Neutral Citation: 1998 ONFSCDRS 102

FSCO A97-000896

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ADAM RICH

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Adam Rich, was injured in a single-vehicle motorcycle accident on Friday, August 25, 1995, when he fractured several vertebrae and sustained a closed-head injury. He was hospitalized for several months and did not return to school as a Grade 11 student until early 1996. He applied for and received statutory accident benefits in the form of weekly education disability benefits ("EDBs") from Jevco Insurance Company ("Jevco"), payable under section 15 of the Schedule¹ Jevco terminated the weekly education disability benefits effective March 21, 1996. Jevco also paid a lump sum education disability benefit pursuant to section 16 for the autumn 1995 semester. Adam Rich seeks further weekly education disability benefits as well as one further lump sum payment. The parties were unable to resolve their disputes through mediation, and Mr. Rich applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Rich entitled to a lump sum education disability benefit pursuant to section 16 of the Schedule for either the semester beginning January 1996 or alternatively the semester beginning September 1996?

2. Is Mr. Rich entitled to receive a weekly education disability benefit from March 22, 1996, to August 25, 1997, pursuant to section 15 of the Schedule?

3. Is Jevco liable to pay Mr. Rich's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Mr. Rich also claims interest on any amounts outstanding.

Result:

1. Mr. Rich is entitled to a lump sum education disability benefit pursuant to section 16 of the Schedule for the semester beginning January 1996.

2. Mr. Rich is entitled to receive a weekly education disability benefit from March 22, 1996, to August 25, 1997, pursuant to section 15 of the Schedule.

3. Jevco shall pay interest on these amounts in accordance with section 68 of the Schedule.

4. Jevco shall pay Mr. Rich's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 31 and September 1, 1998, before me, David Evans, Arbitrator. No court reporter was present.

Evidence and Findings:

Adam Rich, born September 26, 1977, testified that by August 1995 he had completed Grade 10 at Barrie Central Collegiate and was working during the summer as a gas bar attendant at a Sunoco gas station. The last thing he remembers of August 25, 1995, was driving his motorcycle on the road from Angus to Barrie with his girlfriend, Jennifer, on the seat behind him. He next remembers waking up at St. Michael's Hospital in Toronto. He understands that he cartwheeled off the road and fractured several vertebrae.

Mr. Rich was originally taken to the Barrie Royal Victoria Hospital. He was transferred directly to neurosurgery at St. Michael's the following morning as he was still unconscious and a CT scan showed a small contusion on his right temporal lobe. He also experienced a tonic/clonic seizure and was prescribed Dilantin as a prophylactic anti-seizure medication. On September 1, 1995, his multiple mid-thoracic spinal fractures were treated by spinal graft (with bone from the right iliac crest) and fusion from T2 to T9 inclusive, supported by a transverse rod connector, two rods, and six hooks.

Mr. Rich developed communication problems. Sonya Torreiter, speech-language pathologist at St. Michael's, reported on September 14, 1995, that he was highly distractible and required frequent cuing to remain on task. Verbal organization skills were impaired, and he had difficulty with convergent thinking (identifying the most important aspects of a situation).

Mr. Rich was diagnosed with a severe closed-head injury. Dr. Lorraine McFadden, psychologist, saw Mr. Rich on October 17, 1995. He had a previous problem of dyslexia. Dr. McFadden noted that his continuing impairments such as compromised verbal fluency, judgment, verbal and visual memory, and visuoconstructive skills more than seven weeks post-accident suggested a high probability of neuropsychological impairment consistent with a severe closed-head injury. She recommended ongoing treatment by Speech and Language Pathology with respect to verbal fluency and speech latency as well as rehabilitation to address the impaired memory functions and possible sequelae of frontal lobe involvement.

Mr. Rich left St. Michael's and was admitted to the Hugh MacMillan Rehabilitation Centre (subsequently renamed the Bloorview MacMillan Centre) on October 30, 1995. The Ministry of Transportation then suspended his driver's licence on the recommendation of Dr. Peter Rumney, Director of the Pediatric Acquired Brain Injury Program at the MacMillan Centre.

Dr. Mary L. Stewart, psychologist, sets out the results of her tests on Adam Rich at the MacMillan Centre in her neuropsychological assessment dated December 14, 1995. She concluded that his problems with fine motor skills, visual-motor processing, auditory information processing speed, and visual memory abilities were likely related to the effects of his brain injury. She recommended that he return to school taking a reduced course load and that he should receive extra resource assistance and support such as tutors, extra time to complete tests and assignments, and the option of writing exams in a quiet room free from distractions using multiple-choice or short answer format exams.

Mr. Rich was discharged to outpatient treatment on December 22, 1995. Mr. David Rich, Adam's father, who was an aerospace engineer and is now a high school teacher, testified that his son had not recovered: he was only released because Mr. Rich was going to take care of him at his home at Base Borden while he received ongoing treatment. He had encouraged his son to return to school. Adam Rich testified that he returned to school in January 1996 at St. Joseph's Collegiate Secondary School in Barrie.

Ms. Jennifer James of Rehabilitation Management Inc. testified that she became involved as Mr. Rich's rehabilitation counsellor in December 1995 and that she was his manager for the next two years. Although Mr. Rich tried to increase his course load by adding Biology to maintain his motivation, the extra pain he had with the afternoon Biology class and his problems with cognitive recall required him to eventually drop it. He finished the semester with only two of the normal four credits, in English (mark of 50) and Society: Challenge and Change (60).

Mr. Rich described Society as a "bird" course requiring nothing more than attendance and a smile. Although his English mark was similar to his pre-accident marks, he testified that he had never before required the kind of special assistance he received after the accident in order to pass. He and his father both testified that it took much greater effort on his part to obtain those post-accident marks.

Mr. Rich did show some improvements after his return to school. He testified that he resumed his pre-accident interest in writing poems by early 1996. In April 1996, the MacMillan Centre reports indicated that his standing balance, coordination and concentration had improved since his release and concluded that he had a good potential for relearning driving. Similarly, the speech language pathologist, Alison Bell, in her Speech and Language Assessment Report dated May 1, 1996, noted improvements in Mr. Rich's speech. She wrote that, expressively, his communication was completely functional: he spoke slowly and quietly with some pauses, but prosody and volume were appropriate. Mr. Rich testified that by the end of the summer he did not require further speech therapy.

However, the MacMillan Centre reports also indicated that his short-term memory remained a problem. Ms. Bell concluded that he might have some difficulty with higher level cognitive functions such as memory, reasoning, and organizational skills. Dr. McFadden, in her follow-up Neuropsychological Assessment dated November 12, 1996, found that his cognitive problems, such as reduced fine manual motor skills, and reduced speed and efficiency of some cognitive operations, persisted.

Dr. Stewart had also recommended that Mr. Rich see a psychologist. Mr. Rich started seeing Dr. Peter Marshall, psychologist, in February 1996. In his report dated May 14, 1996, Dr. Marshall writes that when he suggested to Mr. Rich that he seemed uninterested in coming to treatment, there was a sudden change in affect: "Adam appeared to become despondent and stated that no one has the chance to see him as he really is. He talked about presenting a facade in almost all situations; he added that this masks how unhappy and hopeless he typically feels." In her report of June 14, 1996, Ms. James writes that Mr. Rich told her he was seeing Dr. Marshall less often. He felt he was beginning to regain his self confidence and accept some of his limitations in an attempt to facilitate control of his future. Mr. Rich testified that although he stopped seeing a psychologist for the summer of 1996, he still needed emotional support, noting that he "just learned how to deal with the emotions and then I felt I could handle it for a period of time."

In the Speech and Language Assessment Report by Alison Bell dated May 1, 1996, she writes: "Socially, [Adam] reported no difficulties, feeling that his quiet nature was essentially the same as it had been before the accident." Mr. Rich testified that he disagreed with this comment and that he may have said it because he was confused. He continued to have social problems in early 1996. He forgot what others said, making it difficult to follow a conversation or to socialize with friends. His memory has not dramatically improved since. He had problems expressing himself, and he lead his friends to believe that he was back to normal to avoid ridicule.

Mr. Rich testified that he took a 1996 summer course in English in order to obtain another credit for his high school diploma, receiving a mark of 52. That autumn, he moved into an apartment with two friends and changed schools to Barrie Central Collegiate in hopes of taking more technically-oriented courses. However, the paperwork and memorization required in the technology courses were too demanding for him. He attempted to take the continuation of a technology course in which he had a mark of 83 before the accident but failed. He created a danger of electrocution during the course when he improperly attached a power meter to an electrical circuit. Mr. Rich senior testified that he understood his son's problems with the technology course arose because he had lost his manual dexterity and had difficulty following the logic of the circuitry. Mr. Rich was again able to obtain credits in only two courses, Dramatic Arts (81) and English Writing (51).

In her report of October 16, 1996, Ms. James reported that Mr. Rich had difficulty in recalling the dates and times for appointments. At school, he was participating in a resource period to access specialized one-to-one assistance with assignments and to improve his study skills. She reported in February 1997 that Mr. Rich was renting a townhouse in Barrie, with his mother's assistance. As he could not afford the MacMillan Centre driver's training, he had continued to use taxi and bus services.

Mr. Rich testified that in the spring semester of 1997, he initially enrolled in four courses, eventually obtaining three credits in what he described as the easiest courses available. The only detailed records before me on the post-accident courses are for the spring 1997 term: Visual Arts—Comprehensive, stressing greater experimentation over the Grade 10 general course (mark of 62, with the comment "A satisfactory term"); Family Studies—Parenting, giving emphasis to "child development and parenting skills throughout the life cycle" (64, "Poor attendance has hindered your progress"); and Personal Life Management, preparing students to live independently including "home maintenance and repair, nutrition and human relations" (50, "Low mark due to minimum effort").

Mr. Rich testified that around May 1997 he moved into an apartment with his girlfriend Jennifer: his memory was vague on the exact dates. He was also able to resume his pre-accident cooking hobby. He paid the rent every other month, did some of the housework, and went with Jennifer to shop for groceries.

In July 1997, the MacMillan Centre's driver rehabilitation services determined that Mr. Rich's acuity in his left eye had improved. He was found to have good judgment, processing speed, concentration and coordination, and his cognitive skills and functional hand-eye coordination had improved. Ms. James reported on October 21, 1997 that Mr. Rich had recently received notification from the Ministry of Transportation of reinstatement of his rights to proceed with obtaining a learner's permit.

Dr. Stewart had also recommended in December 1995 that Mr. Rich be provided with art or music therapy, which was approved after mediation in February 1997. Ms. James reported on May 29, 1997, that the therapy had improved his confidence and his dexterity.

Ms. James also reported that Dr. McBroom, a neurosurgeon, had recommended removal of the rods surrounding the fusion site of Mr. Rich's surgery. His September 5, 1997 operative note indicates that the spinal fusion mass was completely solid throughout the wound with no mobile segments. In his letter dated September 23, 1997. Dr. McBroom indicates that although Mr. Rich then required physiotherapy, he was under no specific physical restrictions. Ms. James testified that Mr. Rich's fear of the surgery triggered further psychological treatments that autumn. Mr. Rich testified that in September or October 1997 he moved to Milton to live with his father again, who had moved from Borden. He started an introductory microcomputer course in the E.C. Drury school in Milton, which he continued to attend part-time two or three times per week at the time of the hearing. In the late fall of 1997 he worked somewhat over a month with his father as part of a co-op program. His father was a shareholder in a horse feed business at Mohawk Raceway, so Mr. Rich's work included keeping count of the feed, supervised by his father and uncle. In February 1998, he enrolled at Mohawk College in a year-long system utilities operator course that will enable him to work with gas appliances.

Ms. Deirdre Clayton assumed carriage of Mr. Rich's file after he moved to Milton. As set out in her report of December 2, 1997, Mr. Rich had recovered sufficiently since the thoracic surgery to have overcome any significant functional limitations. He was also managing the school work for an Introduction to Microcomputers course without a tutor as well as earning high school credits as part of the co-op education program. Jevco had authorized an electronic organizer to assist with his weak memory and organizational skills. He had begun in-class driver training on November 13, 1997 and had been referred to Dr. Mary Klein, Clinical Psychologist.

Mr. Rich testified that in late 1997 Jevco funded music therapy again after his move to Milton. Noreen Donnell, music therapist, writes in her report dated January 28, 1998, that Mr. Rich told her during the assessments in November and December 1997 that he considered music one of his basic needs for survival, in that he uses music to relax, to escape, and to relieve pain. In discussing the accident and its effects on him, he questioned why he survived and was able to walk again when others were not as fortunate. He told the therapist that he uses his poetry writing as a form of emotional release.

Ms. Clayton reported on February 23, 1998, that Mr. Rich intended to continue the utilities systems operator one-year certificate program at Mohawk College despite the finding in a neuropsychological and vocational assessment dated January 31, 1998 that he would have difficulty being competitive in the workplace. Ms. Clayton reported on April 7, 1998 that Mr. Rich was studious at Mohawk, although mathematics still gave him problems. He had purchased a car, greatly improving his access to Mohawk, and had required minimal psychological treatment since he started attending Mohawk.

Ms. Clayton sets out in her report of February 25, 1998, that Mr. Rich had 25.5 of the 30 required credits for high school graduation based on two credits for his co-op work completed the previous semester and one-half credit for a microcomputer course. Mr. Rich testified that he had to first finish the microcomputer course to receive the co-op credits.

Lump Sum Education Disability Benefit:

Pursuant to section 16 of the Schedule, Mr. Rich is entitled to a further lump sum education disability benefit for each semester of secondary education that he was unable to attend or successfully complete as a result of the accident. (As he was over 16 at the time of the accident, he is entitled to at most one more lump sum.) As set out in more detail below, Mr. Rich had obtained the standard four credits per semester in the two years before the accident, although many of his marks were bare passes. He and his father testified that generally he worked just enough to obtain these marks, whereas after the accident he had to work much harder. In the first post-accident semester of spring 1996, he passed only two courses.

As I understand it, Jevco argued that, as success at school connotes achieving the passing mark of 50 percent in a course, it follows that passing 50 percent of the courses in a semester connotes successful completion of a semester. I disagree. I find that "successful completion" of a semester in the case of a student who had obtained the normal four credits per semester before the accident means obtaining a similar outcome after the accident. I find that Mr. Rich was not able to obtain that outcome as a result of the accident. Accordingly, I find that Mr. Rich is entitled to a further lump sum education disability benefit.

Weekly Education Disability Benefit:

Pursuant to section 15 of the Schedule and in the particular circumstances of this case, Adam Rich may be entitled to further weekly EDBs during the period under examination if he sustained an impairment as a result of the accident and met one of two criteria: either he suffered a substantial inability to continue his education (subparagraph i of paragraph 15(1)2, which I shall refer to as the "substantial inability" test), or he suffered a partial inability to carry on a normal life (subparagraph iii, the "partial inability" test). However, the benefit stops if, at 104 weeks after he first qualified for EDBs, he only qualifies under the partial inability test.

In either case, whether under subparagraph i or iii, it is necessary to review Adam Rich's pre-accident education and activities.

Pre-Accident Education and Activities:

Both Mr. Rich and his father testified that he had attended many different schools when he was young due to his father's peripatetic military career. The school records show that in November 1986 (Grade 3), it was determined that he had vision difficulties related to dyslexia, and bifocal glasses were recommended. The AFCENT International School in Holland placed him in the special needs/learning development resource program for one hour weekly in Grade 1, and at Powassan Junior in Parry Sound in Grades 3 and 4 he received special education focused on Language Arts and developmental intervention.

Following Grade 5 at Mother St. Bride in North Bay (1988/89), Dr. Jeffery R. Phillips, psychologist, conducted a psychoeducational assessment. In August 1989, he found that Adam had "extreme difficulty" copying visual stimuli in the form they were originally written in, so his difficulty in reading, writing and doing written forms of math would be expected. He also had extreme difficulties with respect to general information and verbal abstraction. Accordingly, Dr. Phillips recommended special education resources be provided for Mr. Rich.

The records show continued difficulties with language arts and mathematics at Mother St. Bride in North Bay in a modified program through Grades 6 and 7, and at St. John Vianney School in Barrie for Grade 8. Adam did sometimes receive higher marks in arts and physical education.

The Simcoe County Roman Catholic Separate School Board prepared a Consultation Summary dated April 5, 1992, at the end of Mr. Rich's Grade 8 year. On testing, his skills in decoding reading and humanities achievements were well below the average range (8th percentile), and his dictation skills were within the lower extreme (0.2 percentile). Other skills were low average to average. His academic difficulties were primarily in the language arts area (spelling and reading decoding); however, his math computation skills were also weak. The report concluded that he exhibited many of the characteristics of a student with a learning disability. Its recommendations included allowing Mr. Rich extra time to complete his assignments, a peer tutor, a course to develop learning strategies, a wordprocessing course, and additional assistance with study skills, assignments and reading. The report noted that as Mr.Rich did not like to be assisted directly in the classroom setting, support should be offered on an "open-door/come when you need help" policy. The report also recommended that, whenever possible, he should be allowed to complete the tests in the special education resource setting.

Mr. Rich then attended grade 9 at St. Joseph's High School in Barrie for the 1992/93 school year. In term 1 he received 4 credits with the comment "good work" and a mark of 68 for Geography, "good effort" in Math (56), incomplete (51) in Design and Technology and "shown improvement" (71) in English Language Development. In Term 2, he did "satisfactory work" in Introduction to Keyboarding (59), in Physical Education "a more serious and conscientious attitude" was required (58), in Religious Education he appeared "satisfied with a minimum of success" (56), and in English, his absenteeism had "affected progress" (51).

In May 1994, the Simcoe County Roman Catholic Separate School Board's Identification, Placement and Review Meeting identified Mr. Rich as continuing to be exceptional ("Learning Disability") and decided that his placement was to be continued in a regular classroom with a modified, in-class resource program.

Mr. Rich testified that after Grade 9, he worked full-time at the Sunoco gas station until the autumn of 1994 when he returned to school at Barrie Central Collegiate for Grade 10. He obtained a mark of 50 in Communications Technology (working with photography). However, in what Mr. Rich described as the continuation of this course, Construction Technology ("woodworking practices, operation of machines and use of hand tools with emphasis on safety"), he received the comment that he "worked very hard" to obtain his mark of 83 (his only mark above the median). He received the comments "work habits are improving" for Science (52), "good effort and attitude" in Mathematics for Everyday Life, a basic level course (65), and "satisfactory effort" in Contemporary Canada (57). His other marks were 57 for Visual Arts—Comprehensive (an advanced level course), 56 for English, and 51 for Geography—Canada.

Mr. Rich testified that most of his classes had been at the general level, with only "Mathematics for Everyday Life" at the basic level. He took "Physical and Health Education" at the advanced level in Grade 9 because he had excellent physical capabilities, as he used to swim competitively.

Mr. Rich testified that his problems in school before the accident were more a result of laziness, in that he socialized at school and only did the minimum to pass. Bifocals had corrected his dyslexia by Grade 6. He had difficulties with spelling, reading and mathematics, and it took him time to learn something new. He had been told that this was typical of someone with a learning disability. In high school, special resources were available to him, but he did not use them to any great extent. For instance, regarding the various recommendations in the 1992 assessment, he did not use a tutor or learning aids in Grades 9 and 10. He had tried the recommended learning strategies course in the first semester of Grade 10 but did not find it helpful. Although he had entered Barrie Central Collegiate as a special education student, aside from the study hall with the teacher present, he did not receive extra time for assignments or exams, nor a separate room to write them in. He testified that, by way of contrast, after the accident he used the whole study period to work at the computer or to catch up, and he could not have survived without the help of the tutors and the teachers.

Mr. David Rich testified that he had always had to push his son to keep him at his school work and that his weaknesses arose more from a lack of effort. He believed that Adam had grown out of his school problems arising from the many family moves in his early years and his dyslexia.

However, he testified that his son had some characteristics of a learning disability, as the 1992 report had concluded, and that he had weaknesses in language and math skills before the accident.

Mr. David Rich testified that his son exhibited the four characteristics necessary for him to pass the post-accident courses: attendance, motivation, effort and ability.

Subparagraph iii — Partial Inability to Carry On a Normal Life:

Adam Rich may be entitled to weekly EDBs pursuant to subparagraph iii of paragraph 15(1)2 if he suffers a partial inability to carry on a normal life. Pursuant to section 2 of the Schedule, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in various enumerated activities in which the person ordinarily engaged before the accident. Mr. Rich alleges that he suffers a substantial inability to engage in mobility activities, which require the ability to control emotions or behaviour, and activities that require the exercise of cognitive powers.

I accept Arbitrator Palmer's analysis in Gray and Zurich Insurance Company³ that in considering the "activities" of section 2, a subjective inquiry into the activities of the injured person prior to the accident is required. Thus, she wrote, with respect to "mobility activities in which the person ordinarily engaged before the accident," in certain cases the emphasis could be less on the types of mobility activities than the frequency or regularity implied by the phrase "ordinarily engaged before the accident."

Jevco's position under this head was that while Mr. Rich continued to suffer some inability as a result of the accident regarding these activities, it was not a substantial inability. In this respect, I agree with the test as set out by Arbitrator Makepeace in James and Kingsway General Insurance Company (OIC A-013149, May 16, 1995), where she stated that a "substantial inability" is neither "some inability" nor "total inability": "Arbitration decisions have consistently interpreted the words 'substantial inability' to mean 'a significant' or 'sizable' inability."

Mobility Activities

Mr. Rich senior testified that before the accident his son had been agile and athletic, good at boxing and track and field, had played soccer, and had been recommended for the Ontario championship swim team. His son had ridden his bicycle all the time, but he could not ride it after the accident as he had too much back pain and lacked the necessary balance. Mr. Rich has never seen his son run since the accident, and he cannot ski any more nor participate in contact sports such as soccer.

Mr. Rich testified that as a result of his back injury, he could not participate in any contact sports, downhill skiing, or physical education classes; he had planned on taking physical education in Grade 11, as it was fairly easy for him. Before the accident, he used to drive his motorcycle to school; after the accident, he was not able to drive it due to the loss of his licence. When he was at Base Borden with his father, he tried to work out at the fitness centre as he had before the accident, but he was able to run only two laps and could not lift weights, even as part of his rehabilitation program, because of his back pain.

Adam Rich appears to have recovered from his orthopaedic injuries amazingly well. He was examined by Dr. Geoffrey R. French, orthopaedic surgeon, on May 6, 1997, who found that Mr. Rich was functioning at a very good level. His major complaint was intermittent discomfort experienced diffusely through his back. Dr. French recommended a general conditioning program including walking, swimming and cycling and placed no restrictions on his activities in that regard.

Jevco submitted that, as Mr. Rich's mobility in general had improved, and he did not require assistive devices or support, he therefore suffered only some but not a substantial inability with respect to mobility activities. However, I find that one of the mobility activities in which he had ordinarily engaged before the accident was riding his motorcycle and driving vehicles. There is no doubt that the loss of his driver's licence occurred as a result of the accident. He did not receive Ministry permission to obtain his learner's permit until after the 104-week period.

I find the evidence on the questions of how frequently Mr. Rich performed various physical activities before the accident not sufficiently helpful or detailed enough to allow me to determine whether he was "ordinarily engaged" in them before the accident. Similarly, I cannot determine whether or not his discomfort substantially disabled him from performing these physical activities afterwards. However, I am satisfied that Adam Rich was ordinarily engaged in the mobility activity of driving before the accident and that he was substantially disabled from driving for at least 104 weeks after the accident. Accordingly, I find that Adam Rich is entitled to weekly education disability benefits under this head.

In case I am incorrect on this point, I will also consider whether Adam Rich was substantially disabled regarding other activities.

Control of Emotions

Mr. David Rich testified that his son had been a typical boy before the accident, enjoying himself, spending time with his friends, playing computer games, and making new friends easily. After the accident, he became withdrawn and lost most of his friends except for his girlfriend. His son realized this was happening and was depressed and frustrated for a long time.

In her report of December 9, 1995, Ms. James set out a number of barriers to Mr. Rich's educational re-entry, but she did not list emotional problems in her chart. Nor did she do so in a similar chart in her later report of September 18, 1997. Ms. James testified that she never had to go to Mr. Rich's home at a moment's notice or mobilize treatment due to emotional crises.

Dr. McFadden, in her follow-up report of November 12, 1996, noted that Adam could not describe any significant changes in mood, state or personality since the accident, other than increased irritability.

The test under paragraph 2(e) of the Schedule allows benefits if, and only if, as a result of the accident, the Applicant suffered an impairment that resulted in a substantial inability to engage in activities in which he ordinarily engaged before the accident, such as the ability to control his emotions or behaviour. I am not satisfied that he suffered such a substantial inability. It appears that he was in fact controlling his emotions, perhaps excessively in light of his comments to Dr. Marshall about presenting a facade. Although there are references in some of the medical reports to disinhibited behaviour, Mr. Rich was able to continue his relationship with his girlfriend and to live with people other than his family after the accident. I would not allow benefits under this head.

Cognitive Powers

The test under paragraph 2(d) of the Schedule allows benefits if, and only if, as a result of the accident, Mr. Adam Rich suffered an impairment that resulted in a substantial inability to engage in activities in which he ordinarily engaged before the accident that required the exercise of cognitive powers.

Sonya Torreiter, the speech-language pathologist at St. Michael's, had been advised that Mr. Rich had a history of learning disabilities, particularly in the area of information processing. Nonetheless, Ms. Torreiter concluded that his previous learning problems were not the source of his cognitive communication problems at that time, noting that his disinhibited behaviour, in particular, was inconsistent with reports of his pre-injury personality.

Dr. Stewart had also concluded that his problems with fine motor skills, visual-motor processing, auditory information processing speed, and visual memory abilities were likely related to the effects of his brain injury. However, I find that some pre-accident problem areas were not exacerbated by the accident because his scores for overall intellectual ability (low average) and his low percentiles for reading, spelling and arithmetic were virtually identical in Dr. Stewart's testing and in the 1992 Assessment.

Dr. Stewart's findings were echoed in Dr. Rumney's discharge summary dated February 15, 1996, where he notes that Mr. Rich's decreased skills with in-hand object manipulation meant his writing and copying speed was slowed to ten words per minute. In his subsequent report dated August 17, 1998, he wrote: "At the time of evaluation here in December 1995, he showed scores assessing general disability, that were impeded in activities of daily living and cognition: which placed him primarily in the moderately impaired range." On April 23, 1996, he wrote that Mr. Rich had acquired changes in cognitive function, specifically with respect to attention, memory and organization affecting both written and expressive language.

I have noted above Dr. McFadden's review at approximately the one-year mark in her report of November 12, 1996. However, I have not set out in great deal her findings correlating the accident to his deficits, as she wrote: "He had not been diagnosed with a learning disability and had never skipped or failed a grade." In fact, he had repeated Grade 1 and had been identified as a student requiring special resources since that grade. She did expect further improvement in function. She could not estimate when he show the bulk of his recovery but recommended continuing academic support for at least another year.

Finally, although performed outside the period I am examining, a neuropsychological and vocational assessment was carried out in December 1997. The authors concluded that, as their findings were similar to those of Dr. McFadden and Dr. Stewart, therefore Mr. Rich's severe brain injury had left permanent deficits, including decreased information processing ability and a poor ability to learn and retain new information. They felt that a pre-existing learning disability combined with the effects of his brain injury left him with fairly poor prospects for substantially improving his abilities and skills. (I note that, despite this poor prognosis, Mr. Rich proceeded to enter the Mohawk program and has persisted with it.)

Both Mr. Rich and his father testified that he had no problems with his memory, concentration and attention before the accident. Mr. Rich testified that after the accident his memory was poor, he could not finish a sentence, he had difficulty even holding a glass, he could not concentrate on or retain anything that was taught, and he was always frustrated. His father testified that Adam could not remember what happened the day before and forgot to bring his homework home. He had difficulty concentrating, and he was unable to express himself or to comprehend written material. Sometimes he became frustrated waiting for his son to answer questions, describing him as hearing but "not connecting."

Mr. Rich testified that before the accident he was fairly active in art, having painted theatre sets for school, but he has not painted since the accident. (Frith Bail, art therapist in the Head Injury Rehabilitation Program at the Centre, in a report dated December 20, 1995, felt that Adam's deficits in the visual motor and visual spatial areas, including slower processing speed, affected his drawing ability.) He has not been able to resume some of his other interests, either, such as the automobile repair skills he had learned from his grandfather and used at Sunoco.After the accident, he could not even remember how to change oil. He could not return to Sunoco because of his back injury and his problems handling money. He failed an interview at a Canadian Tire Gas Bar when he could not pass a simple mathematics test, and in June 1998, he was fired from a Petro-Canada station because he was too slow and made mistakes in filling out forms.

Mr. Rich testified that he was not able to obtain other types of work, either. In the summer of 1997, he applied for some minimum-wage jobs but only had one interview and a day's training for a position as a sandwich maker at a restaurant called "Reggie's." He was trained how to make sandwiches, but by the following day, he had forgotten what he had been taught.

Mr. David Rich testified that pre-accident, his son had programmed the computer and had helped him with small engines, the car, and home renovations. Adam had carpentry skills, good dexterity and hand-eye coordination, and an understanding of technology, having built an am/fm radio and a scale-model airport (he received a commendation for the latter). He could not perform similar tasks after the accident.

Mr. Adam Rich testified that he did notice some improvement in his problems with concentrating, retaining information, and expressing himself over the two years after the accident. These improvements were evident by approximately April 1997 when he needed less tutoring and obtained three credits. His use of a daily agenda as a coping mechanism has also helped. His fine motor skills had also improved, as did his guitar playing and typing, especially after Jevco funded music therapy and, in early 1998, the purchase of a computer. However, he feels he has not returned to his pre-accident status. On a scale of 1 to 10, where 10 was his cognitive ability before the accident, he believes he is at 4.

Mr. David Rich testified that his son had improved somewhat by the spring of 1997 and had shown further improvement since he came to live with him in Milton in the fall of 1997, as manifested by his co-op work, getting his driver's licence, and attending Mohawk College. Ms. James testified that she also saw improvement in Mr. Rich's cognitive function over the two years that she was involved in his case, the most obvious being his ability to successfully complete more courses in the spring of 1997.

I find that Adam Rich suffered an impairment that resulted in a substantial inability to engage in activities that required the exercise of cognitive powers in which he ordinarily engaged before the accident. As noted above, Dr. Rumney wrote that as of December 1995 he was assessed in the moderately impaired range for cognition activities. I equate "moderately impaired" with "substantial inability," as a mild impairment would probably reflect only some inability.

I find that the activities in which he was ordinarily engaged before the accident included cognitive activities related to his work at Sunoco. I also include cognitive activities related to his school work; although he was not attending school at the time of the accident, I find that he had been a full-time student in the immediate past and was planning on continuing his education in the very near future. I heard insufficient evidence to find that he was ordinarily engaged before the accident in the household projects described by Mr. David Rich, especially since his son was not living with him at the time of the accident.

I find that Adam Rich's condition improved over time. The difficulty in assessing when or if he improved enough to suffer only some inability is complicated by his pre-existing problems. I find that the strongest evidence for new problems relates to his memory, concentration and organization, and to his hand-eye coordination. The evidence shows that these problems with short-term memory and reduced fine motor skills persisted until at least 1997. Adam Rich showed considerable improvement in many areas by the spring of 1997, including improvement in dexterity once Jevco funded music therapy. By then, he had sufficient concentration and fine motor skills to obtain a driver's licence. However, he still required an electronic organizer to help with his organization problem. Most significantly, despite several attempts, Adam Rich had not been able to resume working at a gas station. I find that the impairment from the accident in his concentration, memory and fine motor skills resulted in a substantial inability to repair automobiles and generally perform the other duties of a gas station attendant. Accordingly, I find that under this head as well, Adam Rich is entitled to weekly education disability benefits for at least 104 weeks after the accident.

Subparagraph i — Substantial Inability to Continue His Education:

I can find few cases dealing directly with the meaning of the phrase "suffers a substantial inability to continue his or her education" in subparagraph i of paragraph 15(1)2. Counsel referred me to an older case in which a weekly education disability benefit was in effect "carved out" of the previous 1990 Schedule.⁴ In Levenson and General Accident Assurance Company of Canada (OIC A-000260, February 18, 1992), the Applicant, a university student, was injured at the end of her summer vacation. The Applicant claimed weekly benefits under section 13 of the 1990 Schedule on the basis that she suffered a substantial inability to perform the essential tasks in which she would normally engage, in this case attending university. Arbitrator Naylor held that the wording of the section required that the essential tasks in which she engaged at school be identified and that her ability or inability to perform them after the accident be determined. Among the essential tasks she identified was "successfully completing assignments and exams."

Arbitrator Seife considered the subparagraph i "substantial inability" test in a decision issued just before the hearing in the present case, Jubenville and Allstate Insurance Company of Canada.⁵ Post-accident, Ms. Jubenville completed high school and would have been able to continue her education as a nursing student. However, she argued that she should be compensated for the loss of an opportunity to work as a nurse, a clear and discernible career path she had embarked upon long before the accident but could no longer pursue because of her injuries in the accident. Arbitrator Seife found that the substantial inability test could not be extended to include a substantial inability to engage in future employment. He added:

In my view, subparagraph 15(1)2(I) is intended to compensate an insured person who was a full-time student at the time of the accident for a substantial inability to engage in the tasks required to continue being a full-time student.

Arbitrator Seife used the word "tasks," hearkening back to the phrase "essential tasks" under consideration in Levenson. In his decision, Arbitrator Seife also discusses the decision of Arbitrator Palmer in Gray and Zurich Insurance Company,⁶ in which Arbitrator Palmer was considering caregiver benefits (section 18). Arbitrator Palmer found it significant that the test for qualifying for caregiver benefits under the Schedule had changed from a "substantial inability to perform the essential tasks in which he or she would normally engage" to a "substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident." Arbitrator Palmer held that the word "activities" is key and is distinguished from the word "tasks" of the previous regulation.

The education disability benefit that has been carved out of the former section 13 uses neither the phrase "essential tasks" nor the word "activities." However, I believe that the broader word "activities" is applicable, especially in light of the parallels between EDBs and caregiver benefits.

On the other hand, the lack of a time frame regarding the substantial inability test in subparagraph i creates a striking difference between EDBs and the other types of weekly benefits. The latter are concerned with activities before or at the time of the accident. By way of contrast, the very concept of continuing one's education set out in the EDB test suggests growth into new educational tasks and activities.

I find that a substantial inability to continue one's education represents a broad-band disability encompassing the categories such as mobility activities or cognitive activities that define a partial or complete inability to carry on a normal life. By way of corollary, I find that the activities that could be examined in determining what a person's education was would be broader than if the examination were limited to the "essential tasks" of a student.

I take comfort in this view from another aspect of the Levenson decision. On appeal,⁷ the Director of Arbitrations held that Arbitrator Naylor should have allowed the Insurer to rely on subsection 16(3) of the 1990 Schedule. Subsection 16(3) provided that if an otherwise entitled person "attended school" the insurer did not need to pay benefits. The Director found that physical attendance at school, of itself, was only one aspect of the overall entitlement issue:

Attendance at school is not just the physical act of occupying space in a classroom or lecture hall. Attendance at school encompasses many other activities, including the ability to comprehend and absorb classroom and laboratory instruction, complete assigned work, participate in discussions and projects, study, write or take examinations, meet any physical requirements of the course work, and generally function as a part of the student body with provision for some reasonable extra-curricular activity. This does not mean a person must excel in any of these tasks or be able to function in them as if the accident had not occurred, but be substantially able to perform them.

If this much can be said for attendance at school, then surely at least as much can be said for continuing one's education. Thus, although Ms. James testified that, in the sense that Adam went back to school on a part-time basis, that was a continuation of his education, I find that this is not determinative of the issue. The fact that Adam Rich had to work harder to pass his courses would not necessarily entitle him to benefits, for as the Director states, the question is not whether he could function as if the accident had not occurred. However, I note that the Director found that attendance at school included the ability to "generally function as a part of the student body," a finding that suggests to me the investigation is broader than performing "essential tasks" and can include other activities, including reasonable extra-curricular activity.

Jevco submitted that Adam Rich was able to continue his education. It pointed to Ms. James' statement that his return to school on a part-time basis was a continuation of his education. Jevco also submitted that an inability to obtain more than one half the normal credits is not a "substantial inability." For the reasons set out above, I find that this is too narrow a view of continuing one's education. I also agree with Arbitrator Seife's statement in Jubenville that subparagraph I is intended to compensate an insured person who was a full-time student at the time of the accident for a substantial inability to continue being a full-time student.

I find that Mr. Rich had been a full-time student prior to the accident, able to pass the normal number of courses, albeit generally with marks below the median. I find that he was able to achieve these marks with relatively little use of the supports available to him. I find that he was also able to participate in student activities such as playing soccer and swimming competitively. I find that as a result of the accident, he was substantially unable to continue his education in this manner. He required more effort to obtain fewer credits, was not able to participate in student activities as he had before, and in effect was only a part-time student. Accordingly, I find that Adam Rich was entitled to weekly education disability benefits to August 25, 1997 under this head. The parties only asked me to determine Mr. Rich's benefits to that date. For that reason, I have not determined when or if Mr. Rich was substantially able to continue his education after that date.

Expenses:

Adam Rich was successful in his claim against Jevco. Neither party filed any relevant Offer to Settle for consideration in connection with an award of expenses, as provided in sections 73, 74, and 75 of the third edition of the Dispute Resolution Practice Code —April 15, 1997 (the "Code"). I have considered the criteria referred to in the Expense Regulation, and I award Mr. Rich his expenses of the arbitration, chiefly because of his degree of success in this proceeding.

Order:

1. Mr. Rich is entitled to a lump sum education disability benefit pursuant to section 16 of the Schedule for the semester beginning January 1996.

2. Mr. Rich is entitled to receive a weekly education disability benefit from March 22, 1996, to August 25, 1997, pursuant to section 15 of the Schedule.

3. Jevco shall pay interest on these amounts in accordance with section 68 of the Schedule.

4. Jevco shall pay Mr. Rich's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

December 30, 1998

David Evans Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant: Adam Rich

Mr. Rich's Representative: John R. McCarthy Barrister and Solicitor

Jevco's Representative: Chris Blom Barrister and Solicitor

Witnesses: Mr. Adam Rich Mr. David Rich Ms. Jennifer James

Exhibits:

Exhibit 1 Three binders constituting the Applicant's Production Book

Exhibit 2 Insurer's Document Brief

Exhibit 3 Simcoe County Roman Catholic Separate School Board's Identification, Placement and Review Meeting Summary dated May 2, 1994

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3(OIC A95-000412, August 2, 1996)
4. 4The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
5. 5(FSCO A97-000107, August 14, 1998)
6. 6(OIC A95-000412, August 2, 1996)
7. 7(OIC P-000260, September 29, 1992)