Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 143
Appeal: P-006195
OFFICE OF THE DIRECTOR OF ARBITRATIONS
PILOT INSURANCE COMPANY Appellant
and
DEBRA MACPHERSON Respondent
Before: Susan Naylor, Director's Delegate
Counsel: Rudolph Lobl, Q.C. (for Pilot Insurance) Barbara L. Legate (for Debra MacPherson)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The arbitrator's order, dated June 30, 1995, is confirmed and the appeal denied.
Ms. MacPherson is entitled to her appeal expenses.
July 29, 1997
Susan Naylor Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF APPEAL
Pilot Insurance Company ("Pilot”) appeals the arbitrator's decision dated June 30, 1995, awarding Debra MacPherson ongoing weekly income benefits after June 24, 1993.
Ms. MacPherson was between high school and university when the accident happened on June 30, 1990. She received weekly income benefits at the minimum rate of $185.60 for three years. At that point, Pilot terminated her benefits on the basis that she did not meet the disability test set out in paragraph 12(5)(b) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, O. Reg. 672 ("the Schedule").
Under subsection 12(1) of the Schedule, entitlement to weekly income benefits is based on the person's inability to perform the essential tasks of his or her pre-accident occupation or employment. After 156 weeks, paragraph 12(5)(b) imposes a stricter test which looks to other suitable work. The issue is whether the arbitrator's conclusion that Ms. MacPherson's injuries " continuously prevent[ed] [her] from engaging in any occupation or employment for which she is reasonably suited by education, training or experience" was supported by the evidence and based on correct legal principles. Pilot also argues that the arbitrator improperly refused its request for an adjournment so that it could have Ms. MacPherson's condition assessed by professionals of its choice and that Ms. MacPherson unreasonably refused to attend these examinations.
The arbitrator issued two decisions concerning Ms. MacPherson's entitlement to accident benefits. In the first decision dated January 31, 1994, she ordered Pilot to reimburse Ms. MacPherson for her university residence fees as a rehabilitation expense. This appeal comes from her second decision. At the outset of the second hearing, Pilot agreed to pay for a rehabilitation caseworker. However, it continued to dispute her entitlement to weekly income benefits.
II. BACKGROUND
While at high school, Ms. MacPherson worked part-time in a pet store. That employment ended and she was about to begin a summer job as a house painter. She qualified for weekly income benefits on the basis of these two jobs. Ms. MacPherson viewed these jobs as short-term student jobs. After getting a degree, she hoped to go on to train as an elementary school teacher.
Ms. MacPherson suffered a soft-tissue flexion/extension injury to her neck, shoulders and back. Since that time, she has suffered from constant headaches, pain in her neck, jaw, back and shoulders, and numbness and weakness in her arms. She has been under the care of Dr. Robert Teasell, a physical medicine and rehabilitation specialist, for her pain, and Dr. John Kreeft for her headaches. She has also undergone assessments by a variety of specialists appointed by Pilot. There is general agreement among the doctors with the diagnosis of chronic pain syndrome. Ms. MacPherson has also been diagnosed as suffering from post-traumatic headaches of the migraine and tension types, accident-related temporomandibular joint dysfunction and post-traumatic stress syndrome.
Ms. MacPherson was able to start university in the Fall of 1990, as she had planned, but within a short time, on the advice of Dr. Teasell, reduced her case-load from five courses (full-time) to three courses a year because of her continued symptoms. She was mid-way through her final set of courses of a three-year Bachelor of Arts degree when the hearing took place.
III. THE ADJOURNMENT
Pilot complained that the arbitrator refused to adjourn the hearing to enable it to conduct two separate assessments by practitioners of its choosing. It also complained that Ms. MacPherson refused to attend the appointments. Pilot felt that its ability to respond to the claim at arbitration was severely compromised as a result.
There was some confusion about whether Ms. MacPherson's claim was being advanced under section 12 or section 13 of the Schedule. The claim proceeded under section 12. Ms. MacPherson was paid the minimum benefit of $185.60 until the 156 week mark in mid-June 1993, when her benefits were cut-off on the basis that she was not disabled from performing suitable work. She applied for mediation and then arbitration on that basis, and it formed the understanding at the arbitration pre-hearing held on June 13, 1994.1
On July 14, 1994, Ms. MacPherson's lawyer wrote to Pilot stating that as a result of recent information, the claim should be a section 13 claim. Pilot then decided to pursue the question of an overpayment on the basis that Ms. MacPherson was precluded from receiving section 13 benefits while attending school.
On November 7, 1994, Ms. MacPherson's lawyer wrote again, confirming that the claim was properly based under section 12 after all. A second pre-hearing was held at the end of November, following which Pilot wrote to advise Ms. MacPherson that two examinations had been scheduled for her: the first, on January 2, 3 and 5, 1995 at the Metro Orthopaedic and Arthritic Hospital in Toronto (a functional abilities assessment) and the second on Jan 26, 1995 by Dr. Perry Rush (a physiatrist and rheumatologist). It requested an adjournment of the hearing scheduled for January 17, 18 and 19, 1995. Ms. MacPherson refused to attend the functional abilities assessment as scheduled, and refused to consent to the adjournment. The matter came before the arbitrator. She refused the adjournment on the basis that the request for the examinations had not been made in a timely fashion.
Pilot disagrees with this ruling. It blames Ms. MacPherson's late change of position for what happened and argues that the assessments were only made necessary when she reversed herself on claiming under section 13.
The appeal decision in Peterson and Royal Insurance Company of Canada, (February 6, 1996, OIC P-006241) involved a case in which the arbitrator's refusal to adjourn a hearing was challenged and overturned on appeal. It discussed some of the applicable principles:
An adjournment is a matter of discretion, not of right. Arbitrators have the authority to control their own processes within the Commission's rules of procedure, including the right to determine whether an adjournment should be granted. The exercise of this discretion should not be interfered with on appeal, unless there are cogent reasons for doing so. Previous cases have made it clear that it is not the function of the appeals adjudicator to second-guess the arbitrator's judgement. However, there must be some scope for intervention where the discretion is exercised on the basis of misapprehended facts.
In F.S. and Belair Insurance Company Inc., (June 11, 1996, OIC P96-00039A), I considered this issue in the context of a refusal to attend a medical examination:
Determining the appropriateness of a request for an examination requires a balancing of the interests of the parties, in the context of the particular facts. The timing of a request is a factor in considering its reasonableness; it becomes very important where it would delay the process. The closer a request is made to a hearing, the closer the scrutiny of its reasonableness, to ensure that there is no avoidable delay or that the insured's preparation for the hearing is not prejudiced. Trial brinkmanship is not a feature of the dispute resolution process.
I am not persuaded that the arbitrator exercised her discretion unreasonably in refusing the adjournment. While Pilot acted on the understanding that the basis of the claim had shifted from section 12 to section 13 in the four months between mid-July 1994 to November 1994, the claim had proceeded as a section 12 claim to that time. Ms. MacPherson's benefits were terminated on precisely this basis. Between that date and the pre-hearing, Pilot had more than a year to arrange examinations, particularly the functional capacities assessment. It does not appear that Pilot raised the question of needing a further examination at the pre-hearing, even though it was still dealing with a section 12 claim at that point. In the circumstances, I agree with the arbitrator's conclusion that the request was not made in a timely fashion and should not be allowed to delay the hearing, which had been scheduled for more than six months. For the same reason, I also reject the suggestion that Pilot's preparation for the hearing was significantly prejudiced by Ms. MacPherson's change of position. Pilot learned that the matter would proceed under section 12 in mid-November, a good two months before the hearing was scheduled to start.
Pilot argued that an adjournment was not needed in the case of the functional abilities assessment and that Ms. MacPherson had unreasonably refused to attend. Although Ms. MacPherson raised a number of arguments, I will address only one: The assessment would have required Ms. MacPherson, who lived and studied in the London area, to travel to Toronto and stay overnight on January 1, a traditional family and statutory holiday. This was not a reasonable request.
III. SUITABLE EMPLOYMENT
As other arbitrators have commented, students are difficult to fit into the scheme of the Schedule. Ms. MacPherson qualifies for weekly income benefits by virtue of the part-time or summer jobs she did as a student, but these jobs do not reflect her educational plans and hoped-for career path. When an accident interrupts or delays those plans and goals, what constitutes suitable employment and how should entitlement to benefits be evaluated?
In assessing Ms. MacPherson's entitlement to benefits, the arbitrator found herself confronted with two very different approaches. Pilot argued that Ms. MacPherson's disability must be assessed solely by reference to the work she did before attending university: "the Applicant's "education, training and experience" is simply that of a grade 13 graduate with a part-time job in a pet store and an offer of a summer job as a painter". (Decision, page 6). Ms. MacPherson however argued that the arbitrator should take into account her now unlikely career goal of attending a teaching program and becoming a teacher.
The arbitrator held that she was not confined solely to considering jobs equivalent to the work Ms. MacPherson did before the accident. She concluded that at the time of the accident, Ms. MacPherson had a concrete commitment to start university that Fall and that her occupational status at that time was that of a prospective university student. She held that she was entitled to broaden her inquiries into Ms. MacPherson's abilities to perform her essential employment and occupational tasks to include her ability to perform her essential tasks as a student. Following the reasoning in Levenson and the General Accident Assurance Company of Canada, (September 29, 1992, OIC P-000260), the arbitrator did not go so far as to accept that Ms. MacPherson's ability to pursue her ultimate career goal to be an elementary teacher should be the appropriate standard. Her reasons suggest that she regarded these plans as speculative, and more akin to a claim in damages for future economic loss or loss of opportunity.
On appeal, Pilot argues that the arbitrator wrongly focused her attention on the test under subsection 12(1) and that she misapprehended the changed requirements after 156 weeks. It argues that her findings that Ms. MacPherson would otherwise have successfully completed full-time studies was speculative since there was no experience to go on and that, in any event, Ms. MacPherson successfully completed her degree courses, even if it took her longer to do so. Pilot argued that this met the test under paragraph 12(5)(b), especially given her now-increased educational background. Pilot also argued that the arbitrator misapplied the burden of proof, by leaving it up to Pilot to show what occupations would be suitable for Ms. MacPherson.
In this case, the arbitrator made some very specific factual findings:
She found that Ms. MacPherson continued to suffer from significant limitations as a result of the accident. She had to frequently change position, could not sit or stand for prolonged periods; she had to have flexible hours; she could not drive for prolonged periods; she had to avoid heavy or repetitive bending, lifting, overhead work and prolonged neck flexion; she had limited tolerance for stress; her concentration was sometimes impaired and she had to be able to rest periodically throughout the day. The arbitrator concluded that Ms. MacPherson's physical and psychological disabilities resulted from the accident and that she was not malingering or consciously exaggerating her symptoms.
The arbitrator found these limitations meant that Ms. MacPherson could not:
work as a pet store assistant or house painter, the part-time and summer work she did or was contracted to do before the accident;
engage in full-time university studies;
complete part-time studies with marks that made her competitive for further education;
engage in part-time work, do volunteer work or participate in social or recreational activities.
The arbitrator's ultimate finding is found on page 18 of her decision:
Considering all the medical evidence, I am not satisfied that the Applicant can do any job that requires regular attendance or productivity, or which provides more than nominal remuneration.
These are strong findings.
The arbitrator remarked that she heard little evidence or argument about what occupations or employment would be suitable for Ms. MacPherson. She rejected the suggestion that Ms. MacPherson could work as a tutor or in some part-time, casual or free-lance basis. She held that, while it was not necessary to show that an actual job opening was available, the job must be a real job, not merely a notional one, and involve real work.
It is well established that it is not my role to rehear the evidence or second-guess the arbitrator's findings of fact. The arbitrator had the opportunity of hearing the testimony of Ms. MacPherson and her doctor, Dr. Teasell, and of viewing the evidence as a whole. Her findings should not be disturbed unless she applied the wrong test to the facts as found or she misapprehended the evidence.
A review of the evidence shows that, although there were different medical opinions before the arbitrator, the evidence of Ms. MacPherson's own doctors supported the arbitrator's findings.
Dr. Kreeft, Director of the Headache Clinics at Victoria Hospital in London and Clinical Associate Professor of Medicine and Pharmacology at the University of Western Ontario, in a letter dated November 16, 1994 described Ms. MacPherson's headaches as still in the "severe" range, and reported:
...chances of further improvement are slim. With this degree of headache frequency and severity, I do not expect Debra to be able to hold down any form of gainful employment. This would also have a profound affect on her ability to attend classes and do assignments.
Dr. Teasell is Chief of the Department of Physical Medicine and Rehabilitation at University Hospital, London and Associate Professor at the University of Western Ontario. Both he and Dr. Kreeft saw Ms. MacPherson on a number of occasions over time. He testified on Ms. MacPherson's behalf. No dispute was taken with the arbitrator's description of his testimony:
He was certain that she will not return to work full-time. In his opinion, "success" would be part-time work (20 to 25 hours a week) at a sedentary job allowing frequent changes of position, and providing flexible hours. He also expected that she would have difficulty handling the additional requirements of household and child-care work.
(Decision, page 11)
Ms. MacPherson filed a vocational rehabilitation assessment report dated June 14, 1994, prepared by a rehabilitation counsellor with a nursing qualification. It stated:
The pain, headaches, physical limitations, inability to leave her bed at times (headaches) and limited distance that she can travel, preclude her from employment. ...The career direction which she hoped to pursue, as a primary school teacher, will now require further investigation.
(Report, page 4)
Much of the argument before me was taken up with the issue of when, if at all, the onus of proof of disability shifts to the insurer. While both counsel raised many interesting arguments about the principles that should apply to cases in general, I do not find it necessary to address them. In my view, this case turns very much on its own facts and the strong - and supportable - findings of the arbitrator.
The arbitrator found that Ms. MacPherson would have attended university full-time but for the accident. This was a reasonable inference to draw from the evidence. Pilot argues that part-time studies were a suitable occupational alternative for the purposes of paragraph 12(5)(b). However, I find no reason to depart from the arbitrator's conclusion.
Ms. MacPherson produced evidence (which the arbitrator found to be cogent) from her doctors as to her current limitations and employability. Pilot did not provide anything that contradicted or cast doubt on her position that she was prevented from doing any work that might be suitable for her. It did not introduce evidence as to any employment options that might be considered reasonable. Right up to the start of the hearing, it refused Ms. MacPherson's request for funding for a rehabilitation caseworker, whose role included co-ordinating vocational rehabilitation. It provided none of its own. It argued that it was denied the opportunity to assess Ms. MacPherson's abilities through a functional capacities assessment, but chose not to arrange one for more than a year after it terminated her benefits.
The arbitrator can only deal with the evidence before her. If the insurer adopts a strategy of sitting back and waiting for the applicant to prove her case, there are risks involved. If the arbitrator accepts the applicant's evidence, it is open to her to find on the balance of probabilities that the applicant was disabled within the meaning of the Schedule. That seems to be what happened here.
Pilot also argued that Ms. MacPherson failed to mitigate her loss. It based this on Ms. MacPherson's refusal to follow her doctors' recommendations that she get psychological help, and the need for a more aggressive approach to her rehabilitation.
The arbitrator attributed Ms. MacPherson's reluctance to obtain psychological treatment to the effect of depression associated with chronic pain. It is clear that Ms. MacPherson was depressed and despondent. However, the insurer legitimately pointed out that there was no evidence to support the arbitrator's finding that Ms. MacPherson's resistance to treatment was related to this.
Despite this, there is insufficient reason to disturb the arbitrator's view that, to the date of the hearing, Ms. MacPherson should not be regarded as having taken inadequate steps to address the effects of her injuries. Although the arbitrator described Ms. MacPherson's medical management as "overly restrictive", Ms. McPherson followed the advice of her doctors except for getting psychological help. The arbitrator clearly did not believe that she should be penalised for that. The evidence also indicates that Ms. MacPherson had recently been referred to Dr. Alan Shapiro, a psychologist, for a chronic pain program. In addition, the rehabilitation caseworker proposal that Pilot agreed to fund at the start of the hearing called for education and counselling on pain management.
The arbitrator had some pointed remarks to make about future expectations in this area. Although she did not make her order contingent upon Ms. MacPherson's taking specific steps, she stated:
...this case does not call for weekly income benefits to be paid indefinitely. I hope that the rehabilitation caseworker appointed pursuant to the agreement of the parties reached on the second day of the hearing will assist the Applicant to embark on a rehabilitation program which takes a functional restoration approach and includes psychological treatment.
(Decision, page 18)
This appeal, and the arbitrator's decision, address Ms. MacPherson's situation at a point in time just before she completed her degree. It is open to Pilot to apply for a revocation or variation of her order in the event it believes that Ms. MacPherson's situation has changed. In my view, the arbitrator's comments regarding the expected direction of Ms. MacPherson's rehabilitation efforts would be given serious consideration in any such proceeding.
The appeal is therefore dismissed.
IV. EXPENSES
Ms. MacPherson is entitled to her reasonable appeal expenses.
July 29, 1997
Susan Naylor Director's Delegate
Date