Richard J. Madore v. Co-operators General Insurance Company, 1997 ONICDRG 172

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 172

Appeal P-004305

Appellant

and

Respondent

Before:

Elisabeth Sachs

Counsel:

Steven A. White (for Richard J. Madore)

Stephen M. Malach (for Co-operators General Insurance Company)

APPEAL ORDER

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

The appeal is dismissed and the arbitration order dated August 24, 1994 is confirmed.
No appeal expenses are payable.

September 22, 1997

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

Richard J. Madore appeals from an arbitrator's decision dated August 24, 1994, finding he was not employed for the requisite time period in the 12 months preceding the accident pursuant to subsection 12(3) of O. Reg. 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule), and was limited to weekly benefits under section 13. He states the arbitrator erred in applying a definition of "employment" which did not accord with the evidence presented. In addition, Mr. Madore submits the arbitrator misconstrued the medical evidence and disputes the finding that he did not continue to suffer a substantial inability to perform his essential tasks after September 3, 1993, the date Co-operators General Insurance Company ("Co-operators") terminated benefit payments.

The arbitral record and a transcript of the one-day hearing (including testimony and counsels' submissions) are before me. At the hearing, Mr. and Mrs. Madore testified. Co-operators called no evidence, relying on documentary evidence and expert reports. Both parties made oral submissions on appeal.

II. BACKGROUND

Mr. Madore was injured in a motor vehicle accident on March 19, 1992 while riding as a passenger in a vehicle operated by his wife. He sustained soft tissue injuries to his neck and upper back, and suffered headaches as a result.

Co-operators paid weekly and other rehabilitation benefits for a period of about 182 months, terminating payment after reviewing the June 23, 1993 report of Dr. E. Dakin, an orthopaedic surgeon. The report stated Mr. Madore's disability could be expected to continue for three or four months.

Co-operator's did not dispute that Mr. Madore suffered injuries, but took the position that he was unemployed at the time of the accident. It submitted that Mr. Madore's entitlement to weekly benefits must be determined under s. 13 of the Schedule. Alternatively, Co-operators argued that as Mr. Madore was not performing any employment or job functions at the time of the accident, even if the arbitrator found he was engaged in "employment" under section 12, his essential tasks were limited to what he was actually doing. Co-operators argued there was no evidence as to what the essential tasks of Mr. Madore's occupation were, so his entitlement under section 12 was nil. Any evaluation of potential job tasks was speculative.

Alternatively, Co-operators argued Mr. Madore's essential tasks and his ability to perform them had to be determined as if there was no employment or occupational task to consider. It contended Mr. Madore, at best, was looking after his personal hygiene, household chores and outside maintenance activities for the bungalow occupied by him and his wife. Mrs. Madore worked full time outside the home.

Mr. Madore testified about his work history. Documents and a letter from Purolater Courier were filed, as were letters from Employment and Immigration Canada and the Workers' Compensation Board. Mr. Madore's position was that in January, 1991, 14 months before the accident, he was diagnosed with a stress disorder that prevented him from carrying out his driving duties as a courier driver for Purolater Courier. He requested and was granted a medical leave of absence and short term disability benefits. He asked Purolater to check whether it had any job openings involving work other than driving, for example in a warehouse or depot. By May 22, 1991 the disability payment period ended, and in early June, 1991, Mr. Madore applied for unemployment insurance benefits, as they were then called. He submitted a record of employment (ROE) to the authorities which noted the leave was for medical purposes. At the end of June, 1991, his claim was revised from "sick benefits" to a regular benefits claim, retroactive to May, 1991. Around this time he also began actively searching for other work. He admitted he knew he could not and would not return to his courier driver position. However, it was his position that only in October, 1991 when he had a discussion with Purolater (as noted in the personnel records) did his employment with the company formally end. Mr. Madore was not employed or self employed when the accident occurred in March, 1992.

However, he argued he was entitled to receive weekly income benefits under subsection 12(3) of the Schedule which reads:

A person who was unemployed and who was not self employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self employed for any 180 days in the twelve month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the month time during the twelve month period before the accident. (Emphasis added)

Mr. Madore submitted he was employed for the required period, his essential tasks had to be determined in accordance with his employment and his disabilities measured against that standard. He argued the medical evidence demonstrated that he could not have performed the tasks of a courier by September, 1993 when Co-operators stopped paying, and thus he was entitled to continuing benefits.

Alternatively, he argued that if the arbitrator found he was not within the scope of section 12 of the Schedule, the medical evidence still showed him unable to perform the essential tasks he normally undertook before the accident, and continuing benefits were payable.

For both positions, it was conceded that the maximum recoverable amount was $185 or $185.60, weekly. The issue was the standard by which the disabilities Mr. Madore stated he had were to be measured, which had a direct bearing on the length of time the benefits were payable.

The arbitrator held Mr. Madore was not, on the facts she found, "employed" at the time of the accident within the expanded time definition of subsection 12(3) of the Schedule. Thus she did not have to determine what Mr. Madore's essential tasks of any occupation or employment were. She concentrated on what he was or was not capable of doing, absent any employment, to determine if there was a continuing entitlement to benefits under section 13.

The arbitrator reviewed and analysed the medical evidence in her decision. She accepted the Madores' testimony as credible, specifically dismissing Co-operators' arguments about discrepancies in their evidence. The arbitrator concluded, on the totality of the evidence, that Mr. Madore was no longer substantially unable to perform the tasks of a person who looked after himself and a small household, albeit suffering residual discomfort and difficulty when undertaking specific kinds of activities (i.e. prolonged bending).

III. ISSUES AND ANALYSIS

1. Section 12 or Section 13: Definition of Employment

Disputes about whether section 12 or section 13 of the Schedule applies to a claimant's situation usually involve the level of benefits the person might receive. Here, the issue is not the amount of the benefit but the length of time it is receivable. If Mr. Madore's disabilities are looked at from the perspective of whether he could reasonably maintain full time employment as a courier, it is a potentially wider perspective than if his essential tasks were defined as looking after himself and a small household.

The crucial factual finding made by the arbitrator was that as of the end of June, 1991, Mr. Madore had come to the firm conclusion that he would not return to his job as a courier driver. The transcript confirms that by the time Mr. Madore applied for unemployment insurance benefits, he had decided he would never be a courier driver again (Transcript, pg. 54). It is also uncontroverted that after his short term disability claim expired in May, 1991, Mr. Madore made no claim under any other provisions of Purolater's benefit plans, such as medical or dental. He admitted that by the end of June, 1991 he was looking for work by delivering his resume to other companies, and signing the bi-weekly cards required to continue receiving unemployment insurance benefits, stating he was ready and willing to work.

Mr. Madore maintains, though, that he considered himself to be in an employment situation with Purolater. He kept in touch with the company about the availability of non-driving jobs. It appears from his testimony he also contacted the Teamsters Union about such positions. Mr. Madore argues it was not until a telephone discussion with a company representative on October 24, 1991 did he become truly unemployed as that is when Purolater ended their relationship. He submits he was "on the books" with the company until then. He argues his actions in looking for other work, his intentions as expressed to the company and his doctors not to resume a driving job were not inconsistent with remaining employed. Mr. Madore notes that the application for unemployment insurance benefits was initiated because of the terms of the company's short term disability plan (Exhibit 1). He submits his and the company's "settled intention" to end their relationship could only have been found by the arbitrator as of the October conversation.

Co-operators argued employment is confined to situations where a person is performing work and receiving wages or a disability payment under a company plan, as here. On that basis, there was no employment relationship as of May, 1991, or at the latest, early June when the disability payments expired. The arbitrator disagreed. She wrote at page 9 of the decision:

In my view, individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence. I consider that the state of being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work.

I agree with the arbitrator that the concept of employment is not as narrow as Co-operators suggests. There is no definition of "employment" in the Schedule. I find the considerations to determine whether an employment relationship exists as set out in the above extract are appropriate. The issue is whether in Mr. Madore's case, the arbitrator's conclusion that on all the evidence before her, the employment relationship ended earlier than October 24, 1991 is supportable.

The standard of review on appeal has been set out in numerous appeal decisions, and can be taken as settled. My duty is not to re-try the issues as if presented for the first time, or to cast the evidence in a different light based on hindsight, particularly in the absence of seeing or hearing the witnesses. I can interfere with an arbitrator's factual findings or weighing of the evidence only if there is insufficient or no evidence to support those findings or their assessment.

The arbitrator refers to a number of inconsistencies between an intention to remain employed as a courier with Purolater and Mr. Madore's actions in her analysis. In particular, she notes his acceptance of regular unemployment insurance benefits, looking for other work, and his stated intention not to return to a driver courier job. While Mr. Madore may have accepted another position there was no evidence one was available, or offered, or that Purolater agreed to a continuation of employment after Mr. Madore bid on his old job (which he admittedly had no intention of resuming) around June, 1991.

Each of these aspects alone would not suffice, but taken together they point to an ending of the employment relationship before the final documentation, and certainly by July, 1991. The arbitrator's factual findings are borne out by the available documents or the transcript. I see nothing in the record to persuade me the arbitrator was wrong in how she applied the facts to the definition of employment test above. Accordingly, Mr. Madore's essential tasks and his continued entitlement to benefits are to be determined under section 13 of the Schedule.

2. Essential Tasks and Disability

Mr. Madore conceded during oral submissions that if he was unsuccessful in asserting his claim under section 12 of the Schedule, his essential tasks under section 13 consisted of various household duties and personal care such as washing and dressing himself. His recreational activities included watching television, talking with friends, walking and fishing. The arbitrator noted there was no evidence that these could be characterized as "essential tasks".

The evidence shows that immediately following the accident in March, 1991 and for a period of several months, Mr. Madore was quite disabled and unable to do routine household tasks. Much of his time was spent watching television. Family and friends assisted with laundry, food preparation, home maintenance, grass cutting and gardening.

Co-operators arranged medical examinations by Dr. D.C. Martin and Dr. A.W.M. Sem, both orthopaedic surgeons. In his May 20, 1992 report Dr. Martin's opinion is that Mr. Madore's disability was a mild one, and he could be expected to resume even the heavier household tasks by about July, 1992. Dr. Sem prepared a report in August, 1992 with an addendum dated September 1, 1992. In it problems with bending were noted, but his conclusion was Mr. Madore did not need further physiotherapy, and could be expected to return to his pre-accident level of function shortly.

In his report of November 25, 1992, Dr. Dakin, who examined Mr. Madore at the request of his family doctor, anticipated that improvements in Mr. Madore's upper spine problems would take a year or two. By June, 1993, Dr. Dakin had revised his recovery estimate to three or four months. Then in a letter dated January 14, 1994, Dr. Dakin expresses more pessimistic opinions, stating Mr. Madore would not be capable of more than one hour of housework daily, and have difficulties "with any sustained posture". As the arbitrator noted, this was at odds with his previous reports, those of the other physicians, and functional capacity evaluations done on Mr. Madore. It appears from the evidence as confirmed by Mr. Madore's testimony, that this letter was written without Dr. Dakin re-examining him, and absent any reference to his earlier reports or what material or tests he relied on. Understandably the arbitrator preferred the opinions of professionals who had observed, examined or tested Mr. Madore in late summer, early fall 1993.

The arbitrator accurately summarizes the tests and results of Mr. Madore's functional capacity evaluations at pages 15 - 16 of the decision. She also notes the physiotherapy Mr. Madore received, and the reports of the treating centres.

I noted above the Director's function on appeal when misapprehension or error in an arbitrator's construing the facts is alleged. It is not for me to second-guess her observations and findings when supportable by the evidence, or to re-interpret that evidence. The arbitrator did find the Madores' oral testimony believable, but that is not in contrast to her findings about what Mr. Madore's essential tasks were, or that he was able to perform them by June 1993. She had a substantial amount of medical and rehabilitation evidence (which noted Mr. Madore's statements of his own abilities) to support her conclusions. I see no reason to interfere in her finding that while there was certainly some residual pain, Mr. Madore was not substantially disabled by it, and was in a position to do his essential tasks before Co-operators terminated his benefit payments. The appeal is therefore dismissed.

IV. EXPENSES

Both parties claimed expenses in this proceeding. In my view, the appeal turned on facts readily supportable by the evidence. Mr. Madore was unsuccessful, but the appeal was not frivolously brought. Accordingly each party will bear their own expenses.

September 22, 1997

Elisabeth Sachs Director of Arbitrations

Date