Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 92
Appeal P96-00052
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JEVCO INSURANCE COMPANY
Appellant
and
MICHAEL GAGNON
Respondent
Before:
David R. Draper, Director's Delegate
Counsel:
John D. Withrow (for Jevco Insurance)
Michael DeBiase (for Michael Gagnon)
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 May 1, 1996, is confirmed.
Michael Gagnon is entitled to his reasonable appeal expenses, payable by Jevco Insurance Company.
June 9, 1997
David R. Draper
Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by Jevco Insurance Company ("Jevco") from an arbitration decision, dated May 1, 1996, concluding that Michael Gagnon is entitled to weekly income benefits after October 29, 1994 based on the post-156 week test set out in section 12(5)(b) of Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule").
II. BACKGROUND
Mr. Gagnon fractured his forearms in a motorcycle accident on October 29, 1991. Because his injuries prevented him from returning to work as a drywaller, Jevco paid him weekly income benefits of $364.49 under section 12(1) of the Schedule. Effective October 29, 1994, however, Jevco stopped paying on the basis that Mr. Gagnon did not meet the stricter post-156 week test in section 12(5)(b), which states:
12.- (5) The insurer is not required to pay a weekly benefit under subsection (1),
(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.
There were two mediations, one dealing with Mr. Gagnon's claim for ongoing weekly income benefits and the other addressing his claim for vocational training. When the disputes were not resolved, Mr. Gagnon applied for arbitration of both issues.
At the arbitration, Mr. Gagnon claimed he needed vocational training to qualify for a job reasonably comparable to his pre-accident work as a drywaller. His request was for training as an electronics engineering technician. Jevco argued there were a number of suitable jobs Mr. Gagnon could do without retraining, including working as a locksmith or a security guard.
The arbitrator reviewed the various occupations suggested by Jevco, concluding that none of them were suitable occupations that Mr. Gagnon could do at that time. He specifically found that working as a security guard was sufficiently different from Mr. Gagnon's pre-accident work in nature and remuneration that it was not a suitable alternative. He agreed with Jevco that working as a locksmith was an appropriate option. However, the arbitrator found that Mr. Gagnon would not be qualified as a locksmith until he completed a period of apprenticeship. As a result, he ordered Mr. Gagnon's entitlement to weekly income benefits continued because he was still unable to engage in any suitable occupation or employment.
III. ANALYSIS
As stated in many decisions, it is not my role on appeal to second-guess the arbitrator's assessment of the evidence. He had the advantage of hearing from Mr. Gagnon and two rehabilitation professionals, one called by each party. The question, therefore, is not whether I might have come to a different conclusion, but whether the arbitrator erred in some respect sufficiently serious that the decision should not be allowed to stand.
Jevco claims the arbitrator misapprehended the test in section 12(5)(b) of the Schedule as it applies to the facts of this case. More specifically, Jevco submits that he erred in concluding that:
(a) working as a locksmith was a suitable option, but not until Mr. Gagnon completed a period of apprenticeship; and,
(b) working as a security guard was not a suitable option.
For the following reasons, I am not persuaded that the arbitrator erred. If anything, I might have been more critical of Jevco's position.
In deciding entitlement to weekly income benefits for the first 156 weeks, the work to be considered is usually clear. It is the type of work the insured person was doing at the time of the accident, or the predominant work he or she did in the previous year. The question is whether the insured person is substantially unable to perform the essential tasks of that employment or occupation. This remains the test for the first 156 weeks, even if the job is no longer available or becomes inappropriate for some other reason. In some cases, therefore, the analysis can become rather artificial.
After 156 weeks, the eligibility test changes. The work reference is no longer specifically tied to what the person was doing just before the accident, but expands to include other "suitable" occupations or employment. Section 12(5)(b) of the Schedule states that an insured person is not entitled to weekly income benefits unless he or she establishes that the accident-related 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." This section should be applied with a sense of reality. As I read the decisions, arbitrators have consistently done so by asking what the insured person can reasonably and realistically be expected to do given his or her particular circumstances.1
Mr. Gagnon's situation, unfortunately, is not unusual. At the time of his accident, he was a young man (25 years old) working in a physically demanding trade. His injuries prevented him from returning to physical work, but his options were limited by his lack of education and experience. To determine Mr. Gagnon's entitlement to additional accident benefits, the arbitrator had to decide if his accident-related injuries prevented him from engaging in any suitable occupation or employment.
This is not a case where the insured person made no effort to rehabilitate himself. The record is full of references to Mr. Gagnon's frustration at being out of work and his cooperation with the treatment and rehabilitation recommended by various health professionals. In fact, it appears there was good cooperation between the parties until just before the 156-week mark. In my view, the rehabilitation history is important in this case, and the arbitrator properly considered it in reaching his decision.
For a long time after the accident, the goal was for Mr. Gagnon to return to his pre-accident work as a drywaller. In December 1992, 13 months after the accident, Jevco arranged for him to be assessed by Dr. R.A. Haliburton, an orthopaedic surgeon. Dr. Haliburton found that Mr. Gagnon had done very well, but was not ready to return to work due to a lack of strength and endurance in his forearms. He felt that with rehabilitation support and an active exercise program, Mr. Gagnon would be able to return to his pre-accident work within about six months.
Based on Dr. Haliburton's recommendation, Jevco referred Mr. Gagnon to the Canadian Back Institute for an exercise program. After he completed that program and six months had passed since Dr. Haliburton's report, Jevco arranged for him to be assessed by another orthopaedic surgeon, Dr. S.W. Bartol. In August 1993, 22 months after the accident, Dr. Bartol found that Mr. Gagnon's condition had essentially stabilized, leaving him with a minimal disability. Although the disability was minimal, he felt it prevented Mr. Gagnon from returning to work as a drywaller due to the particular demands of that work on his forearms. Therefore, Dr. Bartol recommended that job retraining be considered.
The focus of Mr. Gagnon's rehabilitation changed as a result of Dr. Bartol's report. Jevco retained Associative Rehabilitation Inc. ("A.R.I.") to deal with the issue of retraining. In my view, this was a sensible and responsible step. At the end of November 1993, more than two years after the accident, Ms. Beasley-Tapak of A.R.I. recommended to Jevco that a retraining program be initiated as soon as possible due to Mr. Gagnon's boredom and frustration.
Ms. Beasley-Tapak set up two further assessments to determine Mr. Gagnon's retraining capabilities and identify appropriate work for him. Again, this was a reasonable course of action. The assessments were done in December 1993 - a standardized Functional Capacity Evaluation by the Canadian Back Institute and a Vocational Evaluation by Career Probe. The Career Probe evaluation identified eight alternative employment options, including electronics engineering technician and locksmith, but not security guard.
After reviewing the reports and speaking with Mr. Gagnon and Dr. Fortuna, Ms. Beasley-Tapak agreed that Mr. Gagnon should retrain as an electronics engineering technician. According to the arbitrator, she told Mr. Gagnon to take some academic upgrading courses in September 1994 before starting the electronics program the following January. These plans were put on hold, however, when Jevco denied funding pending more assessments by a different company, Medex. It is not clear from the record what led Jevco to second-guess Ms. Beasley-Tapak, although it is hard to ignore that the 156-week mark was approaching.
Medex did a functional capacities assessment, followed by a transferable skills analysis using the Choices Occupational Data Base (the "Choices program") to identify suitable employment options. The assessor, Colleen O'Brien, identified nine occupations she felt Mr. Gagnon could do without retraining, including locksmith and security guard. As a result, Jevco refused to pay for any further retraining and only paid weekly income benefits until October 29, 1994, the 156-week mark.
On appeal, Jevco submits that the onus was on Mr. Gagnon to prove he was unable to return to work as a locksmith or a security guard, or that they were not suitable occupations. In the circumstances of this case, I do not agree. It is unfair to take an insured person down a particular rehabilitation path and then expect him to justify why a list of other options could not have been pursued. As arbitrators have said in a number of decisions, the insured person is not required to prove that he or she is unable to do each and every potentially suitable type of work.2 Jevco decided to interrupt a rehabilitation program coordinated by a company it retained just as the program was getting started. In my opinion, therefore, the arbitrator correctly held that the onus was on Jevco to identify some suitable occupation or employment that Mr. Gagnon could do.
A. Locksmith
At the arbitration hearing, each party called an expert to testify. Jevco called Colleen O'Brien from Medex, and Mr. Gagnon called Robert Ancell, a rehabilitation consultant with his own company. Their qualifications were challenged, but the arbitrator allowed them to testify, subject to submissions about the weight their evidence should be given.
It is clear from the decision that the arbitrator preferred the evidence of Mr. Ancell, as he was entitled to do. According to the arbitrator, Mr. Ancell testified that there were many jobs that Mr. Gagnon could do, including working as a locksmith, but he needed training to do them. At page 16 of his decision, he provides the following analysis:
In the absence of testimony at the hearing by Dr. Fortuna, I am not convinced that the job of locksmith exceeds Mr. Gagnon's physical limitations. Mr. Ancell stated he had no particular problem with the physical demands of locksmith; his concern was with Mr. Gagnon's lack of experience or qualifications for that job. He added that locksmiths do need two years of apprenticeship to get $17,000-32,000, because during the apprenticeship the apprentice does not make that income. I accept his testimony that Mr. Gagnon cannot simply step into this job and would require at least a period of apprenticeship. I find that Mr. Gagnon does not have the education, training or experience to make this job suitable for him at this time.
Jevco submits that if working as locksmith was a suitable alternative occupation for Mr. Gagnon, the fact that an apprenticeship was required did not make it unsuitable. In support of this argument, Jevco relies on the arbitration decision in Sandra Singh and State Farm Mutual Automobile Insurance Company, cited above. However, the situation in that case was quite different. The arbitrator found that Ms. Singh could not return to her physically demanding job as a sewing machine operator, but could do other jobs in a light industrial or similar setting. While she accepted that Ms. Singh might need some retraining to reintegrate into the workforce, she did not have sufficient evidence to determine what was reasonable in the circumstances. As I read the decision, the arbitrator was not persuaded that Ms. Singh's training needs were so significant that she was prevented from returning to work.
In this case, Mr. Gagnon was not qualified to work as locksmith when his benefits were cancelled. The arbitrator accepted that it was a reasonable occupational goal, but one that he could reach only after a period of training. He concluded, therefore, that Mr. Gagnon was not yet capable of engaging in a suitable occupation. In my view, there is nothing surprising about that conclusion. The fact that the training was on-the-job should not affect entitlement to weekly income benefits unless the apprenticeship itself is comparable to the person's pre-accident work. Any income from the apprenticeship, however, would clearly be taken into consideration as post-accident income under section 15 of the Schedule.
Jevco submits that Mr. Gagnon failed to prove that he would earn less as a locksmith's apprentice than he did before the accident. For the reasons set out above, however, I do not agree that the onus was on Mr. Gagnon. The arbitrator was not entitled to rely on the testimony of Mr. Ancell, and I find no reason to interfere with his conclusion.
Jevco also submits that the arbitrator's decision gives Mr. Gagnon no incentive to get back to work. It contends that he can sit home and collect accident benefits. This argument is premature at best. There is no evidence that Mr. Gagnon enjoys his unemployment. Unfortunately, constructive rehabilitation efforts stopped in the Fall of 1994.
B. Security guard
Jevco specifically contends that the arbitrator erred in rejecting security guard as a suitable alternative on the basis that it paid less than Mr. Gagnon's pre-accident work as a drywaller. The arbitrator's reasons are found at page 16 of his decision:
According to Mr. Ancell, the job of premises security guard is unskilled. The evidence also suggests that security guards are paid less than drywall finishers. The hours of work — rotating shifts and weekends — are considerably different from those of a drywall finisher. I would think it is self-evident that the nature of the work is different from that of a drywall finisher. On balance, I find that this job is of a sufficiently different nature and remuneration not to be considered suitable.
In support of its argument, Jevco relies on the appendix to the Medex report listing an earnings range of $17,000 to $32,999 for both security guards and locksmiths. The argument is that if locksmith is a suitable occupation, as the arbitrator found, then this earnings range must be adequate.
I am unable to accept Jevco's argument for two reasons. First, the arbitrator did not reject security guard as a suitable alternative simply based on wages. He accepted Mr. Ancell's opinion that unskilled work generally was not comparable to Mr. Gagnon's pre-accident work as a drywaller. He also found that there were other important differences between the two occupations. I find nothing inappropriate about the factors the arbitrator considered and, therefore, have no basis for interfering with his evaluation of the evidence.
The second reason comes back to the issue of onus. Jevco submits that Mr. Gagnon failed to prove that he could not earn a living working as a security guard comparable to his pre-accident situation. But, as explained above, I do not accept that it was his onus. The arbitrator was not restricted to considering the Medex report. He also heard testimony from the two rehabilitation workers who presumably commented on the various occupations. In the circumstances, I am not persuaded that the arbitrator's findings lack an evidentiary basis.
IV. APPEAL EXPENSES
In light of the outcome, Jevco is responsible for paying Mr. Gagnon's reasonable appeal expenses.
June 9, 1997
David R. Draper
Director's Delegate
Date