Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 14

Appeal P96-000007

OFFICE OF THE DIRECTOR OF ARBITRATIONS

LESLIE REISER

Appellant

and

ZURICH INSURANCE COMPANY

Respondent

Before:

Susan Naylor, Director’s Delegate

Counsel:

Anne Mullins (for Ms.Reiser)

Peter Hagen (for Zurich)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitration order, dated November 3, 1995, is confirmed.

2. Ms. Reiser is entitled to her appeal expenses, to be paid by Zurich Insurance Company.

January 21, 1997

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Leslie Reiser was involved in a terrible automobile accident on June 23, 1990. The car she was driving was rear-ended and pushed into oncoming traffic. Her vehicle was broad-sided by a truck. She suffered a severe head injury, right frontotemporal contusion and depressed skull fracture. She had numerous other serious injuries including fractures to her facial bones, left wrist, right rib, pelvis and a punctured lung. She spent almost three months in hospital, the first month at Sunnybrook Health Centre, then in rehabilitation at the Riverdale Hospital. She received therapy as an outpatient at various other facilities.

Ms. Reiser’s insurance company, Zurich Insurance Company (Zurich), paid her weekly income benefits for three years. The issue in these proceedings is her entitlement to continued weekly income benefits. The qualifying rules are set out in 12 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 672 (“Schedule”). They become more stringent after three years of benefits. For the first 156 weeks, entitlement depends on the claimant’s inability to do the work he or she was doing before the accident. Thereafter, the focus shifts to the claimant’s inability to do any suitable work. The arbitrator held that Ms. Reiser did not meet this stricter test.

Section 12 uses the following language:

Section 12(1):

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment....

Section 12(5)(b):

The insurer is not required to pay a weekly benefit under subsection (1),

(a) ......

(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)

II. BACKGROUND

There is no question that Ms. Reiser was very seriously injured in the automobile accident. By all accounts, she has made a remarkable recovery. Her determination and efforts to recover from her injuries and overcome her continuing problems are clearly reflected in the record and are to her credit.

According to the medical evidence, Ms. Reiser made tremendous progress in the three years following the accident, but her condition has now essentially stabilized. Unfortunately, she will continue to experience long-term cognitive and physical deficits. Her current difficulties include:

• a permanent impairment in psychomotor skills on the right side, affecting writing and keyboarding skills;

• cognitive functioning in the low average range in some areas, compared with what might be expected before the accident: in particular, a reduction in memory function and information retrieval difficulties;

• difficulties in handling complex verbal processing tasks;

• slight deficits in higher-level skill activities of running, jumping and slight right-sided weakness, affecting her balance;

• some restriction in movement in her left wrist;

• concentration and attention difficulties;

• fatigue, irritability and a lack of endurance.

According to the arbitrator’s findings, Ms. Reiser was bright, highly motivated, energetic and entrepreneurial. She worked as a self-employed computer consultant. She was under contract to George Brown College four days a week, where she was helping to develop a new computer system. The work involved complex business systems analysis. Ms. Reiser also taught training courses in WordPerfect and other software and did some programming work in the evenings. Her business was successful and her earnings pattern showed a continued upward trend. With the college contract, her earnings had substantially increased, reaching $35,000 (net) in the year before the accident, and slightly more than that in the first six months of 1990, alone. The accident put an end to Ms. Reiser’s career aspirations and she has not been gainfully employed since.

Ms. Reiser’s disabilities mean that she presently is not able, and may never be able, to perform the complex computing tasks she did previously. Her career choices have been restricted and her earnings potential diminished. These losses may be compensable under the tort system and Ms. Reiser has commenced a law suit seeking damages. However, statutory accident benefits have a more limited purpose than damages in the tort system. Even if a person is left with a permanent impairment and reduced earning capacity, benefits are only paid after the three-year mark if the person cannot engage in any work for which he or she is reasonably suited. That is the question the arbitrator had to decide.

In reaching his conclusion, the arbitrator considered extensive medical evidence about Ms. Reiser’s injuries and their effect on her ability to work, as well as vocational evidence relating specifically to the computer industry. The situation was complicated by the fact that Ms. Reiser’s circumstances changed after the accident. She and her husband had a family: their first child was born in May, 1991 and their second in late 1992. Ms. Reiser testified that, before the accident, her ambition was to have children and work part-time. She planned to return to full-time work when the children were old enough to go to school. In addition, her husband was transferred to his company’s headquarters in Wisconsin, and the family moved with him. Ms. Reiser could not legally work in the United States. The couple only accepted the transfer because the accident prevented her from continuing her own career.¹

The arbitrator accepted that Ms. Reiser’s disabilities presently rule out a return to her former consulting work. However, he found that there was a wide variety of work and flexible working arrangements within the computer industry and that she could do other, less complex, jobs. Pages 14-15 of the arbitration decision contain the crux of his findings:

The various medical practitioners, psychologists and vocational counsellors who have examined Ms. Reiser have all expressed the opinion that Ms. Reiser’s return to work in the computer field was her most desirable option. They also recognize that Ms. Reiser’s skills may be rusty, and that the residual effects of the accident may preclude her from working as a consultant or independent contractor. Therefore, work as an employee and/or on a part-time basis may be preferable.

It is clear to me from the evidence presented, that Ms. Reiser is reasonably suited by education, training and experience to work in the computer field. She may need some upgrading of her skills, but this is a continual necessity in the computer field given the rapid changes that occur. I also find that such employment would be suitable to Ms. Reiser, because the field offers many different types of jobs on a full and part-time basis, with the opportunity to work at home or set one’s own hours.

I am satisfied from the evidence that Ms. Reiser is capable of working in the computer field as a trainer, systems analyst or technical support specialist, and that she could perform such work on a full-time basis after a brief period of familiarization and training.

Other than one brief attempt at volunteer work, the Applicant has made no serious attempt to return to any kind of employment since her accident. In part, this may be attributable to the fact that Ms. Reiser does not have a permit to work in Wisconsin, and in part it may be attributable to the fact that she is the primary caregiver for two young children. Ms. Reiser’s focus has understandably been on her family and not on making efforts to return to the workplace.

....The evidence indicates that [Ms. Reiser] is capable of returning to employment in the computer field in some capacity, and this work is gainful employment for which she is reasonably suited by education, training and experience. It may be that Ms. Reiser will have to work in an area of the computer field which is not her first choice, or that initially she will have to work on a flexible or reduced number of hours. I am satisfied, however, that such work would be available to Ms. Reiser if she had a green card to work in the United States and if she made the appropriate efforts to find the work.

III. ANALYSIS AND CONCLUSION

Ms. Reiser argues that there is no basis for the arbitrator’s finding that she was capable of full-time work, especially because he acknowledged that she would need an initial period of familiarization or training and that she might need to start out with reduced or flexible hours. Ms. Reiser submits that, at best, the evidence shows only that she is capable of working part-time or on an uncompetitive basis for a sympathetic employer. She argues that such restricted work is not suitable, given her previous history of full-time, well-paid self-employment, and should not disqualify her from benefits. She suggests that, if she failed in a duty to make herself available for part-time work, any income she reasonably could have earned should be deducted from her benefits under section 15 of the Schedule, without affecting her underlying entitlement.

It was Ms. Reiser’s position that the arbitrator did not apply proper principles set out in the case-law² for determining whether work was suitable. The arbitrator concluded that cases which considered the meaning of total disability under other legislation or insurance policies were not “directly applicable”. However, I am not convinced that the cases cited change the result in any event.

The courts have consistently adopted a common-sense approach to the question before them: they have held that policy language somewhat similar to that set out in the Schedule³ means the ability to do work that is reasonably related to the person’s experience, to a reasonable standard and level of productivity, within reasonable time-frames. In each case, the appropriateness of the work must be evaluated in the context of the applicant’s specific employment circumstances: what can an applicant reasonably and realistically be expected to do, given his or her background and individual circumstances?

In Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271, McTurk Co. Ct. J. held that part-time work as a school crossing guard did not disqualify a former store security guard from benefits because it was not “akin to his previous occupation or employment” and “approximately the same livelihood as the plaintiff must fairly be expected to follow in view of her station, circumstances and physical and mental capability”.

In DePape v. The Manitoba Public Insurance Corporation [1980] I.L.R. 1-1351, the court held that the plaintiff was totally disabled because she could only work as and when she was able to, one task at a time, and the existence of such employment was purely speculative.

In Foden v. Co-operators Insurance Association (Guelph), 1978 CanLII 1622 (ON HCJ), 20 O.R.(2d) 728, Justice Reid held that a person was totally disabled if they could not do a substantial or essential part of their work or perform it to the standard of a reasonable employer. The plaintiff had unsuccessfully attempted to return to her former job but had been forced to stop. The case did not deal with the plaintiff’s ability or inability to become employed in alternative employment.

The arbitrator’s reasons suggest that he gave consideration to the appropriate factors, and came to his conclusion based on the particular facts of this case. The cases cited are based on different facts. The arbitrator did not consider a totally unrelated line of work to be suitable for Ms. Reiser. He accepted the experts’ view that the best approach would be a return to computing work, but in a less complex area than previously and, if full-time, as an employee rather than in a demanding consulting practice.

There is evidence supporting Ms. Reiser’s position that she was not capable of full-time work. However, there is also evidence to support the arbitrator’s finding that she was, in particular, the report of Dr. Brian Yore, who performed the most recent neuropsychological assessment in the Spring of 1993. He reported that Ms. Reiser’s prospects for gainful employment were good, but suggested that, given her residual deficits and the fast pace of change in the industry, for her own reassurance, she should try to return to the workplace “at an appropriate level”, with an eye to promotion, rather than demanding too much of herself. The arbitrator viewed this report in the context of evidence that showed continued improvement in Ms. Reiser’s condition, and the opinion of Dr. Marnocha a year earlier that Ms. Reiser might be able to return to a level of functioning comparable to her pre-accident level in between several months and one or two years.

The arbitrator had to weigh all the evidence, and reach a decision. The case involved three hearing days, seven witnesses and extensive medical documentation. On appeal, I have only the arbitration record, which does not include a transcript. This puts the arbitrator at a considerable advantage. He was in a much better position to evaluate the evidence in its entirety. It is well-established that, because of this advantage, factual findings should not generally be disturbed on appeal unless the arbitrator has made a serious error, ignored material evidence or arrived at unsupported conclusions. This case did not turn on the credibility of witnesses, but it is clear from the arbitrator’s decision that the testimony given by Ms. Reiser and in particular by Mr. Botterbusch, a vocational consultant who testified as to the state of the job market, was critical to his decision.

The arbitrator qualified his finding somewhat: he recognized that Ms. Reiser’s skills were rusty and that she would need a brief period of familiarization or training to become up-to-date. He also thought that she might need to work her way back into the regular work stream, at least at the outset, by working reduced hours or a flexible schedule. The arbitrator found that keeping “current” is a constant requirement given fast-changing technology, and the evidence indicated there are a variety of means of accomplishing it, including formal courses, informal-on-the-job training or self-training. Although encouraged to do so by Ms. Thompson, a vocational consultant who assessed Ms. Reiser in December, 1993, there is no indication that Ms. Reiser explored the possibility of upgrading her skills through training.

In my view, the arbitrator adopted a reasonable and pragmatic approach in this case, and one that is consistent with the language of the policy. Cutting through his reasons, the crux of his decision is that the nature of the computer industry allowed sufficient flexibility to accommodate the residual effects of Ms. Reiser’s disabilities, including the need for a learning curve and conditioning necessitated by her absence from the workplace. The evidence about the availability of a broad variety of less complex jobs and of flexible working arrangements was not merely speculative, as it was in DePape, but quite specific. Mr. Botterbusch testified that such job opportunities were available locally.

According to the evidence, fatigue and lack of endurance seem to be the greatest barrier to Ms. Reiser’s return to full-time work. In particular, she felt unable to handle the demands of a full work schedule and taking care of the children. For this reason, various reports suggest that part-time work might be more appropriate. According to testimony given, Ms. Reiser could manage maybe a 30 hour week. Although this is less than she worked previously, it is substantially more than that considered in, for example, Dale.

The arbitrator found that, except for a brief period of volunteer work, Ms. Reiser had not attempted to return to the workforce. He found that the absence of a work visa and her child care responsibilities probably were factors. The St. Elizabeth Hospital records provide support for this conclusion. Ms. Reiser objected strenuously to any inference that she had chosen to give up her career to have a family. I do not read the arbitrator’s decision as saying this. The arbitrator simply observed that there were factors, other than Ms. Reiser’s disabilities, also involved. There is little doubt that this was true.

There was evidence that Ms. Reiser was capable of a significant amount of work. In part because she had not returned to any work, it was difficult to assess the extent to which her injuries prevented her from working. The arbitrator’s function was to determine whether Ms. Reiser’s injuries continuously prevented her from engaging in any occupation or employment to which she was reasonably suited by education, training or experience. In the circumstances, given the flexible nature of the industry and Ms. Reiser’s particular circumstances, the arbitrator was not persuaded that she met this test. Having reviewed the arbitration record, I am not satisfied that he erred in his approach to the question before him or that his conclusions were unwarranted on the evidence. Therefore, the appeal is denied.

IV. EXPENSES

Expenses are not generally awarded to an unsuccessful appellant unless the appeal raises an important point or the appellant shows that the arbitrator’s reasons were flawed in some material way. Appellants have been denied their appeal expenses where their main objection is limited to the weight the arbitrator attributed to the evidence. Although I found that there was no basis to interfere with the arbitrator’s decision, the appeal raised some important arguments about the interpretation and application of the Schedule and the correctness of the arbitrator’s decision. These justify awarding the appellant her appeal expenses in this case.

January 21, 1997

Susan Naylor Director’s Delegate

Date

APPENDIX A

Authorities Considered:

1. Campbell v. Canada Life Assurance Co. (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73.

2. Campbell v. Canada Life Assurance Co. (1989), 1989 CanLII 10409 (MB QB), 39 C.C.L.I. 40 (Man. Q.B.); (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (C.A.).

3. Labelle v. The Great West Life Assurance Co., (1986) 1986 CanLII 7786 (BC SC), 17 C.C.L.I. 173.

4. Brooks v. London Life Insurance, 1979 ALTASCAD 155, [1979] I.L.R. 1-1115.

5. Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271; aff’d [1981] I.L.R. 1-1342 (Ont. C.A.).

6. DePape v. The Manitoba Public Insurance Corporation, [1980] I.L.R. 1-11351.

7. Paul Revere Life Insurance Company v. Sucharov, [1983] 2 R.C.S. (Man. C.A.).

8. Fast v. Insurance Corporation of British Columbia, [1976] I.L.R. 1-745 (B.C.S.C.).

9. Kenni v. Insurance Corporation of British Columbia, 1993 CanLII 1877 (BC SC), 14 C.C.L.I. (2d) 62 (B.C.S.C.).

10. Foden v. Co-operators Insurance Association (Guelph) (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728 (Ont. H.C.J.).

11. McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412.

12. Hiscock v. Metropolitan Life Insurance Company (unreported), Nov. 2, 1988 (Nfld. S.C.).

Arbitration Cases Cited:

1. Calogero and The Co-operators General Insurance Company, (February 13, 1992, OIC File No. P-000251).

2. Provenzano and Metropolitan Insurance Company, (August 26, 1993, OIC File No. P-000380).

3. Singh and State Farm Mutual Automobile Insurance Company, (May 8, 1995, OIC File No. A-005714).

4. Mills and Canadian General Insurance Company, (July 6, 1995, OIC File No. A-005599).

5. Philippe and Royal Insurance Company of Canada, (February 15, 1996, OIC File No. A-006389).

Footnotes

1. 1According to the arbitrator’s decision, Ms. Reiser was in the process of acquiring a green card at the time of the hearing, and hoped to be in a position to work in Wisconsin in the fall of 1995. There was no further evidence in relation to this.
2. 2The cases cited are set out in Appendix A.
3. 3In this case, the focus must be on the actual wording of the Schedule; on the difference in language in insurance policies generally, see Paul Revere Life Insurance Company v. Sucharov, [1983] 2. S.C.R. 541.