Neutral Citation: 1999 ONFSCDRS 240

FSCO A98-001436

BETWEEN:

BRENT FORD

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Asfaw Seife

Heard:

May 31, June 1 and 2, 1999, in Thunder Bay, Ontario

Appearances:

Alex W. Demeo for Mr. Ford

Greg Birston for Wawanesa Mutual Insurance Company

Brent Ford was injured in a motor vehicle accident on August 4, 1995. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa paid Mr. Ford weekly income replacement benefits (IRBs) from one week after the accident until January 19, 1998, when it commenced paying him weekly loss of earning capacity benefits (LECBs). The parties were unable to resolve their disputes through mediation, and Mr. Ford applied for arbitration at the Financial Services Commission of Ontario ("the Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

What is the correct amount of Mr. Ford's annual gross income to be used in the calculation of his IRB, pursuant to section 9 of the Schedule?
In determining Mr. Ford's pre-accident earning capacity ("PEC") under subsection 29(1) of the Schedule, is Wawanesa required to index, under paragraph 79(1)1 of the Schedule, his net weekly income from employment immediately before the payment of the weekly LECBs begins?
What is the amount of Mr. Ford's residual earning capacity ("REC"), pursuant to section 30 of the Schedule?
Is Mr. Ford entitled to a special award pursuant to subsection 282(10) of the Act?

The correct amount of Mr. Ford's annual gross income to be used in the calculation of his IRB is $42,303.53.
Mr. Ford's PEC is his net weekly income from employment immediately before the payment of the weekly LECBs began on January 19, 1998, indexed in accordance with paragraph 79(1)1 of the Schedule.
Mr. Ford's REC is zero. Wawanesa shall pay Mr. Ford LECBs, from January 19, 1998 onwards, calculated in accordance with the provisions of subsection 28(1) of the Schedule and my finding about Mr. Ford's PEC, set out in the preceding paragraph.
Wawanesa shall pay Mr. Ford interest on all overdue amounts, in accordance with section 68 of the Schedule.
Mr. Ford is not entitled to a special award.
The issue of expenses is deferred.

Background:

At the time of the accident Brent Ford was 31 years old and living alone in his own home in Thunder Bay. For the preceding 12 years, he had been employed as a route sales-and-delivery man for Shaw Baking Company Limited (Shaw Bakery) in Thunder Bay, supplying breads and other baked goods to various vendors throughout Northern Ontario.

The accident occurred on Friday, August 4, 1995 while Mr. Ford was riding his motorcycle on the Trans-Canada Highway. He had just begun his holidays and was heading to British Columbia. He was travelling at approximately 90 kilometres per hour when his motorcycle collided with a van that suddenly pulled into his path. Mr. Ford was thrown from his motorcycle, and his body partially landed inside the van. He sustained multiple injuries. He was taken by ambulance to the nearby Dryden Hospital where he received 60 stitches to close a laceration in his neck. A full cast was applied to his left arm which sustained multiple fractures. He was transferred to McKellar Hospital in Thunder Bay the following day.

There is no dispute about the injuries Mr. Ford sustained as a result of the accident. He suffered multiple fractures to the left forearm, soft tissue injuries to his right shoulder with right supra scapular and supra clavicular nerve injury, and multiple contusions and lacerations to the head and neck. He also experienced subsequent pain and numbness in the chest, memory problems and speech problems.

Since the accident, Mr. Ford has participated in various treatments as well as in a work-hardening program at Shaw Bakery, which was unsuccessful. Despite the treatments, Mr. Ford continued to experience considerable functional limitations.

Mr. Ford had completed Grade 12 in 1983, before starting his employment with Shaw Bakery. After the accident, he took two Mathematics courses and a Physics course at Confederation College. In September 1997, he enrolled in an Architectural Design Technologist Program at the same college; however, he discontinued this course because he decided it was not an appropriate career choice and started taking business courses. At the time of the hearing, he had completed two business courses and was working on two general business and marketing courses.

In March 1998, Mr. Ford was admitted to the Residential Program of the Chronic Pain Management Unit of Chedoke Rehabilitation Services Centre in Hamilton. He learnt how to manage his pain and pace himself. After his discharge from rehabilitation, he started volunteer work at a charitable organization, to enable him to apply what he learnt at the chronic pain centre. His responsibilities include separating items, helping people make things, and refurbishing equipment. He works three days a week, two hours a day.

It is not disputed that Mr. Ford continues to suffer a substantial inability to perform the essential tasks of his pre-accident employment due to the injuries in his right shoulder. Wawanesa continued to pay him IRBs past the 104-week mark of the accident.

Because Mr. Ford continued to be entitled to IRBs 104 weeks after the accident, on August 26, 1997 Wawanesa sent him a written notice with respect to the payment of LECBs.² Wawanesa indicated that Mr. Ford was capable of performing the essential tasks of a Packaging Machine Operator at Shaw Bakery and could earn an annual gross income of $33,280. Based on this, Wawanesa offered to pay him LECBs of $121.38 per week. Mr. Ford did not accept Wawanesa's offer in respect of his REC. Wawanesa continued to pay Mr. Ford his IRBs, pending an assessment of his REC by the Ontario March Of Dimes Ontario Employment Services Centre (the "DAC").

The assessment was conducted in November 1997. The DAC issued its report on December 22, 1997 concluding that Mr. Ford could earn an annual income of $18,747 from part-time employment as a sales representative in a non-technical wholesale trade.³ Mr. Ford rejected the DAC's findings claiming that his REC is zero.

Wawanesa accepted the DAC finding and calculated Mr. Ford's LECBs under section 28 of the Schedule as $289.98 per week. It commenced paying him this benefit instead of IRBs, effective January 19, 1998.

Calculation of Gross Annual Income:

As a person who was not self-employed at the time of the accident, Mr. Ford is allowed to designate the four weeks, the fifty-two weeks or the 156 weeks before the accident for the purpose of determining the amount of his gross annual income from employment used to calculate his weekly income replacement benefits.⁴ Mr. Ford designated the four weeks prior to the accident because this would result in the highest IRB.

According to paragraph 9(1)1, the gross annual income of a person who designated the four weeks before the accident is the gross income from employment for the four weeks before the accident, multiplied by thirteen.

Mr. Ford's income for the 52 weeks before the accident, as shown in the payroll records, is $42,303.54, including two weeks of vacation pay he received during those weeks. When Wawanesa calculated Mr. Ford's gross annual income on the basis of his income for the four weeks before the accident, the amount came to $46,025.59. The evidence suggests that this amount was arrived at by taking the entire amount Mr. Ford received in the pay periods beginning July 1 and ending July 30 (including vacation pay for the week of July 15) and multiplying it by thirteen. This calculation did not include Mr. Ford's pay for the week ending August 5, 1995. However, the four weeks before the accident of August 5, 1995 extend from the pay period ending July 15 to the pay period ending August 5. Therefore, in determining his income for the four weeks before the accident, the pay period ending July 8 should not have been included and the pay period ending August 5 should have been included.

Mr. Ford was on vacation for the week of August 15. He was paid $777.86 vacation pay for the week ending July 23, and his income for the remaining three weeks (the weeks ending July 15, July 30 and August 5) was $2,641.16. This means that if the entire amount of vacation pay he received is to be considered as his income from employment during the four weeks before the accident, his annual gross income would be $44,447.26 [($777.86+$2,641.16) x 13]. However, if his vacation pay is not included, his gross annual income would be $34,335.08 [$2,641.16 x 13], based on his gross income for the three weeks.

Treatment of Vacation Pay:

Clearly, Mr. Ford would be in a more advantageous position if the vacation pay he received was included in the calculation of his gross income for the four weeks.

The parties agree that vacation pay is income from employment⁵ and that Mr. Ford is entitled to include the entire vacation pay he received during the 52 weeks before the accident in the calculation of his gross income for that period. However, the parties do not agree whether all or any of the vacation pay he received during the four weeks before the accident should be included in calculating his gross income for the four weeks.

The facts of this case are similar to those considered by Arbitrator Naylor in Yen V. Nguyen and Progressive Casualty Insurance (OIC A-004698, August 31, 1994). In that case, the applicant argued that the entire amount of vacation pay he received during the four weeks before the accident should be included in the calculation of his gross income for the four weeks. The arbitrator did not accept the applicant's argument that all of his vacation income was attributable to the four weeks prior to the accident. The arbitrator stated:

In this case, however, although the Applicant only received his statutory vacation pay in November, the vacation pay accrued on the wages he earned over the prior twelve months:

Vacation pay accrues to each employee as his basic wages are earned. For example, if he is paid hourly, his vacation pay accrues as a percentage of his hourly pay for each hour worked. In addition, the Act [the Employment Standards Act- R.S.O. 1990, c.E.14] provides that vacation pay is to be calculated on wages, which includes any payment to be made under the Act.

(Employment Standards Handbook, 2.ed. Robert M. Parry, referring to Domtar Chemicals Ltd (Re), August 17, 1973, (Fram) E.S.C. 44 (Order no. 093/085/077 - 7pp.)

The Applicant and his employer had an ongoing employment relationship, in which vacation pay accrued. Mr. Nguyen in fact received a payment for accrued vacation pay in the four weeks before the accident. The only issue is how the money Mr. Nguyen received should be allocated. On the facts of this case, it better reflects the reality of Mr. Nguyen's earnings profile to allocate the money at the rate that it accrues, than to attribute it exclusively to the four weeks when it was paid. [emphasis added]

I agree with Arbitrator Naylor's approach. In this case, the vacation pay Mr. Ford received during the four weeks prior to the accident is half of the amount of vacation pay that had accrued over the 52 weeks before the accident ($1,555.72). Therefore, I find allocating the vacation pay at the rate it accrued rather than attributing it exclusively to the four weeks before the accident better reflects Mr. Ford's earnings profile. I find that Mr. Ford is entitled to include the pro-rated amount of $119.70 [$1,555.72 divided by 52 and multiplied by 4] in his gross income for the four weeks. Accordingly, I find the amount of Mr. Ford's gross income from employment for the four weeks before the accident is $35,891.18 [(119.70+$2,641.16)x13].

Clearly, given this finding, it would not be in Mr. Ford's interest to have his IRB calculated on the basis of his gross income for the four week period. His gross income from the 52 weeks is higher and would result in a higher IRB level. Therefore, I find the gross annual income from employment to be used in calculating Mr. Ford's IRB is $42,303.54, the figure reflected in the payroll records for the 52 weeks before the accident.

Extrapolation of Income:

Mr. Ford argues that the provisions of subsection 9(7) allow him to extrapolate his gross income from the three weeks over the four-week period before the accident. Extrapolation would be most favourable to him because it can result in a gross annual income of $47,849.70 [$2,760.56 divided by three, multiplied by four and multiplied by thirteen]. Subsection 9(7) states:

9.—(7) If a person is entitled to weekly income replacement benefits under paragraph 1 of subsection 7(1) and is not entitled to a benefit under paragraph 4 or 6 of subsection 7(1), a determination under subsection (1) of the person's gross income from employment for a period of time shall be made by taking the person's gross income from employment for the part of that period for which the person earned income from employment and extrapolating it over any part of the period for which the person,

(b) did not earn any income from employment for one of the following reasons:

The person was not employed.

The person was on a leave of absence without pay.

The person was on a layoff from employment.

The person was on strike from employment or was locked out from employment.

Mr. Ford argues that he was either not employed or on a leave of absence without pay during the period he was on vacation.

I do not accept Mr. Ford's argument. Mr. Ford qualified for income replacement benefits under paragraph 1 of subsection(7)(1) because he was employed at the time of the accident. Mr. Ford's employment was not terminated when he went on vacation. He was still under a contract of employment with Shaw Bakery. But for the accident, he would have returned to his job when he finished his vacation. Had Mr. Ford lost his job with Shaw Bakery during the four weeks before the accident, he would be allowed to designate the four weeks and extrapolate his income. But this was not the case.

Therefore, I find the extrapolation provisions of subsection 9(7) do not apply in the circumstances of this case.

Pre-accident Earning Capacity:

The amount of a person's LECBs is the difference obtained by subtracting his/her REC from the PEC. PECs are determined in accordance with the rules set out in section 29. Subsection 29(1) states:

29.-(1) For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1, 3, 4 or 6 of subsection 7(1) shall be deemed to be the person's net weekly income from employment used in section 10 in determining the amount of weekly income replacement benefits immediately before payment of the weekly loss of earning capacity benefits begins, converted to a full-time net weekly income in accordance with section 86, if section 86 applies.

Mr. Ford received IRBs until January 19, 1998, when they were replaced by LECBs. The net weekly income used to calculate Mr. Ford's IRBs was not indexed for 1998 in accordance to paragraph 1 of subsection 79(1). Mr. Ford argues that Wawanesa should have indexed his net weekly income before calculating his REC. Wawanesa argues that PEC must reflect the true earning capacity of the person at the time of the accident. It submits that Mr. Ford's earning capacity is better reflected by his net income used to calculate his IRBs in August 1995. It contends that when IRBs are replaced by LECBs, the insurer's responsibility is to index the LECBs, as required by the Schedule. Wawanesa argued that if Mr. Ford's net weekly income is indexed in January 1998, it would result in double-indexing of benefits.

I do not accept Wawanesa's argument.

I do not find the wording of subsection 29(1) ambiguous. In my view, the provision clearly states that the PEC of a person who was employed at the time of the accident (but not self-employed) is his/her net weekly income that was used to calculate his/her IRBs immediately before the payment of LECBs begins. Paragraph 79(1)1 requires that the net weekly income from employment used to determine the amount of a person's IRB be revised effective the 1st day of January in every year after 1994, by adjusting the amount of the indexation percentage published by regulation under the Insurance Act. In this case, it is not disputed that the net weekly income used to determine Mr. Ford's IRBs on January 19, 1998 was not indexed on January 1st, 1998, as required under paragraph 79(1)1. Therefore, I find that Mr. Ford is entitled to have his PEC determined based on an indexed amount of his net weekly income that was used to calculate his IRBs in January 1998.

With regard to Wawanesa's concern about double-indexing, paragraph 79(1)4 provides that the net weekly incomes used to determine the amount of a person's LECBs also be indexed every year effective the 1st day of January, if the benefits are payable to a person who is less than sixty-five years of age. This means Mr. Ford is entitled to have his LECB indexed for the first time effective January 1st, 1999, not on January 1st, 1998.

Residual Earning Capacity:

The Law:

The relevant provisions of the Schedule are as follows:

Determining Residual Earning Capacity

30.—(1) For the purpose of this Part, the residual earning capacity of a person shall be deemed to be the net weekly income determined in accordance with section 81 or 82 using the gross annual income that the person could earn from the type of employment that best satisfies the criteria set out in subsection (2).

(2) The criteria referred to in subsection (1) are:

The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

The employment exists in the area in which the person lives and is accessible to the person.

3 It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

For the purpose of subsection (2), a person is able and qualified to perform the essential tasks of an employment if,

(a) the person does not have any impairment that permanently prevents the person from performing those tasks; and

(b) the person has the job skills and any licence or other edentials required to perform those tasks, or could obtain those skills and the licence or credentials without significant effort.

The term "personal and vocational characteristics" is defined in section 1 of the Schedule, to include employment history, education and training, vocational interests and aptitudes, vocational skills, physical abilities, cognitive abilities and language abilities.

The REC DAC Assessment:

REC DACs are established by the Commission under subsection 26(2) of the Schedule to provide independent assessments. Section 27 of the Schedule sets out the procedures for REC assessments. DACs are also required to comply with the procedures and standards set out in the Commissioner's Guidelines.⁶ While arbitrators are required to consider the Guidelines when making decisions, they are not bound by them.⁷

The objective of the REC assessment is to identify a type of employment that best satisfies the criteria set out in subsection 30(2), and based on that to determine the gross annual income that the insured person could earn from such employment. REC assessments do not evaluate or recommend treatment. They do not offer advice on vocational rehabilitation; nor do they provide a prognosis for recovery or comment on actual benefit amounts.

The assessments are conducted by a team of experienced professionals specifically identified on a roster filed with the Commission. The core assessment team must include a physician, a physiotherapist, a psychologist and an occupational therapist (OT). The team members are jointly responsible for the determination of the residual earning capacity of the insured person.

The Guidelines require that the assessment be conducted over a two-week period. During Week 1, the insured person is seen by each team member, separately. The team then develops a hypothesis about the type of employment most suitable for the insured person. During Week 2, the insured person attends the assessment facility for five days, seven hours per day, during which time his/her ability to participate in simulated work activities is assessed. The assessment is overseen by the OT who is required to be present each day, and consult with other team members regarding any issues that arise during the assessment.

At the end of Week 2, the assessment team meets to select a type of employment that best represents the insured person's REC. The employment must satisfy the criteria outlined in subsection 30(2) of the Schedule.⁸ Otherwise, the team is required to determine that the person's REC is zero.

As part of the REC assessment, Mr. Ford underwent a functional capacities evaluation; an occupational therapy assessment and medical, physiotherapy and psychological evaluations. He also completed a number of simulated work activities which included working at a clerical station, parts clerk activities, working at a drafting station, reception activities, and evaluation of his activity position tolerance, driving tolerances and computer skills.

Mr. Ford accepts the medical, physiological and psychological assessments. He also accepts the results of the Functional Capacities Evaluation ("FCE") and the simulated work tolerance activities assessment performed by the REC DAC.

However, Mr. Ford does not agree that the type of employment selected by the DAC satisfies the criteria under subsection 30(2). He contends that he is not able and qualified to perform the essential tasks of the type of employment selected by the DAC; that the type of employment does not exist in the Thunder Bay area and if it did, it would not be reasonable to expect him to engage in such employment, having regard to his personal and vocational characteristics.

Onus Of Proof:

Counsel for Wawanesa submits that it is Mr. Ford's responsibility to prove that his REC is zero. In my view, once it has been established that an applicant is entitled to an offer with respect to the payment of LECBs, the onus is on the insurer to prove that the insured person has a residual earning capacity to engage in employment and the amount of gross annual income he or she could reasonably earn from such employment. The insurer must demonstrate that the type of employment it selected complies with the criteria set out in subsection 30(1) of the Schedule.

However, where there has been a REC DAC assessment, as in this case, it is the responsibility of the party challenging the DAC's findings to persuade an arbitrator with cogent evidence why the DAC conclusions should not be accepted. In my view, this approach is consistent with the wording of section 30, the scheme of the Schedule dealing with the transition from IRBs to LECBs and the role accorded to the DACs, a neutral third party expert, in early resolution of disputes between an insured person and his or her insurance company.

Wawanesa relies on the REC DAC assessment. On the whole of the evidence, I am not persuaded that the type of employment selected by the DAC complies with all of the criteria set out in subsection 30(2) of the Schedule. Specifically, I am not satisfied that the type of employment exists in the Thunder Bay area. Accordingly, I find that Mr. Ford’s REC is deemed to be zero. The following are my reasons.

Mr. Ford's Limitations:

Neither party challenged the individual DAC assessments. Therefore, I accept the medical assessment that Mr. Ford:

is left with a painful paraesthesia in the distribution of the right supraclavicular and suprascapular nerves with decreased endurance of the right shoulder girdle and upper extremity musculature. The left-sided fracture of the radius and ulnar seems to have healed with minimal residual discomfort around the elbow region.

I also accept the FCE assessment, which concluded that Mr. Ford is capable of working in the light physical demands category (described as work that requires lifting to a maximum of 20 pounds, frequent lifting or carrying of materials weighing up to 10 pounds and walking, standing or sitting for the majority of a shift of up to 6 hours), and the physiotherapy assessment which indicates that Mr. Ford will likely have difficulty with overhead work, moderate to heavy lifting and carrying, horizontal and vertical reaching, and repetitive movements involving his right upper extremity, as well as any work that involves vibration such as using power tools.

I also accept the psychologist’s report that while Mr. Ford is not psychologically disabled from employment, he is limited vocationally by levels of chronic pain and fatigue and "features of depression, anxiety and other related concerns [which] would likely reduce occupational effectiveness, particularly, in occupations involving high degrees of stress or demands for speeded production."

The Work Tolerance assessment, which Mr. Ford agrees with, states:

Although [Mr. Ford] persevered, some aspects of the assessment presented unsuitable physical demands; thus, he should be restricted from work activities involving his right upper extremity such as 1.) repetitive (periods greater than 1 hour) fine motor/hand dexterity tasks; 2.) Repetitive reaching, lifting, carrying or push/pull activities and 3.) Activities that require prolonged positioning and mobility. As a result, it is recommneded that Brent return to work on a graduated basis, 5 hours/day, 5 days/week for approximately 8 weeks or until such time that he is better able to manage his chronic pain and subsequently improve his work tolerance.

In summary, I find that due to the injuries to his right shoulder area, chronic pain and fatigue, Mr. Ford is unable to engage in any employment that requires repetitive fine motorized dexterity tasks; repetitive reaching, lifting, carrying, or push/pull activities and activities that require prolonged positioning and mobility. I find, however, that Mr. Ford’s impairments do not prevent him from engaging in employment that requires lifting under 20 pounds, frequent lifting or carrying of materials weighing up to 10 pounds and walking, standing or sitting for the majority of a shift of up to five hours per day, five days a week, with frequent breaks and changes of position throughout the work day.

The type of employment selected by the DAC?

Under "Assessment Outcome," the DAC team concluded:

Based on the performance demonstrated during this evaluation it is determined that Brent could manage part-time competitive employment as a wholesale trade sales representatrive (NOC 6411)⁹. This work is deemed suitable given that modifications to the work schedule are acceptable to the employer. Modifications would include job rotation for all tasks within the job analysis to reduce the effects of prolonged/sustained activities. This occupation capitalizes on Brent’s developed work history and experiences within the trade and [it] became evident throughout the week of assessment that Brent had maintained his salesman skills post MVA. [emphasis added]

However, the DAC report also indicates that, in reviewing 11 potential occupations which fit Mr. Ford's personal and vocational characteristics, his work history and transferrable skills, it determined that employment as a sales representative "related more directly to the beverage/food industry would enhance [Mr. Ford's] opportunity of employment to the greatest extent." [emphasis added]

Based on the DAC report, I find the type of employment the DAC determined best satisfies the criteria set out in subsection 30(2) is part-time employment (five hours a day/five days a week) as a sales representative in a wholesale trade that is related to the beverage or food industry ("the employment").

Mr. Ford submits that part-time employment is not contemplated by the Schedule for the purposes of determining an insured person's REC. He argues that the DAC should have considered only full-time employment in selecting the type of employment under subsection 30(2).

I do not agree. As stated above, the purpose of the REC assessment is to identify a type of employment that best reflects the insured person's earning capacity at the time of the assessment and to determine the gross annual income the insured could earn from that type of employment. Neither the Schedule nor the Guidelines preclude consideration of part-time employment as an employment type. The word "employment" is defined in section 5 of the Schedule¹⁰ without regard to the length of hours per day or week a person is engaged in the employment. In my view, if the intention of the legislation was to restrict the type of employment to full-time employment under section 30, it would have stated so specifically. In addition, given the goal of a REC assessment, it would not be reasonable to exclude part-time employment if it met the criteria identified under subsection 30(2).

Mr. Ford also argued that the DAC conclusion was contingent on the availability of an employer that would allow the necessary job accommodation. I do not agree with Mr. Ford’s interpretation of the DAC report. In my view, the DAC selected the type of employment that it felt would inherently provide the necessary flexibility, which are positional changes and breaks.

Mr. Ford argues that part-time employment would be inconsistent with his personal and vocational characteristics and with the Schedules principle of vocational rehabilitation. He submits that it would not be reasonable to expect him to work part time and still achieve the goal of full-time employment that would put him in an economic position similar to his pre-accident employment. He argues that part-time employment would force him to discontinue the education he is currently pursuing and bar him from engaging in other vocational rehabilitation measures. He submits that allowing him a REC of zero until the three-year review period of LECBs would give him the opportunity to complete his education and create a flexible full-time employment out of his own home.

I am sympathetic to Mr. Ford’s submission. However, I heard no evidence from a vocational rehabilitation expert or other professional supporting Mr. Ford’s contentions or suggesting any rehabilitation measures that would help him secure his pre-accident level of income.

Is Mr. Ford able and qualified to perform the essential tasks of the employment?

The DAC report does not specifically describe the physical demands of the employment. The DAC report states that information it obtained from eight potential employers in the Thunder Bay area that are engaged in the beverage and food wholesale trade indicates that:

physical demands var[ied] depending on product and company size. No lifting to occasional lifting up to 50 pounds, carrying for returns, rearranging store displays to promote sales.

Frequent walking, driving, sitting, desk work ranging 1 to 2 hours daily, standing, seeing, hearing, talking, writing and computer work."¹¹

These physical demands relate to a full-time sales representative position. However, given my findings above regarding Mr. Ford's functional abilities, I am not persuaded that Mr. Ford has an impairment that permanently prevents him from performing the essential tasks of part-time employment as a sales representative in the beverage/food wholesale trade.

With respect to the question of whether Mr. Ford has the job skills required by the employment, the DAC report summarizes the result of its employer survey as follows:

Qualifications varied with the various employers. Educational requirements ranged with some employers valuing experience more critical than education whereas other employers indicated a College or University diploma was required. Most employers prefer experience in the field of sales and references from an established company. With Mr. Ford's experience in the field, it was noted by companies contacted that he would be eligible for an interview due to his relevant work history and experience.

Mr. Ford has completed Grade 12 and has taken several upgrading courses. Currently, he is taking college courses in business and marketing. Prior to starting work at Shaw Bakery as a sales/delivery person, he had worked on similar jobs at Bennett's Bakery for six months and Five Star Bakery for two years.

Mr. Ford's duties during his 12-year employment as a sales/delivery person included distributing bread products within Thunder Bay and surrounding areas, promoting and displaying his products, budgeting, bookkeeping and cash handling. Mr. Ford solicited potential clients, estimated and quoted prices, credit terms, warranties and delivery dates. He prepared sales contracts, consulted with clients after a sale to resolve complaints.¹²

Mr. Ford testified that at the time of the accident, he was planning to buy his own route from Shaw Bakery, and to become sole owner of his truck in the distributing territory. He would be responsible for his own customers, get new customers and "fight the competition to carry different products from others."

The psychologist stated that while psychometrically, Mr. Ford appears to favour duties that involve working with things rather than people, and employment endeavours of a more solitary nature, his occupational interests are not inconsistent with certain "people oriented" professions, including office related work or activities involving sales or related activities. The psychologist felt that, given Mr. Ford's occupational history, "present vocational considerations would rest heavily upon transferrable skills demonstrated by Mr. Ford in his occupation as a sales representative from a bakery, and likely include attributes and abilities pertaining to sales, customer service or related activities."

Considering Mr. Ford's employment experience and educational background, I find that he possesses the job skills required to perform the essential tasks of a sales representative in the beverage/food wholesale trade.

Does the employment exist in the Thunder Bay area?

As stated above, the type of employment that best satisfies the criteria set out in subsection 30(2), according to the DAC report, is part-time employment as a sales representative in the beverage/food wholesale trade. Mr. Ford argues that the DAC’s conclusion that such employment exists in his geographical area is not based on relevant evidence. I agree.

In determining whether such employment exists in the Thunder Bay area, the DAC consulted the Thunder Bay Occupational Summary and List of Potential Employers for NOC 6411- Sales Representatives, Wholesale Trade (Non-Technical).¹³ It also relied on information it obtained from some employers in the beverage/food wholesale trade in the Thunder Bay area.

The DAC report states, under "Job Availability":

Fair-Good. Of the 8 employers contacted for this survey, less than half expected to hire within the next few months. Reference to HRDC's Job Statistical outlook in the Thunder Bay area, suggests a fairly stable increasing job market, with 111 advertised opportunities, 98 full time and 13 part time [in 1997]. The employment opportunities are reported identified to being on the incline annually.

The statistical outlook also indicates that there were five part-time positions advertised in August 1997, none in September 1997 and one in October 1997.

However, the HRDC information relates to job opportunities for all part-time positions in all areas of the non-technical wholesale trade. It does not provide information about part-time employment in the beverage or food industry. The Potential Employers List consulted by the DAC contains the names, addresses and telephone numbers of more than 100 employers; but it is not possible to discern from this list which of the employers, if any, hire part-time sales representatives and in what specific areas of the trade. Therefore, I cannot accept the HRDC information sufficient to establish that the employment in question exists in the Thunder Bay area.

The employer survey conducted by the DAC itself relates to full-time employment only. Ms. Snippe-Juurakko, the OT who acted as a resource person for the DAC team (not the team member), testified that there are no records in the DAC files to indicate whether any inquiries were made regarding the existence of part-time employment with any employers. She agreed that the DAC report refers to inquiries with respect to full-time employment only.

Mr. Ford testified that after receiving the DAC report, he approached a number of Thunder Bay area employers, including some of the those contacted by the DAC, to inquire about the availability of part-time sales representative employment, unsuccessfully. Mr. Donald Kobelt, a rehabilitation consultant, testified that in February 1999, he conducted a survey of the eight employers listed in the DAC report. He testified that none of the employers hired part-time sales representatives in the Thunder Bay area. While Mr. Ford's and Mr. Kobelt's inquiries were not conducted during the same time period as the DAC survey, I accept their testimony as a credible attempt to establish whether or not employment as a part-time sales representative in the beverage/food wholesale trade exists in the Thunder Bay area.

I find the information used by the DAC to determine that the type of employment exists in the Thunder Bay geographical area is unreliable. Therefore, I am not satisfied that the type of employment selected by the DAC exists. Accordingly, one of the essential criteria under subsection 30(2) having not been met, I find Mr. Ford's REC is zero.

Special Award:

Section 282(10) of the Insurance Act states:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Mr. Ford claims a special award alleging that Wawanesa delayed payment of his IRBs. Mr. Ford points to the fact that Wawanesa recalculated his IRBs on several occasions, each time increasing the level of his benefits. Mr. Ford claims that Wawanesa performed these calculations months after his initial application for benefits, resulting in the delay of payments. Mr. Ford argues that Wawanesa had or should have obtained the necessary information for the proper calculation and timely payment of his benefits. Mr. Ford admits that he did not supply all of the information required, but argues that Wawanesa had an obligation to educate him about his rights and to assist him in completing the Application for Accident Benefits properly. Mr. Ford also alleges that Wawanesa failed to index his benefits on a timely basis, causing unnecessary delay in the payment of his full benefits.

The information contained in Mr. Ford’s Application for Accident Benefits was insufficient and confusing. For example, Mr. Ford indicated in the form that he was both employed and self-employed and designated the three years before the accident for the purposes of calculating his IRB. The Employer’s confirmation of Income was not properly completed. Instead of providing information about Mr. Ford’s income during the 4, 52 or 156 weeks before the accident, it provided global information about his gross income in 1992, 1993, 1994 and 1995. Wawanesa initially calculated Mr. Ford’s IRB simply by averaging out the total for these years over 156 weeks. Wawanesa did not take corrective action until it was contacted by Mr. Ford's solicitors a few months later for an explanation of its calculation. The evidence indicates that when Wawanesa was provided with the required information, it recalculated Mr. Ford’s benefits and promptly paid the differences, with interest.

With regard to the indexation, Wawanesa acknowledged that Mr. Ford's IRBs were not indexed in 1998 due to a clerical error on its part; however, it rectified the problem promptly, and paid the short-fall and interest owing.

In the case of Plowright and Wellington Insurance Company¹⁴, Arbitrator Palmer set out what she considered would constitute unreasonable conduct by an Insurer:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

I agree with this approach and adopt it for the purposes of this case.

I find on the evidence that Wawanesa had the responsibility to seek clarification of any confusing or insufficient information supplied by or on behalf of the applicant. However, it also had the obligation to commence payment of benefits without delay. I find in the circumstances, Wawanesa's failure does not amount to an unreasonable behaviour, as defined above. Therefore, I find Mr. Ford is not entitled to a special award.

EXPENSES:

The question of expenses is deferred. I may be spoken to if the parties are unable to agree on this issue.

December 10, 1999

Asfaw Seife Arbitrator

Date