Neutral Citation: 1996 ONICDRG 96

File No.: A-011720

ONTARIO INSURANCE COMMISSION

BETWEEN:

GIOVINA VAN DEVYVERE

Applicant

and

AXA INSURANCE (Canada)

Insurer

DECISION

Issues:

The Applicant, Mrs. Giovina Vandevyvere, was injured in a truck accident on June 1, 1991. The Insurer (AXA) paid weekly income benefits under Ontario Regulation 672¹ until June 1, 1994, when it denied further benefits on the basis that Mrs. Vandevyvere was no longer disabled from engaging in any occupation for which she is reasonably suited by education, training or experience. Mrs. Vandevyvere has not returned to any form of employment since the accident, and claims that she continues to be entitled to weekly income benefits. She also claims that she is entitled to some expenses related to the accident that AXA has refused to pay. 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.

During the course of the hearing it became apparent that if I were to find that Mrs. Vandevyvere is entitled to further weekly income benefits, the Insurer may be entitled to a deduction under section 15 for income available to Mrs. Vandevyvere from part-time employment subsequent to the accident. I invited and received submissions on the application of section 15 before the hearing concluded.

The issues in this hearing are:

1. Is Mrs. Vandevyvere entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period after June 1, 1994?

2. If so, should Mrs. Vandevyvere's weekly income benefits be reduced by income available from part-time employment, under section 15 of the Schedule?

3. Is Mrs. Vandevyvere entitled to the cost of various rehabilitation expenses under section 6 of the Schedule?

4. Should Axa be required to pay a special award under subsection 282(10) of the Schedule because it unreasonably withheld or delayed the payment of benefits to Mrs. Vandevyvere?

Mrs. Vandevyvere also claims interest on any amounts owing, and her expenses related to the arbitration.

Result:

1. Mrs. Vandevyvere is entitled to weekly income benefits from June 1, 1994, plus interest according to section 24 of the Schedule.

2. From August 10, 1995 forward, Mrs. Vandevyvere's benefit of $272 per week shall be reduced by $112 per week, being 80% of income available from part-time employment, leaving a net weekly benefit of $160.

3. Mrs. Vandevyvere is entitled to recover the cost of R.M.I.'s and Dr. Harnadek's accounts.

4. Axa is not required to pay a special award.

5. Mrs. Vandevyvere is entitled to her expenses related to the hearing.

Hearing:

The hearing was held in London, Ontario, on December 18, 19, 20, & 21, 1995 and February 5, 6, 7, & 8, 1996, before me, Deena Baltman, arbitrator.

Present at the Hearing:

Applicant:

Giovina Van Devyvere

Applicant's Representative:

Barbara L. Legate Barrister and Solicitor

Insurer's Representative:

Paul Ledroit Barrister and Solicitor

Denise Bolohan Articling Student

Insurer's Officer:

Judy Ellenberger

Witnesses:

Dr. Charles Leatherdale

Voula Vasilou

Giovina VanDevyvere

Dr. Elliot Hayes

Joan Galbraith

Carolyn Lanthier

Dr. Sid Freedman

Dennis Bannon

Mark Vaclavek

Dr. John Clifford

Introduction:

At the time of her accident on June 1, 1991, Mrs. Vandevyvere was 53 years old. She was living with her husband in Straffordville, and working full-time as a saleswoman in a bridal salon in London. Her job involved the physical duties of sales, but she also had some supervisory responsibilities.

Mrs. Vandevyvere suffered a variety of soft tissue injuries in the accident. The effects of the accident, however, extend well beyond her physical injuries. She has complained of headaches, depression, and chronic pain in various parts of her body. Despite prolonged medical care and various forms of therapy, Mrs. Vandevyvere claims that she remains seriously disabled from this accident, primarily due to headaches and neck pain. She has not worked since the accident, and maintains that she is unable to return to any type of employment, full or part-time.

Axa paid weekly income benefits under section 12(1) of the Schedule for three years (156 weeks) following the accident. These benefits were based on Mrs. Vandevyvere's inability to perform her pre-accident duties as a saleswoman. After 156 weeks, the test for eligibility becomes much stricter. Axa terminated benefits on June 1, 1994, on the basis that Mrs. Vandevyvere did not meet this stricter test under section 12(5)(b), which provides:

12.--(1) 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, [emphasis added]

The issue, therefore, is whether Mrs. Vandevyvere's injuries from the accident continuously prevent her from engaging in any occupation for which she is reasonably suited by education, training or experience. Even if that is so, there is also the question of whether Mrs. Vandevyvere can work part-time at some job that fits within her reduced capabilities.

I have no doubt that Mrs. Vandevyvere has reacted more severely to this accident than might the average person. Most of the medical professionals involved, including those supporting her claim, agree that there is little organic evidence to support her ongoing complaints. They disagree, however, about the reason for her failure to work. Axa argues that Mrs. Vandevyvere's limitations are self-imposed; it submits she lacks motivation and has failed to comply with treatment and rehabilitation recommendations. Mrs. Vandevyvere maintains that despite her best efforts, she cannot overcome her pain and depression sufficiently to work, even part-time. I find that although Mrs. Vandevyvere is disabled from full-time work because of injuries from this accident, she is able to work part-time at available employment. My reasons follow.

Background:

Mrs. Vandevyvere grew up in Italy, where she married and obtained a teaching degree equivalent to two years of college in Canada. She and her first husband emigrated to Canada in 1959, when she was 21 years old. Although she has had no formal instruction in English, she is now comfortable with the language and testified without an interpreter.

Mrs. Vandevyvere separated from her first husband in 1978, after a turbulent marriage. They had three children, and now have four grandchildren. After the separation, Mrs. Vandevyvere became the sole financial support for her children. She moved from St. Thomas to London and held a series of jobs, mostly as a retail sales clerk in the fashion business. She never received any form of social assistance.

In 1984 Mrs. Vandevyvere began working at Sophie's bridal salon in London. She worked there continuously until shortly before she married her second husband, Daniel Vandevyvere, in April 1987. Mr. Vandevyvere is an asparagus farmer and the couple live together on a 90 acre farm in Straffordville, which is approximately a one hour drive from London. Mrs. Vandevyvere testified that she stopped working at Sophie's because her husband felt the commute to and from home was too lengthy, and because he wished her to help him during the asparagus harvest each spring. She stated that she very much regretted leaving her job, because she enjoyed the contact with brides and their families as they prepared for "the most important day of life."

From December 1988 to December 1990, Mr. Vandevyvere was away from the farm. While her husband was away, Mrs. Vandevyvere took over and ran the asparagus farm, which included managing 25 employees and bringing in two harvests. In January 1991, within one month of her husband's return, Mrs. Vandevyvere resumed employment with Zena's, an affiliate store of Sophie's, also in London. She worked full-time at Zena's as a bridal saleswoman until the accident. She was earning $8.50 per hour ($340 per week).

Mrs. Vandevyvere's duties at Zena's included opening/closing the store, stocking heavy bridal gowns and other formal wear, assisting customers trying on clothing, making minor alterations, handling cash, setting up the display, and cleaning the store, including vacuuming. This required prolonged standing, frequent bending and reaching, and carrying and lifting weights in the range of 10 pounds.² She stated that she loved her work and found it rewarding, despite the lengthy commute to and from home and the sometimes demanding physical requirements of the job.

Mrs. Vandevyvere testified that she and her husband have enjoyed a good marriage, both before and after the accident. Before the accident Mrs. Vandevyvere did the majority of the homemaking tasks, including shopping, cleaning and cooking, and interior maintenance. She grew tomatoes and each year, with some assistance from her husband, preserved approximately 250 jars of tomato products. In the warmer months she exercised each day by walking for a half hour around the farm property. Her hobbies included crocheting and needlepoint.

Mrs. Vandevyvere denied any serious injuries before this accident. She testified that on April 13th, 1987, two days after her wedding, she fell at a Woolco store and injured her neck and right arm. She took physiotherapy for six months, with little relief, and complained of pain for over a year. She eventually settled her claim against Woolco for $20,000.00 and rejected the possibility of a disc fusion.

Dr. Harvey Bailey, the treating orthopaedic specialist for the slip and fall injuries, diagnosed cervical spondylosis which pre-existed the fall but was asymptomatic until afterwards. In his report of April 4, 1988, he stated that Mrs. Vandevyvere had a permanent restriction but that "our experience with this condition is that it is most unlikely, however, to deteriorate."

Although Axa suggested that this injury was more serious than Mrs. Vandevyvere admitted, there is no evidence that it continued to trouble her to any significant degree in the three years leading up to the motor vehicle accident.

Mrs. Vandevyvere also attended a chiropractor regularly before this accident. She testified that this was for minor aches and pains caused by her work at the bridal shop. I accept the evidence from Mrs. Vandevyvere and her co-worker, Voula Vasilou, that Mrs. Vandevyvere rarely complained at work and never took time off for medical reasons. I also accept the evidence from Ms. Vasilou that Mrs. Vandevyvere was a capable, reliable and valued employee who appeared to enjoy her work.³

I find that although Mrs. Vandevyvere had some health problems in the years leading up to the motor vehicle accident, she managed to maintain steady full-time employment and performed her duties capably. She commuted almost two hours daily in addition to her eight hour work day, and ran her home successfully. I conclude, therefore, that Mrs. Vandevyvere was functioning adequately at the time of this accident.

The Accident and its aftermath:

On June 1, 1991, in the middle of the afternoon, Mrs. Vandevyvere was driving her husband's pick-up truck toward their home in Straffordville, Ontario. She was coming from St. Thomas where she had bought flowers for spring planting. She took an unfamiliar route, became disoriented, and lost control of the truck on a steep gravel downhill. It flipped over two or three times before it came to rest, upside down. Mrs. Vandevyvere unbuckled her seatbelt, crawled out and eventually got help. The truck was later declared "a complete write-off."

Mrs. Vandevyvere was taken to hospital in Tillsonburg, complaining of "pain all over," but mainly to her upper back and head. She was x-rayed and diagnosed with a soft tissue injury to her chest, and released with a soft collar and instructions regarding possible head injury. She saw her family physician, Dr. Leatherdale, for follow-up treatment, and began physiotherapy in Tillsonburg in July 1991, on a twice weekly basis.

Ongoing treatment and rehabilitation:

As physiotherapy was not very helpful, Mrs. Vandevyvere began chiropractic treatments in December 1991 and massage therapy in July 1992. These therapies brought only temporary relief, and she continued to report daily headaches, pain in her neck, shoulders, arms and low back, and numbness and tingling in her hands.

Dr. Sober, who examined her twice on behalf of the Insurer, stated in January 1992 that "if anything she's getting worse...[she] is somewhat depressed and disappointed in her lack of progress but I think that her symptoms and disability are genuine. I reassured her that she would improve in time."

Unfortunately, Dr. Sober's prognosis proved to be optimistic. Mrs. Vandevyvere continued to report frequent headaches, neck and back pain, and numbness in her extremities. She became depressed and frustrated by her limitations, which in turn lowered her pain tolerance. Thus she spiralled downward into a chronic pain syndrome.

In February 1992, Axa retained International Rehabilitation Associates Inc. (I.R.A.) to assist in Mrs. Vandevyvere's rehabilitation. I.R.A. consulted Dr. Bureau, Mrs. Vandevyvere's treating chiropractor, regarding a program that would best coordinate all efforts toward her rehabilitation. Although Dr. Bureau did not testify, his letters⁴ suggest an unnecessarily defensive attitude that, in my view, impeded I.R.A.'s efforts. They include such comments as:

Your companie's [sic] role in this affair...is more nebulous and its necessity is rather tenuous in my mind...⁵

I have in the past encountered lack of willingness on the part of local physiotherapists (PTs) to work in collaboration with chiropractors...PTs are not diagnostically qualified to monitor this patient's condition like I am doing...⁶

As far as the local implementation of a supervised program with the local community centre, I have also encountered past resistance from public facilities in dealing with private practice doctors like myself...⁷

In order to accommodate Dr. Bureau's reluctance to work with local practitioners, the caseworker, Joan Galbraith, attempted to persuade Mrs. Vandevyvere to attend the Woodstock Workers' Rehabilitation Clinic (WWRC) three times a week for treatment. Each trip required two hours of driving time. Although Mrs. Vandevyvere cooperated in the initial assessment in November of 1992, she objected to regular attendance because she feared, quite understandably in my view, that the two hour drive would aggravate her symptoms. Regrettably, Ms. Galbraith viewed this as "non-compliance"⁸ and expended a great deal of time and effort pursuing this before moving on to a more practical alternative.

The new plan, however, had little more success. It proposed that Mrs. Vandevyvere carry on home exercises, as prescribed by Dr. Bureau, and also participate in an aquatic exercise program at the Tillsonburg Community Centre. The program was initially delayed because Mrs. Vandevyvere had breast reduct ion surgery in November of 1992. Although this helped only marginally, I accept her evidence that she undertook the surgery in the honest hope that it might relieve some of her back pain. However, by January 1993, when she was medically cleared to resume treatment, nothing further happened. Axa claims Mrs. Vandevyvere simply failed to show up for the aquatic program, whereas Mrs. Vandevyvere states that Axa never set one up. Although Ms. Galbraith's reports complain that Mrs. Vandevyvere's "degree of adherence and compliance is very limited,"⁹ she never clearly set out, in her reports or in her testimony, the details of the proposed program. It is understandable then that Mrs. Vandevyvere was confused about what was expected of her.

Axa next arranged for Dr. Clifford to conduct an IME, which occurred in March 1993. In his report to Axa on March 31, 1993,¹⁰ Dr. Clifford noted that "the patient's Clinical Presentation was straight forward - with no obvious attempt on [her] part to magnify or exaggerate the extent of her symptoms." He noted a number of conditions, including mild soft tissue injury, fibrositis, musculoskeletal deconditioning, chronic pain perception, and anxiety.

Although Dr. Clifford classified the soft tissue injuries as "moderate," he stated that her pre-existing cervical injuries constitute significant organic risk factors for the development of chronic neck pain." He recommended a co-ordinated functional restoration program (FRP), to include a) vocational rehabilitation; b) physical rehabilitation (i.e. an active program of therapeutic exercise); and c) psychological support.

In response to these recommendations, Ms. Galbraith referred Mrs. Vandevyvere to the Community Physiotherapy Clinic in Tillsonburg (Community) under the direction of Carolyn Lanthier. She also arranged for counselling in chronic pain from Bruce Bradford.

Ms. Lanthier assessed Ms. Vandevyvere in May 1993, and concluded that she had a "major cervical and lumbar dysfunction and deconditioned status." She noted that Mrs. Vandevyvere required "intensive education" because she "demonstrated poor body mechanics on several different occasions." Ms. Lanthier recommended a five-week daily work conditioning program, which took place in May and June of 1993. By its completion, however, Mrs. Vandevyvere showed no improvement in her functional abilities. In her report of June 22, 1993, Ms. Lanthier concluded:

Giovanni [sic] did not improve in her ability to perform more work...Despite numerous education sessions regarding the nature of pain with respect to the ability to function. [sic] Giovanni still was not convinced that these two were separate...Given her lack of progress while in a highly supervised and structured program, I questioned [her] ability to perform a daily exercise program and make major gains at home...There is nothing further that we can do for her...

Counselling with Mr. Bradford also proved to be of little value. Mrs. Vandevyvere suspected that he opposed her interests because he was retained by the Insurer. She was offended by his queries into her personal life and her marriage, which she considered private and irrelevant to her disability. Although she met with Mr. Bradford on two occasions, she cancelled or failed to show for three other appointments. In his report of June 30, 1993, Mr. Bradford stated:

Given Mrs. Vandevyvere's assessment of her abilities and present pain perception, it is unlikely she will meet the "time line" specifications as suggested by Dr. J.Clifford.

Due to a perceived failure by Mrs. Vandevyvere to cooperate in the program recommended by Dr. Clifford, Axa closed its file and terminated benefits in August 1994, noting that

... The client continues to complain of pain that is physically limiting, but has planned a six week holiday to Italy necessitating a seven to eight hour flight in confined quarters... [she] does not appear to be receptive to any attempts or aspects of rehabilitation.¹¹

Mrs. Vandevyvere then retained counsel, who argued that benefits should continue pending treatment by a pain management therapist. Axa resumed payment of benefits when the parties agreed to send Mrs. Vandevyvere to Dr. Trevor Smith, a psychologist who focuses on rehabilitation and vocational assessment. In his report of November 29, 1993, Dr. Smith concluded that:

...Depending upon the medical identification of physical limitations, it seems likely that at best, she would be capable of half-time work, in a retail sales area which does not involve heavy lifting.

It seems unreasonable to expect her to drive into London from Straffordville...any job search would probably be confined to an area close to her home, which is going to cut down on possibilities to a severe extent, [emphasis added]

Dr. Smith added that further rehabilitation was unlikely to improve Mrs. Vandevyvere's function:

...if her performance during our testing session provides an accurate sample of her behaviour in general, she will find it hard to become motivated for any active rehabilitation program. Much current rehabilitation thinking centres around a functional restoration approach and a "sports medicine" philosophy, stressing activity and exercise. There seems to be increasing clinical evidence that this type of approach does not always work with cases similar to Mrs. Vandevyvere, particularly where headaches prove to be a primary limiting symptom...

Therefore...I would not expect to see any dramatic change in her pattern of symptoms... [emphasis added]

Although Dr. Smith agreed that Mrs. Vandevyvere demonstrated certain cognitive deficits, such as memory and concentration problems, he attributed these more to the effects of depression and pain than to a closed head injury. In his later report of January 12, 1994, Dr. Smith set out practical steps to assist Mrs. Vandevyvere in returning to work:

I recommended that a vocational counsellor assist her with a job search in her immediate area, although I think that her future employability is going to be severely compromised. She is over 55, has limited standing tolerance, some everyday cognitive deficits and headaches, and limited academic skills. Unless she can get some part-time retail work which does not have a substantial physical component, she may prove to be competitively unemployable...[emphasis added]

In February 1994, I.R.A. met with Mrs. Vandevyvere in order to plan for job searching, as recommended by Dr. Smith. By then, Ms. Galbraith had been replaced by a new rehabilitation worker, Ms. Deanne Lauzon, who reported that despite Dr. Smith's recommendations

Mrs. Vandevyvere states she is not job ready and is unable to work...[she] reports she will not be able to participate in a job search as she requires napping due to pain symptoms in the middle of the day...[she] states she could not drive to Tillsonburg on a regular basis for a job, even part time...[she] further states she is unable to tolerate a full day of housekeeping and is, therefore, certain she is not an appropriate employee... [emphasis added]

Because Mrs. Vandevyvere appeared to be very pain focused and unable to consider even the possibility of employment, Ms. Lauzon recommended a Functional Capacity Evaluation (FCE) to determine what, if any, physical barriers prevented a return to work. Axa arranged an FCE with the Canadian Back Institute (CBI) for April 7 & 8, 1994, in Toronto, which Mrs.

Vandevyvere failed to attend. Axa then arranged an FCE with Ms. Lanthier of Community (Physiotherapy Clinic) for May 9 & 10, 1994, in Tillsonburg, where Mrs. Vandevyvere had attempted (unsuccessfully) an FRP (Functional Restoration Program) one year earlier.

The FCE went poorly. Ms. Lanthier found that because Mrs. Vandevyvere was self-limiting in so many areas, it was impossible to measure her maximum capabilities. She concluded that Mrs. Vandevyvere deliberately performed below her abilities:

...She continually limited herself in activities by exhibiting pain behaviours that were neither consistent with the amount of pain described, clinically observed, nor consistent on a physiological or anatomical basis. She was verbally aggressive when asked to work to her maximum and directed this behaviour at the staff in the clinic.

Axa then concluded that it was pointless to try to engage Mrs. Vandevyvere in further rehabilitation. It decided that the only step left was to conduct a Labour Market Survey to determine employment opportunities and retained Mark Vaclavek, who is based in London, to conduct a survey of appropriate employers in the Tillsonburg area. I allowed Mr. Vaclavek to give expert opinion evidence as a vocational consultant despite the objection of Mrs. Vandevyvere's counsel; although Mr. Vaclavek does not have formal training in this field, I found that he has sufficient education and "on the job" experience to match medical restrictions to vocations.

Mr. Vaclavek searched for positions that fell within the restrictions placed by both Dr. Clifford and Dr. Smith. The former specified:

• no prolonged positioning of head and neck

• no repetitive or heavy lifting with arms above shoulders

• no prolonged working with arms held out front

• no prolonged stooping or squatting

• no repetitive bending, twisting, or heavy lifting at waist

Dr. Smith, in his report of January 12, 1994, recommended part-time retail work "which does not have a substantial physical component" and which was within a 20 minute drive of home. In order to accommodate the recommendations of Drs. Clifford and Smith, Mr. Vaclavek:

a) confined his search to Tillsonburg and its immediate area, including Delhi, Aylmer and Simcoe; and

b) identified numerous part-time positions that fell within the physical restrictions set out by Dr. Clifford.

Although some of the stores which he researched had no job openings, several had immediate openings for part-time work.¹² As of August 10, 1995, examples include:

a) Saan Department Store, Tillsonburg

Currently employs six full-time and seven part-time staff. Part-time staff work 15 to 20 hours per week. Starting wage is $6.85 per hour, and have hired three part-time staff in the past three months, with plans to hire again in the fall. No educational minimum stated, although experience in customer service and sales is preferred...Physical demand is reported to be light... [emphasis added]

b) Bi-Way Discount Store, Tillsonburg

...turnover is fairly consistent and regular...Most stores do have part-time positions available. Starting wage is $6.85 per hour....Physical demand stated to be light...[emphasis added]

c) Fabricland, Simcoe

Currently employs two full-time and three part-time staff. Part-time staff work 20 hours per week and starting wage is $6.85 per hour...are plans to hire in the near future. No educational minimum stated although knowledge of fabric, fashion and sewing is preferred. Physical demand is stated to be light to moderate...[emphasis added]

d) Woods Family Shoes, Tillsonburg

Currently employs one full-time and three part-time staff. Part-time staff work approximately 20 hours per week with wages starting at $6.85 per hour. No educational or experience [sic] required...Have hired within past six months and plan to hire additional staff in September...Physical demand stated to be light, [emphasis added]

As a result of his market search, Mr. Vaclavek concluded that there are

...employment opportunities that do not exceed the stated physical restrictions, and furthermore, it seems that Mrs. Vandevyvere could in fact secure a part-time job relatively soon, given that several employers indicated hiring potential.¹³ [emphasis added]

Although Axa shared these results with Mrs. Vandevyvere and encouraged her to apply for work, she maintained that she was not capable of employment, and has not returned to any type of work to date.

Mrs. Vandevyvere's counsel contests Mr. Vaclavek's findings, and suggests they are rebutted by Rehabilitation Management Inc. (R.M.I.), whom she retained to conduct a vocational rehabilitation assessment. In July 1995, Patricia Fraser, a rehabilitation counsellor with R.M.I., concluded that "on the balance of probability, it is unlikely that Ms. Vandevyvere can obtain and sustain competitive employment."¹⁴ However, Ms. Fraser's conclusions are contradicted by a Functional Abilities Evaluation performed by Medex, whom she retained in April 1995. Although Ms. Fraser referred briefly to the Medex findings in her report, she ignored various comments that suggest that Mrs. Vandevyvere is performing below her current capacity:

Pain Behaviour

...the claimant's pain perception appeared excessive in relation to assessment requirements and observation of function and pain behaviours.

Validity

Because of the claimant's significant focus on pain symptoms, it was difficult to accurately assess her functional level...

Demonstrated Abilities

... [the results] are not necessarily maximum tolerances but were those elicited during the evaluation.¹⁵ [emphasis added]

Moreover, Ms. Fraser's based her findings in large part on Mrs. Vandevyvere's subjective reports,¹⁶ and did not account for their inconsistencies with more objective evidence, such as surveillance that reveals Mrs. Vandevyvere performing various physical activities.

The surveillance reports are telling. As early as March 1992, Mrs. Vandevyvere is observed completing errands for approximately two hours. She attends various places of business, gets in and out of her vehicle, opens doors, carries her bag, picks up clothes from the cleaners and goes grocery shopping. She moves without obvious restriction and with no evidence of pain.

In November 1994, she is observed sweeping the walkway outside her home. She later performs numerous errands and shops for furniture, getting in and out of her car easily and showing no limitations in her movements.

In March 1995, Mrs. Vandevyvere is seen washing the family car for approximately 20 minutes. She moves her right arm above shoulder level several times in order to spray water on the car. She bends frequently in order to rinse a sponge and scrub all areas of the car. She carries the pail of water easily around the car. Although other family members stand nearby, she performs the entire task without their assistance and with no apparent restriction or discomfort.

In November of 1995, Mrs. Vandevyvere travels as a passenger for an extended period in her husband's car. Over a two day period, while her daughter and son-in-law are away, she and her husband babysit their two grandchildren, aged three and six. She is observed getting in and out of the car, and bending over to install and remove her grandchildren from the back seat. She runs across the street to the video store and is seen lifting both grandchildren out of the buggy. The following day she is observed standing at the kitchen sink for approximately 30 minutes. Despite her denial, I accept the investigator's evidence that Mrs. Vandevyvere is depicted in the video.

In attempting to explain these discrepancies, Mrs. Vandevyvere relied on the evidence of her family doctor, Dr. Leatherdale, who has treated her since 1987.¹⁷

Dr. Leatherdale has seen Mrs. Vandevyvere on a regular basis since this accident. He described her as an "open, reliable" historian who was coping well with her various responsibilities before this accident. Since the accident, he has noted a dramatic decline in Mrs. Vandevyvere's functional abilities. He believes she is suffering from a legitimate chronic pain syndrome, complicated by significant depression. Dr. Leatherdale testified that Mrs. Vandevere's recovery "plateaued" approximately two years following the accident, and that in her case further rehabilitation efforts would make little, if any, difference. He finds that Mrs. Vandevyvere is one of the small subset of patients who simply do not respond well to treatment, and states that although Dr. Clifford's functional restoration approach may be effective with some patients, it is "hard to tell someone who's already in pain that they should endure more pain to eventually have less pain."

Dr. Leatherdale concluded that Mrs. Vandevyvere is "permanently disabled... and can't work at anything on a full-time basis." He noted that Mrs. Vandevyvere's complaints to him since the accident were "very consistent," unlike malingerers who, in his experience, tend to "drop out" or describe their injuries inconsistently over the years. His review of the surveillance videos does not significantly alter his opinion regarding her restrictions: although Mrs. Vandevyvere may perform certain tasks on isolated occasions, and he agrees that she might benefit from getting back to "some form of work," he does not believe she can sustain activities long enough to be a reliable, full-time employee.

Mrs. Vandevyvere also relied on Dr. Keith Hayes, a medical scientist with expertise in rehabilitative medicine. Dr. Hayes testified that patients with chronic pain may perform inconsistently for "good physiological reasons," including changes in the central nervous system. He noted that if Mrs. Vandevyvere experienced pain during testing, she might under perform in future tests in order to avoid further pain. After reviewing numerous assessments of Mrs. Vandevyvere, Dr. Hayes stated that in his view, Mrs. Vandevyvere performs below her maximum capacity because of the disabling effects of her pain, rather than because of a lack of motivation. He concluded that she has a "marked disability...and her performance is consistent with a chronic pain state."

Dr. Hayes acknowledged in cross-examination that he does not treat patients and has never met Mrs. Vandevyvere; his expertise is limited to the research and assessment of chronic pain. Nor has he viewed the surveillance videos. For these reasons, I do not rely heavily upon Dr. Hayes' opinion. However, I found Dr. Hayes to be a fair, honest and informative witness. I accept his evidence as an explanation for Mrs. Vandevyvere's exaggerated responses. I also agree with his comment that although Dr. Clifford may be correct in saying that "it is entirely safe for [Mrs. Vandevyvere] to return to work...,"¹⁸ this does not mean she can adequately perform certain tasks.

Findings:

a) entitlement

Mrs. Vandevyvere claims ongoing weekly income benefits beyond 156 weeks, under subsection 12(5)(b) of the Schedule. She therefore has the onus of establishing that her injuries continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

In this case the parties take positions that are completely polarized: Mrs. Vandevyvere, on the one hand, insists that she is not capable of performing any gainful employment, even on a part-time basis. Axa, on the other hand, argues that Mrs. Vandevyvere has been capable of full-time employment since the fall of 1993, well before it terminated benefits. On the evidence presented, I find that neither position fairly reflects Mrs. Vandevyvere's capabilities.

Although she is disabled from full-time work commensurate with her background, I find that she can do some work.

There is ample evidence that Mrs. Vandevyvere is capable of part-time work. As early as July of 1993, Dr. Leatherdale acknowledged that it "would be beneficial for her general well being to begin some sort of active employment. "¹⁹ In her letter of July 19, 1993, Ms. Galbraith confirmed his advice that Mrs. Vandevyvere could return to work "in a light job, not over 15 pounds and not repetitive in nature...4 hours a day would be suitable."²⁰

In November 1993, Dr. Smith (who examined Mrs. Vandevyvere at her counsel's request) stated that she was capable of half-time work that did not involve heavy lifting, in a retail store within close driving range of her home. This is consistent with Dr. Clifford's opinion in March 1993, that Mrs. Vandevyvere "should be seen as having a permanent partial occupational handicap," but that she could return to part-time work within 10-12 weeks of undergoing a functional restoration program.²¹

These opinions are supported by surveillance evidence that reveals Mrs. Vandevyvere performing a variety of physical tasks. The high levels of activity in the videotapes strongly contradict Mrs. Vandevyvere's reports, only months earlier, of profound dysfunction.^{22, 23}Even if one accepts the inevitability of "good days and bad days" in the recovery period, the surveillance reveals strong discrepancies between Mrs. Vandevyvere's actual abilities and the way she presents herself to others. Moreover, although the surveillance falls short of demonstrating that she is able to work full-time, it suggests a capacity to perform at least moderate physical tasks over several hours. Nor does the surveillance focus on a single event: it spans several incidents over a three year period, and therefore suggests a consistent ability to perform some physical tasks. In my view, this is further evidence that Mrs. Vandevyvere is capable of part-time work within the restrictions set out by Drs. Clifford and Smith.

I conclude, therefore, that Mrs. Vandevyvere is capable of suitable, gainful employment on a part-time basis. This in itself, however, does not disentitle Mrs. Vandevyvere from receiving benefits under subsection 12(5). Several arbitration decisions have considered whether an applicant can meaningfully engage in "any occupation or employment for which she is reasonably suited by education, training or experience." They conclude that this phrase must be interpreted in light of the particular circumstances of the individual applicant. This involves an inquiry into the nature of the work done before the accident, including the remuneration earned and the hours worked.

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, the Court found the alternate employment "must be something akin to his previous occupation or employment and must be gainful in the sense approximately [sic] the same livelihood as the plaintiff might fairly be expected to follow in view of her station, circumstances, physical and mental capability."²⁴

Before this accident, Mrs. Vandevyvere worked an 8 hour day, 5 days a week, in addition to an almost 2 hour daily commute to and from work. Although I have found that she is capable of part-time work, this does not, in my view, indicate an ability to work at a level sufficiently equivalent to what she was doing at the time of the accident.

At the same time, I do not believe that Mrs. Vandevyvere has the physical capacity and stamina required to work full-time in any position commensurate with her background. In the years leading up to this accident, Mrs. Vandevyvere worked primarily as a sales clerk in retail clothing. Axa paid Mrs. Vandevyvere weekly income benefits for three years on the basis that she was not capable of resuming her pre-accident employment in bridal sales. Her employment potential in areas outside of retail sales is very limited. She has few alternative vocational skills and is not a good candidate for retraining. Moreover, at her current age of 58 she is, as Dr. Smith stated, "in an age group in which many people are considering early retirement, rather than preparation for a new career."²⁵

Axa argues that Mrs. Vandevyvere can return to full-time employment in retail sales. Dr. Clifford testified that if she was sufficiently motivated, Mrs. Vandevyvere should be able to evolve from part-time work into full-time work over a period of approximately three months. He suggested that with adequate conditioning exercises and a graduated re-entry into the work force, Mrs. Vandevyvere could have been working full-time by the fall of 1993. I have no doubt that many other patients might have progressed that way. In my view, however, Dr. Clifford's opinion fails to account for Mrs. Vandevyvere's age, endurance, poor coping mechanisms and prolonged absence from the workforce. She is an older woman with limited job skills and persistent chronic pain and depression, who has been absent from the work force for several years. Under these circumstances, it is not surprising that she has been unable to resume full-time employment.

I agree with the insurer that certain elements of the applicant's case point to conscious exaggeration. Other factors, however, tend to confirm the existence of chronic pain. On the balance of the evidence before me, I am satisfied that Mrs. Vandevyvere's pain is genuine and that it has resulted in an inability to function in any full-time position commensurate with her background. Consequently, I find that Mrs. Vandevyvere is entitled to weekly benefits beyond June 1, 1994, when Axa terminated payments.

This, however, does not end the matter. As I indicated above, although I have found that Mrs. Vandevyvere is disabled from any full-time work for which she is suited by her background, I believe she is capable of some gainful employment. I also find that whatever its frustrations with Mrs. Vandevyvere, Axa made an honest and reasonable effort to re-introduce her to (at least) suitable part-time employment. As early as May 1993, Ms. Galbraith researched the Tillsonburg employment office and identified available positions, both full and part-time.²⁶ Despite this, Mrs. Vandevyvere flatly refused to even participate in a job search, stating that she "is not job ready and is unable to work at this time.²⁷

Later on, Mr. Vaclavek conducted a market search and provided a list of part-time employment opportunities. Several of these were within a 20 minute drive of her home and within her physical restrictions. Yet Mrs. Vandevyvere refused to even explore these options. She justifies this on the basis that she "is unable to tolerate a full day of housekeeping and is, therefore, certain she is not an appropriate employee."²⁸ [emphasis added] Even if Mrs. Vandevyvere is correct about her tolerance for housekeeping, this does not mean she is incapable of a half day of light retail work. Mrs. Vandevyvere also stated that she could not drive to Tillsonburg on a regular basis, even for a part-time job. Yet the surveillance suggests she can comfortably drive a much longer distance. Although the surveillance shows isolated incidents, and not the effects of consecutive days of driving that a part-time job may require, the trip to Tillsonburg is short (approximately 10 miles) and quite manageable.

Mrs. Vandevyvere's counsel submits that her poor performance at the five week (daily) FRP program, which she attended in 1993, is sufficient evidence that she could not cope with the demands of even part-time employment. I find little parallel between the two situations: the FRP is a highly structured, full-time program in a litigious context that cannot, by its nature, provide the recovery time, financial rewards and self-esteem that come from gainful part-time employment within one's community.

During the course of the hearing, I invited counsel to make submissions on the relevance of section 15,²⁹ which provides that

The insurer may deduct from any benefits payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.[emphasis added]

Mrs. Vandevyvere's counsel submitted that the insurer is not entitled to any deduction under section 15 unless it provides evidence that a job is "in fact" available. I disagree. Although the insurer bears the onus of proof under section 15,³⁰ it is, in the final outcome, impossible to establish whether income is "in fact" available unless and until an applicant formally applies for a specific job.³¹ In this case, the applicant herself has frustrated that inquiry by refusing to even submit an application to any of the employers identified by Axa. Axa cannot physically compel Mrs. Vandevyvere to approach a potential employer. It can, however, and did in this case, identify specific employers with positions that fell within her medical restrictions and for which she is reasonably suited by her education, training and experience. What Mrs. Vandevyvere does with that is her choice. She should not, however, be allowed to rely on her own inactivity to support her argument that there is insufficient evidence that income is "available."

Nor does this mean that an insurer has satisfied its onus under section 15 by simply listing jobs that it considers appropriate for the applicant. Whether income is available" within the meaning of section 15 must be decided on the facts of each case. In this case, by August 1995, Axa identified a number of employment opportunities that fell within Mrs. Vandevyvere's stated physical restrictions. The jobs were commensurate with her background in retail sales and within close driving distance of her home. Several employers indicated hiring potential in the immediate future. Although Mr. Vaclavek's findings do not guarantee that Mrs. Vandevyvere could secure employment, I find they raise sufficient evidence of available income to entitle Axa to a deduction under section 15.

I do not intend to suggest that an insurer is automatically entitled to a deduction under section 15 if it provides evidence of employment opportunities that fall within an applicant's medical restrictions and are commensurate with her work history. In some circumstances, an applicant may make a bona fide application to a prospective employer but still be unsuccessful in obtaining employment. In that case, depending on the reason she was not successful, the applicant may have succeeded in rebutting the insurer's evidence that income is "available." In all cases, the onus remains on the insurer to establish sufficient evidence that income is available within the meaning of section 15; in the unique circumstances of this case, I find the insurer has met that onus.

The term "available" is arguably capable of a much narrower interpretation, whereby the insurer is allowed a deduction only where income was at least earned. As an example, a self-employed person who continues to work while claiming full income benefits may attempt to disguise his post-accident earnings by adjusting the company records to attribute the income elsewhere. In that case, it could be said, an applicant has income "available" to him but has concealed or redirected it in order to maximize his recovery of weekly income benefits. Although the word "available" may encompass this scenario, I do not agree that it so limited, in light of the wording of section 15 and the Schedule.

In the usual "contextual" approach to statutory interpretation, as set out by Driedger,³² adjudicators are to read the words of an Act "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." Using this approach, I find that the words "received" and "available," viewed both in their ordinary, grammatical sense and in the context of the legislation, have very distinct meanings. The Concise Oxford Dictionary defines "receive" as:

1. take or accept (something offered or given) into one's hands or possession

2. acquire; be provided with or given

3. accept delivery of (something sent)

4. have conferred or inflicted on one

The Houghton Mifflin Canadian Dictionary of the English Language defines "receive" as:

1. To take or acquire (something given, offered, or transmitted); get

These same authorities, respectively, define "available" as:

1. capable of being used; at one's disposal

2 within one's reach

Accessible for use; at hand; usable.

In my view, income may be "within one's reach" or "accessible" even though it has not been received, or even earned. If the drafters of the legislation had intended to confine section 15 to income "earned," or to those situations where a job vacancy actually exists, they could have said so. Moreover, such a narrow reading of the word "available" does not, in my opinion, reflect the intention and scheme of the Schedule.

As has been stated in other arbitration decisions, the Schedule is remedial legislation and is to be interpreted in a broad and liberal way to best achieve the object and intent of the legislation. One of the principal objects of the Schedule is to provide a fair and adequate income stream to those who are injured and disabled from work. That intention would be defeated in an "all or nothing" scheme of compensation, because an applicant could receive either more or less compensation than her disability merits. Moreover, the effect of interpreting "available" narrowly, i.e. in the sense of "earned," would be to discourage a person who is able to return to suitable part-time work after three years following an accident from doing so, as it would result in a reduction of benefits. In my view, this could not have been the intent of the Schedule; on the contrary, section 16, which follows immediately in the Schedule, is clearly designed to encourage people to make attempts to return to work. As stated recently by Arbitrator McMahon in William Whyte and Metropolitan Insurance³³ :

...both the parties and society in general benefit if the insured is encouraged to return to work. The Schedule as a whole reflects this, and specific provisions ought to be read so as to encourage an early return to work.

A further effect of a narrow interpretation of available" is to overcompensate injured persons, because an applicant could then get full compensation when she is capable of working part-time. I find it difficult to believe that the drafters of the legislation intended such a result.

b) amount of deduction

Having found that income is available from employment subsequent to the accident, I turn now to the amount that Axa is entitled to deduct. Section 15 provides that the insurer may deduct 80 per cent of the available income. As of August 1995, Mr. Vaclavek identified jobs with a "starting wage" of $6.85 per hour. Rehabilitation Management Inc., who was retained by Mrs. Vandevyvere's counsel, conducted a market survey of apparel shops in July 1995, and identified several using part-time personnel "who would be employed at a rate of approximately $7.00 to $8.50 per hour."³⁴ Presumably, then, if Mrs. Vandevyvere had commenced employment in August 1995, she would by now be earning in excess of $7.00 per hour. I therefore find that $7.00 per hour is a conservative average ³⁵ of income available to her since the accident.

I further find that as of August 1995, Mrs. Vandevyvere had available to her and was capable of working 20 hours per week, based on the recommendations of her doctors and the evidence of Mr. Vaclavek. I conclude, therefore, that from August 1, 1995 forward, Axa is entitled to deduct $112 per week ($7.00 per hour x 20 hours x 80 per cent) from "any benefit payable" to Mrs. Vandevyvere. As I have already found that Mrs. Vandevyvere remains entitled to a weekly benefit of $272, Axa may deduct $112 therefrom, leaving a net weekly benefit of $160.

Supplementary Medical and Rehabilitation Benefits:

Mrs. Vandevyvere seeks to recover the cost of two disputed items under section 6 of the Schedule:

a) Account of Rehabilitation Management Inc. (R.M.I.), totalling $10,175.28, inclusive of interest.

b) Account of Dr. Michael Harnadek, totalling $1,875.00 (plus accruing interest)

The relevant portions of section 6 provide:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(c) rehabilitation, life-skills training and occupational counselling and training;

Previous case law at the Commission ³⁶ discusses the three criteria that must be met before an insurer is liable to pay for a good or service under subparagraph 6(1). Those criteria are:

(1) it must be a reasonable expense resulting from the accident

(2) it must be acquired because of the accident

(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the insurer so requires

a) Account of Rehabilitation Management Inc. (R.M.I.), totalling $10,175.28, inclusive of interest.

Counsel for Axa argues that I should disallow this expense because R.M.I, merely duplicated much of the work already performed by I.R.A. (who was retained by the Insurer), and was therefore unnecessary.

It is clear from I.R.A.'s reports that many of the professionals who became involved with Mrs. Vandevyvere became very frustrated in their attempts to be of assistance to her. Several of them emphasized (correctly) that she lacked understanding about the difference between the perception of pain and the ability to function. Unfortunately, I.R.A. made recommendations for rehabilitation that were impractical and, despite their best intentions, only served to alienate Mrs. Vandevyvere. She came to believe that her rehabilitation counsellors were working solely to protect the insurer's interests, and found that many of her concerns and explanations were ignored or disbelieved. I find that by early 1994, Mrs. Vandevyvere's relationship with the insurer had deteriorated to the point where it was impossible for her to obtain further direction or assistance from I.R.A.

It is in this context that Mrs. Vandevyvere's counsel retained R.M.I. I accept that at that stage it was reasonable and necessary for Mrs. Vandevyvere to engage the assistance of professionals whom she could view as unbiased and more responsive to her circumstances. I.R.A. embarked upon a comprehensive rehabilitation program, which included a vocational assessment, a functional home assessment, and an employability report. Although I did not accept several of R.M.I.'s conclusions, I am satisfied that the R.M.I, program was reasonably required by Mrs. Vandevyvere as a result of her injuries, and in light of the fact that four years after the accident she still had not recovered to an optimum degree of functioning.

b) Account of Dr. Michael Harnadek, totalling $1,875.00 (plus accruing interest)

Dr. Harnadek is a neuropsychologist retained by Mrs. Vandevyvere's counsel. He was retained due to a legitimate concern that Mrs. Vandevyvere may have been suffering from a closed head injury. Although Dr. Harnadek ultimately rejected that diagnosis, I accept that there was cause for inquiry. The collision involved moderately severe forces, there was evidence that Mrs. Vandevyvere bounced around inside the cab of the truck when it rolled over, and the discharge diagnosis included possible closed head injury. Mrs. Vandevyvere's subsequent complaints of headaches, numbness, mood change and forgetfulness further justified this investigation.

Axa's counsel submits that OHIP would have covered this expense upon a referral from Dr. Leatherdale. It is not clear that, even if asked, Dr. Leatherdale would have arranged this referral. He played little role in Mrs. Vandevyvere's rehabilitation and seemed disinclined to pursue outside investigations. Moreover, even if Dr. Leatherdale made such a request, I am not persuaded that OHIP would have agreed to this expense, given its litigious context. For all these reasons, I allow this expense.

Special Award:

Mrs. Vandevyvere seeks a special award under section 282(10) of the Act, on the basis that Axa "unreasonably withheld or delayed" various benefits. She submits that Axa interfered improperly in the rehabilitation process and then blamed Mrs. Vandevyvere, unfairly, for its limited success.

The parties spent a great deal of time at the hearing disputing the adequacy of the rehabilitation program offered by Axa, and whether Mrs. Vandevyvere cooperated sufficiently. For reasons I have alluded to earlier in this decision, both parties share some responsibility for its unhappy course. More importantly, I am not convinced that even an ideal program would have produced better results in this case. Whatever mistakes Axa may have made, I do not find that it unreasonably withheld or delayed payments to Mrs. Vandevyvere. She is a frustrating client who challenged many of Axa's efforts, including those which were well motivated. Consequently, I decline Mrs. Vandevyvere's request for a special award.

Expenses:

Mrs. Vandevyvere is entitled to her expenses of the hearing.

Order:

1. Mrs. Vandevyvere is entitled to weekly income benefits from June 1, 1994, plus interest according to section 24 of the Schedule.

2. From August 10, 1995 forward, Mrs. Vandevyvere's benefit of $272 per week shall be reduced by $112 per week, leaving a net weekly benefit of $160.

3. Mrs. Vandevyvere is entitled to recover the cost of R.M.I.'s and Dr. Harnadek's account.

4. Axa is not required to pay a special award.

5. Mrs. Vandevyvere is entitled to her expenses related to the hearing.

June 7, 1996

Deena Baltman Arbitrator

Date

List of Exhibits

1. Treatment Chronology Chart

2. Applicant's Brief

3. Insurer's Brief

4. Pre-accident medical records

5. Two paragraphs of letter of August 3, 1993 from Ms. Legate to Axa Insurance

6. Letter of September 23, 1993 from Ms. Judy Ellenberger to Nesbitt, Goulter, Carr, Barristers and Solicitors

7. Videotape Schedule Chart

8. Condensed Version of Videotape

9. Still photographs (15 pages)

10. Abbreviated Curriculum Vitae of Dr. Hayes

11. Full length Curriculum Vitae of Dr. Hayes

12. Curriculum Vitae of Patricia Fraser

13. Axa's business records (in part) (approximately 1" thick)

14. Investigation Reports (17 pages)

15. Letter of March 28, 1995 from Ms. Legate to IRA

16. Letter of April 12, 1995 from Rehabilitation Services of Canada to Ms. Legate

17. Code of Ethics and Standards, Canadian Association of Rehabilitation Professionals

18. Correction to Treatment Chronology Chart (one page)

19. Axa Fax cover sheet to Ms. Legate, enclosing Dr. Clifford's reports

20. Article: Practice Description: Psychologic Correlates of Pain as Related to Rehabilitation Efforts

21. Curriculum Vitae of Mr. Vaclavek

22. Ms. Lanthier's report of December 18, 1995

23. Dr. Hayes' diagram

24. Article - Non-surgical Pain Center Treatment

25. Ms. Bolohan's letter of April 10, 1995 to Ms. Legate

26. Dr. Clifford's diagram

27. List of expenses paid by Insurer

28. Letters of March 18 and 31, 1994 from Axa to Ms. Legate

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. 2Exhibit 3, tab 6, p. 5
3. 3Further corroboration is found in the interview of the Applicant's employer, summarized in Exhibit 3, tab 12, p. 8
4. 4Exhibit 3, tab 11
5. 5Supra, p. 2
6. 6Supra, p. 3
7. 7Supra, p. 4
8. 8Exhibit 3, tab 12, pp. 78, 82
9. 9Exhibit 3, tab 12, p. 88
10. 10Exhibit 3, tab 6
11. 11Supra, tab 12, p. 105-6
12. 12Exhibit 3, tab 12, pp. 126-133
13. 13Exhibit 3, tab 12, p. 133
14. 14Exhibit 3, tab 14, p. 40
15. 15Exhibit 3, tab 15, p.2
16. 16Exhibit 3, tab 14, pp. 3-9, 11-13, 18-23, 28
17. 17All of Dr. Leatherdale's clinical notes and records before January 7, 1993 were destroyed in an office fire.
18. 18Exhibit 3, tab 6, p.43
19. 19Exhibit 3, tab 12, p.103
20. 20Supra, p. 102
21. 21Exhibit 3, tab 6
22. 22Exhibit 3, tab 14, pp. 6-7
23. 23Exhibit 3, tab 14, p. 20
24. 24At p. 1040
25. 25Exhibit 3, tab 7, p.8
26. 26Exhibit 3, tab 12, pp. 99, 106
27. 27Supra, p. 109
28. 28Supra, p. 111
29. 29Arbitrator Draper, as he then was, considered applying section 15 in Judy Spicer and State Farm Mutual Insurance Company, May 24, 1995, OIC File No. A-010158, p. 24, and Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706, p. 21, but concluded that the insurer had not provided sufficient evidence that income was available from part-time work. Arbitrator Manji came to a similar conclusion in Manuel Medina and Old Republ ican Insurance Company, September 14, 1995, OIC File No. A-005286, pp. 14-15.
30. 30I adopt Arbitrator Palmer's comment in Serafino Patriarca and Pilot Insurance Company, August 22, 1994, OIC File No. A-005063, p.12, that "it is the Insurer who bears the burden of providing sufficient proof of this income deduction under section 15."
31. 31I note that under section 30 of the SABS, which arguably contains a much more advanced scheme for partial disability, the insurer must establish that suitable employment exists in the applicant's community and is "accessible" to him/her, but need not point to an existing vacancy.
32. 32Elmer A. Driedger, Construction of Statutes, 2nd ed.(Toronto:Butterworths, 1983).This approach was approved by the Director of Appeals in Michael Morin and The Personal Insurance Company of Canada, February 26, 1993, OIC File No. P-000468, and by Director's Delegate David Draper in Marcia Edgar and Wellington Insurance Company, March 27, 1996, OIC File No. P-005441.
33. 33April 30, 1996, OIC File No.A-009277
34. 34Exhibit 3, Tab 14, p.34
35. 35This estimate does not factor in future wage increases.
36. 36Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588