Ontario Insurance Commission
Neutral Citation: 1997 ONICDRG 89
OIC A95-000402
BETWEEN:
KELLY CANTIN Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COM Insurer
DECISION
Issues:
The Applicant, Kelly Cantin, was injured in a motor vehicle accident on January 4, 1991. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Com ("Dominion"), payable under Ontario Regulation 672.1 Dominion terminated weekly income benefits on December 25, 1992. The parties were unable to resolve their disputes through mediation and Ms. Cantin applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Cantin entitled to weekly income benefits from December 26, 1992, pursuant to sections 12(1) and 12(5)(b) of the Schedule?
Is Ms. Cantin entitled to benefits for rehabilitation and vocational retraining pursuant to section 6(1) of the Schedule?
Is Ms. Cantin entitled to a special award against the Insurer, pursuant to section 282(11) of the Insurance Act?
Ms. Cantin also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
Ms. Cantin is entitled to weekly income benefits from December 26, 1992 onward, pursuant to sections 12(1) and 12(5)(b) of the Schedule.
Ms. Cantin is entitled to a functional assessment and work trials by Mr. Pearce, as well as the assistance of a rehabilitation worker to oversee this process. Ms. Cantin is also entitled to the cost of Dr. Bowler's and Mr. Pearce's services to date.
Ms. Cantin is not entitled to a special award against the Insurer.
Ms. Cantin is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Hamilton, Ontario, on April 22, 23 and 24, 1996.
Present at the Hearing:
Applicant: Kelly Cantin
Ms. Cantin's Representative: David F. Smye, Barrister and Solicitor
Dominion's Representative: William A. McClelland, Barrister and Solicitor
Dominion's Officer: Leanne Leganna
Witnesses:
Kelly Cantin Dr. Kenneth Bowler Terry Pearce Walter Mikitson Diana Kangas Buu Vien Ho
Exhibits:
The parties filed 16 exhibits.
Evidence and Findings:
Accident and Injuries
Ms. Cantin was injured in a motor vehicle accident on January 4, 1991. She was 26 years old at the time. She was struck by a car when she attempted to cross Highway 11, after her car had skidded off the road. She was not injured when her car initially left the road. She was transported to hospital and remained there until February 18, 1991. She testified that she injured her forehead, neck, left shoulder, low back, left buttocks, groin, hip, femur and knee in the accident. She currently suffers from moderate to severe headaches, diminished memory, stiff neck, and pain in her low back, left hip, groin, pelvis and knee. Ms. Cantin also describes feeling depressed. She states that her symptoms have remained roughly the same since the fall of 1992.
Dr. Ronald Kaplan, a psychologist, reported that Ms. Cantin suffered a "well-documented brain injury characterized by a brief period of pre-traumatic amnesia and patchy post-traumatic amnesia, several hours in duration." Ms. Cantin had two surgeries following the accident, one the next day to repair a fractured left femur and strained knee, and one two weeks later to repair a fractured left pelvis and damaged hip.
Ms. Cantin's position in this arbitration is that, as a result of the motor vehicle accident, she has been rendered disabled from performing the essential tasks of her pre-accident employment and from engaging in any occupation or employment for which she is reasonably suited by education, training or experience, pursuant to sections 12(1) and 12(5)(b) of the Schedule.
Essential Tasks of Pre-Accident Employment
Prior to the accident, Ms. Cantin worked part-time as a bar maid/waitress at a private club in Hamilton, the Place Polonaise. She had previously done similar part-time work at various restaurants and bars in the Hamilton area. The parties disagreed about the specific duties of Ms. Cantin's job at the Place Polonaise.
Ms. Cantin testified that her tasks included setting up the bar on the morning shift, squatting to see which types of beer in the refrigerator needed stocking up, lifting cases of beer and pop on a trolley and pulling the trolley cart down the hall to the bar. She also said she bent down on her knees to load the beer and pop into the refrigerator, served drinks to customers at their tables, stepped up and down on a step-ladder to wash mirrors and shelves behind the bar, cleaned the tables and floor, and closed up the bar at night. She stated that the cases of beer she lifted weighed approximately 36 lbs. each and that she would have to put four or five on a trolley at a time. She said that she worked alone in the bar and had no one to assist her setting up, serving, cleaning or closing up. Ms. Cantin also mentioned that she would occasionally have to change kegs of beer. However, this only arose in cross-examination, and is not noted in the documentary evidence. I am, therefore, not satisfied that it formed an integral part of her duties.
A different description of Ms. Cantin's job was given by Ms. Diana Kangas, a rehabilitation worker retained by the Insurer, who met with Ms. Diane Godzisz, the manager of Place Polonaise at the time of the accident, to establish the essential duties of Ms. Cantin's job. Ms. Kangas reported that the job involved stocking the bar at the beginning of Ms. Cantin's shift, lifting 10 lb. cases of beer onto a trolley (to a maximum of 70 lbs.), that it was customary for patrons to come to the bar and ask for a cocktail, that the only walking required was to clean ashtrays at the tables, and that the majority of a bar maid's job was sitting on a stool talking to the patrons or mixing cocktails. Ms. Godzisz told Ms. Kangas that a bar maid might occasionally carry drinks to a table, but that it was not a requirement. Ms. Godzisz also stated that another employee could perform the loading functions if Ms. Cantin could not tolerate this aspect of the job.
Ms. Cantin strongly disagreed with this description of her job. She said that her job was to please the customers and that she could not simply spend her time sitting at the bar talking to patrons. She said that the cases of beer she lifted were much heavier than 10 lbs. and that the total weight on the trolley was much more than 70 lbs. She stated that her whole shift consisted of standing, walking and cleaning. She conceded that taking drinks to the tables was not a requirement, but stated that anyone would do it in order to please the customers and to get tips. She also stated that she worked alone and that no one was there to assist her to load or re-stock the beer.
Mr. Walter Mikitson, the current manager of the Place Polonaise, was called to testify on the nature of a bar-maid's job at the club. Although he was not the manager at the time Ms. Cantin was employed, to a large extent, his evidence corroborated her description of the job. He had never met Ms. Cantin prior to his giving evidence at the hearing. Mr. Mikitson said there was no room to sit on a stool behind the bar and that there was only enough room to walk behind the bar. He said that there is still only one person on a shift at a time. He confirmed that a person must kneel down on the floor to check the amount of the beer in the fridge and that, depending on what is left in the fridge, load three to five cases of beer from the cooler in the back room on the trolley cart. He estimated the weight of each case of beer to be about 30 to 35 lbs. He stated that a bartender has to go to the tables, take orders from the customers and bring back the drinks. He also said that it is not unusual for five or six people to sit at one table, and that it is difficult to balance a tray with drinks for all of these people. The bar-maid must also clean the floors, the mirrors behind the bar and the ashtrays. She is on her feet all the time. Mr. Mikitson agreed with Ms. Cantin that the job analysis done by Ms. Kangas with Ms. Godzisz was not a fair description of the job. The bar maid had to stay busy in order to please the customers and to obtain tips.
I am satisfied that the job is as described by Ms. Cantin and Mr. Mikitson. Their descriptions of the job are more detailed than that recorded by Ms. Kangas, appear to be more consistent with the nature of a bar-maid's duties working alone in a private club (something supported by the personal work experiences of both Ms. Kangas and Mr. Pearce), and are consistent with each other, despite the fact that two different time periods are involved. Further, Ms. Cantin did not have an opportunity to comment on the job analysis at the time it was done and Ms. Godzisz was not called to testify at the hearing, although the Insurer apparently attempted, unsuccessfully, to locate her.
I am also satisfied that serving patrons at their tables was an essential part of Ms. Cantin's job. It may not have been strictly required by the manager at the time, but it did take place. Ms. Cantin was free to perform her job in this way, and it was a reasonable activity both from Ms. Cantin's legitimate perspective of wishing to earn more money and (as supported by the current manager) from the club's perspective of wishing to please the customers. Counsel for the Insurer suggested that Ms. Cantin did not earn tips in her job, based on the fact that none were reported in her income tax returns. In my view, this limited financial information does not outweigh the other evidence regarding Ms. Cantin's serving patrons and earning tips. Even assuming that it did not form an integral part of the job, I am still satisfied that the position involved a variety of physically demanding tasks and could not have been performed while sitting for prolonged periods.
Disability and Rehabilitation Efforts
The Insurer terminated benefits to Ms. Cantin on December 25, 1992, because the "Insured failed to follow through with Rehabilitation recommendations." Ms. Cantin testified that she was disabled from performing her job at Place Polonaise as a result of the accident. She also said that she cannot do any job that requires lifting, or standing or sitting for a prolonged period of time. She wants to return to the workforce but, in her view, there is no other job she can return to without further education or retraining. She has not applied for any jobs since the accident. She sought vocational upgrading from the Insurer in the fall of 1992, but they rejected her request and told her to return to her pre-accident job or another position. Ms. Cantin was referred by her counsel to Mr. Terry Pearce, a rehabilitation consultant, to canvass the possibility of vocational assistance. Ms. Cantin could not afford Mr. Pearce's services at that time. She then attempted to rehabilitate herself. She spoke to Niagara College about pre-requisites for doing either accounting or pharmaceutical assistant courses, and subsequently took upgrading courses in mathematics, data processing and accounting at Bishop T. J. McCarthy Adult Secondary School in the 1992/93 academic year. She also took courses in mathematics and applied physics and biology at the Nipissing Community School Adult Centre in North Bay, where she had moved in 1994 to be near her family. Ms. Cantin has done very well in these courses and her goal is to be a laboratory technician. However, she cannot afford to remain in school in order to do the additional courses she needs.
A number of physicians have commented on the extent of Ms. Cantin's disability. In December 1991, Dr. Allan Gold, an orthopaedic specialist, reported that Ms. Cantin would suffer persistent, potentially "troublesome" post-traumatic headaches "for quite some time to come," and long-term pain in her low back, hip and pelvis which "almost certainly will decrease her abilities as far as returning to the work force and any type of job activity which requires prolonged standing, squatting, bending, or climbing stairs or ladders on a repetitive basis." Dr. Gold concluded as follows:
"[Ms. Cantin] presently is totally disabled with there being a high likelihood of a partial permanent disability referrable to all types of occupations and she should undertake rehabilitative assessment, and with reference to potential vocational aptitudes which would include experience, education, training, previous training, interest, and commitment."
In July 1992, Dr. Punthakee, the surgeon who repaired Ms. Cantin's knee and hip, signed a letter in which Ms. Kangas confirms Dr. Punthakee's advice that Ms.Cantin was "capable of resuming a light duties work position on a five hour per day basis, with increasing one hour every other week to achieve a full time eight hours work day in a six week period."
In March 1993, Dr. Kenneth Bowler, a physical medicine and rehabilitation specialist, reported Ms. Cantin's prognosis to be as follows:
"I do not see her returning to her previous employer or type of work involving the restaurant business. I do see her as being re-trainable and I do see her as being employable in the future in a part-time sense. She may well go on to full time employment but only time will really tell.
"....I therefore see her as having residual physical impairment of the low back, left lower extremity predominantly which will prove significant over her medical life time with the potential that in the future, she may well require a surgical procedure to the left hip and possibly the left knee. The suggestions I have made within the context of rehabilitation needs should be acted upon."
In a subsequent report in January 1996, Dr. Bowler stated that while Ms. Cantin "feels she is only capable of sedentary work, the reality of her day-to-day experiences would suggest that she is probably capable of light to medium functions." Dr. Bowler, nevertheless, stated that Ms. Cantin is "unlikely to experience any appreciable significant improvement in her pain and suffering patterns in the future" and that "vocationally...she will have difficulty performing her waitressing jobs...[but] that when she completes school and her retraining package,...she physically will be able to function as a medical technician."
Dr. Bowler testified at the hearing that Ms. Cantin could not return to her previous occupation on a sustained basis and that, since her skill set was previously in the restaurant field, retraining was a viable option for her. He also felt that retraining was advisable for Ms. Cantin, given that the jobs currently within her skill set were not physically appropriate for her.
In March 1996, Dr. Kaplan reported that Ms. Cantin would suffer cognitive impairments "for the rest of her life," as a result of the accident. He also stated that, even after completing her training for a new profession, she would experience "cognitive inefficiences, slowness and mistakes" and "may also continue to experience significant fatigue in a full-time, demanding career."
Four rehabilitation specialists reviewed the extent of Ms. Cantin's disability. Mr. Terry Pearce, the rehabilitation consultant to which Ms. Cantin had been referred by her counsel, testified that Ms. Cantin required a functional assessment to determine her physical restrictions and her ability to do other jobs. He stated that, based on the medical information available to him, Ms. Cantin required retraining because she was not physically suited to return to the Place Polonaise and only possessed skills appropriate to that position. Mr. Pearce felt that retraining would also enhance Ms. Cantin's prospects of re-entering the workforce.
Ms. Kangas testified that Dr. Punthakee released Ms. Cantin to work in July 1992. The release was apparently given after Dr. Punthakee reviewed a vocational assessment performed by Dr. Gary Miller, a rehabilitation consultant and psychologist, and a functional assessment by Ms. Buu Vien Ho, an occupational therapist. Ms. Kangas stated that Dr. Punthakee's view was that Ms. Cantin could return to the jobs suggested by Dr. Miller. Ms. Kangas felt that Ms. Cantin could return to certain of the jobs listed by Dr. Miller, namely, car-rental clerk; cashier; clerk, customer service; customer service officer; film-rental clerk; receptionist-telephone operator; rental-shop attendant, recreational equipment; teller.
Although Ms. Kangas believed that Ms. Cantin could return to her pre-accident job based on the job analysis done with Ms. Godzisz and the reports of Dr. Punthakee, Dr. Miller and Ms. Ho, she conceded on cross-examination that if she had not been instructed to do so by the Insurer, she would not have closed the file and she would have continued providing vocational assistance to Ms. Cantin. This was despite the fact that she noted Ms. Cantin as becoming less receptive to her efforts as the rehabilitation progressed. She admitted that if Ms. Cantin's pre-accident job involved prolonged standing and walking, as well as lifting five or six cases of beer weighing approximately 36 lbs. onto a trolley (which I have found it did), then she would not have recommended a return to such a job. She also said that she would have performed a work trial to determine Ms. Cantin's readiness to resume full duties at the Place Polonaise. In any event, she stated that she would have assisted Ms. Cantin in obtaining the training and education she needed to perform the jobs identified on Dr. Miller's list, and that Ms. Cantin needed a work-hardening programme. In October 1992, Ms. Ginny Paterson, the physiotherapist to whom Ms. Cantin was referred by Ms. Kangas, reported that Ms. Cantin could return to modified work without prolonged positioning, but "should pursue another career rather than waitressing in the process of retraining."
In May 1992, Ms. Ho performed a functional assessment of Ms. Cantin at the request of the Insurer. At that time, she concluded that Ms. Cantin was able to perform a light duties job for 5 hours a day and that, with appropriate exercise, this could be increased to eight hours a day in six weeks. Based on the job analysis done by Ms. Kangas, Ms. Ho felt that Ms. Cantin could return to her job at the Place Polonaise. She also stated that the job list provided by Dr. Miller was physically appropriate for Ms. Cantin, but that the aptitude results in Dr. Miller's testing suggested that Ms. Cantin was a "reasonable candidate for vocational upgrading...." Ms. Ho also found that it would be "most beneficial that Kelly be involved in a vocational training program and at the same time, be involved in the...recommended exercise program to build up her strength and endurance before going back to work." On cross-examination, Ms. Ho conceded that if the job analysis understated the amount of standing, lifting and pushing/pulling in Ms. Cantin's pre-accident job, then she would not have recommended returning to such a position. Ms. Ho also stated that Ms. Cantin could not kneel on both knees, and that the functional assessment did not test standing on a step-ladder and balancing, both of which were aspects of Ms. Cantin's pre-accident employment.
Dr. Bowler and Mr. Pearce (who both possessed significantly greater expertise in rehabilitation services than Ms. Ho) were critical of the assessment techniques employed by Ms. Ho to evaluate Ms. Cantin's functional abilities. Dr. Bowler stated that the "Key" system is much more effective than the "Domain" system used by Ms. Ho in testing the actual ability of an individual to resume full duties of a particular job. He stated that the Key System is more objective, and that effective use of the Domain System requires, at a minimum, an accurate job analysis, which Ms. Ho did not possess. Mr. Pearce testified that Ms. Ho's testing was too limited to determine Ms. Cantin's full physical capacity and her ability to return to jobs other than the Place Polonaise.
Finally, Dr. Miller, who performed a vocational assessment of Ms. Cantin in 1992, reported that she was a "reasonable candidate for upgrading," but that she should investigate jobs within the health field that do not require extensive formal upgrading, such as clinical assistant, dental assistant, dental receptionist, medical office assistant and occupational-therapy aide. He provided a computer-generated list from the Canadian Classification and Dictionary of Occupations ("CCDO") of "examples of feasible jobs for her inspection," given her physical limitations, her abilities and her vocational interests. Dr. Miller also stated that Ms. Cantin could use the CCDO code for medicine and health occupations, and for clerical and related occupations, to expand her job search.
Dr. Bowler, Dr. Miller and Mr. Pearce all expressed reservations over Ms. Cantin's desire to return to work in the medical technology field. Dr. Bowler stated Ms. Cantin may have problems succeeding in an upgrading course at the community college level, but felt that her goal of becoming a medical technician or pharmacy assistant was a reasonable choice. Dr. Miller stated that Ms. Cantin would have "great difficulty with courses such as laboratory technician because of her relatively low Verbal Intelligence and reading ability." Mr. Pearce stated that "jobs such as pharmacy assistant may be difficult for Ms. Cantin as the job requires her to stand for long periods of time...[and] Dr. Gold's report indicates that this is not the type of work that would be reasonable for Ms. Cantin."
Analysis:
Pre-Accident Job
Based on all of the evidence, I find that Ms. Cantin has established, on a balance of probabilities, that the injuries received in the motor vehicle accident disabled her from returning to her pre-accident employment.
Ms. Cantin was involved in a serious accident, resulting in two operations, a brain injury and persistent physical, emotional and psychological difficulties. The medical and rehabilitation evidence establishes that Ms. Cantin has continued to suffer from moderate to severe headaches, depression, diminished cognitive function, and pain in her low back, left hip, groin, pelvis and knee. The physicians and rehabilitation workers found her to be an honest, forthright and conscientious individual. Her credibility was not seriously challenged by the Insurer. I am satisfied that Ms. Cantin's injuries and continuing symptoms are as she has described.
Ms. Cantin's pre-accident work experience was limited to jobs as a waitress and bar-maid. She had completed part of Grade 13 by the time of the accident. Her job at Place Polonaise involved substantial lifting, pushing/pulling, standing, walking, kneeling, carrying, climbing and balancing.
Dr. Punthakee, Ms. Kangas and Ms. Ho felt that Ms. Cantin was capable of returning to her pre-accident job. However, Dr. Punthakee did not appear to have a description of Ms. Cantin's previous job at the time he signed Ms. Kangas' July 1992 letter, releasing Ms. Cantin to light duties employment. Ms. Ho and Ms. Kangas also based their opinions on a flawed description of Ms. Cantin's duties at the Place Polonaise. Ms. Cantin's previous job involved much more demanding tasks than those described in the job analysis filled out by Ms. Kangas and Ms. Godzisz. Ms. Kangas and Ms. Ho both conceded on cross-examination that if the job done by Ms. Cantin was as described by her, then they would not have suggested she return to her pre-accident employment. Ms. Cantin returned to see Dr. Punthakee in February 1993, after benefits had been terminated, and Dr. Punthakee appeared concerned when she gave a different (and more accurate) description of her pre-accident job than that which had been provided by the Insurer in August 1992.
Dr. Punthakee and Ms. Ho both felt a graduated return to work was possible, beginning with five hours per day and increasing to eight hours per day, in six weeks. However, this was on the assumption that Ms. Cantin's pre-accident job was a light duties position. Mr. Pearce testified that Ms. Cantin's bar-maid/waitressing job was not a light duties position. Dr. Bowler provided an excerpt from the CCDO which described the job category of "alcoholic beverage server" as light, but the enumerated features of that job category were significantly less demanding than the work actually performed by Ms. Cantin at the Place Polonaise. I find that Ms. Cantin's previous job did not involve light duties, and that the release to work and graduated plan issued by Dr. Punthakee and Ms. Ho was, therefore, invalid.
Dr. Gold, Dr. Bowler and Mr. Pearce were consistent in finding that Ms. Cantin was not physically suited to return to her pre-accident job. Each of these individuals also had an accurate description of Ms. Cantin's work at the Place Polonaise. Although Dr. Bowler reported in January 1996, that Ms. Cantin was probably capable of light to medium functions, he specified that she would have difficulty performing her waitressing jobs and could not return to her previous occupation on a sustained basis.
Therefore, based on the duration of her symptoms, the nature of her work duties, and the preponderance of medical and rehabilitation evidence, I find that Ms. Cantin has been substantially disabled from performing the essential tasks of her pre-accident job.
Suitable Alternative Employment
I am also of the view that Ms. Cantin has been continuously disabled from returning to any job for which she is reasonably suited by education, training or experience, pursuant to section 12(5)(b) of the Schedule.
I agree with the comments in Caruso and Guarantee Company of North America (May 9, 1996), OIC A-006856, that to establish entitlement under section 12(5)(b), "the applicant must present some evidence that he or she has made a bona fide effort to identify, try to find or attempt some sort of 'suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment."
I also accept the criteria for determining the suitability of alternate employment as summarized in Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312. Those criteria, in short, are as follows. Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. If the job is substantially different in nature, status or remuneration it may not be an appropriate alternative. The work must be suitable, viewed fairly and realistically, having regard to the applicant's educational and employment background. Job-market considerations are relevant in determining suitable employment.
Ms. Cantin's pre-accident employment experience lay entirely within the area of waitressing and bartending. The medical and rehabilitation evidence establishes that Ms. Cantin continues to be disabled from returning to work in the restaurant field, and that vocational retraining is a viable option for her. Dr. Gold predicted a partial permanent disability referrable to all types of occupations (particularly those requiring prolonged standing), and recommended a rehabilitative assessment focussing on Ms. Cantin's vocational aptitudes. Dr. Kaplan noted Ms. Cantin's cognitive deficits, and her difficulty remaining organized and focussed. He felt that she required psychological and neuropsychological counselling to properly compensate for these problems and to prepare for future employment. Dr. Bowler and Mr. Pearce both felt that Ms. Cantin was not physically suited to work in the waitressing or restaurant field, and that in light of her current skill set, she required vocational upgrading. Ms. Paterson, the physiotherapist, stated that Ms. Cantin could return to modified work without prolonged positioning, but recommended retraining for a career other than waitressing. Although Ms. Ho felt Ms. Cantin was able to return to her previous occupation, she concurred with Dr. Miller's findings, and recommended a vocational upgrading and work-hardening programme.
Ms. Ho stated that the job list provided by Dr. Miller was physically appropriate for Ms. Cantin. However, the list does not describe the duties or specific physical requirements of the positions. They were recommended to Ms. Cantin by Dr. Miller merely as "examples of feasible jobs for her inspection." Without knowing the specific nature of the jobs on the list, I am unable to determine whether they would be appropriate for Ms. Cantin, given her physical limitations, prior employment and education level. Ms. Kangas narrowed the list down somewhat, and identified eight positions she felt were appropriate for Ms. Cantin. However, either the specific physical requirements and duties of those jobs are unknown, or they appear to bear no resemblance to the work Ms. Cantin did prior to the motor vehicle accident. I am not satisfied that the enumerated positions would accommodate her specific physical and psychological limitations. In any event, as much as a year of specific vocational preparation would be required to perform the jobs. I, therefore, find Dr. Miller's list of little assistance in determining whether Ms. Cantin was physically capable of returning to a job for which she was reasonably suited by education, training and experience.
In my view, rehabilitation assistance to Ms. Cantin ended prematurely. Her capacity to perform, and retrain for other jobs required more detailed information about the nature of the positions, as well as a more focussed assessment of her functional abilities. Without reaching any general conclusions regarding the relative merits of the Domain System employed by Ms. Ho and the Key System discussed by Dr. Bowler and Mr. Pearce, I am satisfied that Ms. Cantin required a more detailed functional assessment, one which would determine her physical capacities in relation to specific occupational requirements. As noted by Dr. Bowler and Mr. Pearce, the assessment conducted by Ms. Ho did not address the specific demands of jobs for which Ms. Cantin might retrain. Ms. Kangas' testimony that she would have performed a work trial to determine Ms. Cantin's ability to resume her pre-accident job, was based on Ms. Ho's recommendations concerning Ms. Cantin's return to work; however, both views were based on a faulty description of Ms. Cantin's pre-accident employment. I, therefore, find that Ms. Cantin required additional functional testing to determine her physical capacity to return to work.
In light of this, and my previous finding regarding the suitability of Ms. Cantin returning to her pre-accident employment, I do not find it significant that Ms. Cantin did not re-apply to her previous job or pursue the positions identified by Dr. Miller. In any event, at the time Ms. Kangas suggested Ms. Cantin re-apply to her old job, the Place Polonaise was not hiring new bar-maids. And the job modifications suggested by Ms. Godzisz to accommodate Ms. Cantin's disability (namely, providing a stool for sitting, and having other employees do the required lifting and pushing/pulling) would not address the need for prolonged walking and standing on the job, or the need for significant lifting during a shift (unless Ms. Cantin would no longer work alone).
Further, contrary to the Insurer's own instructions, Ms. Kangas felt that rehabilitation assistance to Ms. Cantin should continue. She said she would have conducted a work trial to determine Ms. Cantin's readiness to return to her pre-accident job, and would have assisted Ms. Cantin in obtaining the training and education required to perform the jobs on Dr. Miller's list. Although I have found that Ms. Cantin remains disabled from her pre-accident occupation, and that the jobs listed by Dr. Miller do not appear to fall within Ms. Cantin's previous employment experience, I agree with Ms. Kangas that rehabilitation and/or vocational assistance should have continued to Ms. Cantin.
Ms. Cantin did not pursue the scheme contemplated by Ms. Kangas. However, Ms. Cantin believed the Insurer would not provide her with the vocational assistance she needed. And, although she delayed in discussing the vocational handout with her counsel, Ms. Kangas continued to emphasize a return to the Place Polonaise, particularly after the job analysis was done with Ms. Godzisz. Ms. Cantin then sought funding for vocational assistance by Mr. Pearce, who would have conducted more detailed vocational and functional testing to determine a suitable position for her. The Insurer rejected this request and terminated benefits. In these circumstances, and in light of my findings concerning the suitability of Ms. Cantin returning to her pre-accident job or the positions on Dr. Miller's list, I am satisfied that Ms. Cantin attempted to identify a suitable position to which she could return. Her response to Ms. Kangas' efforts was not such as to disqualify her from benefits under section 12(5)(b) of the Schedule.
I am further of the view that Ms. Cantin's own re-training plan was not so unreasonable as to disentitle her to benefits under section 12(5)(b). Ms. Cantin pursued her own course of rehabilitation after the Insurer terminated benefits. She saw Dr. Bowler, who reported that her goal of entering an allied health field as a pharmacy assistant was a reasonable choice. She also underwent a preliminary assessment by Mr. Pearce, who felt that additional testing and vocational retraining was in order. She attempted to re-educate herself to become a pharmacy assistant or laboratory technician, but was financially unable to continue with this. Although Dr. Bowler, Dr. Miller and Mr. Pearce expressed concerns about both of these positions, they did not suggest that Ms. Cantin's goal was entirely unrealistic. In any event, Dr. Miller listed the (apparently similar) position of "pharmacy aide" in his vocational handout, and Mr. Pearce stated he would need additional vocational and functional information to determine whether Ms. Cantin was, in fact, incapable of performing the two jobs. Therefore, for the purposes of section 12(5)(b), although concerns were raised about her plans, Ms. Cantin continued to pursue what, in my view, was a legitimate course of rehabilitation.
Therefore, based on the nature and duration of her symptoms, the nature of her pre-accident job and the medical and rehabilitation evidence of the need for retraining and possible employment alternatives, as well as her own rehabilitation efforts following the termination of benefits, I am satisfied that Ms. Cantin has been continuously disabled from engaging in any occupation for which she is reasonably suited by education, training or experience.
Supplementary Medical and Rehabilitation Benefits
Ms. Cantin has claimed benefits under section 6 of the Schedule to cover the cost of her rehabilitation to date (including the tuition and books for her course work), and Mr. Pearce's rehabilitation plan. Mr. Pearce testified that his programme would include a functional assessment, two work trials for the position of laboratory technician, a three-year laboratory technician course, a computer, and a rehabilitation worker to oversee the process. Counsel for Ms. Cantin suggested that the Insurer be issued a general order to pay Ms. Cantin's rehabilitation expenses, subject to the parties referring any serious disputes back to me for resolution.
Despite my findings regarding Ms. Cantin's entitlement to section 12(5)(b) benefits, I am not satisfied that all of the items requested are reasonable expenses under section 6 of the Schedule. I have found that rehabilitation assistance to Ms. Cantin ended prematurely. Her capacity to retrain for, and perform, other jobs required more detailed information about the nature of the positions, as well as a more focussed assessment of her functional abilities. I find that Ms. Cantin is entitled to the functional assessment proposed by Mr. Pearce.
However, this assessment should not be restricted to the position of laboratory technician. It should also address the positions in the health field identified by Dr. Miller, as well as the position of pharmacy aide. These occupations would appear to be consistent with Ms. Cantin's aptitudes and goals, and would not appear to involve the extensive upgrading required by the position of laboratory technician (this latter point being important in light of Dr. Miller's, Dr. Bowler's and Dr. Kaplan's view that a full college programme in laboratory technology might be too demanding for Ms. Cantin). Work trials should then occur in some of the positions identified in the functional assessment as suitable for Ms. Cantin. It is reasonable that if the functional assessment is to be performed by Mr. Pearce, then he should also conduct the work trials.
In my view, it is premature to order the Insurer to fund a full college programme in laboratory technology and the purchase of a computer, before the functional assessment and work trials have taken place. For the same reason, I find that the Insurer is not required to cover Ms. Cantin's educational costs to date. Drs. Miller, Bowler and Kaplan expressed concern about Ms. Cantin's psychological capacity to follow through with a college programme in laboratory technology, and Dr. Bowler and Mr. Pearce questioned her physical ability to be either a laboratory technician or a pharmacy assistant. Both Dr. Bowler and Mr. Pearce indicated that additional vocational and functional information was required to determine Ms. Cantin's ability to perform these jobs. On this basis, I find that the funding of a college programme, the purchase of a computer, and Ms. Cantin's educational costs to date, are not reasonable expenses under section 6 of the Schedule. Ms. Cantin is free to request these items from the Insurer, once the functional assessment and work trials are completed. I do find, however, that the services provided by Dr. Bowler and Mr. Pearce were reasonably incurred.
In light of the above, I am only prepared to order the Insurer to fund the services of a rehabilitation worker for the purposes of the functional assessment and work trials. I am not prepared to accede to the request of Ms. Cantin's counsel to issue a blanket order for rehabilitation services, subject to disputes that can referred back to me. The parties are expected to work together in completing the assessment of Ms. Cantin's abilities, and in facilitating her return to the workforce in a suitable position. Further disputes between the parties can be referred to the arbitration process in the normal course.
Special Award
I am not prepared to order a special award in this case. The Insurer's reliance on a defective description of Ms. Cantin's pre-accident job was not, in my view, sufficiently egregious to warrant a special award. Although it would have been helpful for the Insurer to have reviewed the job description with Ms. Cantin, the Insurer attempted in good faith to determine the nature of her pre-accident duties and to assess her employability on that basis. Further, Ms. Cantin delayed in showing Dr. Miller's vocational handout to her counsel, something which may have helped in identifying a suitable alternative for which she could retrain. Finally, although I have found that Ms. Cantin is entitled to more focussed rehabilitation assistance, the Insurer provided her with a legitimate vocational and functional assessment to determine her ability to return to her previous job or a suitable alternative. It appears that a lack of communication regarding the pre-accident job and the vocational assessment led to the termination of benefits. In these circumstances, I am not satisfied that the Insurer's conduct was such as to attract a special award.
Expenses:
This arbitration was brought in good faith and raised legitimate issues for determination. I have found Ms. Cantin entitled to weekly income benefits and rehabilitation benefits. In these circumstances, I exercise my discretion to award Ms. Cantin her expenses of the arbitration. Should the parties be unable to agree on the amount owing, they may apply to the Registrar for an assessment.
Order:
Ms. Cantin is entitled to weekly income benefits from December 26, 1992 onward, pursuant to sections 12(1) and 12(5)(b) of the Schedule.
Ms. Cantin is entitled to a functional assessment and work trials by Mr. Pearce, as well as the assistance of a rehabilitation worker to oversee this process. Ms. Cantin is also entitled to the cost of Dr. Bowler's and Mr. Pearce's services to date.
Ms. Cantin is not entitled to a special award against the Insurer.
Ms. Cantin is entitled to her expenses of the arbitration.
May 30, 1997
Eban Bayefsky Arbitrator
Date