Neutral Citation: 1996 ONICDRG 74

File No: A-951779

ONTARIO INSURANCE COMMISSION

BETWEEN:

ROY KNOTT

Applicant

And

DOMINION OF CANADA GENERAL lNSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Roy Knott, was injured in a motor vehicle accident on January 5, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on March 3, 1995, well beyond the 156-week mark. The Applicant seeks further benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mr. Knott entitled to weekly income benefits after March 3, 1995 pursuant to section 12(5)(b) of the Schedule?

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

Result:

1. Mr. Knott is entitled to weekly income benefits from March 4, 1995.

2. Mr. Knott is entitled to interest on the amount owing and his expenses of the arbitration.

Hearing:

The hearing was held in New Liskeard, Ontario, on November 23, 1995. Final submissions were made in writing and were completed December 13, 1995.

Present at the Hearing:

Applicant: Roy Knott

Applicant's Representative: Cameron Hutchison, Barrister and Solicitor

Insurer's Representative: Kevin J. Kovalchuk, Barrister and Solicitor

Witnesses: Roy Knott, Applicant; Peter Laffin, Applicant's former employer

Exhibits: The parties submitted four exhibits.

Facts:

Accident and Resulting Medical Problems

Mr. Knott was involved in a snowmobile accident on January 5, 1991.² He was 49 years old at the time. He was riding his snowmobile at dusk through a field and one of the front skis caught on a fence. Mr. Knott was thrown from the machine. He was admitted to Temiskaming Hospital in New Liskeard later that night, complaining of right shoulder, rib cage and arm pain. It was determined that he had broken three ribs on his right side in the accident.

Within a few weeks of the accident, Mr. Knott began to complain of an inability to lift his left arm above shoulder height, and numbness and tingling in his left hand. By April 1991, he was complaining of numbness and tingling in both hands and both legs. It was determined that he had fractured his C6 vertebra and, on May 23, 1996, he underwent fusion surgery to his C5-C7 vertebrae. He used a neck brace for approximately six months after the surgery. When he stopped using the neck brace, pain developed in the back of his neck, left shoulder and arm, and he developed numbness in the thumb and first two fingers of his left hand. Mr. Knott continues to have limited use of his left arm and hand to the present. He has limited range of movement in his head and neck. He has limited pulling, pushing and lifting capacity in his left arm, cannot keep the arm raised for an extended period of time and has trouble holding objects in place or manipulating objects with his left hand. Mr. Knott was in good general health prior to the accident and had not suffered any injuries relevant to his present capacity to return to gainful employment. Since the vertebral fusion, he has not undergone any surgery of significance to this case.

Pre-Accident Training and Employment

Mr. Knott has a grade 7 education. He worked as a farm hand until age 21. He then worked for various companies until the accident in 1991. These jobs included operating a forklift truck, driving one- and three-ton trucks, loading and unloading trucks and operating hydraulic lifts, delivering furniture, pouring cement from cement trucks, and doing heavy duty mechanics. This latter activity involved extensive repair work on large vehicles: changing motors, replacing bushings and walking beams, repairing brakes, transmissions, drive shafts, steering mechanisms, and the like.

In 1986, Mr. Knott obtained his Class "A" Mechanic's Licence which entitles him to do any type of repair work on cars and trucks. He holds Certificates in "Heavy Duty Cranking Circuits" and "Heavy Duty Charging Systems" which entitle him to do more advanced work on automotive starters and charging systems. He has a Class "D" Driver's Licence which allows him to drive any vehicle up to a tandem truck that does not have air brakes (for example, an 18-wheel truck without air brakes). He is not professionally competent in small engine repair.

Mr. Knott did primarily heavy duty mechanics at John Clark's Garage in New Liskeard from 1986 to 1987, and then at Pete's Service Centre in New Liskeard from 1987 until the time of the accident. At Pete's Service Centre, Mr. Knott worked on big trucks, tractors, trailers and cars (approximately 70 per cent heavy and 30 per cent light duty mechanics). The light duty work involved working underneath a car that had been raised up on a hoist. The heavy duty work involved working underneath a truck or other large vehicle from a lying position on a "creeper." Mr. Knott did some "under the hood" work which involved repairs to the top end of the engine.

Post-Accident Employment

As part of his rehabilitation, Mr. Knott returned to work at Pete's Service Centre from May or June 1992 to October 23, 1992. This was on a trial basis, to determine his post-accident capabilities. He attempted to do all of his pre-accident duties but was only able to perform modified work. He generally worked four hours a day during this period. Sometimes he was unable to complete even four hours, but for a brief four day period in September, he was able to work eight hours a day. He never completed a full week of work during this time. He was unable to perform the heavy physical tasks of his job without the assistance of the other two men in the shop (Mr. Peter Laffin, the owner of the service centre, and Mr. Laffin's son).

He was unable to lift heavy items such as tires, tire drums and brake parts, or do heavy hammer work such as hammering seized rims off vehicles with a sledge hammer. He could not hold objects in place for any period of time (for example, when attempting to work with alternators, power-steering pumps, drive shafts, starters or gas tanks). He was also unable to change the bearings in a set of 10-20 tires or to do any dash work. On one occasion, his arm gave out and he dropped a battery when he was attempting to operate a forklift.

He was able to do some of the light-duty work, such as tune-ups under the hood (on the top of the engine) and "grease, oil and filter" (general service) work.

However, he was not able to do some aspects of tune-up work, such as removing spark plugs, which required him to be in an awkward position. He was, in fact, unable to do the bulk of light-duty work because of the stress to his left arm and shoulder - brakes, exhaust, steering and suspension work required him to operate from a creeper under a vehicle on the ground or underneath a car that had been raised up on a hoist. Tune-ups and grease, oil and filter work only made up about one-fifth of the work done at the Service Centre and, of this, Mr. Knott could only do a small part.

Mr. Laffin eventually let Mr. Knott go on the basis that he was not at all productive during his return to work (even on the reduced hours), there was no other type of work for Mr. Knott in the shop, and Mr. Knott's continued employment, in fact, created a dangerous situation for the other workers. Mr. Laffin testified that he would not take Mr. Knott back now if he were to apply for work because Mr. Knott is unable to perform the duties required of him.

In the summer of 1993, as part of his rehabilitation programme, Mr. Knott again attempted to return to work, this time at the Earlton Service Centre. He worked there for three days, primarily rebuilding or overhauling used car starters and alternators. Work on the alternators involved lifting the 30-35 pound parts onto a work bench, and leaning over them for an extended period of time while rebuilding them. Work on the starters involved exerting pressure on the parts with the left hand and arm and hitting them with a hammer. Mr. Knott testified that this work aggravated the pain in his neck and left arm and that he developed a tingling sensation again in his left hand. The pain from this work was simply too great to continue. Mr. Knott has not been employed since this second attempt to work.

Ability to Return to Work

The medical and rehabilitation specialists working with Mr. Knott identified various restrictions in any future return to work. On November 29, 1994, Dr. John D. Graham, an orthopaedic surgeon with the Toronto Hospital, reported that Mr. Knott would likely have the most difficulty with overhead work, any forceful work overhead with his left arm, and work involving movements of his neck into extension. Dr. Graham noted that the strength in Mr. Knott's left arm and hand is somewhat diminished, especially for forceful elbow flexion and supination movements, and that the dexterity of his left hand is impaired. Dr. Graham concluded as follows:

As a consequence of this disability, Mr. Knott is disabled for work as an automotive mechanic, his previous trade. He would however be capable physically of gainful employment in a work situation where no overhead work was required and where he could practice the basic tenets of proper neck mechanics, in particular avoiding extension movements or fixed positions of his head for prolonged periods of time. It would also be wise if he did not have to rely upon his left shoulder for strenuous activities, particularly of a repetitive nature or his left hand for activities that require dexterity or appreciation of fine sensation.

On February 3, 1995, Dr. Graham reported to Mr. Knott's family physician as follows:

He has significant residual disability and is unfit to attempt work of an overhead nature or work above shoulder height, in fact, but should be easily employable in a light work situation in which he can change his position frequently and does not have prolonged periods of sitting or close work with which to contend.

On November 7 and 8, 1994, Ms. Deborah L. Armstrong, a registered physiotherapist with the Physical Rehabilitation Centre in Timmins, conducted a functional capacity evaluation of

Mr. Knott. On November 14, 1994, she reported that Mr. Knott was not capable of returning to his pre-accident position as a mechanic. Regarding alternative employment for Mr. Knott, she stated that Mr. Knott should avoid elevated work, static positions of his left arm and excessive rotation of his arm such as is involved in tightening bolts. She also stated that heavy lifting as well as excessive pushing activities should be avoided. She indicated that Mr. Knott's lifting abilities should match the job requirements of any future position, that it may be necessary for some potential jobs to be modified to accommodate Mr. Knott's physical abilities and that an ergonomic assessment of a potential worksite may need to be conducted before any return to employment.

On November 29, 1994, Dr. Graham Turrall, a clinical psychologist, conducted clinical interviews and psychological tests on Mr. Knott. On December 9, 1994, he listed the following occupations as a "guide to assist in the exploration of Mr. Knott's vocational potential" and as "most congruent with Mr. Knott's vocational interests and education level (or educational aspirations):"

...light carpenter, motion picture projectionist, telephone/cable installer/repairer, meter reader, mail clerk, lumber inspector, time keeper, electric motor assembler, automotive parts clerk, load checker, locksmith, nursery worker, dry cleaner/laundry worker, small appliance repairer, typesetter, shoe repairer and exterminator.

Dr. Turrall also suggested that Mr. Knott's desire to set up a small-engine repair business did not appear to be within his current physical capabilities and that "more appropriate and consistent with his mechanical interests and strong learning potential as well as his compromised physical state, Mr. Knott might consider training or supervising others in small engine repair."

Mr. Knott testified that he cannot return to any type of productive work as a mechanic. He stated that driving a truck or tractor causes numbness in his left hand and aggravates the pain in his neck and left arm. He said that he once attempted to drive a tandem truck to Manitoulin Island (approximately 2-3 hours), but his son, who had accompanied him, had to drive it back because his neck and arm were bothering him too much. He also testified that he is not competent to do small appliance or small engine repair and would need upgrading if he were to teach or supervise people in these areas. He is doubtful of his ability to be an automotive parts clerk because that involves extensive lifting and overhead reaching. As well, driving a forklift or "pettibone" (a loading machine with a claw on the front) for eight hours a day would likely aggravate his neck, arm and hand problems as does driving a truck or tractor.

In cross-examination, Mr. Knott was asked to comment on a document entitled "occupational objectives," a computer-generated list of jobs prepared with his input by Ms. Ellen Sinclair, the rehabi litation specialist working with Mr. Knott. The positions were: brake repair supervisor, transport traffic manager, particle board supervisor, shipping and receiving weight recorder, guard/investigator, extermination supervisor, classification clerk/coding file clerk, bill collector/collection agent, gatekeeper/guard, bailiff court officer, bartender/bar attendant/barkeeper, chauffeur/driver. Mr. Knott indicated that the major impediments to his doing any of these jobs were his education and physical limitations (no significant lifting, reaching or overhead work). He stated that he would need on-the-job training or educational upgrading to do any of the jobs and that he would not be able to do the chauffeur/driver job because of the problems with his left arm. Mr. Knott further testified that he addressed Ms. Sinclair's suggestion of opening up a small engine repair shop, but that this never came to fruition because it was not financially feasible. The plan would, in any event, have required educational upgrading on Mr. Knott's part.

With respect to the possibility of driving a truck, Mr. Knott stated that he could potentially hold the steering wheel with his left hand and shift with his right, but that sitting in one position for long periods and continuous steering with his left hand would be a problem, as would having to do a lot of shifting (which is required in driving uphill and in bad weather).

Law:

The question in this case is whether Mr. Knott is disabled within the meaning of section 12(5)(b) of the Schedule:

(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.

In the recent decision of Danny MM. Wigle and Royal Insurance Company of Canada, January 12, 1996, OIC File No. A-012312 ( pp. 15-16), Arbitrator Seife summarizes the criteria that have been applied in interpreting section 12(5)(b):

1. The question of suitable employment in every 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.

2. Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status or remuneration it may not be an appropriate alternative.

3. In deciding suitable employment, one must consider 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.

4. The primary focus is on an applicant's functional limitations; however, job-market considerations are relevant in determining suitable employment.

I adopt these criteria for the purposes of this case. Further, the onus under section 12(5)(b) is on the applicant to demonstrate with credible evidence that the injuries continuously prevent him or her from performing the physical requirements of suitable employment. It need not be shown that the applicant is unemployable. It need only be established that, on the basis of the applicant's current employment and educational background, the injuries prevent a return to any reasonably suitable occupation or employment. The applicant's participation and co-operation in any rehabilitation initiatives may be relevant to this determination.

Submissions:

Counsel for Mr. Knott submitted that Mr. Knott's injuries continuously prevent him from engaging in his pre-accident position or modified employment in the field of automotive mechanics, the area for which he is reasonably suited by reason of education, training or experience. He submitted that Mr. Knott is not reasonably suited to returning to work as a truck driver because the position is not similar in nature, status or remuneration (even though this job forms part of Mr. Knott's employment history). He is similarly not suited to the position of automotive parts clerk or appliance or small engine repairman.

Counsel for the Insurer submitted that Mr. Knott is capable of returning to employment as a truck driver, a job he previously performed. Counsel submitted that Mr. Knott would not suffer any loss of income or status, were he to return to employment in this capacity.

Findings:

Suitable Employment

Mr. Knott did a variety of jobs prior to the accident. However, he spent most of his working life in two occupations: automotive mechanics (approximately seventeen years, four and a half of which immediately preceded the accident) and truck driving (approximately eleven years). These are the only two positions referred to by the parties as potential options for Mr. Knott. A number of other positions were identified as viable alternatives in the materials of Dr. Turrall and Ms. Sinclair. However, I find that these latter positions do not represent reasonable alternatives for Mr. Knott given his education, training and experience. In particular, Dr. Turrall's list was described as a guide to the exploration of Mr. Knott's vocational potential and was based on Dr. Turrall's findings concerning Mr. Knott's learning abilities. The "occupational objectives" list compiled by Ms. Sinclair bears little resemblance to the work previously done by Mr. Knott and would require additional training or educational upgrading on his part. As well, Mr. Knott's inability to work overhead, to use his left hand with dexterity and to sit or do close work for prolonged periods would prevent him from being an automotive parts clerk, an electric motor assembler or a chauffeur/driver (as suggested in the two lists).

Mr. Knott clearly has the general background to return to either auto mechanics or truck driving. Would a return to truck driving be similar in nature, status and remuneration to that of Mr. Knott's pre-accident job of auto mechanic? Although auto mechanics and truck driving are different in nature, Mr. Knott spent a significant amount of time at both occupations before the accident. In this situation, it would be reasonable to consider both jobs as options for Mr. Knott unless it could be said that a return to the position of truck driving would involve a substantial loss in status or remuneration for Mr. Knott.

No evidence was called on the relative status of the two positions, although Dr. Turrall noted Mr. Knott as saying that his "best job was as a mechanic." Mr. Knott testified that he loved the mechanics job he attempted to do at Earlton Service Centre following the accident. Regarding trucking, Mr. Knott said that, in his view, other drivers on the road no longer respected transports and that driving trucks had consequently become too hazardous.

Counsel for the Insurer provided with his final submissions an article entitled Truck and Transport Driver, an overview of trucking as an occupation published by the Ontario Institute for Studies in Education in 1991. Counsel for Mr. Knott did not object to the submission of this document by the Insurer and, in fact, incorporated it into his reply on the suitability of truck driving as an option for Mr. Knott. The article indicates that the trucking industry is important to the national economy and can provide steady employment and the potential for increased income and promotion. The article also indicates that truck driving can be tedious at times, must be done even in times of difficult weather and can involve extended periods away from home. Regarding remuneration, the article indicates that the various types of truck drivers can earn from $30,000 to $50,000 and more per year. Mr. Knott testified that he earned $13.50 per hour as a mechanic before the accident. Assuming a forty-hour work week, this would amount to approximately $28,000 per year.

On the basis of this somewhat limited evidence, I am unable to conclude that Mr. Knott would suffer a substantial loss in status or remuneration were he to return to work as a truck driver. The relative levels of remuneration also do not appear to be significantly different. Therefore, in light of the fairly stringent test under section 12(5)(b) of the Schedule, I find that Mr. Knott would be reasonably suited to return to work in either of his former occupations. As indicated, I do not find the other positions raised by the specialists in this case to be viable alternatives for Mr. Knott at this time.

Continuous Disability

Do Mr. Knott's injuries continuously prevent him from returning to work as either an automotive mechanic or a truck driver? The Insurer's submissions only appear to focus on Mr. Knott's ability to return to truck driving; they do not suggest that Mr. Knott is medically capable of returning to work as a mechanic. In any event, it is clear from the medical and rehabilitation evidence that Mr. Knott's injuries do continuously prevent him from returning to work as an auto mechanic. Further, the testimony of both Mr. Knott and Mr. Laffin established that automotive mechanics is a physically demanding work requiring arm, leg and back strength, positioning of the arms, neck and body in various ways, and pushing, pulling, lifting and manoeuvring of auto parts into various positions. As Mr. Knott's attempts to return to work in 1992 and 1994 clearly demonstrate, his injuries render him incapable of engaging in the physically demanding tasks expected of a reasonably productive mechanic (even on a modified basis). His pre- and post-accident wages at Pete's Service Centre also indicate that any return to work as a mechanic would not be at substantially the same level of remuneration as before.

Regarding truck driving, the evidence, in my view, establishes that Mr. Knott is incapable of returning to work as a long-distance truck driver. Mr. Knott unsuccessfully attempted to drive round-trip to Manitoulin Island following the accident. He also indicated that driving a tractor at his home aggravates the pain in his neck and left arm and the numbness in his left hand. Mr. Knott's concerns about sitting in one position and attempting to steer with his left hand during long distance drives are confirmed by the medical and rehabilitation reports. In 1995, Dr. Graham specifically advised against Mr. Knott returning to work situations requiring fixed positions of his head and body for prolonged periods of time or requiring sitting for long periods of time. In late 1994, Ms. Armstrong advised against Mr. Knott working in situations requiring static positions of his left arm.

Ms. Armstrong's test results do indicate a tolerance to prolonged sitting in an eight-hour day, but this is in reference to the general category of "static work" and does not specifically address the work conditions of a long-distance truck driver. A similar test result is found in the report of Mr. Gilles Chabot, another physiotherapist on the file, but that report was prepared as far back as 1992 and also does not address the physical requirements of truck-driving. A report dated January 20, 1995 by Mr. Knott's family physician, Dr. B. Hardie, indicates that Mr. Knott is capable of returning to "the light duty occupations summarized in the vocational assessment," but Dr. Turrall's list of potential jobs does not include truck driving. Finally, I agree with Mr. Hutchinson's emphasis on the safety requirements of a truck driver (as set out in the article on trucking and as addressed by Mr. Knott in his testimony). I do not accept the suggestion that Mr. Knott could compensate for his physical limitations by alternating the use of his hands in steering and controlling a truck. I, therefore, find that Mr. Knott's injuries continuously prevent him from returning to work as a productive and safe long-distance truck driver.

In his final submissions, Mr. Kovalchuk raised the possibility that Mr. Knott could become a pick-up and delivery driver in situations which do not involve a great deal of heavy lifting, such as a driver for a courier company where the deliveries were mainly of envelopes and small parcels. Mr. Kovalchuk submitted that such employment would allow Mr. Knott to frequently change positions, would not involve overhead work and would certainly be compatible with his functional capacity. However, aside from some very general comments in the article on trucking, no evidence was presented concerning either the nature or physical requirements of driving for a courier company. None of the medical or rehabilitation specialists identify courier work as a position to which Mr. Knott might return. Nor did the Insurer put the possibility of courier work to Mr. Knott during the hearing to determine if there might be any problems in his performing such a job. In this regard, Mr. Knott clearly indicated the difficulties involved in returning to work as a transport, forklift or pettibone driver. In my view, therefore, there is no medical or occupational basis upon which to conclude that driving for a courier company is a suitable or viable alternative for Mr. Knott. There is, further, nothing to suggest that the medical, rehabilitation and safety concerns noted in connection with long-distance truck driving are not equally applicable to Mr. Knott driving as a courier.

This is not to suggest that the onus has shifted to the Insurer to prove Mr. Knott's ability to do courier work. This option was raised after all of the evidence was entered and none of the medical or rehabilitation specialists with which Mr. Knott was involved suggested this as a viable alternative. In these circumstances, it would not be appropriate to speculate as to Mr. Knott's ability to perform this job and/or to require Mr. Knott to disprove his ability to do it.

Conclusion

Mr. Knott impressed me as an honest and forthright individual. The documentary evidence submitted in this case confirms Mr. Knott's conscientious participation in vocational testing and rehabilitation efforts. In my view, Mr. Knott has demonstrated that his injuries continuously prevent him from returning to work as either a mechanic or a long-distance truck driver, positions for which Mr. Knott is reasonably suited by virtue of his education, training and experience. The other employment options raised by the specialists in this case are currently not suitable for Mr. Knott by reason of his physical restrictions and occupational and educational background. The Insurer's suggestion of courier work is unexplored and does not appear to be a viable option for Mr. Knott at the present time. This is not to suggest, however, that Mr. Knott is unemployable. With further training and assistance (including any ergonomic modifications to potential worksites), Mr. Knott may indeed be capable of returning to productive work. The legislation, in fact, contemplates that the parties will co-operate in exploring all avenues to re-integrate Mr. Knott into the workplace.

However, for the purposes of the issue in this case, namely, Mr. Knott's entitlement to continuing weekly income benefits under section 12(5)(b) of the Schedule, it need only be shown that Mr. Knott is currently unable to resume employment for which he is reasonably suited. If, following additional rehabilitation efforts, Mr. Knott becomes capable of returning to either of his former occupations or to a suitable position for which he has acquired the relevant training or educational upgrading, then he may no longer be entitled to weekly accident benefits. At the present time, however, I am satisfied that Mr. Knott's injuries do prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience. Mr. Knott is, therefore, entitled to weekly income benefits, with interest, from March 4, 1995.

Expenses:

Pursuant to section 282(11) of the Insurance Act, I find that Mr. Knott is entitled to his expenses of the arbitration. Should the parties be unable to agree on the amount owing, they may apply to the Registrar for an assessment.

Order:

1. The Insurer shall pay to Mr. Knott weekly income benefits, with interest, from March 4, 1995, pursuant to section 12(5)(b) of the Schedule.

2. The Insurer shall pay to Mr. Knott his expenses of the arbitration.

May 8. 1996

Eban Bayefsky 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. 2There was no dispute as to whether a snowmobile is an "automobile" for the purposes of accident benefits. A snowmobile would, in any event, be considered an automobile pursuant to the definition of that term in section 1 of the Insurance Act, which "includes...a self-propelled vehicle...."