ultimately discharged in March 1991, on crutches.

Ms. Riley had a difficult and protracted convalescence, and the evidence is that she will never fully recover from the effects of her injuries. She received weekly income benefits for 156 weeks. She claims ongoing weekly income benefits under subsection 12(5)(b) of the Schedule, and also a special award.

In order to deal with Ms. Riley's claims, I will review her medical history as it relates to her injuries from her accident. I will then review the evidence of her occupation and activities in order to determine whether Ms. Riley's injuries continuously prevent her from engaging in any occupation or employment for which she is reasonably suited, which is the test for entitlement to benefits after 156 weeks, under subsection 12(5)(b) of the Schedule.

(b) Medical History

As indicated above, Ms. Riley suffered severe fractures in the bones of her lower right leg (tibia and fibula). Ms. Riley's right leg injuries were treated with external fixation pins, bone grafts, open reduction and internal fixation. She lost a great deal of soft tissue in the distal (back) right shin area, and much of the back of her shin is now covered with skin grafts. Her recovery from these injuries was initially somewhat complicated, but apparently she now suffers no serious ongoing problems with the lower right leg. She testified that she has swelling of the leg if she stands too much or becomes overly fatigued.

Ms. Riley's most serious problem results from her left hip injury. She fractured the acetabulum, or socket, of her left hip joint, and she apparently also injured the ball, or head, of the femur (thigh bone). The surgeons initially tried to mend the socket with screws and a plate, using a bone graft. However, the damage to the hip was so severe that the socket could not be reconstituted. As a result of the injury, the hip socket was very rough. Ms. Riley continued to suffer significant pain after her initial hip surgery, and her ability to walk was very limited. She was able to walk some distance on crutches, but only very short distances using a cane. She went on to develop a painful post-traumatic osteoarthritis.

On February 8, 1993 Ms. Riley underwent a hip fusion operation, or arthrodesis, in order to deal with her ongoing hip problem. This operation directly joins or fuses the femur (thigh bone) to the pelvis, thereby eliminating the movement at that joint, but also, hopefully, eliminating the pain experienced on such movement. Unfortunately, the fusion operation was not successful. By December 1993, Ms. Riley was experiencing difficulty and her doctors found that the hip fusion had failed. On February 3, 1994 Ms. Riley was readmitted to hospital for surgery. The hardware inserted for the fusion was removed from her hip, and further surgery was performed which essentially left Ms. Riley with no hip joint at all -- an extremely painful condition known as a "girdlestone." In essence, the head of the femur was removed, and Ms. Riley was left with nothing but scar tissue in her hip socket. As a result of these various procedures, Ms. Riley's left leg is now considerably shorter than her right leg, and she walks with a pronounced limp.

Dr. David J. Ogilvie-Harris, Chief of Orthopaedic Surgery at the Toronto Hospital, examined Ms. Riley at the request of her counsel,² and testified at the hearing. He explained that Ms. Riley's hip problem is ongoing, and that she will eventually require further surgery, most likely a total hip replacement, or arthroplasty. Dr. Ogilvie-Harris explained that Ms. Riley's hip is extremely unstable, weak and painful. She is walking on scar tissue. She is facing possible infections as a result of drainage problems. Ms. Riley's condition is expected to deteriorate and she faces continued and significant pain problems.

Dr. Ogilvie-Harris explained that an arthroplasty, or total hip replacement procedure, would only be performed when Ms. Riley's condition deteriorates to the point where she can no longer carry on with her girdlestone. He explained that arthroplasty could possibly restore Ms. Riley to full, pain-free function. However, in her case, the chances of a successful arthroplasty are probably poorer because she has already undergone three significant operations in her hip (the initial repair, the fusion, and the removal of the fusion, resulting in the girdlestone).

The life-span of an artificial hip is only about ten years for a young person such as Ms. Riley (for an elderly person aged 60 or over, an artificial hip generally lasts about 20 years). After the artificial hip fails, the individual will require a second arthroplasty operation. The risks of a second arthroplasty failing are about ten times higher than for the first such operation. The individual then is looking at total hip failure at a relatively young age. It is for this reason that Ms. Riley's medical specialists wish to delay her hip replacement operation, for as long as she can possibly function without it.

Dr. Ogilvie-Harris testified that Ms. Riley's pain and weakness in her hip significantly affect what and how much she can do. She uses twice the energy normally required just to walk and move about. Dr. Ogilvie-Harris considered that because of her functional disability, Ms. Riley would reasonably be able to do clerical, sedentary-type work for about four hours a day. He felt she would have to use twice as much energy and make a "Herculean effort" to work a full eight-hour day. This would leave her with no reserves of energy left to do anything else in her life.

At the request of Pilot, Ms. Riley was examined by Dr. James Kirk Houston, an orthopaedic surgeon, on October 18, 1993, at about the three-year anniversary of the accident.³ When Dr. Houston examined her, he noted "definite movement of the left hip" suggesting that the fusion had failed. He found that Ms. Riley had developed "a painful pseudarthrosis [sic] of the left hip." He opined that Ms. Riley might require a re-fusion of the hip, and was guarded about the possibility of her returning to either work or school on a full-time basis.⁴ He reported:

As far as employment is concerned, given rather ideal conditions, Miss Riley could probably perform part-time activities of a sedentary, clerical nature providing that transportation to and from work was available and that access to the work place was not difficult.⁵

Dr. Houston felt that trial-and-error was probably the only way to determine whether and to what degree Ms. Riley could carry on with either work or her education.

Another orthopaedic specialist, Dr. Fred Langer, also reviewed Ms. Riley's medical files at the request of Pilot and prepared a medical report dated November 10, 1994.⁶ Dr. Langer did not have the opportunity to examine and assess Ms. Riley. He wrote, at page three of his report:

At the present time, one would expect that she could do a sedentary type of job if the job was readily accessible for an individual using a cane and the position allowed her to get up and move about several times during her work day.

On the other hand, a girdlestone operation is a temporizing procedure. It means that Ms. Riley will have a significant shortening of the right lower limb, at least two inches, and probably a rotational deformity of the right lower limb with some limitation of abduction. She will have increased fatiguability with weight-bearing and increasing pain until a definitive operation, such as a total hip procedure, is performed. She will have difficulty walking stairs and using public transit, walking in crowds and standing any length of time. She will permanently require a cane. Most individuals do not like a girdlestone, and most opt for a replacement arthroplasty. The longer she waits, the harder the procedure will be.

The total hip procedure will reestablish equality of the lower limbs and the ability of Ms. Riley to stand and walk without significant distress. Her function should return close to normal. She likely still will have difficulties with long walking or standing. Convalescence from a total hip procedure is approximately six months. I would estimate the failure rate for a total hip prosthesis, following the course Ms. Riley has had, to be approximately five percent over a five year period and approximately 15 percent for a 10 year period. A second revision would then be necessary.

Dr. Langer's report supports the opinion of Dr. Ogilvie-Harris that Ms. Riley's condition will deteriorate and she will eventually require a hip replacement procedure. In the interim, Dr. Langer acknowledged that she must deal with considerable difficulty, pain and fatiguability while attempting to function in the normal course. I note that while Dr. Langer felt Ms. Riley could work at a sedentary job, within her restrictions, he did not indicate whether or not she could work full-time.

(c) Educational and Employment History

Ms. Riley testified that she is a practising Seventh Day Adventist, and attends her church regularly, every Saturday. Prior to the accident, she had been enrolled in Oakwood College, in Huntsville, Alabama, an Adventist institution. She had been studying for a degree in early childhood education, with the goal of becoming a kindergarten or early childhood teacher.

Ms. Riley first enrolled at Oakwood College in August 1984. She attended school full-time for two years (until May 1986), when she returned to Toronto. Ms. Riley explained that when she first started at Oakwood she tended to neglect her studies in favour of music. She did a "minor" in singing, but her marks in her other subjects were poor. She failed two courses in her first year, and also failed two in her second year. She testified that she worked for a while in Toronto after that, doing clerical work on a temporary basis. She returned to school in Alabama in 1987, to resume her studies.

Ms. Riley subsequently alternated terms of school with periods of employment in order to support her ongoing education. She testified that in about 1988 she started to do better academically, and made up some of her failed courses. In August 1989 she returned to Huntsville, and successfully completed her year in May 1990. She then returned to Toronto again and got a job with a temporary agency. She continued to work with the agency throughout that summer and fall. In September 1990, through the agency, she obtained a temporary placement with the federal Department of Justice, entering data into a computer, earning about $8.00 an hour. She was employed at this job on the date of the accident, October 13, 1990. She had been planning to return to school in Alabama in January 1991.

Ms. Riley testified that after she was released from hospital, in March 1991, she could not do much. She was on crutches for most of the time and her right leg fracture still had not fully healed. She needed help to get dressed, put on her shoes, and so forth. She was extremely upset about the effects of the accident. In order to help herself to recuperate emotionally, in about February 1992, Ms. Riley formed a choir: a Gospel group, called the Faith Chorale, connected with her church.

Ms. Riley testified that the choir has become quite successful. She is the director and leader of the group, which has grown from about 15 to 40 members. They sing in the church on Saturdays, and also perform various other engagements, including at the Toronto and Montreal jazz festivals. They are particularly busy during the Christmas season. Usually the group performs every second weekend, but sometimes they perform every weekend.

Ms. Riley testified that since forming the choir, she has regularly spent about 15 hours a week working on it. She explained that she herself recruited potential choir members from her friends and acquaintances at the church, and conducted vocal auditions. She selected and taught the choir members the music, and directed them in dynamics, interpretation and execution. Ms. Riley testified that she spends about two hours a day working on and preparing the music for the choir. Rehearsals occur once a week on Friday nights: they usually go on for three or four hours (including beginning with a one hour prayer meeting). Ms. Riley testified that her most intense work with the choir occurs from Wednesdays to Fridays and on the weekends: she usually recuperates from this activity on Mondays and Tuesdays.

Ms. Riley spoke of the choir as her "therapy": she claims it has helped her to feel better, and has stopped her from thinking of herself as a "loser" because of her disability. Ms. Riley testified that she could not do without her music at this point.

Ms. Riley testified that her work with the choir is done on a purely voluntary basis, and that she earns no money from the performances. Richard Bicart, the business manager of the choir, confirmed that although occasionally the choir makes some money, no one earns income from it. Any money earned is used to pay expenses, such as for accompanists, costumes, and the like. Mr. Bicart is a member of Ms. Riley's church and has acted as the choir's business manager since it was formed in February 1992. He does the public relations work for the group, negotiates, signs and executes contracts, receives bookings and maintains a telephone line. He does this work on a voluntary basis, as part of his commitment to the church. He testified that he and Ms. Riley have discussed the possibility of a recording, and he agreed that such a recording could conceivably generate a profit. However, he did not indicate that any realistic plans for a recording were in place, and testified that he has not specifically discussed personal career plans and goals with Ms. Riley.

Mr. Bicart confirmed that when Ms. Riley was not available to direct the choir, an assistant or substitute director takes her place. From time to time she has missed rehearsals or engagements for personal or medical reasons.

Ms. Riley testified that she does very little apart from working with the choir. She suffers from constant pain in her pelvis and hip. She also occasionally suffers back pain, and, as noted above, sometimes has problems with swelling in her right leg if she over-exerts herself or becomes fatigued. She exercises regularly and takes pain and anti-inflammatory medications "all the time."⁷

Ms. Riley lives at home with her parents, who assist her. Her mother does all the housework and cooks for the family. Ms. Riley generally depends on her father for transportation, as she does not have a driver's licence. Ms. Riley is able to do her own laundry, although she cannot carry it downstairs to the laundry room. She is able to vacuum her room and wash a few dishes. She can sit in a comfortable chair for about three to four hours at a stretch.

Ms. Riley's father, Mr. Alan Riley, confirmed that his daughter does very little around the family home. After a performance with the choir, she is fatigued and will just stay in bed.

Ms. Riley testified that she has not tried to look for work since her accident. She has been too afraid to attempt it. She also testified that she wants to complete her degree, but is afraid to go back to Oakwood College in Huntsville, because of the size of the campus and the distance between buildings. She is not sure how she would get around. There is no public transit. The college does not provide assistance for disabled students. Ms. Riley testified that if she were to go back, she would complete a degree in business administration, since she does not feel she could physically cope with the demands of teaching young children.

Ms. Riley testified that she does not believe she would get credit for her courses if she were to transfer to a university or college in Toronto. However, she admitted that she has not presented her courses or inquired about the possibility of a transfer to a Canadian institution. At the hearing, my impression was that Ms. Riley was rather tentative and hesitant about the possibility of completing her education. She did not impress me as having clear and definite plans to return to school.

Ms. Riley's comments and testimony at the hearing about her educational plans were quite different from her expressed intentions as reported by Robert David Katz, C.S.W., a social worker who specializes in the area of vocational rehabilitation, counselling and assessment. Mr. Katz interviewed Ms. Riley in the course of an assessment requested by Pilot. He reports: 'Miss Riley left me in no doubt as to her future plans. She told me that she will finish college, no matter what. Winning a diploma has been one of her longest standing goals..."⁸

I do not accept that at this point Ms. Riley is firmly committed to continuing her education. However, I found the remainder of Mr. Katz' testimony helpful. Pilot requested that Mr. Katz provide an opinion whether Ms. Riley could engage in any occupation or employment for which she was reasonably suited by education, training or experience. Mr. Katz was not able to provide a conclusive opinion. Both in his testimony at the hearing, and in his report to Pilot, he indicated that his conclusions were tentative, largely because no functional assessment of Ms. Riley's physical capacity had been performed. In his report to Pilot, Mr. Katz suggested that Ms. Riley be referred to an assessment centre where her physical tolerances could be evaluated in a controlled setting. This suggestion was not followed.

Mr. Katz indicated that in the absence of a professional assessment, Ms. Riley's ability to engage in suitable employment could only be evaluated through a process of trial and error. Ms. Riley had to get herself back into a work or school situation, to realistically see how much activity she could tolerate. In this, he concurred with the expressed view of Dr. Houston (see page 7, above). Mr. Katz referred to the various medical reports which had been provided to him, and concluded in his report that Ms. Riley's

... pain experience is different from that of a person suffering from a pain syndrome or fibromyalgia caused by whiplash . . . Because this woman's pain emanates from an organic, mal-union in a joint, neither Dr. Houston nor I would recommend that she simply grit her teeth and learn to overcome it (as I have often urged with other pain-focused clients).⁹

Analysis and Conclusions

In this case, Ms. Riley is claiming ongoing weekly income benefits in excess of 156 weeks, under subsection 12(5)(b) of the Schedule.

Ms. Riley also claims that Pilot unreasonably terminated her benefits after 156 weeks, and claims a special award in addition to ongoing weekly income benefits.

Counsel for Ms. Riley submitted that in a case such as this, where there has been no dispute that an applicant is entitled to benefits for the initial 156 week period, the onus of proof shifts to the Insurer, who has the burden of showing that she is not entitled to further benefits. In support of this submission, counsel cited Taaffe v. Sun Life Assurance Co. Of Canada (1979), 1979 CanLII 1877 (ON HCJ), 24 O.R. (2d) 790, a decision of the High Court of Justice of Ontario. Counsel acknowledged, however, that subsequent Ontario cases¹⁰ 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.

Ms. Riley therefore has the onus of establishing that her injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training, or experience, pursuant to subsection 12(5)(b) of the Schedule, which 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 . . .

On balance, I find that Ms. Riley has met that onus.

I have no hesitation in concluding that Ms. Riley continued to be eligible to receive benefits at the time they were terminated by Pilot, in October 1993. Dr. Houston's reports to Pilot in October and November 1993¹¹ identified a problem with the hip fusion and suggested that further surgery would be necessary. Dr. Houston acknowledged in his reports that Ms. Riley's condition was very painful, and that pain was the major factor limiting Ms. Riley's return either to work or to school. As I outlined above at page 7, Dr. Houston was extremely cautious about expressing an opinion whether Ms. Riley could work: he felt that under "rather ideal conditions" she "could probably" do sedentary part-time clerical activities.¹² He qualified even that opinion by also indicating that "Probably, trial-and-error is the only method of establishing whether Miss Riley could carry on to whatever degree with the activities mentioned."

Dr. Houston's report is tentative, at best, about Ms. Riley's ability to return to work. Moreover, Pilot also had a series of reports from Rehabilitation Services of Canada ("RSC"), an organization which it had retained to monitor and assess Ms. Riley's recovery and progress after the accident. The report from RSC dated October 1, 1993 indicated that "Rehabilitation potential appears guarded at this time." The caseworker assigned to the file (a Registered Nurse) referred to "the fact that we need a vocational assessment for recommendations regarding the client's capabilities regarding educational or work placement."¹³

No such assessment was performed. The evidence indicates that Pilot subsequently dispensed with the services of RSC, and did not engage or pursue any further rehabilitation services on behalf of Ms. Riley.

In light of this information from its own sources, I find that Pilot acted precipitously and unreasonably in terminating Ms. Riley's benefits after 156 weeks. Pilot's own advisors were equivocal and uncertain about her ability to return to any work or educational pursuits. I find that in the circumstances, Pilot had insufficient information to suggest that Ms. Riley was now sufficiently recovered from her injuries to be able to return to any remunerative occupation or employment for which she was reasonably suited, so as to warrant the termination of her benefits. Pilot was aware of Ms. Riley's ongoing problem with her hip (Dr. Houston mentioned it in his report) and knew she was facing further surgery. Pilot did not reinstate benefits in December 1993 when it became very clear that her hip fusion had failed and Ms. Riley now required a third hip operation. Although the onus is on the Applicant to prove her claim, in December 1993 Pilot had clear information, not only that Ms. Riley's injuries continued to disable her from engaging in any remunerative occupation or employment, but that further hospitalization and surgery were necessary.

Ms. Riley's treating orthopaedic surgeon, Dr. James N. Powell, reported on December 30, 1993 that "it is now clear that she [Ms. Riley] has a failure of her hip fusion. She is booked for a surgical revision . . . At this point she remains completely disabled and unable to work whatsoever."

I accept that Ms. Riley was continuously disabled from engaging in any sort of occupation or employment from the time her benefits were terminated, through the period leading up to the surgical revision of her hip fusion, and during the recovery period following that surgery. Counsel for Pilot has conceded that this would take Ms. Riley to at least the end of March 1994. I conclude that it was unreasonable to expect or assume that Ms. Riley could engage in any work during this period, and I find that Pilot acted unreasonably in denying Ms. Riley weekly benefits during this period. Accordingly, I find Ms. Riley is entitled to ongoing weekly income benefits during this period, and to the special award claimed, under section 282(10) of the Insurance Act. Section 282(10) states:

(10) --If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule..

Pilot provided no satisfactory explanation for its summary termination of benefits, and its failure to review its decision even after Ms. Riley was again hospitalized. In the circumstances of this case, I find that Pilot should pay a special award of $2,000.

Ms. Riley's entitlement to ongoing weekly income benefits subsequent to March 1994 is more problematic. On the one hand, Ms. Riley is obviously a talented, able and energetic individual, who has remained reasonably active despite her debilitating injuries. Her success with the choir indicates that she is capable of significant exertion, and has the motivation and perseverance required to achieve her important goals.

On the other hand, it is not clear from the evidence that Ms. Riley now has the physical capacity and stamina required to meaningfully engage in "any occupation or employment for which she is reasonably suited by education, training or experience.

A review of cases that consider similar language in other auto insurance and disability provisions indicates that this phrase must be interpreted with regard to the particular facts and circumstances of each individual's situation. The factors to be considered in determining whether someone is" reasonably suited by education, training or experience to do a particular job include the nature of the work done before, the remuneration previously earned, the person's work history, experience, qualifications and technical skills.¹⁴

In Sutherland v. Insurance Corporation of British Columbia, 1979 CanLII 600 (BC SC), [1980] I.L.R. 1-12831082 (S.C.), it was held:

Even if he is able to carry on some other work, if that work is not of the same quality and definition as his previous employment, then he is not disqualified from claiming under s.7.03. So it is important and significant to compare the "work" being done by the patient at the present time and what his former employment consisted of. The interpretation of what constitutes "total disability" has been considered in several cases recently and I refer only to the case of Ross v. The Insurance Corporation of British Columbia (1977) 3 B.C.L.R. 48. His Honour Judge Provenzano interpreted total disability in these words:

I now turn to the total disability feature contained in Regulation 7.03. Paraphrasing that portion of the Regulation, it says to the effect that the bodily injury sustained must totally disable the Plaintiff and prevent him from engaging in any occupation for which he is suited having regard to his skill and ability. It is to be noted that the Plaintiff must be totally, and not merely partially, disabled from engaging in any, and not necessarily in one, occupation. Nevertheless, it is my respectful opinion that those words "totally" and "any" should be given a liberal and not a restricted meaning. Otherwise, it would seem to me that unless a person were completely paralyzed there would be some occupation that he could perform.

In Dale v. Commercial Union, [1980] I.L.R. 1036, it was held that the ability of a plaintiff to work part-time did not mean that she was thereby "engaging in an occupation or employment for which she is reasonably suited by education, training or experience." In that case, it was held that reasonable alternate "occupation or employment must be something akin to his previous occupation or employment and must be gainful in the sense approximately the same livelihood as the plaintiff might fairly be expected to follow in view of her station, circumstances, physical and mental capability."¹⁵

Ms. Riley's functional abilities have not been evaluated or assessed. In this case, such an assessment was clearly called for and should have been performed. In the absence of the information such an assessment would have provided, I accept the evidence of Dr. Ogilvie-Harris, that Ms. Riley could probably do sedentary clerical work four hours daily. On the balance of the evidence before me I find that Ms. Riley does not have the physical capacity or stamina to do reasonably suitable full-time work. Given Ms. Riley's background, training and experience, full-time clerical work would probably be work for which she is reasonably suited. However part-time clerical work would not be suitable for Ms. Riley, since it would not be sufficiently remunerative. A number of arbitration decisions have indicated that level of remuneration is a relevant factor in considering whether a proposed occupation or employment is suitable.¹⁶ I heard no evidence to suggest that Ms. Riley could do other sorts of reasonably suitable part-time work (in the sense of being reasonably and sufficiently remunerative), having regard to her background, experience and the income she previously earned.

In this case, the ability to do part-time clerical work is not sufficient to disentitle Ms. Riley from receiving benefits under subsection 12(5). Accordingly, I find she has established, on the balance of probabilities, that her injury has prevented her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

As I observed above, Ms. Riley is a talented, energetic and capable individual. I fully expect that with appropriate rehabilitation and vocational assistance funded by the Insurer, she would be able to engage in suitable employment, perhaps in the field of music, for which she clearly has special ability and love. If and when a hip replacement operation takes place, her pain and mobility problems could be significantly relieved. At that point, she doubtless will be able to engage in suitable employment.

However, in her present circumstances, I am persuaded that Ms. Riley is entitled to ongoing weekly income benefits under subsection 12(5)(b) of the Schedule.

Ms. Riley is also entitled to her expenses of the arbitration hearing.

Order:

1. Ms. Riley is entitled to ongoing weekly income benefits under subsection 12(5)(b) of the Schedule.

2. Ms. Riley is entitled to a special award in the amount of $2,000 under subsection 282(10) of the Insurance Act.

3. Ms. Riley is entitled to interest on all outstanding amounts in accordance with subsection 282(10) of the Insurance Act and section 24(4) of the Schedule.

4. Ms. Riley is entitled to her expenses incurred in respect to the arbitration.

April 15, 1996

Frederika Rotter Senior Arbitrator

Date

Appendix A

Exhibits:

Exhibit 1

Document Brief of Applicant (Tabs 1-14)

Exhibit 2

Photographs of Ms. Riley's right leg (2)

Exhibit 3

Photograph of Ms. Riley's left leg (1)

Exhibit 4

Pharmaplus Customer Receipts and Ledne Pharmacy RX History Report Printouts

Exhibit 5

Letter to Mr. Azevedo from Mr. Collier re settlement, December 12, 1994

Exhibit 6

Hospital Notes and Records from Sunnybrook Health Science Centre

Exhibit 7

St. John's Rehabilitation Hospital Records (Part I and Part II)

Exhibit 8

Insurer's Brief (Tabs 1-15)

Exhibit 9

Letter to Ms. Chateauvert from McKellar Group, November 21, 1994

Exhibit 10

Letter to Mr. Azevedo from Actuarial Consultants of Canada Limited, January 11, 1996

Exhibit 11

Letter to Mr. Azevedo from Seventh-day Adventist Church, November 5, 1993

Exhibit 12

Faith Chorale flyer

Cases referred to by the parties:

Andersen v. Great-West Life (1987), 1988 CanLII 10389 (ON HCJ), 30 C.C.L.I. 85;

Attridge v. Fidelity and Casualty Co. Of N.Y., 1972 CanLII 965 (BC SC), [1972] 3 W.W.R. 120;

Colonial Life v. Whitley (1984), 664 S.W. 2d 488;

Dale v. Commercial Union, [1980] I.L.R. 1036;

Fast v. I.C.B.C, [1976] I.L.R. 126;

Garavellos v. Mutual of Omaha (1976), 1976 CanLII 742 (ON HCJ), 14 O.R. (2d) 448;

Harding v. Prudential (1940), 7 I.L.R. 227;

Herring v. Golden State (1982), 318 N.W. 2d 641;

Janiak v. Ippolito (1985), 1985 CanLII 62 (SCC), 16 D.L.R. (4th) 1;

Johnson v. State Farm (1977), 342 SO 2d 664;

July v, Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129;

Kenni v. I.C.B.C (1993), 1993 CanLII 1877 (BC SC), 14 C.C.L.I. (2d) 62;

Kooker v. Benefit Association of Railway Employees (1976), 246 N.W. 2d 743;

LeBoeuf v. Aetna (1977), 351 SO 2d 1266;

McCleneghan v, London Guarantee (1937), 271 N.W. 277;

Moore v. Prudential, [1993] I.L.R. 2233;

Ross v. I.C.B.C. (1977), 3 B.C.L.R. 48;

Sutherland v. I.C.B.C, [1980] I.L.R. 1082;

Taaffe v. Sun Life (1979), 1979 CanLII 1877 (ON HCJ), 24 O.R. (2d) 790;

U.S. v. Fitzpatrick (1933), 62 F. (2d) 562;

Walls v. Constellation (1986), 1986 CanLII 7790 (ON HCJ), 17 C.C.L.I. 212.

Commission decisions referred to:

Francis Mills and Canadian General Insurance Company, July 6, 1995, OIC File No. A-005599 (under appeal);

Isabel Pedden and Dominion of Canada General Insurance Company, December 29, 1995, OIC File No. A-008977;

Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593;

Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158;

Glenn E. Thompson and Non-Marine Underwriters, Members of Lloyds, London, England, March 11, 1996, OIC File No. A95-000233.

Other documents before the arbitrator:

Report of Mediator, February 18, 1994

Application for Appointment of an Arbitrator, March 2, 1994

Response by Insurer, April 26, 1994

Pre-hearing letter, June 14, 1994

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. 2Ex 1-14, the Report of Dr Ogilvie-Harris dated January 4, 1995 indicates that he examined Ms. Riley on December 20, 1994.
3. 3Exhibit 8-10, 8-11
4. 4Letter, ex 8-10
5. 5Follow-up letter, November 5, 1993, Ex 8-11.
6. 6Ex 1-11
7. 7Exhibit 4
8. 8Exhibit 8-14 at p.4., reporting letter of Mr Katz, November 9, 1994
9. 9Report, p. 9
10. 10Walls 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.
11. 11Exhibit 1-12
12. 12Supra, p. 7
13. 13Exhibit 8-8
14. 14See Francis Mills and Canadian General Insurance Company, cited at note 18, page 20
15. 15At p.1040
16. 16Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158; Isabel Pedden and Dominion of Canada General Insurance Company, December 29, 1995, OIC File No. A-008977; Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593; Francis Mills and Canadian General Insurance Company, July 6, 1995, OIC File No. A-005599 (under appeal); Glenn E. Thompson and Non-Marine Underwriters, Members of Lloyds, London, England, March 11, 1996, OIC File No. A95-000233.