Neutral Citation: 1997 ONICDRG 102
OIC A96-001160
ONTARIO INSURANCE COMMISSION
BETWEEN:
JASON RUTLEDGE
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION
Issues:
Jason Rutledge was injured in a motor vehicle accident on July 21, 1994. He received statutory accident benefits, under the Schedule,1 from Wawanesa Mutual Insurance. Wawanesa terminated weekly income replacement benefits on January 28, 1996. After the parties failed to resolve their dispute through mediation, Mr. Rutledge applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Rutledge entitled to receive weekly income replacement benefits from January 29 to July 21, 1996 under section 7 of the Schedule, because he suffers a substantial inability to perform the essential tasks of his employment?
Is Mr. Rutledge entitled to interest on any amounts owing and his expenses incurred in the hearing?
Result:
Mr. Rutledge is entitled to income replacement benefits from January 29 to July 21, 1996.
Mr. Rutledge is entitled to interest on the above and his arbitration expenses.
Hearing:
The hearing was held at the Ontario Insurance Commission in North York on May 20 and 21, 1997, before me, K. Julaine Palmer, Arbitrator. Those present at the hearing are listed in Appendix "A" to this decision.
Evidence and Findings:
Background
Jason Rutledge was about to start a new job when he was injured in a motor vehicle accident. He was stopped at a red light, when his vehicle was hit from behind. The force of the impact was great enough to break the car's seats from their mounts and jam the doors. He had to climb out of the car through a window.
The Schedule allows Mr. Rutledge entitlement to a weekly income replacement benefit if he suffers a substantial inability to perform the essential tasks of the employment which he was unable to commence. The parties do not disagree about the amount of the benefit or about Mr. Rutledge's entitlement up to January 28, 1996. They disagree whether he should receive a further benefit for any time from January 29 to July 21, 1997.
The Job
Mr. Rutledge was hired to work as a general labourer by a demolition company. At the time of the accident the company employed about 50 workers who were gutting a one-million square-foot factory. Mr. Rutledge's propective employer, Joseph Robert, supplied information about the duties of a general labourer when he met in November 1994 with Mr. Rutledge's vocational rehabilitation caseworker. At that meeting a detailed Job Analysis Worksheet was prepared by the caseworker and signed by Mr. Robert. The worksheet was filed as an exhibit at the hearing.
Mr. Robert testified that Mr. Rutledge would be required to use a sledge hammer to break concrete block walls. He would remove the concrete blocks by hand to bins, then use a tow motor to transfer the contents of the bins to dumpsters. He would also have to use a shovel, rake, broom, and wheelbarrow in his work. On occasion, he would have to remove drywall, steel beams or pipes. Mr. Robert emphasized the heavy nature of demolition work. He testified that a general labourer would have to lift more than 40 pounds on a regular basis, for example, a 12-inch concrete block with mortar inside or attached to the outside. A general labourer would also be expected to move, with assistance, objects weighing 100 to 125 pounds.
On cross-examination, Mr. Robert agreed that, overall, the Job Analysis Worksheet accurately described the physical demands of the general labourer's job. Lifting 26 to 50 pounds was described as a task which occurred "occasionally" during the workday. "Occasionally" was defined as representing up to 33% of the shift. Mr. Robert resisted confirming the statement in the worksheet that the maximum weight to be individually lifted was 50 pounds. He testified that he and his workers were under pressure to complete the demolition job in which his company was engaged at the time of the accident. Accordingly, while he could not force or expect a worker to lift 75 pounds, he would be lying if he testified that this never occurred. He said he expected a worker to use a tow motor or get help to move heavier debris.
The workday on this job was from 7:30 a.m. to between 4:00 and 6:00 p.m., five days per week. Each worker could expect a 15-minute break in the morning and afternoon and a half-hour lunch break.
Medical Condition at the end of January 1996
Mr. Rutledge's early treatment after the accident was managed by a chiropractor, Dr.S. Smaye. He also attended physiotherapy from November 1994 to mid-January 1995. Later, he participated in a rehabilitation program from mid-September to mid-December 1995. He was twice assessed by a Designated Assessment Centre ("DAC") relating to his level of disability, in June 1995 and at the end of January 1996.
In the discharge report of the Accident Rehabilitation Centre (ARC), dated January 4, 1996, the physiotherapist and the work