Neutral Citation: 2000 ONFSCDRS 31

FSCO A97–001365

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GORAN ALOBIC

Applicant

and

MAPLEX GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shemin Manji

Heard:

April 20, 21 and 22, and June 8, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions from the parties were received on July 19, August 10, August 19 and August 20, 1999.

Appearances:

Russell J. Howe for Mr. Alobic

D'Arcy McGoey for Maplex General Insurance Company

Issues:

The Applicant, Goran Alobic, was injured in a motor vehicle accident on September 26, 1994. He was employed as a GO Transit bus driver at the time of the accident. After an initial period of rehabilitation, Mr. Alobic made many return to work attempts to his job as a bus driver.

Mr. Alobic applied for and received statutory accident benefits from Maplex General Insurance Company ("Maplex"), payable under the Schedule.¹ Maplex paid Mr. Alobic weekly income replacement benefits in the amount of $151.66 when he was off work immediately after the accident and after his first return to work attempt. Mr. Alobic claims income replacement benefits for various periods after October 4, 1995 during which he was either not working or working at a modified position.

At the time of the accident, Mr. Alobic was living in a cottage on a 16 acre property. Prior to the accident, he had entered into an arrangement with the owner of this property whereby Mr. Alobic would be responsible for the landscaping and upkeep of 10 acres of the property in exchange for his free living accommodation. Mr. Alobic claims that he is also entitled to weekly income replacement benefits after October 2, 1994 in respect of his inability to carry out his landscaping and maintenance duties as a result of the accident. Maplex has not paid Mr. Alobic any income replacement benefits in respect of his second alleged employment.

The parties were unable to resolve their disputes through mediation, and Mr. Alobic 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 Mr. Alobic entitled to receive weekly income replacement benefits, for those periods after October 4, 1995 when he was not working or working in a modified position pursuant to section 7 of the Schedule, in respect of his job as a bus driver?

2. Is Mr. Alobic entitled to receive weekly income replacement benefits, from October 3, 1994 and ongoing, pursuant to section 7 of the Schedule, in respect of his inability to perform his landscaping and maintenance duties?

3. What is the amount of the weekly income replacement benefit that Mr. Alobic is entitled to receive, pursuant to section 10 of the Schedule?

4. Is Mr. Alobic entitled to his expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

5. Is Maplex entitled to its expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

6. Is Mr. Alobic entitled to add as an issue a claim for a special award under subsection 282(10) of the Insurance Act, and if so, is he entitled to a special award?

Mr. Alobic also claims interest on any amounts owing.

Result:

1. Mr. Alobic is entitled to receive weekly income replacement benefits during the periods after October 4, 1995 when he was not working or working in a modified position in respect of his job as a bus driver.

2. Mr. Alobic is entitled to receive weekly income replacement benefits, from October 3, 1994 and ongoing, in respect of his inability to perform his landscaping and maintenance duties.

3. In respect of his landscaping and maintenance work, Mr. Alobic is entitled to weekly income replacement benefits payable to him minus 90 per cent of the net amount of the post-accident income received by him. Accordingly, the amount of the weekly income replacement benefit to which he is entitled until April 1, 1996 is zero.

In respect of his employment as a bus driver: Mr. Alobic is entitled to the full amount of the weekly income replacement benefits payable to him only during the following periods: September 11, 1996 for 3.29 hours; September 14, 1996 for 2.3 hours and April 1, 1997 to August 10, 1997 inclusive. Mr. Alobic is entitled to income replacement benefits payable to him minus the net amount of the collateral benefits received by him during the following periods: January 3, 1996, April 27, 1996 to May 8, 1996, June 11, 1996 to June 26, 1996, September 12, 1996, September 13, 1996, September 14, 1996 for 5.29 hours, September 15, 1996 to October 13, 1996 and October 15, 1996 to November 22, 1996. Mr. Alobic is not entitled to weekly income replacement benefits during the following periods: October 5, 1995 to January 2, 1996, January 4, 1996 to February 5, 1996, September 11, 1996 for 4.07 hours, October 14, 1996, November 25, 1996 to March 31, 1997 and August 11, 1997 to July 9, 1998.

4. Mr. Alobic is entitled to his expenses in respect of this arbitration proceeding.

5. Maplex is not entitled to its expenses in respect of this arbitration proceeding.

6. The issue of a special award shall be dealt with at a resumption of this proceeding.

EVIDENCE AND ANALYSIS:

Background and Issues

Mr. Alobic is 40 years old. He was born in Yugoslavia and immigrated with his spouse to Canada in October 1987. After arriving in Canada, he and his spouse separated. They are now divorced. Mr. Alobic has three children, none of whom reside with him. Two of the three children are under the age of majority. They reside with their mother. However, Mr. Alobic visits with them frequently and pays child support to his former spouse for both of the younger children.

On September 26, 1994, on his day off from work with GO Transit, Mr. Alobic was driving his motor vehicle — a 1987 Chevrolet Celebrity — proceeding west, on his way to his children's school, when he was broadsided on the driver's side, at an intersection, by another vehicle running through a red light. Both Mr. Alobic's vehicle and the vehicle that struck his vehicle were moving at the time of impact. Mr. Alobic's vehicle span twice to the right and stopped facing southbound traffic. During one of the spins, Mr. Alobic's vehicle struck a second vehicle. His seat was twisted from its mountings. Mr. Alobic's vehicle sustained approximately $3,000 in damages and was written off.

Immediately after the accident, Mr. Alobic complained of lower back, left side rib, abdominal, pelvic, neck and shoulder pain and numbness of the left side of his body. He was taken by ambulance to a hospital, where he was examined, given pain medication and discharged to go home.

Mr. Alobic went to see his family physician, Dr. R.G. Esterbauer, the next day and complained of pain in his neck, lower back, left ribs and on the left side of his chest. He also complained of continuing numbness in his left leg. Dr. Esterbauer requisitioned x-rays of Mr. Alobic's cervical spine, pelvis, left ribs and chest. These indicated that there were no fractures. Dr. Esterbauer prescribed some medication and referred Mr. Alobic to the York County Physiotherapy Sports Injuries Clinic for physiotherapy treatments. Mr. Alobic began an extensive active physiotherapy program almost immediately. The program ended in March 1995. This program assisted in reducing Mr. Alobic's symptoms, however, it did not eliminate all of them.

Over the ensuing years, Mr. Alobic has seen various specialists, including Dr. G. Ko, a physiatrist, on numerous occasions, Dr. McMahon, an orthopaedic surgeon, and Dr. Greenspan, a pain management specialist, and his symptoms have been extensively investigated. The investigations have included EMG, nerve conduction studies and a CT Scan and an MRI of his lumbar spine.

Mr. Alobic has also gone through quite a lot of other kinds of treatment including chiropractic treatment, epidural steroid injections, trigger point injections and nerve root blocks. He has also participated in a gym fitness program. Notwithstanding the treatments, Mr. Alobic continues to complain of constant back pain which sometimes goes down both his legs. The other symptoms that Mr. Alobic experienced have settled except when his back pain is most severe. At that time he experiences radiating discomfort up through the right side of his back to the right para scapular region and right side of his neck. Mr. Alobic testified that presently he tries to control these symptoms by exercising a lot, trying to change his position as frequently as possible, taking medication (anti-inflammatory and pain relieving) three times a day, and visiting the chiropractor when needed.

Mr. Alobic was employed full time at the time of the accident as a bus driver with GO Transit. He commenced working full time² for GO Transit in May 1991. Mr. Alobic testified that at the time of the accident, due to his lack of seniority, he was working the night shift and on weekends. Mr. Alobic testified that he was working Mondays, Tuesdays and Wednesdays from 6:00 p.m. until 2:30 a.m. He was off Thursdays and Fridays. He was working from 4:00 or 4:30 p.m. until 2:30 a.m. on Saturdays, and from 3:00 p.m. to 2:30 a.m. on Sundays. Mr. Alobic testified that when working if he was running on time on each shift he would get one longer break (for dinner) and three to four 10-minute breaks.

Mr. Alobic testified that although he had little choice in the selection of his shift, the shift that he was working on at the time of the accident suited him as it allowed him to do landscaping and maintenance work on the property of one Mr. Cameron Wardlaw.

In 1993, Mr. Alobic entered into a verbal arrangement with Mr. Wardlaw in which he essentially traded his physical labour in landscaping and maintenance of 10 acres of Mr. Wardlaw's 16 acre property for free accommodation. Mr. Wardlaw also paid all of Mr. Alobic's utility bills. This arrangement was still in place at the time of the accident.

Mr. Alobic's health in the years prior to the accident was good. There is no history of any injuries to or difficulties with the areas of his body affected by this accident. There is also no evidence that Mr. Alobic experienced any difficulties performing his pre-accident job with GO Transit as a bus driver or that he experienced any difficulties performing the landscaping and maintenance work on Mr. Wardlaw's property.

Following the accident, after an initial period of rehabilitation when Mr. Alobic was off work, Mr. Alobic made four unsuccessful return to work attempts to his job as a bus driver with GO Transit. He was successful on his fifth attempt — he returned to his job as a bus driver on July 9, 1998 and has continued working since.

Mr. Alobic applied for income replacement benefits from Maplex. Maplex paid Mr. Alobic weekly income replacement benefits in the amount of $151.66 when he was off work between September 26, 1994 to March 20, 1995 and May 5, 1995 to October 4, 1995. The amount of $151.66 was based on Mr. Alobic's income from his job as a bus driver, after deducting the net amount of the collateral benefits received by him.

In September 1996, Maplex sent Mr. Alobic three Explanations of Assessment by Insurance Company that it was terminating income replacement benefits as of September 6, 1996 based on the results of an insurer's medical examination conducted by Dr. Ford on August 19, 1996. Maplex advised Mr. Alobic that it was terminating the benefits pursuant to section 64 of the Schedule and that if Mr. Alobic disagreed with Maplex's decision, he should provide notice as to whether he wished to be assessed by a Designated Assessment Centre ("DAC").

Mr. Alobic did dispute Maplex's decision to terminate income replacement benefits and asked for an assessment at a DAC. He underwent a DAC assessment on October 31, 1996. The DAC assessment concluded that Mr. Alobic was partially disabled in respect of his job as a bus driver and substantially disabled in respect of his landscaping and maintenance work.

Notwithstanding that the Explanations of Assessment sent by Maplex indicated that weekly income replacement benefits were being terminated September 6, 1996, Mr. Alobic had not received any income replacement benefits since October 5, 1995. He claims weekly income replacement benefits during the periods after October 4, 1995³ when he was not working or was working on modified duties.

To date the weekly income replacement benefits Mr. Alobic has received are exclusively in respect of his job as a bus driver. Mr. Alobic claims that he is also entitled to weekly income replacement benefits in respect of his landscaping and maintenance work on Mr. Wardlaw's property. He also claims that the amount of the income replacement benefits he is entitled to receive from October 3, 1994 onwards should reflect the value of this landscaping and maintenance work which he submits was at least $1,000 a month ($230.90 per week).

Mr. Alobic claims that he still remains substantially disabled from both his pre-accident landscaping and maintenance work and his pre-accident occupation as a bus driver.

Maplex disagrees. It maintains that Mr. Alobic is not entitled to income replacement benefits during the periods claimed by Mr. Alobic because he was not disabled from his occupation as a bus driver.

Maplex submits that even if Mr. Alobic had an arrangement to do the landscaping and maintenance work as claimed, this arrangement did not constitute employment" within the meaning of section 5 of the Schedule. It contends that any loss sustained by Mr. Alobic from the arrangement is at best a housekeeping and home maintenance expense under section 55 of the Schedule. Maplex also claims that Mr. Alobic is statute barred from raising the issue of his entitlement to income replacement benefits in respect of his landscaping and maintenance work and from disputing the amount of weekly income replacement benefit to which he would be entitled from October 3, 1994 by virtue of subsection 281(5) of the Insurance Act and section 72 of the Schedule. Maplex submits that in any event, Mr. Alobic has not suffered a substantial inability to perform the essential tasks of his landscaping and maintenance work. It submits that even though Mr. Alobic had difficulty with the more strenuous aspects of the arrangement, he was able to perform other duties such as taking care of Mr. Wardlaw's dogs and general security work.

1. Is Mr. Alobic entitled to receive weekly income replacement benefits, from October 5, 1995 and ongoing, in respect of his job as a bus driver?

Mr. Alobic claims weekly income replacement benefits during the following periods, for the following reasons:

October 5, 1995 to January 2, 1996

working at a non-driving position

January 3, 1996

not working

January 4, 1996 to February 5, 1996

working at a non-driving position

April 27, 1996 to May 8, 1996

not working

June 11, 1996 to June 26, 1996

not working

September 11, 1996 to November 22, 1996

not working

November 25, 1996 to March 31, 1997

working at a non-driving position

April 1, 1997 to August 10, 1997

temporary suspension from GO Transit

August 11, 1997 to July 9, 1998

working at a non- driving position

The question is whether Mr. Alobic sustained an impairment (as defined in section 1 of the Schedule) as a result of the accident from which he suffered a substantial inability to perform the essential tasks of his employment as a GO Transit bus driver during the above-noted periods. "Essential tasks" are not defined in the Schedule. I agree with Arbitrator Blackman in Lopez and State Farm Mutual Automobile Insurance Company⁴ that "essential tasks" are the necessary and key tasks of one's employment and that they include those duties which a person must be able to perform as a prerequisite to being hired for a position.

In determining Mr. Alobic's essential tasks as a bus driver, I rely on the Physical Demands Analysis provided by GO Transit⁵ and the Occupational Therapy Work Site Analysis report of Associative Rehabilitation Inc. ("ARI") dated May 24, 1996. ARI was retained by Maplex in January 1995 to provide case management services to Mr. Alobic. Both of these documents indicate that the key or necessary job demands of a bus driver include frequent (for more than three hours daily) and prolonged (from one hour to three hours without interruption) sitting.

An "impairment" is defined in section 1 of the Schedule as "a loss or abnormality of psychological, physiological or anatomical structure or function."

I conclude on the basis of Mr. Alobic's evidence and on the basis of the medical evidence, that as a result of the accident, Mr. Alobic has been left with an impairment of his lumbar spine. Both Mr. Alobic's evidence and the medical evidence indicate that notwithstanding this impairment, Mr. Alobic has been able to perform many of the requirements or demands of the job as a bus driver. However, they also indicate that since the accident he does not have the tolerance to perform a critical or essential requirement of his job as a bus driver, i.e., prolonged sitting.

Maplex submits that the evidence falls short of proving that Mr. Alobic suffered a substantial inability to perform the essential tasks of his employment as a bus driver during the various periods of time that Mr. Alobic is claiming income replacement benefits. It submits that Mr. Alobic himself admitted, in his examination-in-chief, that his occupation was "easy."

Mr. Alobic did testify that he thought that his job was easy. However, he also testified that notwithstanding this, he found during his first return to work attempt in March 1995 that after four weeks on the job he was barely able to walk any more because of the long shifts on Saturdays and Sundays and "bad driver's seat(s)."

Maplex submits that the overwhelming evidence in the ten month period leading to the termination of income replacement benefits in September 1996 is that Mr. Alobic was not substantially disabled from his position as a bus driver. It submits that indeed Mr. Alobic was working as of the date of the termination letter of September 6, 1996. It submits that Mr. Alobic's family physician had certified that he was capable of returning to work full time without restrictions. It submits that Mr. Alobic's chiropractor, Dr. Ruegg, had also certified that Mr. Alobic was fit for work without restrictions as of June 29, 1996. Further, it submits that after examining Mr. Alobic on August 19, 1996 at its request, Dr. Michael Ford, orthopaedic surgeon, concluded that "(t)he nature of his condition (was) such that there (was) no need to impose any medical restrictions and any disability (was) secondary to his subjective report of pain for which there (were) no objective determinants."

Maplex submits that given the overwhelming medical evidence leading to the termination of benefits in September 1996 it is more than just a coincidence that Mr. Alobic elected not to return to work six days after the notice terminating his income replacement benefits was issued. It submits that it is telling that Mr. Alobic would choose September 12, 1996 to elect not to return to work, given that this date was only 12 days away from the 104 week post accident mark.

I do not accept this submission. The evidence indicates that the reason that Mr. Alobic laid off work on September 11, 1996 was not because the 104 week mark was fast approaching, as Maplex suggests, but because as of September 2, 1996 only Mr. Alobic's regular full shift which involved prolonged sitting was available to him. The prolonged sitting aggravated his lower back pain resulting in further time off work.

On January 19, February 6, May 3 and June 11, 1996, Mr. Alobic's family doctor, Dr. E.G. Esterbauer, did submit reports and notes in which he said that Mr. Alobic, on those dates, was able to return to driving without restrictions. However, reports submitted to Maplex by ARI, based on interviews with Dr. Esterbauer, indicate that during the same period, Dr. Esterbauer considered Mr. Alobic permanently partially disabled. It was Dr. Esterbauer's opinion that Mr. Alobic would only be able to continue in his position as a bus driver if he was able to acquire shifts that were short (i.e. not his regular full shifts), that allowed him frequent breaks and the seating was appropriate. The evidence indicates that Dr. Esterbauer submitted reports and notes indicating that Mr. Alobic was able to return to driving without restrictions not because he believed this was so, but because Mr. Alobic asked him to do so.⁶ Mr. Alobic was only able to return to his job as a bus driver if his doctor certified that he could to do so without restrictions.

On February 1, 1996, Dr. Ruegg did submit a form to GO Transit wherein he indicated that Mr. Alobic was fit for regular work, however, in that form he also said that it was conceivable that driving for prolonged periods could aggravate his condition and that he would have to return to modified duties should this happen." In a note dated June 25, 1996, Dr. Ruegg did advise that Mr. Alobic was fit for work without restrictions as of June 29, 1996, however, I do not accept his opinion because the overwhelming evidence in the ten month period leading to and after the issuance of the Explanations of Assessment by Insurance Company on September 6, 1996 was that Mr. Alobic was experiencing significant difficulties performing the regular shifts in his job as a bus driver.

An Occupational Therapy Functional Abilities Assessment dated May 24, 1996, conducted by ARI, concluded that Mr. Alobic met the lifting and carrying demands of the job as a bus driver;⁷however, he was limited by his sitting tolerance. The Assessment noted that he appeared to be able to sit for approximately one hour comfortably, however, when he is on the job there are times when he may be required to sit over two hours without a rest period. In an Occupational Therapy Work Site Analysis of the same date (May 24, 1996), ARI recommended that Mr. Alobic work split shifts or shifts where a 20 to 30 minute break is provided after each hour of work, that Mr. Alobic perform stretches for the back and lower extremities from a standing position at least every hour for approximately 10 minutes, and that he be provided with a bus that provides support to his spine while he is seated.

On May 30, 1996, Mr. Alobic was seen by Dr. J. Stephen McMahon, an orthopaedic surgeon, at the request of Dr. Esterbauer. Dr. McMahon had previously examined Mr. Alobic in August 1995. Dr. McMahon concluded that Mr. Alobic had mechanical back pain and irritation of his left S1 nerve root. Dr. McMahon recommended, among other things, that Mr. Alobic avoid prolonged sitting and bending. Dr. McMahon noted that this could mean that Mr. Alobic might be restricted permanently to light duties at work.

On August 19, 1996, Mr. Alobic was seen by Dr. Ford at Maplex's request. It was Dr. Ford's opinion that Mr. Alobic demonstrated very little in the way of any objective impairment. However, there is a difference of medical opinion as to whether there is an anatomical or organic basis for Mr. Alobic's ongoing lower back and lower extremity symptoms. Various diagnoses have been put forward to explain Mr. Alobic's symptoms. On September 25, 1995, Dr. McGonigal was of the opinion that Mr. Alobic's symptoms were secondary to an L5-6 intervertebral disc herniation of the lumbar spine. On August 31, 1998, he was of the opinion that Mr. Alobic's symptoms were most in keeping with the diagnosis of mechanical low back pain, with a mild degree of nerve root irritation. On May 30, 1996, Dr. McMahon was of the opinion that Mr. Alobic had mechanical low back pain and some irritation of the left S1 nerve root. And, on October 31, 1996, Dr. Gollish was of the opinion that Mr. Alobic's symptoms were of a soft tissue nature and although Mr. Alobic's left leg symptoms appeared to be in the S1 nerve root distribution, there was no specific evidence of disc herniation or nerve root compression.

It is not necessary for me to accept any particular diagnosis because I am of the opinion that under the Schedule an insured person may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment.⁸ Therefore, although Dr. Ford concluded that there was no objective basis for Mr. Alobic's disability and that any disability that Mr. Alobic was experiencing was on the basis of his subjective report of symptomatology, I find that Dr. Ford's report supports Mr. Alobic's position that he suffered a substantial inability to perform the essential tasks of his employment as a GO Transit bus driver after October 4, 1995. Dr. Ford believed that Mr. Alobic was genuine in his presentation and that he was experiencing the symptoms he described. Dr. Ford stated that there (did) not appear to be any attempt (on Mr. Alobic's part) at embellishment and on physical examination there was no demonstration (by Mr. Alobic) of any non-organic signs to suggest that there was conscious attempt at exaggeration of physical signs."

On October 31, 1996, Mr. Alobic was seen by Dr. Jeffrey Gollish, an orthopaedic surgeon, for a DAC Assessment. Dr. Gollish concluded that Mr. Alobic was partially disabled from his job as a bus driver because "he (had) reduced tolerance for prolonged sitting."

Maplex submits that the disability DAC report of Dr. Gollish does not support Mr. Alobic's position that he suffers from a substantial inability to perform the essential tasks of a bus driver.

I agree that Dr. Gollish does not state that Mr. Alobic suffers a substantial inability to perform the essential tasks of a bus driver. However, he does state that he considers Mr. Alobic partially disabled because he has a reduced tolerance for prolonged sitting. Prolonged sitting is a critical requirement of Mr. Alobic's job as a bus driver.

On November 11, 1996, Mr. Alobic was seen by Dr. Martin Betz of the Evans Occupational Health Clinic at the request of his employer, GO Transit. Dr. Betz concluded Mr. Alobic could not work at his former bus driver position without modifications. Dr. Betz considered Mr. Alobic, "through no fault of his own, partially disabled for the foreseeable future."

Last but not least, on August 31, 1998, Mr. Alobic was seen by Dr. McGonigal, an orthopaedic surgeon. Dr. McGonigal had previously seen Mr. Alobic in September 1995, on a medical-legal consultation at the request of Mr. Alobic's solicitors. Dr. McGonigal remained of the opinion that as a consequence of the accident of September 26, 1994, Mr. Alobic sustained injuries to his neck, chest and lower back. Dr. McGonigal opined that Mr. Alobic had fully recovered from the effects of the soft tissue injuries to his neck and chest without residual impairment or disability. However, in respect of Mr. Alobic's lower back injury, Dr. McGonigal concluded that Mr. Alobic had been left with a permanent impairment of his lumbar spine such that he was unfit to engage in particularly strenuous or demanding occupations and would have limited tolerance for medium level physical activity. Specifically, in respect of his job at GO Transit, Dr. McGonigal was of the opinion that Mr. Alobic could tolerate his back pain only by working split shifts on a permanent basis. Dr. McGonigal noted that Mr. Alobic was then 40 years of age and that his ongoing symptoms could worsen with time.

Mr. Alobic's various unsuccessful attempts to return to his regular work as a bus driver subsequent to the accident also indicate that Mr. Alobic did not have the tolerance to perform a critical requirement of his job as a bus driver. Mr. Alobic returned to work as a bus driver from March 21, 1995 to May 4, 1995; from February 6, 1996 to April 26, 1996; from May 9, 1996 to June 10, 1996; and from June 27, 1996 to September 11, 1996. Mr. Alobic's attempts to work his regular shift which involved prolonged sitting aggravated his lower back pain resulting in further time off work. Mr. Alobic reported to Dr. Betz on November 11, 1996 that on each occasion he experienced more pain each day, which became increasingly disabling over a period of days to weeks. The pattern always began after about two hours of non-stop driving, with a sensory disturbance in his left lower leg and foot, which if not relieved by rest, escalated into unbearable low back pain and incapacitating muscle spasm.

Even though Mr. Alobic has been able to perform many of the requirements or demands of his job as a bus driver, I conclude on the basis of the evidence that Mr. Alobic suffered a substantial inability to perform the essential tasks of his employment as a bus driver during the periods after October 4, 1995 when he was not working or working on modified duties.

Whenever Mr. Alobic returned to his work as a bus driver subsequent to the accident and before July 9, 1998, he was forced to go on sick leave, when only his regular full shift was available to him, and he was not able to obtain a split shift. The evidence indicates that the only reason Mr. Alobic has been able to perform his job as a bus driver on a sustained basis since July 9, 1998 has been because after this date he has been able to obtain a split shift which gives him the necessary breaks to keep his pain and discomfort at a tolerable level. Mr. Alobic works every weekday morning for approximately four hours. He then goes home to rest and exercise for about four hours and then works again for approximately four hours in the afternoon. Mr. Alobic testified that the split shift limits him from doing other things. It interferes with his family life, and he is no longer able to do the overtime work he used to do to earn extra money. In my view, the sacrifices that Mr. Alobic has had to make in his lifestyle to allow him to continue working as a bus driver are significant and he should not be penalized for making them. He testified that what he is doing now is just about enough that (he) can tolerate without losing any days being sick."

My finding that Mr. Alobic continued to suffer a substantial inability to perform the essential tasks of his employment as a landscaper after October 4, 1995 is based in part on Mr. Alobic's complaints of pain. Maplex submits that I should not give much weight to Mr. Alobic's subjective complaints because he is not credible. It submits, among other things, that Mr. Alobic has on a number of occasions committed various infractions at GO Transit: In 1992, he was suspended without pay for failing to notify GO Transit about a collision while working and for submitting inaccurate information on the Accident Report; In April 1996, he was reprimanded for wearing a walkman while driving; In June 1996, he was reprimanded for leaving a bus idling; And in March 1997, his employment was terminated (although he was subsequently reinstated) because he failed to inform GO Transit that his license was suspended for failure to blow into a breathalyser.

Maplex also submits that Mr. Alobic is not credible because over the years he failed to declare the value of his arrangement with Mr. Wardlaw on his income tax returns.

I am not prepared to dismiss Mr. Alobic subjective complaints of pain for these reasons. I note that he tried to return to work when his income replacement benefits were ongoing. This indicates to me that he was very motivated to return to work. The GO Transit records indicate that he committed various infractions, however, they also indicate that he was a good employee with good work habits. Mr. Alobic consistently attained expected overall level of achievement.⁹I note that all the health care practitioners who treated and/or assessed Mr. Alobic and everyone who dealt with him following the accident, including Mr. Jerry Gerschkow, the independent adjuster who was retained by Maplex to work on Mr. Alobic's file, found him to be highly motivated to recover and return to work. They also found him to be cooperative, genuine and honest. They found that he was doing everything in his power to ameliorate his ongoing symptoms. In fact, Mr. Gerschkow was concerned that Mr. Alobic might be pushing himself too hard. Mr. Alobic's physiotherapist was of the opinion, in April 1995, that Mr. Alobic was stoic and working with more pain than most people could tolerate.

In respect of the period August 11, 1997 to July 1998, Maplex submits that there is no evidence of disability during this period. It submits that the reason Mr. Alobic was not working during this period had nothing to do with the motor vehicle accident but had to do with his suspension from driving, unlicensed.

GO Transit records indicate that Mr. Alobic's employment was terminated by GO Transit effective April 1, 1997 (not August 11, 1997) and that he was reinstated as a GO Transit employee on August 11, 1997, when he returned to the non-driving position he held prior to April 1, 1997. GO Transit records also indicate that Mr. Alobic worked at the non-driving position because of his back problem until July 9, 1998, when he returned to his job as a bus driver.

Mr. Alobic was terminated from his employment with GO Transit as of April 1, 1997 because on March 16, 1997 he was involved in an incident that resulted in the loss of his driver's licence for a period of three months and he did not notify GO Transit of the loss of his licence. On discovery, GO Transit terminated his employment, on the basis that Mr. Alobic had violated a term of the Collective Agreement. Mr. Alobic grieved his termination and the result was that he was reinstated effective August 11, 1997.

The question then is whether Mr. Alobic is entitled to income replacement benefits for the period April 1, 1997 to August 10, 1997. Subsection 8(1) of the Schedule provides that a weekly income replacement benefit under section 7 is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he qualifies for such benefits. The evidence indicates that Mr. Alobic's condition from April 1, 1997 to August 10, 1997 was no different from what it was prior to or subsequent to that date. He continued to suffer a substantial inability to perform the essential tasks of his employment as a bus driver. The amount of the weekly income replacement benefits payable to Mr. Alobic could perhaps have been reduced under section 13 of the Schedule which gives an insurer with authority to reduce the amount of weekly income replacement benefit where an insured person entitled to weekly income replacement does not make reasonable efforts to return to pre-accident employment or modified employment. However, this was not done.

In conclusion, I find that Mr. Alobic is entitled to weekly income replacement benefits in respect of his job as a bus driver during the periods after October 4, 1995 when he was not working or when he was performing modified duties.

2. Is Mr. Alobic entitled to receive income replacement benefits from October 3, 1994 and ongoing in respect of his inability to carry on his landscaping maintenance duties?

Did the arrangement constitute ""employment"?

Subsection 7(1)1. of the Schedule provides that an insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment. The word "employed" is defined in section 5 of the Schedule as follows:

For the purpose of this Regulation, a person is employed if, for salary, wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office, and "employment" has a corresponding meaning.

[Emphasis added]

Maplex does not dispute that Mr. Alobic did landscaping and maintenance work on Mr. Wardlaw's property in exchange for free accommodation. However, Maplex submits that this arrangement does not constitute "employment" within the meaning of section 5 of the Schedule.

Both Mr. Alobic and Mr. Wardlaw testified. On the whole I found their evidence to be consistent, credible and uncontradicted. Mr. Alobic and Mr. Wardlaw entered into the oral arrangement in 1993. Mr. Wardlaw expected Mr. Alobic to take care of and maintain 10 acres of his property, including landscaping, maintenance and security work. Mr. Alobic was expected to be available to work on the property on the average for 30 hours per week, which varied according to the season. In exchange for the work Mr. Alobic did on the property, Mr. Wardlaw allowed Mr. Alobic to occupy a separate small house on the property. At the time of the accident, Mr. Alobic was only paying his telephone bill.

Both Mr. Wardlaw and Mr. Alobic testified that Mr. Alobic received no formal" vacation time during the time that he worked for Mr. Wardlaw. However, Mr. Wardlaw testified that Mr. Alobic would consult with him before he went away for a week or two.

Section 5 of the Schedule expands the definition of the word "employed" for the purposes of the Schedule, however, it does not specifically define "employed" or "employment." In these circumstances, I must refer to the common meaning of this word. I agree with Arbitrator Mackintosh in Jarvis and Jevco Insurance Company¹⁰ that in common parlance this word or term implies a connection to the workforce and connotes the concept of an exchange of goods and/or services for value. I also agree with Arbitrator Blackman in Mroue and Zurich Insurance Company¹¹ that the term "employed" entails a commitment to the workforce in exchange for which one's services are compensated by money or some like advantage.

I find that at the time of the accident, for other remuneration (being free accommodation), Mr. Alobic was engaged in employment, within the meaning of section 5 of the Schedule. In this case, in my opinion, there was the requisite connection and commitment to the workforce by Mr. Alobic. I am satisfied, based on Mr. Alobic's and Mr. Wardlaw's evidence, that there was a need for Mr. Alobic's services and there was an expectation by Mr. Wardlaw and a commitment by Mr. Alobic that Mr. Alobic would perform those services on a regular basis, with some discretion as to when the services would be carried out. When Mr. Alobic was not able to perform the services after the motor vehicle accident, it was necessary for Mr. Wardlaw to replace his services. Mr. Wardlaw and Mr. Alobic testified that initially Mr. Wardlaw replaced some of the services provided by Mr. Alobic by hiring two high school students.¹² Mr. Wardlaw testified that as time went on he realised that the two students "were only keeping up with the basic necessities of (his) piece of property. In other words, the grass was being cut and not much else was being able to be accomplished." Consequently, Mr. Wardlaw started to look around for a replacement for Mr. Alobic — someone who would perform all the duties that had been performed by Mr. Alobic prior to the accident — and Mr. Alobic left Mr. Wardlaw's property on May 31, 1998.

Maplex submits that the evidence in this case indicates that there was no commitment or connection to the workforce by Mr. Alobic. It submits, among other things, that Mr. Alobic testified that he did not consider he was receiving income from the arrangement with Mr. Wardlaw; Mr. Wardlaw did not consider that Mr. Alobic had to depend on him to make a living; Mr. Wardlaw did not make arrangements with Mr. Alobic for deduction of UI, CPP or WCB premiums and he did not declare Mr. Alobic as an employee for business tax purposes; Mr. Alobic did not have to submit to Mr. Wardlaw the number of hours that he worked and he made no formal vacation arrangements with Mr. Wardlaw; and neither the application for accident benefits nor the statement given by Mr. Alobic stated that he was employed to perform landscaping and maintenance work.

I am not satisfied that any or all of these factors show that Mr. Alobic did not have the requisite connection and commitment to the workforce.

Maplex submits that in a case very similar to this one, Feeney v. British Columbia (Workers' Compensation Board),¹³ the Supreme Court of British Columbia upheld the Workers' Compensation Board's decision rejecting the resident caretaker's argument that he was a worker" since he had entered into a barter relationship with the landlord.

I do not find Feeney helpful. The decision indicates that in coming to its conclusion the Workers' Compensation Board considered factors other than the barter issue. These other factors are not reviewed in the decision. I note that in Feeney the Court said that "(b)ecause a relationship is based upon barter, it does not necessarily mean that an employer-worker relationship cannot exist. It all depends upon all of the circumstances."

Maplex submits that any loss sustained by Mr. Alobic stemming from the arrangement was at best a housekeeping and home maintenance expense under section 55 of the Schedule and not covered under section 7 of the Schedule. Maplex points out that all of the representatives who gave evidence on behalf of Maplex testified that they considered the arrangement as giving rise to expenses under the Schedule and even correspondence received by Maplex from Mr. Alobic's solicitors indicates that they also considered the arrangement as one giving rise to expenses under the Schedule.

The opinions of Maplex's representatives and the opinion of Mr. Alobic's solicitors may explain their actions, but they are not determinative of whether an employment relationship existed between Mr. Wardlaw and Mr. Alobic.¹⁴ In my view, this is not a case where Mr. Alobic is seeking to be paid for expenses he has incurred for housekeeping services and maintenance of his own property. He is seeking to be compensated for the loss of income in the form of free accommodation as a result of the accident.

Is Mr. Alobic statute-barred from raising the landscaping issue?

Maplex submits that Mr. Alobic is statute barred from disputing either entitlement to income replacement benefits or the quantum of those benefits from October 3, 1994 in respect of his employment with Mr. Wardlaw. It is not clear but it appears that Maplex is relying on the limitation periods in subsection 281(5) of the Insurance Act and section 72 of the Schedule. These limitation periods run from the insurer's refusal to pay the benefits claimed.

Maplex submits that Mr. Alobic testified on cross-examination that the first time that he told Maplex that he considered the landscaping work to be employment was when he was first interviewed by the independent adjuster, Jerry Gerschkow, around the time that he signed the application for accident benefits. Maplex submits that Mr. Alobic signed the application for accident benefits on or about October 13, 1994.¹⁵ Shortly after receiving the application, Maplex commenced paying income replacement benefits solely on the basis of Mr. Alobic's employment with GO Transit. The application for mediation was not filed until February 24, 1997, some two years, four and a half months after Mr. Alobic had communicated with Mr. Gerschkow.

I find that the limitation periods set out in subsection 281(5) of the Insurance Act and section 72 of the Schedule do not apply in this case to preclude Mr. Alobic from disputing either entitlement to income replacement benefits or the appropriate amount of the income replacement benefits to which he may be entitled as a result of his employment with Mr. Wardlaw. There was no clear and unequivocal refusal by Maplex to pay income replacement benefits arising from his employment with Mr. Wardlaw until September 6, 1996.¹⁶ Both the application for mediation and the application for arbitration were filed within two years after Maplex's refusal to pay these benefits.

Is Mr. Alobic entitled to receive income replacement benefits from October 3, 1994 and ongoing on the basis that he suffered a substantial inability to perform the essential tasks of his employment with Mr. Wardlaw?

I have found that as a result of the accident, Mr. Alobic has been left with an impairment of his lumbar spine. The question is whether as a consequence of this impairment he suffered a substantial inability to perform the essential tasks of his employment as a landscape and maintenance worker.

I find that as a consequence of Mr. Alobic's impairment, he also suffered a substantial inability to perform the essential tasks of his employment as a landscape and maintenance worker.

In determining Mr. Alobic's tasks as a landscape and maintenance worker, I rely on Mr. Alobic's and Mr. Wardlaw's evidence and also on ARI's Occupational Therapy Work Site report dated May 7, 1996. I find that Mr. Wardlaw's property, because of the uneven terrain, was not an easy property to maintain.¹⁷ Some of the tasks were seasonal. There were "busy months" (beginning of April to the end of November) and quiet months (winter months). The ARI report identifies the tasks during the "busy months" as including the following: mowing the lot weekly, raking, planting flowers, spraying plants and flowers for weed and insect control, pruning trees, trimming bushes, preparing and chopping wood from trees in forest, painting, emptying the swimming pool once a year and cleaning the pool after each rainfall. Both Mr. Alobic and Mr. Wardlaw testified that in addition to property maintenance, Mr. Alobic's duties included security of the property and taking care of Mr. Wardlaw's two dogs when he was away. Mr. Wardlaw testified that he and his family were away a lot — most of the summer and also in the winter.

The ARI report concludes that Mr. Alobic's job was very physically demanding and required performance of various activities for prolonged periods of time.¹⁸ The physical requirements of the job included constant walking across the 16 acre property up and down hills, occasional sitting while using riding lawn mower, pushing and pulling of hand lawn mower up and down hills, constant standing, frequent squatting, frequent heavy lifting and carrying, repetitive forward reaching and balancing weight while sitting in a tree to trim dead brunches. I rely on Mr. Alobic's own evidence, which I find to be credible, and the medical evidence in support of my finding that Mr. Alobic suffered a substantial inability to perform his employment as a landscape and maintenance worker after October 2, 1994.

The reports of York County Physiotherapy where Mr. Alobic attended for treatment immediately following the accident indicate that Mr. Alobic was not able to perform his employment as a landscape and maintenance worker because he was suffering from intermittent low back pain, intermittent left buttock pain and constant left foot numbness and this was restricting his ability, among other things, to perform heavy lifting.

All of the ARI reports, starting with the initial report of February 7, 1995, consistently document Mr. Alobic's complaints that he was not able to cope with his strenuous outdoor chores as a result of the injury that he sustained to his back in the accident and that he would have to seek other accommodation unless "alternate arrangements" could be made.

The Occupational Therapy Functional Abilities Assessment dated May 24, 1996 conducted by ARI concluded that Mr. Alobic did not meet the requirements of his job as a landscaper because of back pain. It concluded that the only activity of a landscaper that he was able to perform was driving the riding lawn mower for one hour at a time.

Dr. Gollish who performed the disability DAC assessment on October 31, 1996 concluded that Mr. Alobic was substantially disabled from this employment. Dr. Gollish noted that the functional abilities assessments that Mr. Alobic had undergone had concluded that Mr. Alobic was unable to resume his usual tasks as a landscaper.

Finally, Dr. McGonigal concluded on August 31, 1998 that Mr. Alobic was, as a consequence of his continuing impairment, experiencing residual ongoing disability. It was Dr. McGonigal's opinion that Mr. Alobic was unfit to engage in particularly strenuous or physical occupations and that he would have limited tolerance for medium level physical activity. In his report of September 9, 1998 he stated that under the circumstances, given that Mr. Alobic's vocation as a landscape worker is defined as heavy work as classified by CCDO, it was his opinion that it (was) not unreasonable that Mr. Alobic had difficulty returning to these job duties following the accident and through to the present time."

Dr. Ford, the orthopaedic surgeon who conducted an examination of Mr. Alobic on behalf of Maplex in August 1996, does indicate in his report of August 20, 1996, that he was of the opinion that because Mr. Alobic demonstrated very little in the way of objective findings, he was capable of carrying out his outdoor landscaping job without any medical restrictions. Dr. Ford stated that prolonged sitting, repetitive bending and lifting may result in some functional intolerance but it would not produce any structural harm.

As noted earlier, there is some disagreement in the medical evidence in respect of whether there is an anatomical basis for Mr. Alobic's ongoing lower back and lower extremity problems. In any event, even if I were to accept Dr. Ford's opinion that there are no objective findings, this does not end the matter. I agree with other arbitrators that the test of substantial inability to perform the essential tasks of the employment" is not limited to a consideration of whether the person can perform his or her pre-accident job tasks without risking further injury. Mr. Alobic would still be entitled to income replacement benefits because of disabling pain.¹⁹ As noted earlier, Dr. Ford believed that Mr. Alobic was genuine in his presentation and that he was experiencing the symptoms he described.

Maplex concedes that the evidence suggests that Mr. Alobic is incapable of performing the more strenuous landscaping tasks. However, it submits that that does not end the matter. It submits that Mr. Alobic only spent a part of his time during the busy months engaged in heavy work. It submits that both Mr. Wardlaw and Mr. Alobic testified that Mr. Alobic's responsibilities were broader than the heavy summer work. Specifically, he was also responsible for looking after the dogs, small engine repair and general security of the property. It submits that there is no evidence that Mr. Alobic was substantially disabled from performing these aspects of the job.

It appears that Maplex is taking the position that because Mr. Alobic was able to perform the lighter aspects of his job as landscaper and maintenance worker after October 2, 1994 that he did not suffer from a substantial inability to perform the essential tasks of this job. I do not accept this position. The evidence of Mr. Alobic and Mr. Wardlaw is that during at least eight months of the year, Mr. Alobic spent a substantial part of his time engaged in heavy work, i.e. work as a landscape worker.²⁰ His other duties were peripheral. I accept the evidence that Mr. Alobic was not able to perform this heavy work at any time after the accident and that eventually he was forced to give up his employment with Mr. Wardlaw and accommodation on Mr. Wardlaw's property because he could not perform the heavier aspects of his job as a landscape and maintenance worker.

Maplex also submits that it must be kept in mind that although Mr. Alobic alleges a substantial inability to perform the essential tasks of the job, he nevertheless stayed at the "job" until the spring of 1998 at the same "rate of pay." It submits that the fact that Mr. Wardlaw kept him on is evidence of the fact that Mr. Alobic was generally still living up to Mr. Wardlaw's expectations.

I disagree. I find that Mr. Alobic did not leave Mr. Wardlaw's property until May 31, 1998 because both Mr. Alobic and Mr. Wardlaw hoped that Mr. Alobic would get better and eventually be able to perform the heavier aspects of his job and not because he was meeting Mr. Wardlaw's expectations. While waiting for this to happen, Mr. Wardlaw and Mr. Alobic tried to find individuals to perform the heavier chores. Mr. Alobic testified that in the fall and winter of 1994, a person working in Mr. Wardlaw's marina came on the property and raked and picked up some leaves. Mr. Alobic's father came from Yugoslavia in April 1995 specifically for the purpose of helping him on the property. Mr. Alobic's father stayed until the summer of 1995. In the summers of 1996 and 1997, Mr. Wardlaw and Mr. Alobic hired a couple of high school students to work on the property. Mr. Alobic paid these individuals for their work on the property in the amount of $400 a month. Mr. Wardlaw and Mr. Alobic testified that as time went on they realised that Mr. Alobic would not be able to return to the heavier aspects of the job and that hiring "a couple of kids" would not work out in the long term. Mr. Wardlaw testified that he wanted and needed better help and started to look for somebody to replace Mr. Alobic. This was the reason Mr. Alobic left Mr. Wardlaw's property and employment at the end of May 1998.

3. What is the amount of the weekly income replacement benefit that Mr. Alobic is entitled to receive?

The accounting evidence, specifically the evidence of a chartered accountant, Mr. Ian Wollach, that I heard on this issue was based on a number of assumptions, not all of which I find are supported by the evidence adduced in this case. In these circumstances, I am unable to rely on his conclusions as to the amount of weekly income replacement benefits that Mr. Alobic is entitled.

This case involves a complicated set of calculations and I do not have the evidence to do these calculations to arrive at the specific amount of the weekly income replacement benefits to which Mr. Alobic is entitled as of the date of the conclusion of the hearing. In these circumstances, I have set out my findings generally (without performing the calculations) and I am leaving it to the parties to retain an expert who will do the calculations.

In respect of Mr. Alobic's job as a bus driver:

Mr. Alobic is claiming weekly income replacement benefits during the periods after October 4, 1995 when he was not working. He is also claiming the difference in income between his pre-accident employment as a bus driver and his employment on return to modified work.

When performing modified work:

Mr. Alobic performed modified duties with GO Transit during the following periods after the accident: October 5, 1995 to January 2, 1996, January 4, 1996 to February 5, 1996, November 25, 1996 to March 31, 1997 and August 11, 1997 to July 9, 1998. Although Mr. Alobic is claiming income replacement benefits for these periods, Mr. Alobic testified and the GO Transit records indicate that Mr. Alobic did not suffer any income loss subsequent to the accident when performing modified duties. His rate of pay during these periods performing modified work was the same as his rate of pay when performing his pre-accident employment as a bus driver, i.e. $19.32 per hour. In these circumstances he is not entitled to any income replacement benefits for these periods.²¹

When off work:

Mr. Alobic was off work during the following periods: January 3, 1996, April 27, 1996 to May 8, 1996, June 11, 1996 to June 26, 1996, September 11, 1996 to November 22, 1996 and April 1, 1997 to August 10, 1997. However, he is not entitled to the full amount of income replacement benefits payable during some of these periods because he was in receipt of collateral benefits. GO Transit records indicate that Mr. Alobic received collateral benefits as follows:

September 11, 1995 to October 4, 1995

sick pay 75%

January 3, 1996

sick pay 100%

April 27, 1996 to May 5, 1996

sick pay 100%

May 6, 1996 to May 8, 1996

sick pay 75%

June 11, 1996 to June 26, 1996

sick pay 75%

September 14, 1996

sick pay 75% for 5.29 hours

September 15, 1996 to October 13, 1996

sick pay 75%

October 15, 1996 to November 22, 1996

sick pay 75%

Section 75 of the Schedule provides in part as follows:

75.— (1) The insurer may deduct the following amounts from the amount payable to an insured person for weekly income replacement benefits under Part II,

1. Net payments for loss of income that have been received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation plan.

(8) For the purpose of this section, net payments for loss of income shall be determined by subtracting from the gross amount of payments for loss of income the income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross amount of payments for loss of income.

Therefore, the net amount of the collateral benefits Mr. Alobic received must be deducted from the amount payable to Mr. Alobic pursuant to subsection 10(1) of the Schedule, i.e. 90 per cent of his net weekly income from his employment with GO Transit determined in accordance with section 81 or 82.

Mr. Alobic received regular pay on October 14, 1996 which was a statutory holiday and for 4.07 hours on September 11, 1996. Therefore, he is not entitled to any income replacement benefits on October 14, 1996 and for 4.07 hours on September 11, 1996.

Mr. Alobic received no pay on September 11, 1996 for 3.29 hours and on September 14, 1996 for 2.3 hours. He also did not receive any collateral benefits from April 1, 1997 to August 10, 1997, when he was not working for GO Transit. Therefore he is entitled to the full amount of income replacement benefits payable to him during these periods, i.e. 90 per cent of his net weekly income from his employment with GO Transit determined in accordance with section 81 or 82.

In respect of Mr. Alobic's job as landscape and maintenance worker:

Mr. Alobic values the work that he did for Mr. Wardlaw as a landscape and maintenance worker in exchange for rent at $1,000 or $230.90 per week. This is based on Mr. Wardlaw's evidence that he estimated that the house which was occupied by Mr. Alobic could have been rented at $1,000 a month if Mr. Alobic had not been living there.

I find that this is a reasonable figure because even if the services provided by Mr. Alobic to Mr. Wardlaw were valued at a modest $10.00 per hour, having heard and accepted evidence that he worked on the average 30 hours per week (supra), this would place the value of his services above $1,000. Further, I heard no evidence to contradict the value set by Mr. Wardlaw on the property. I find, therefore, that Mr. Alobic's gross monthly income from this employment to be $1,000.

The amount of the weekly income replacement benefit to which Mr. Alobic is entitled from October 3, 1994 to the date of the hearing²² in respect of his landscape and maintenance work must be calculated in accordance with section 10 of the Schedule, including subsection 10(3) which permits the insurer to deduct 90 per cent of the post accident net income received by an insured person from the amount of the weekly income replacement benefit payable to him or her.

Mr. Alobic claims that he is entitled to full weekly income replacement benefits from October 3, 1994. I disagree. The evidence indicates that Mr. Alobic suffered no loss of income from his failure to perform his landscape and maintenance work until April 1996.²³ Mr. Alobic and Mr. Wardlaw testified that after April 1, 1996, Mr. Alobic suffered a loss of income in the "busy months" of approximately $400 a month (for replacement labour) until May 31, 1998,²⁴when Mr. Alobic moved out of Mr. Wardlaw's property. Further, it was Mr. Alobic's evidence that after he left Mr. Wardlaw’s property, he entered into a new living arrangement with the owner of another property. Mr. Alobic testified that he works 6 to 8 hours per week on that property performing "light" duties in exchange for living accommodation on the property at reduced rent.²⁵ Mr. Alobic in effect received and continues to receive post-accident income. Ninety per cent of the net income received by Mr. Alobic after the accident must be deducted from the amount of the weekly income replacement benefits payable to him.

4. Special Award

In his closing submissions, Mr. Alobic raised for the first time a claim pursuant to subsection 280(10) of the Act, for a special award.

I agree with Director's Delegate Draper in Royal Insurance Company of Canada and Clark²⁶that subsection 282(10) of the Insurance Act "gives arbitrators the authority to impose a special award based on the evidence presented at the hearing, whether or not notice was given before the hearing." I further agree with Director's Delegate Naylor in Tagiran and Simcoe & Erie General Insurance Company²⁷ that "the adjudicator may consider making a special award even though it was not a subject at arbitration. This may be at the request of the insured or at the adjudicator's own initiative." However, the principles of natural justice and fairness or the requirements of procedural fairness must be met.

In this case, the special award was claimed after Maplex had called all of its evidence. The principles of natural justice and fairness require that Maplex be given a reasonable opportunity to respond to this claim. To ensure that Maplex has a reasonable opportunity to respond to this claim, I am going to follow the approach taken by Arbitrator Blackman in Z.T. and Missisquoi Insurance Company,²⁸ which is to refer this matter back to the pre-hearing arbitrator to set up a telephone pre-hearing discussion to clarify the particulars of Mr. Alobic's claim for a special award, deal with any further production concerns, and determine whether further oral evidence is necessary or whether the transcript and submissions, either oral or in writing, are sufficient.

EXPENSES:

Mr. Alobic is entitled to his reasonable expenses incurred in respect of this arbitration, since he has, for the most part, been successful in the outcome of this proceeding.

February 9, 2000

Shemin Manji

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 31

FSCO A97–001365

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GORAN ALOBIC

Applicant

and

MAPLEX GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Alobic is entitled to weekly income replacement benefits during the various periods after October 4, 1995 when he was not working or working in a modified position in respect of his job as a bus driver.

2. Mr. Alobic is entitled to weekly income replacement benefits, from October 3, 1994 and ongoing, in respect of his inability to carry on his landscaping and maintenance duties.

3. In respect of his employment as a bus driver: Maplex shall pay Mr. Alobic the full amount of weekly income replacement benefits payable to him during the following periods: September 11, 1996 for 3.29 hours; September 14, 1996 for 2.3 hours and April 1, 1997 to August 10, 1997 inclusive. Maplex shall pay Mr. Alobic the full amount of income replacement benefits minus the net amount of the collateral benefits received by him, during the following periods: January 3, 1996, April 27, 1996 to May 8, 1996, June 11, 1996 to June 26, 1996, September 12, 1996/ September 13, 1996, September 14, 1996 for 5.29 hours, September 15, 1996 to October 13, 1996 and October 15, 1996 to November 22, 1996. Mr. Alobic is not entitled to weekly income replacement benefits during the following periods: October 5, 1995 to January 2, 1996, January 4, 1996 to February 5, 1996, September 11, 1996 for 4.07 hours, October 14, 1996, November 25, 1996 to March 31, 1997 and August 11, 1997 to July 9, 1998. In respect of his landscaping and maintenance work, Maplex shall pay Mr. Alobic weekly income replacement benefits payable to him minus 90 per cent of the net amount of the post-accident income received by him. Therefore, he is not entitled to any weekly income replacement benefits until April 1, 1996.

4. Maplex shall pay Mr. Alobic's expenses in respect of this arbitration proceeding.

5. Maplex is not entitled to its expenses in respect of this arbitration proceeding.

6. The issue of a special award shall be dealt with at a resumption of this proceeding.

February 9, 2000

Shemin Manji

Arbitrator

Date

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, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
2. 2Working as a bus driver approximately 40 hours a week
3. 3At the hearing, Mr. Alobic took the position that he was claiming weekly income replacement benefits during the periods after October 2, 1994 when he was not working or working on modified duties. However, Exhibit 7, which is a return to work chronology prepared by Mr. Alobic, indicates that Mr. Alobic received these benefits when he was off work September 26, 1994 to March 20, 1995 and May 5, 1995 to October 4, 1995.
4. 4(OIC A97-000378, June 16, 1998)
5. 5This was provided by GO Transit to Maplex with its Employer's Confirmation of Income form dated October 5, 1994
6. 6See letter from ARI to Dr. Esterbauer dated March 30, 1995.
7. 7The Assessment noted that Mr. Alobic's job as a bus driver is defined as medium work according to the Canadian Classification & Dictionary of Occupational Guidelines ("CCDO"). Medium work is defined as lifting 50 lbs. maximum with frequent lifting and/or carrying of objects weighing up to 20 lbs.
8. 8My opinion is consistent with that of other arbitrators. For example, see Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, September 29, 1997) and Lopez and State Farm (supra.)
9. 9Employee Performance Reviews for 1991, 1992, 1993, 1994, 1995
10. 10(OIC A-006063, April 26, 1996)
11. 11(OIC A97-000028, May 20, 1998)
12. 12Mr. Alobic testified that they were paid an hourly wage of $7.
13. 13[1989] B.C. J. No. 678 (B.C.S.C)
14. 14Maplex is not arguing waiver or estoppel of any kind.
15. 15The application for accident benefits is not dated. However, it was stamped by Maplex as received on October 13, 1994.
16. 16In the Explanation of Assessment by Insurance Company dated September 6, 1996, under Part 2: Income Replacement Benefits, the box "Eligible" is ticked. Just below this the amount of the weekly income replacement benefit is set out — $151.66. In the box entitled "Notes on calculating your income replacement benefits, including income or payments from other sources" Maplex writes: "AS PER INSURERS EXAMINATION, CONDUCTED BY DR. FORD, THERE IS NO NEED TO IMPOSE ANY MEDICAL RESTRICTION ON MR. ALOBIC. HE IS CAPABLE OF CARRYING OUT HIS OUTDOOR LANDSCAPING JOB, WITHOUT ANY MEDICAL RESTRICTIONS. PROLONGED SITTING, REPETITIVE BENDING AND LIFTING, MAY RESULT IN SOME FUNCTIONAL INTOLERANCE BUT IT WILL NOT PRODUCE ANY STRUCTURAL HARM."
17. 17Mr. Alobic testified that there are lots of trees in the area where the grass is and the property is not flat — it is hilly.
18. 18ARI notes that Mr. Alobic's employment as a landscape worker is defined as heavy work according to the CCDO.
19. 19See Wiseman and Coachman Insurance Company (OIC A-005706, June 10, 1994) and Quattrocchi and State Farm (supra.)
20. 20See ARI's Occupational Therapy Work Site report dated May 7, 1996.
21. 21According to subsection 10(1) of the Schedule the amount of a weekly income replacement benefit is 90 per cent of the insured person's net weekly income from employment and the amount that is required to be deducted according to subsection 10(3) from this income for post accident income is 90 per cent of the net income received by the person in respect of the employment.
22. 22Gan Canada Insurance Company and Rocca (FSCO P99-00003, July 20, 1999) indicates that Maplex is required to pay income replacement benefits until it begins to pay Mr. Alobic loss of earning capacity benefits under Part VI of the Schedule.
23. 23Mr. Alobic's evidence was inconsistent on this point. In his examination-in-chief, he testified that he started paying "rent" in the amount of $400 per month as of May 1995. However, on cross-examination he acknowledged that he was not "out of pocket" until April 1996 when he started paying students to replace his labour.
24. 24Mr. Alobic submitted receipts in the amount of $9,441.87 for payments made by him for replacement labour from April 1996 to December 1997. Mr. Wardlaw testified that if the students worked in excess of what Mr. Alobic was responsible for, he likely paid some.
25. 25Mr. Alobic testified that he is also responsible for paying for hydro and the wood for the wood stove.
26. 26(OIC P97-00008, September 26, 1997)
27. 27(OIC P-004660, February 26, 1996)
28. 28(OIC A96-000735, December 31, 1997)