Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 35 FSCO A97-001308

Between: Diane Lefebvre (Applicant) and Allstate Insurance Company of Canada (Insurer)

Before: M. Kaye Joachim Heard: January 25, 26 and 27, 1999, in Sudbury, Ontario. Final submissions were received on February 8, 1999.

Appearances: Andrew R. Kerr for Mrs. Lefebvre Ian D. Kirby for Allstate Insurance Company of Canada

REASONS FOR DECISION

Issues:

The Applicant, Diane Lefebvre, was injured in a motor vehicle accident on March 13, 1995. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on January 31, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Lefebvre applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Lefebvre entitled to weekly income replacement benefits at the rate of $335.91 beyond January 31, 1997?

2. Is Mrs. Lefebvre entitled to housekeeping expenses in the amount of $65 per week beyond January 24, 1997?

Result:

1. Mrs. Lefebvre is entitled to weekly income replacement benefits at the rate of $335.91 from February 1, 1997 and ongoing.

2. Mrs. Lefebvre is not entitled to housekeeping expenses beyond January 24, 1997.

EVIDENCE AND ANALYSIS:

Mrs. Diane Lefebvre is a 47-year-old wife and mother of three grown children. She completed grade 10 and worked for several years as a bank teller, until she had children. In the late 1980s, Mrs. Lefebvre began working as a data entry operator for Revenue Canada during the tax season. Her term employment lasted from two to ten months, depending on the amount of work available and Mrs. Lefebvre's productivity. From 1990 to 1994, she also worked part time as a cook at a take-out pizzeria. At the time of the accident, her husband was on disability benefits as a result of a back and eye injury and two of the three children lived away from home. The third child moved out shortly after the accident.

The accident occurred on March 13, 1995, shortly after Mrs. Lefebvre began her contract with Revenue Canada. A truck collided with the side of the vehicle in which Mrs. Lefebvre was the rear, middle passenger. Mrs. Lefebvre sustained a punctured lung and three broken ribs which healed uneventfully and caused no lasting impairment. She also sustained a fracture of the pelvis and disruption of the sacroiliac joint. Mrs. Lefebvre was confined to hospital for three weeks.

She returned home, to complete bed rest, until the end of April 1995. She began to gradually start bearing weight, eventually resuming walking and self-care activities. Mrs. Lefebvre never resumed her duties as a data entry clerk with Revenue Canada or returned to any paid employment. The Insurer terminated weekly income benefits effective January 31, 1997 and housekeeping benefits in the amount of $65 per week on January 24, 1997.

Entitlement to Weekly Income Benefits:

In order to establish ongoing entitlement to weekly income replacement benefits, Mrs. Lefebvre must demonstrate that she was substantially disabled from performing the essential duties of her pre-accident employment.²

Essential duties of data entry clerk

Data entry clerks (or keypunchers) at Revenue Canada work in a large open area, at work stations of four persons each. They walk approximately 50 feet to pick up a bundle of tax returns weighing less than 10 lbs. They return to their work stations, each consisting of a computer terminal and chair, where they sit and key in identification information and numerical data from income tax returns. Most of the information is numerical and is typed in using a numerical keypad.

Mrs. Lefebvre's hours of employment were from 7:00 to 3:00 p.m., five days per week. She was permitted 30 minutes for lunch and 30 minutes of break time, which she could take as two fifteen-minute breaks, or three ten-minute breaks. In addition, because of the repetitive nature of the work, keypunchers were entitled to frequent stretch breaks. However, they were expected to meet minimum productivity requirements, which would preclude taking prolonged or excessive breaks.

I heard contradictory evidence about the productivity requirements. The Insurer's rehabilitation consultant contacted Mrs. Lefebvre's immediate supervisor, Mrs. Louise Lapointe, who advised that the minimum requirement was 8,500 keystrokes per hour, and that Mrs. Lefebvre was keypunching between 10,000 and 10,500 keystrokes per hour. However, I prefer the evidence of Rick Beaudry, a human resources consultant with Revenue Canada, because his evidence on this point was based on a February 1995 internal memorandum setting out keystroke requirements.

The pay scales were based on keystroke productivity. The minimum acceptable standard was 5,480 keystrokes per hour, with a 12 percent error rate. The highest pay rate was paid for 8,228 keystrokes per hour, with a 10 percent error rate. Productivity also affected the worker's place on the recall list for the following year, and influenced whether the worker would be retained beyond the initial short-term contract. At the time of the accident, Mrs. Lefebvre was earning the maximum pay scale and was therefore typing at least 8,228 keystrokes per hour. She had consistently been recalled to work for the past nine years, and had often been kept on extended contracts. Accordingly, I conclude that an essential task of Mrs. Lefebvre's employment was that she keystroke at least 8,228 keystrokes an hour in order to maintain her pay level, maintain her recall status, and maximize her opportunity to extend her contract.

Availability of job accommodation

An applicant cannot insist on performing his or her pre-accident activities or job duties in exactly the same manner after the accident. It is appropriate to consider task flexibility and the applicant's ability to alter the manner in which the activities and job duties are accomplished in order to perform them.³ In the case of an employee, (as opposed to the self-employed) the availability of job accommodations and the employer's willingness to implement them must be considered.

Rick Beaudry, a human resources consultant with Revenue Canada, testified that Revenue Canada has a policy of accommodating disabled workers. Data entry clerks could be accommodated with altered work stations, increased breaks, graduated return-to-work programs and reduced hours. Revenue Canada has accommodated data entry clerks in the past, through the use of sit/stand work stations. Counsel for Mrs. Lefbvre pointed out that Mr. Beaudry's evidence at the hearing contradicted earlier statements made by Mrs. Lapointe, Mrs. Lefebvre's immediate supervisor. While I agree that Mrs. Lapointe exhibited a reluctance to accommodate Mrs. Lefebvre's needs, I am satisfied that Mr. Beaudry's evidence should be preferred. He is Revenue Canada's human resources consultant, with greater expertise in the area of workplace accommodations than front line supervisors. I note that when Mr. Beaudry was contacted by a rehabilitation counselor in July 1996, he confirmed the availability of accommodations such as sit/stand and other ergonomic work stations.

As a term employee, Mrs. Lefebvre was entitled to be recalled, based on her productivity the previous season. She was recalled to work March 1996, but refused the offer for medical reasons. Since she refused the recall, she lost her recall rights.⁴ Had she attempted to return to work in 1997, she would have been treated as a "new hire." Mr. Beaudry testified that new hires would be "given consideration" for accommodations such as graduated returns to work. However, when rehabilitation counselor Scott Lyons approached Revenue Canada in 1997 to implement a three-day work trial, the employer refused to participate because of confidentiality concerns since Mrs. Lefebvre was not an employee. This indicates to me that Revenue Canada was reluctant to implement more onerous accommodations for "new hires" than they might have been prepared to implement for permanent employees.

While I am satisfied that accommodations such as sit/stand or other ergonomic work stations would have been available to Mrs. Lefebvre, had she returned to work in 1997,⁵ I am not satisfied that accommodations in the form of a graduated return to work, or reduced hours would have been available.

I conclude that the essential duties of Mrs. Lefebvre's pre-accident employment consisted of typing 8,228 keystrokes per hour, with a half-hour lunch, a half-hour of break time and frequent stretch breaks. The work could be performed either sitting, or at a sit/stand or other ergonomically designed work station.

Evidence of substantial inability

By January 1997, Mrs. Lefebvre's physical injuries had healed, but she continued to complain of chronic pain in her left hip and low back. While pain in and of itself is not necessarily compensable, Mrs. Lefebvre will continue to qualify for weekly income replacement benefits if her pain is of such a degree that it prevents her from performing the essential duties of her pre-accident employment. In cases such as this, the Applicant's credibility is an important factor. I find Mrs. Lefebvre is a credible witness and I accept that her reports of pain are genuine. I also accept her evidence that sitting, standing or walking for prolonged periods exacerbates her pain, and that varying between these three positions is only minimally helpful. The only position which relieves her pain is lying prone or in a hot bath. Accordingly, while I find that Mrs. Lefebvre is capable of typing 8,228 keystrokes per hour for some hours each day, she is not capable of performing that function over an eight-hour period, even with a half-hour break, a half-hour lunch and stretch breaks. My reasons for accepting Mrs. Lefebvre's evidence are as follows.

Mrs. Lefebvre had a strong, albeit seasonal, work history with Revenue Canada for nine years. She worked at two jobs from 1990 to 1994. She had no significant pre-accident medical conditions and no history of exaggerating her symptoms.

Although x-rays showed that the pelvic fracture was healing, a bone scan in October 1995 revealed significant metabolic activity in the left hip area, which is consistent with soft tissue damage and inflammation in that area. A second bone scan in November 1996 showed improvement, but was consistent with continued inflammation in the area of Mrs. Lefebvre's complaints. I find it significant that Mrs. Lefebvre's complaints of pain in the left hip after the fractures had healed were consistent for many months with evidence of continued inflammation in that area.

Dr. Eric Robinson, Mrs. Lefebvre's orthopaedic surgeon, testified that fractures of the pelvis and disruption of the sacroiliac joint are known to cause prolonged chronic pain in some patients, and Mrs. Lefebvre's complaints fit within that pattern. He saw Mrs. Lefebvre on several occasions from the time of the accident until July 1997, and he noted that her complaints were consistent. He testified that both sitting and standing stress the sacroiliac joint, so that Mrs. Lefebvre's complaints of pain during prolonged sitting and standing were entirely consistent with the nature of the injury sustained.

Dr. Robert Seguin has been Mrs. Lefebvre's family doctor for many years. He prescribed narcotic painkillers for the first year after the accident, and then gradually encouraged her to reduce her dependency on these addictive drugs. By 1998, she was primarily using analgesics to control her pain, with the occasional use of a stronger narcotic. Dr. Seguin confirmed that he saw Mrs. Lefebvre on a regular basis, once or twice a month, and that her complaints of left hip and low back pain remained consistent. Based on her reports, Dr. Seguin concluded that Mrs. Lefebvre could cope with most activities except for prolonged sitting or standing.

None of the medical assessors who examined Mrs. Lefebvre at the Insurer's request, noted any signs of pain magnification, exaggeration or malingering. While these assessors noted that Mrs. Lefebvre's physical injuries had healed, they did not question the genuineness of her reports of pain.

Mrs. Lefebvre has undergone numerous assessments and tests. In virtually all of them, she was noted to be cooperative and to have put forth maximum effort.⁶

The Insurer asserted that Mrs. Lefebvre's demonstrated sitting tolerance at the hearing for three days contradicted her evidence. While I am reluctant to rely on personal observations at the hearing, I will comment that I observed Mrs. Lefebvre to shift considerably during the hearing, and to sit bearing her weight on her right hip, a position which is not conducive to keypunching.

While Mrs. Lefebvre conceded engaging in several activities which required sitting, such as knitting and reading and watching television, her reported tolerances and her need to lie down or take a hot bath, would not be conducive to working an eight-hour day.

Medical Evidence

In February 1996, Mrs. Lefebvre was examined by Dr. John Patcai, a physiatrist, at the Insurer's request. Dr. Patcai concluded that Mrs. Lefebvre had ongoing pain, compatible with the physical injury, with no signs of pain magnification. He did not reach a conclusion with respect to disability, but rather, recommended a further bone scan to test for a physical cause of her pain.

In April 1996, Mrs. Lefebvre was examined by Dr. T. H., Flaherty, an orthopaedic surgeon, at the Insurer's request. He also concluded that Mrs. Lefebvre's symptoms were consistent with a healing fracture of the left side of the pelvis. He noted that these injuries can cause prolonged pain. He recommended further physical and psychological tests to explore the reasons for the prolonged healing. He did not believe she was capable of returning to work, until the further tests were completed.

Neither Dr. Patcai or Dr. Flaherty were provided with the results of the recommended tests or asked to provide a further opinion on disability. In my view, neither of these opinions is supportive of the Insurer's position that Mrs. Lefebvre had recovered from her injuries sufficiently to return to work.

In April 1996, Mrs. Lefebvre attended a functional capacity evaluation, at the request of the Insurer. The physiotherapist noted that Mrs. Lefebvre demonstrated consistent performance and appropriate effort during the testing procedures. No signs of pain magnification were noted. The physiotherapist concluded that Mrs. Lefebvre lacked the endurance and tolerance to sit comfortably for an eight-hour shift.

In October 1996, Dr. Gayle Kumchy conducted a neuropsychological examination on Mrs. Lefebvre at the Insurer's request. She concluded that Mrs. Lefebvre had not sustained a head injury or any cognitive impairment.

After receiving notice of the Insurer's intention to terminate benefits, Mrs. Lefebvre requested a disability assessment, which was conducted in December 1996. Dr. D. Desjardins, an orthopaedic surgeon, noted that Mrs. Lefebvre continued to have disabling left sacroiliac joint pain. Notwithstanding this pain, he relied heavily on the functional capacity evaluation in concluding that Mrs. Lefebvre was not disabled from performing her duties as a data entry clerk. The functional capacity evaluators concluded that Mrs. Lefebvre was capable of resuming her duties as a data entry clerk. They specifically noted that Mrs. Lefebvre's maximum sitting tolerance did not meet the job demands and that she demonstrated maximum effort and displayed no symptom magnification during the test. In my view, their findings contradict their conclusions and I am not prepared to accord much weight to their conclusions (and hence to Dr. Desjardins' opinion).

In summary, none of the medical evidence relied on by the Insurer supports the view that Mrs. Lefebvre was capable of sustained sitting or standing over an eight-hour workday.

Work-hardening and Work simulations

In June 1996, Mrs. Lefebvre began a work-hardening program at Rehab Works at the request of the Insurer. The staff attempted various modifications to the work station to ease the stress on Mrs. Lefebvre's hip, such as a Scandinavian kneeling chair and a sit/stand position. However, these efforts were not successful. The occupational therapist noted that Mrs. Lefebvre was very guarded and reluctant to attempt anything which she believed would increase her symptoms. However, the therapist did not suggest that Mrs. Lefebvre was malingering. He merely suggested that her insight was poor and that she would require some pain management therapy. Mrs. Lefebvre arranged for a consultation with a psychologist known to her, Dr. Edward Bassis, and attended several sessions. Although she initially resisted attending further treatments, because she did not believe the pain was "in her head," she did ultimately agree to attend. While she was able to obtain some relief from the pain management techniques in the office, she was unable to transfer her skills outside the office.

While Mrs. Lefebvre demonstrated some reluctance to cooperate in the work-hardening program in June 1996, I find that this was because of her genuine fear of incurring more pain.

In October 1997, Mrs. Lefebvre participated in a three-day work simulation at Rehab Works at the request of her counsel. Ms. Linda Coffin, an occupational therapist, testified that she devised the work simulation to match the physical demands analysis provided by Revenue Canada. Mrs. Lefebvre was tested for her ability to keypunch material similar to income tax returns, from a sitting position. She was unable to complete a full day, attending on the first day from 8:40 a.m. to 1:45 p.m., on the second day from 8:20 a.m. to 1:20 p.m. and on the third day from 8:18 a.m. to 11:45 p.m. Ms. Coffin concluded that Mrs. Lefebvre was giving her maximum effort, based on hand grip tests which showed maximum voluntary effort, and observations of Mrs. Lefebvre during the day. In addition, Mrs. Lefebvre took more frequent and longer breaks as the day wore on, a pattern which was consistent with her reported symptoms of increasing pain. Mrs. Lefebvre's typing speed and accuracy increased over the three days, which was to be expected after a long break from typing. By the third day Mrs. Lefebvre's typing speed, excluding breaks, was 32 words per minute. Her error rate declined over the three days, from 6% to 2% to 1%. If break times had been included (as they would be in a real life situation) her productivity would have been lower.

In my view this work simulation is the best evidence of Mrs. Lefebvre's endurance capacities.⁷ For the reasons set out above, I conclude that Mrs. Lefebvre put forth maximum effort during this test. Although she met the productivity requirements,⁸ she was unable to sustain the effort over the course of a full day, and her endurance did not improve over the three days. I conclude that Mrs. Lefebvre was unable to perform the essential duties of a data entry clerk for eight hours per day, while sitting.

In January 1999, Mrs. Lefebvre attempted a second work simulation at Rehab Works, designed to test her endurance while utilizing the sit/stand work station. This allowed her to work while alternating between sitting and standing. The results were inconclusive. Mrs. Lefebvre did not arrive for the third day of testing because of car trouble. On the first day, Mrs. Lefebvre worked from 9:45 until noon and on the second day she worked from 8:30 to 10:50 a.m. Her speed, including break times, was 8,000 keystrokes per hour, with 96 percent accuracy. Mrs. Lefebvre alternated between sitting and standing, but while standing she took her weight on her right leg. She took breaks, but the timing and duration of the breaks did not increase before Mrs. Lefebvre declared she was unable to continue. She left the testing before the hand grip tests were administered. Ms. Coffin declined to offer an opinion on Mrs. Lefebvre's ability to perform the work in the sit/stand position. Although Mrs. Lefebvre did not appear to demonstrate the endurance required to perform the essential tasks for the job, Ms. Coffin was not satisfied on the issue whether Mrs. Lefebvre was making her best efforts.

Notwithstanding the limitations of the 1999 testing, and the lingering questions about Mrs. Lefebvre's efforts, I am satisfied that the preponderance of evidence establishes that Mrs. Lefebvre is incapable of prolonged standing, as well as prolonged sitting. Dr. Robinson's evidence confirmed that standing, as well as sitting, stresses the sacroiliac joint and that someone who has trouble with prolonged sitting would likely have trouble with prolonged standing as well. In addition, the 1999 testing did not demonstrate that Mrs. Lefebvre was not making maximum effort. The hand grip tests were not administered. The pattern of abruptly ceasing work is not conclusive of lack of effort, and is also consistent with Mrs. Lefebvre's reports of pain. I am not satisfied that her complaints of pain were any less genuine in 1999. I note that Mrs. Lefebvre demonstrated good speed and few errors, which is indicative of good effort. In light of the numerous assessments in which Mrs. Lefebvre has consistently demonstrated co-operation and maximum effort, and in light of the inconclusive nature of the evidence of effort during the 1999 test, I conclude that Mrs. Lefebvre continued her pattern of exerting genuine effort, and that the two-day assessment is indicative of an inability to use the sit/stand work station over an eight-hour period.

Surveillance evidence

Investigators attempted to observe Mrs. Lefebvre's activities on numerous occasions. In my view, nothing of significance was recorded on December 11, 12, 13, 15, 19, 21, or 22, 1995. On some of those dates, Mrs. Lefebvre was not seen at home or did not leave her premises for the day. Surveillance resumed in January 1996. On January 10, 11 and 12, 1996, Mrs. Lefebvre did not leave her home. On January 13, 17, and 18, 1996, she was doing errands. Six further days of surveillance in September 1996 did not disclose any significant activities on Mrs. Lefebvre's part, other than grocery shopping and carrying a large box of detergent. This surveillance in 1995 and 1996 appears to confirm rather than contradict Mrs. Lefebvre's evidence of her activity levels.

Mrs. Lefebvre began babysitting her four-year-old granddaughter and two-year-old grandson a couple of mornings per week, in November 1998, after her daughter's previous caregiver died. I accept the evidence of Lynne Patterson that her mother also occasionally refused to babysit because of her pain.

Surveillance resumed again in November 1998. On two days Mrs. Lefebvre did not leave her home. On Monday, November 9, Thursday, November 12, and Monday, November 23, 1998, Mrs. Lefebvre was seen up and about from approximately 8:00 a.m. until 2:00 p.m. She was taking care of her four-year-old granddaughter and two-year-old grandson, and, on occasion, a third baby as well. Mrs. Lefebvre frequently picked up the two-year-old or the baby in the car seat and walked some distance with them. She bent over frequently to buckle the children in the car seats. She jogged or ran a few steps. She walked up her stairs two steps at a time.

On Thursday, November 26, 1998, Mrs. Lefebvre can be seen taking care of the two-year old and the four-year-old again, from 8:20 a.m. until 12:30 p.m., when the older child got on the school bus. She continued to do errands, dropping off the two-year-old at his home at 1:30 p.m. While grocery shopping, she moved fluidly, reached up, squatted down and lifted items without difficulty. She returned home by approximately 4:00 p.m.

Some of the activities that Mrs. Lefebvre is seen engaging in, such as bending over for a couple of minutes, carrying gallon jugs of juice, carrying a baby in a car seat, and walking up steps two at a time, would tend to exacerbate low back pain. Yet Mrs. Lefebvre showed no hesitation or difficulty in engaging in those activities. This demonstrates that Mrs. Lefebvre's subjective pain experience is less severe, and her functional range of movement is less restricted, than her evidence at this hearing would lead one to believe. However, there is nothing in the surveillance which contradicts Mrs. Lefebvre's complaints that her pain worsens as the day wears on, and is exacerbated by prolonged sitting, standing or walking. I note that on most days, she returned home and remained indoors by 2:00 p.m. and that on a couple of days, she did not leave the house at all. Dr. Seguin and Dr. Robinson testified that it would be possible for Mrs. Lefebvre, with her pain complaints, to perform the types of actions seen on the video surveillance, although not repetitively.

Notwithstanding my finding that Mrs. Lefebvre exaggerated her symptoms, I find that her reports of subjective pain in her left hip and low back are genuine and that prolonged sitting, standing or walking, exacerbates that pain to unacceptable levels. Mrs. Lefebvre has never suggested that she is totally disabled from all activities, simply from prolonged sitting or standing. The position of data entry clerk requires continuous sitting (or alternating between standing and sitting with a sit/stand work station), with regular breaks. Standing and sitting puts the weight of the upper body on the sacroiliac joint and, in Mrs. Lefebvre's case, causes pain in the left hip and low back. The break periods are not sufficient to relieve the stress caused by prolonged sitting or standing. Only lying down or taking a hot bath relieves the pain, and those are not practical options in the working world.

Lack of rehabilitation efforts

I note that Mrs. Lefebvre failed to seek out any form of remunerative employment, although I have found she was capable of some form of part-time work as a data entry clerk. In addition, the surveillance evidence indicates that she was capable of some form of part-time caregiving. This indicates some lack of motivation on Mrs. Lefebvre's part to return to work. However, the Insurer also shares some responsibility for the situation. Rehabilitation should be a joint effort on the part of the applicant and the insurer. Although Mrs. Lefebvre indicated an interest in starting a home-based business as early as September 1996, this was not pursued by the Insurer's rehabilitation counsellor, as all efforts were focused on returning her to her pre-accident job. Once the Insurer terminated benefits in January 1997, it ceased all further efforts at rehabilitation. In light of Mrs. Lefebvre's genuine pain, limited tolerances, and prolonged absence from work, she may require substantial vocational assistance to return to remunerative employment. Hopefully, my findings with respect to her functional abilities will lead to renewed vocational rehabilitation efforts.

Conclusion:

Mrs. Lefebvre is entitled to weekly income benefits at the rate of $335.91 per week from February 1, 1997⁹ and ongoing. In addition, she is entitled to interest in accordance with section 68 of the Schedule.

Entitlement to housekeeping expenses:

Mrs. Lefebvre claims $65 per week in housekeeping expenses from January 24, 1997, to compensate for the extra chores which Mr. Lefebvre performed. I am not satisfied that Mrs. Lefebvre has demonstrated a need for ongoing housekeeping assistance. Mr. Lefebvre testified that prior to the accident, he did his share of the housework, including vacuuming, sweeping, and cleaning the toilet. After the accident, he continued to do the vacuuming, sweeping and cleaning the toilet, as well as the occasional washing of the walls, ceilings and fans. I find that Mr. Lefebvre's housekeeping activities were not significantly greater than before the accident, and do not justify a weekly housekeeping expense of $65 per week.

Further, I am not satisfied that Mrs. Lefebvre's injuries from the accident prevent her from doing any of her pre-accident housekeeping activities. Unlike her job duties, the housekeeping chores which she claims she cannot do, do not require prolonged sitting, standing, or walking. The surveillance evidence indicates that Mrs. Lefebvre is capable of bending over, lifting moderately heavy household objects, reaching above her head, squatting, and generally moving around fluidly. I am satisfied that she has exhibited the physical capacity to do her housekeeping chores. This is confirmed by the report of the occupational therapist on December 31, 1996.

Lefebvre is not entitled to housekeeping expenses in the amount of $65 per week beyond January 24, 1997.

EXPENSES:

I remain seized with respect to the issue of expenses, if the parties are unable to reach an agreement.

March 1, 1999

M. Kaye Joachim Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Allstate shall pay Mrs. Lefebvre weekly income replacement benefits at the rate of $335.91 per week, from February 1, 1997 and ongoing.

2. Allstate shall pay interest in accordance with section 6 of the Schedule.

March 1, 1999

M. Kaye Joachim Arbitrator

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. 2Section 7 of the Schedule.
3. 3Bertsouklis and Liberty Mutual Fire Insurance Company, (OIC P-006499, May 28, 1996) at p.5 to 6, Simpson and Royal Insurance Company of Canada, (OIC P-003863, August 22, 1996) at p. 2 to 3, Kotak and CAA Insurance Company (Ontario), (OIC P96-00019, March 27, 1997) at p. 8, Ahmed and Allstate Insurance Company of Canada (OIC P96-00068, June 23, 1998) at p. 5 and Halpin and Personal Insurance Company of Canada (FSCO P98-00012, January 6, 1999) at p. 6.
4. 4There was a notation in Mrs. Lefebvre's personnel file that she was "deemed" to have resigned in March 1995. Mrs. Lefebvre denied submitting her resignation. I find that nothing turns on this, since Mr. Beaudry's evidence was unequivocal, that it was Mrs. Lefebvre's refusal of the recall in 1996 (and not the resignation) which disentitled her to future recalls.
5. 5My conclusion that the sit/stand and other ergonomic work stations would have been available is based, not on Mr. Beaudry's testimony at the hearing, which in my view, was equivocal with respect to the accommodation of new hires, but on his statement to the rehabilitation consultant in July 1996 that sit/stand work stations and Scandinavian kneeling chairs would be acceptable. (Exhibit 5, Tab 30)
6. 6The notable exceptions, a work-hardening program in June of 1996 and a work-site assessment in January 1999 will be discussed infra.
7. 7Although Rehab Works was advised that the minimum keypunching requirement was 8,500 keystrokes per hour, and I find that the actual requirement for Mrs. Lefebvre was only 8,228 keystrokes per hour, I am satisfied that this does not invalidate the overall conclusion with respect to endurance and sitting tolerances.
8. 8I conclude that Mrs. Lefebvre would have met the requirements of typing 8,228 keystrokes per hour, even if break times had been included, since she was typing 9,600 keystrokes per hour (32 words per minute times five strokes per word time 60 minutes) excluding break times.
9. 9Exhibit 3, Tab 3, is a computer printout of weekly benefits paid. It appears to show that benefits were paid from the period of February 1, 1997 to February 14, 1997. If benefits were paid for this period, they do not need to be duplicated.