Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 43

Variation/Revocation P99-00009V

Applicant

and

Respondent

Before:

Frederika M. Rotter, Director's Delegate

Counsel:

Rudolph Lobl (for Pilot Insurance Company)

Rebecca Nelson (for Sharon Riley)

Under section 284(3) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The application for variation/revocation is allowed and the arbitration order dated April 15, 1996 is rescinded. The following order is substituted:

Pilot Insurance Company is not required to pay weekly income benefits after December 3, 1999.

The parties may apply for an assessment of expenses if they are unable to resolve this issue.

February 29, 2000

Frederika M. Rotter Director’s Delegate

Date

This is an application for the variation or revocation of an arbitration order granting Sharon Riley ongoing weekly income benefits under paragraph 12(5)(b) of the Schedule¹ (which provides for weekly benefits after 156 weeks of disability).

Sharon Riley was seriously injured in an automobile accident on October 13, 1990. Pilot Insurance Company (“Pilot”) paid her weekly income benefits under subsection12(1) of the Schedule for 156 weeks. At the arbitration hearing Ms. Riley claimed she was entitled to receive ongoing weekly benefits under the more stringent post-156 week test set out in paragraph 12(5)(b). That paragraph provides:

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

In a decision dated April 15, 1996 I allowed Ms. Riley’s claim, and ordered Pilot to pay ongoing benefits.

Ms. Riley has now been receiving benefits for over nine years. In February 1999 Pilot applied to the Director of Arbitrations under section 284 of the Insurance Act to have my previous order varied or revoked. Pursuant to subsection 284(2)² I was appointed, by the Director, to conduct the variation/revocation proceeding. Subsection 284(3) provides:

(3) If the arbitrator ... is satisfied that there has been a material change in the circumstances of the insured or that evidence not available on the arbitration or appeal has become available or that there is an error in the order, the arbitrator ... may vary or revoke the order and may make a new order if he or she considers it advisable to do so.

A. Medical History

Ms. Riley was 26 years old in October 1990, when the accident occurred. She suffered multiple severe injuries, having been ejected from the front passenger seat of a vehicle whose driver apparently fell asleep at the wheel and lost control. Ms. Riley’s most serious injuries were fractures of her left hip, and fractures of the bones of her right calf. Her convalescence was difficult and protracted: she lost a great deal of soft tissue in her right shin area and her initial recovery from the right-leg injuries was complicated. Multiple skin grafts and ultimately a bone graft were required. Ms. Riley has been left with cosmetic damage to her right shin, and complains of persistent swelling in her right foot and leg, especially if she exerts herself or becomes fatigued. However, apart from these residual problems, her right-leg injuries have essentially resolved.

Ms. Riley’s left hip injuries remain her most serious ongoing problem. In the accident Ms. Riley’s left hip socket (or acetabulum) was shattered, and the head, or ball, of the thigh bone (the femur) was also broken. The surgeons initially tried to mend the hip with bone grafts, plates and screws, but the damage was too severe. Ms. Riley developed a painful post-traumatic osteo-arthritis and her ability to walk was very restricted. She underwent a hip fusion operation (arthrodesis) in February 1993, but this procedure was ultimately unsuccessful. In December 1993, her doctors found that the fusion had failed, and so further surgery took place in February 1994 to revise the failed fusion. During the course of this operation Ms. Riley’s doctors determined that another attempt at fusion would likely not be successful, and that her best alternative would be a total hip replacement. The hardware from the fusion was removed, and Ms. Riley was left with a condition known as a girdlestone, in which the top of the femur is essentially embedded in muscle tissue rather than the socket of the hip bone.

Her doctors initially viewed this as a temporary condition. On March 3, 1994, Dr. James Powell, Ms. Riley’s orthopaedic surgeon, examined her post-operatively and reported that he anticipated that she would require a total hip replacement (or arthroplasty procedure) probably “within the next couple of months.”³ On May 31, 1994, Dr. Powell indicated that Ms. Riley was doing satisfactorily but that her condition needed to be followed, and that she would be referred for a total hip replacement “...if and when her symptoms change.”⁴

Pilot terminated Ms. Riley’s weekly income benefits at the three year anniversary of her accident, in October 1993 (prior to her third hip operation). At that point, Ms. Riley’s hip was still painful and disabling, as the fusion was beginning to fail. Pilot did not reinstate Ms. Riley’s benefits when she was re-admitted for surgery to revise the fusion in February 1994, nor did she receive benefits during her convalescence from this procedure.

Ms. Riley disputed the termination of her benefits. Since the parties could not agree on this issue, Ms. Riley applied for arbitration. In anticipation of the hearing, she was examined by various medical, vocational and rehabilitation specialists, at the request of both Pilot and her own legal counsel. The hearing in which I determined that she was entitled to ongoing benefits was held in January 1995, less than one year after Ms. Riley’s third hip operation. Most of the medical examinations were conducted in late 1994.

The doctors who examined Ms. Riley before the arbitration hearing all recognized that her hip was weak, painful and unstable, and that she walked with difficulty. As a result of the girdlestone procedure, Ms. Riley was left with a left leg that was significantly shorter than her right leg, and a distinct limp, known as a Trendelenburg gait.

In my initial decision in this matter, I held that Pilot had unreasonably terminated Ms. Riley’s benefits in October 1993, at a time when her condition was unstable and she was facing further surgery. I held that it was clear that she continued to be entitled to benefits at least until the end of March 1994 (that is, during the immediate recovery period following her third hip operation).

I found that Ms. Riley’s ongoing entitlement to benefits after March 1994 was more problematic. However, on balance, I was persuaded that, as of January 1995, Ms. Riley did not have the physical capacity or stamina required to meaningfully engage in any occupation or employment for which she was reasonably suited by education, training or experience. Therefore, at that time I found she met the test for entitlement to ongoing weekly income benefits.

B. Vocational History

In my initial decision, I considered and reviewed Ms Riley’s work history, education, training and experience. I found that although in January 1995 Ms. Riley was capable of doing part-time sedentary clerical work, such work could not be considered work for which she was reasonably suited, as it was insufficiently remunerative, and remuneration was a factor to be considered in determining whether a proposed occupation or employment was suitable. I found, on balance, that full-time clerical work would probably be reasonably suitable employment for Ms. Riley, but that she was not physically capable of doing such work.

In October 1990, at the time of the accident, Ms. Riley had been employed at a full-time temporary clerical job, which she had obtained through a temporary placement agency. She had been working at this or similar jobs with the agency since May 1990. Prior to that, she had been studying and pursuing a degree in early childhood education at Oakwood College, in Huntsville, Alabama.

Ms. Riley first enrolled at Oakwood College in 1984. This is an Adventist institution and she chose to pursue her education there because she is a committed and practising Seventh Day Adventist. However, as she acknowledged at the arbitration hearing, her academic progress was poor as she tended to neglect her studies in favour of music. At the end of her second year at Oakwood College (May 1986) she quit and returned to work in Toronto for a while, doing temporary clerical jobs. She resumed her studies at Oakwood College in August 1987. Subsequently, she alternated terms of school with periods of employment, in order to support herself. She testified at the arbitration hearing that in about 1988 she started to do better academically and made up some courses which she had previously failed. At the time of the accident, she was planning to return to Oakwood College in January 1991 to continue her studies. These plans were scuttled as a result of the accident.

In early 1992, while she was still recuperating from the effects of the accident, Ms. Riley together with a few colleagues formed a gospel choir, Faith Chorale. Ms. Riley was (and still is) the music director and leader of the group. She recruited members for the choir and conducted vocal auditions. Once the group was formed, she selected music and taught it to the choir members, and directed them in its interpretation and execution. She was and remains responsible for all aspects of the arrangement, presentation and performance of the music. The choir performed about once every two weeks, in church on Saturdays, and also soon started performing at other engagements, such as jazz festivals, and during the Christmas season. Ms. Riley testified at the 1995 hearing that the choir had become quite successful, but she characterized it as a part-time voluntary recreational activity which was “therapy” for her, and at which she spent approximately 15 hours a week.

III EVIDENCE and ANALYSIS

The issue before me on this reconsideration hearing is whether there has been a material change in Ms. Riley’s circumstances, sufficient to satisfy me that she is no longer eligible for weekly income benefits under paragraph 12(5)(b) of the Schedule. Pilot has the onus of showing, on this request for reconsideration/variation that Ms. Riley’s circumstances have changed, such as to warrant the variation or revocation of my previous order. Because Pilot is paying benefits pursuant to my previous order, it may not reduce her benefits unless a variation order is made in this case.⁵

Ms. Riley’s counsel argued that in the interests of finality of the decision-making process, the variation/revocation power should be exercised sparingly and only in the clearest of cases. In support of this approach, she referred to the practice of the courts in dealing with applications to set aside final judgements in personal injury cases. For example, in the case of Tsaoussis (Litigation Guardian of ) v. Baetz,⁶ the court stressed the need for a definite and discernible end to legal disputes, especially in the area of tort litigation.

I do not agree that this approach is appropriate or applicable in a regime for statutory accident benefits. The court itself, in Tsaoussis, noted that the need for finality was particularly significant in tort cases, but played less of a role in contract cases or in the context of schemes for compensation based on reviewable periodic payments (such as the Statutory Accident Benefits Schedule).

Weekly income benefits are payable under the Schedule during the period that the insured person meets the conditions or test for entitlement. Therefore, a finding that a person is entitled to benefits at a particular point in time is not a judgement which implies or requires the same sort of finality as a judgement in a tort case. Indeed, the statutory scheme contemplates that an insured person’s continued eligibility for benefits be reviewed from time to time. To this end, in respect of claims for weekly benefits, an insurer may request an insured person to attend a medical examination by a qualified practitioner “as often as it reasonably requires.”⁷

Furthermore paragraph 12(5)(b) limits the insurer’s obligation to pay weekly benefits beyond a certain point. The insurer “is not required to pay a weekly benefit . . . for any period in excess of 156 weeks unless it has been established that the insured person is continuously prevented from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.” (emphasis added)

Therefore, even if entitlement to weekly income benefits is established after 156 weeks of disability, the question whether the insured person continues to meet the paragraph 12(5)(b) test may still arise. The focus of the inquiry remains whether the insured person is “continuously prevented” from performing any suitable occupation or employment as a result of the accident.

A number of court decisions have considered the phrase “continuously prevented” in the context of Schedule ‘C’, the predecessor to the current Schedule. For example, in Roberts v. Safeco Insurance Co.,⁸ Watts J. held that the insured person must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted. There must be, in other words, no abatement in the degree, nature or extent of the disability.” (emphasis added).

The wording of s.12(5)(b), while somewhat different, maintains the requirement of continuous disability.⁹

Accordingly, under s.12(5)(b) the insurer is relieved of its obligation to continue paying weekly income benefits if at any point after 156 weeks, it can show a significant interruption or abatement of the insured person’s disability. The arbitrator must determine, from the evidence led, whether a material change of circumstances has occurred and the s.12(5)(b) test is still met.

Ms. Riley says her situation remains the same and therefore she is still entitled to benefits. She says that medically, her condition has not changed materially in the five years since the first arbitration hearing. She has not yet had a hip replacement. She still suffers from pain, spasms and weakness in her lower limbs and fatigues easily. Her activities remain basically unchanged: she works with the choir for recreation, but otherwise does not engage in any remunerative occupation or employment. Her ability to do household chores is limited. She has not pursued her education, or received further vocational training or rehabilitation. Her position is that her disabilities continuously prevent her from engaging in suitable employment and will continue to do so until she has a hip replacement.

To deal with the issues before me, I will review the evidence to determine whether there has been a material change in Ms. Riley’s circumstances. I will then consider the effect of that change on Ms. Riley’s ongoing eligibility for benefits.

A. Physical Problems

In the initial arbitration of this case, my decision to grant Ms. Riley benefits was supported by medical evidence¹⁰ which indicated that Ms. Riley could probably do sedentary clerical work four hours daily, but that because of the intensity of her pain and the weakness and instability of her hip, she did not have the physical capacity or stamina required to work full time at a sedentary job. My conclusion was also supported by the guarded opinions of various other medical and vocational rehabilitation professionals, including witnesses for the Insurer, who examined her and indicated that they could not fairly prognosticate about Ms. Riley’s ability to work in the absence of either a functional assessment or trial-and-error experience.

At the variation hearing, Ms. Riley testified about her ongoing pain and physical problems resulting from the accident. She testified that she still suffers consistent and continuous pain in her hip and lower back, although she experiences good days and bad days. The back pain is worse when she is menstruating or fatigued. She testified that her back is worse than it used to be and that sometimes it just “gives out.” From time to time she also experiences severe pain spasms in her leg or hip.

Ms. Riley continues to experience swelling in her right foot, ankle, and lower leg, especially when she is fatigued. She testified that she generally has a problem with fatigue, as she does not sleep well. She has also developed a bursitis in her left shoulder which was diagnosed in or about the summer of 1997, but no evidence was led to suggest that this problem is accident-related.

Ms. Riley also testified that she is usually extremely exhausted and depleted after a performance with the choir, and must rest. She sometimes takes analgesic medication before a performance.

Ms. Riley’s sister, Teena Riley, and her friend, Jean Lawrence, corroborated Ms. Riley’s complaints of pain and discomfort, as did Richard and Robert Picart, who are associated with the choir. Both Teena Riley and Ms. Lawrence testified that they have very close relationships with Ms. Riley. They are both choir members and also see Ms. Riley frequently on social occasions. All the witnesses confirmed that Ms. Riley was exhausted and worn out, “a wet rag,”¹¹ after a performance. They were aware that Ms. Riley periodically suffers from severe muscle spasms. Teena Riley also observed that after choir performances, her sister’s right foot often appears very swollen and painful, and must be elevated.

In support of her complaints of pain and fatigue and her position that these problems continuously prevent her from engaging in suitable employment, Ms. Riley placed into evidence a letter from her family physician, Dr. S. Syed, which states that “She has been totally disabled since 1990.”¹² In her letter, Dr. Syed explains that Ms. Riley suffered multiple fractures from the motor vehicle accident in 1990, and lists her ongoing complaints of backache, headache, malaise and depression, neck and shoulder pains, muscle spasms and fatigue. However, Dr. Syed offers no further basis or explanation for her opinion that Ms. Riley is “totally disabled,” nor did she testify at the hearing to clarify her findings. Consequently, I give little weight to the evidence of Dr. Syed.

I accept that Ms. Riley continues to experience pain in the aftermath of the accident. It seems clear that she will continue to experience some level of pain and discomfort, which may increase until the point when she and her doctors decide that it is time for a hip replacement. However, as many arbitrators have frequently noted, pain itself is not compensable under the Schedule: Ms. Riley is only entitled to benefits if, as a result of her pain, she is functionally disabled to the extent required by the applicable test set out in the Schedule — i.e. continuously prevented, as a result of her injuries, from engaging in any suitable occupation or employment.

I do not accept that Ms. Riley’s pain is as debilitating as she claims. Ms. Riley has not sought significant medical or pharmacological assistance in dealing with her pain. She takes relatively low-level analgesics and muscle relaxants when she is having a bad day, or prior to a performance.¹³ On good days, she herself testified, she may not need to take any medication. Pilot’s evidence is that Ms. Riley has never submitted any claims for medical or rehabilitation benefits which would assist her in dealing with her pain and discomfort, and Ms. Riley confirmed that she had submitted no expense claims for medications to Pilot. Ms. Riley gave no evidence of ever having sought any treatment or therapy for her pain.

Ms. Riley confirmed that she had a prescription orthotic lift made which would fit into her shoe and which would help compensate for the discrepancy in the length of her legs, but indicated that she has stopped using it. The orthotic fits into her running shoe, but does not fit into dress shoes.

Ms. Riley regularly participates in musical performances that may be fairly described as rousing and energetic. Dance and movement are an integral part of the performance. Robert Picart acknowledged this, saying “Gospel music is very lively.” Dr. Arthur Ameis, Pilot’s medical expert who viewed a surveillance videotape of a performance, observed that such a performance takes a great deal of energy, and he noted that anyone would likely be tired after such a performance. Therefore, I accept that Ms. Riley is exhausted after a performance, but cannot conclude from this that her pain and fatigue are so disabling that she is continuously prevented from doing suitable work.

Ms. Riley has not seen an orthopaedic specialist of her own volition since she consulted Dr. Joseph Schatzker (who took over her care when Dr. Powell left his practice) on November 30, 1994.¹⁴ She indicated that she sees her family doctor for any problems in connection with her pain and has not sought further orthopaedic follow-up. She testified that she has not taken any steps towards obtaining a hip replacement: her doctors have advised her that the longer she continues to function with her current condition, the better it is for her (since, at her relatively young age, a hip replacement represents a temporary rather than a permanent or stable solution to her problems). Ms. Riley testified that she has learnt to tolerate her condition and was “getting used to life with this hip.”

Dr. Ameis, a physiatrist connected with the University of Toronto, who also operates a Designated Assessment Centre and performs many assessments in insurance cases, examined Ms. Riley at the request of Pilot. He indicated that a girdlestone procedure was considered the treatment of choice for individuals with severely arthritic hip joints, where fusion or a hip replacement had failed.

Dr. Ameis testified that 20% of girdlestone patients are left with considerable pain and discomfort, 40% experience some discomfort and pain with movement, and 40% do not have much pain or discomfort. Although it is not objectively possible to measure the amount or severity of an individual’s pain, one can observe an individual’s gait and behaviour and check for pain at the point of maximal load on the hip. Dr. Ameis testified that from his examination and observation of Ms. Riley (including a review of the surveillance videotape) he would place her in the 40 percent group who suffer the least discomfort. He testified that his examination of her hip function shows that it is not deteriorating and that the status of her hip is stable.

Dr. Ameis confirmed that Ms. Riley has much less power in her left hip than in her right, and, on that side, needs help opposing gravity. The Trendelenburg gait is apparent, because the gluteal muscle lacks leverage on the left side, and so Ms. Riley walks dipping to the side with every step. However, when Dr. Ameis examined her, her gait was appropriately fast and she showed no signs of pain while walking. Dr. Ameis testified that Ms. Riley’s left thigh muscles did not show any signs of atrophy (atrophy would indicate that because of pain, Ms. Riley was walking less and the muscles were losing bulk).

On viewing the surveillance video at the variation hearing,¹⁵ Dr. Ameis observed that Ms. Riley is very mobile, she moves around smoothly and vigorously, and is able to shift her weight from her right to her left leg. She shows no signs of pain and is able to fully take advantage of her physical capabilities. Dr. Ameis commented that Ms. Riley’s movements were smooth and vigorous. I would add that her movements and dance were energetic, rhythmic and exuberant.

Dr. Ameis had not examined Ms. Riley in connection with the initial arbitration hearing, but testified that he had reviewed her medical history including the medical reports, generated in late 1994 in connection with that hearing. He indicated that from his review of the history, in 1994 Ms. Riley was still recovering from the operation for the failed hip fusion. She would have been much weaker then and have had much less endurance than she has now. Dr. Ameis indicated that it takes at least one year to recover from this sort of surgery and that individuals continue to progress and improve post-operatively, over time. Dr. Ameis compared his examination of Ms. Riley with findings reported by Dr. Ogilvie-Harris in 1995.¹⁶ He indicated that from the report of Dr. Ogilvie-Harris he would assume that Ms. Riley was more heavily reliant on her cane in 1995 than she is now, and that at that time, her limp was more pronounced. Dr. Ameis felt that Ms. Riley’s medical recovery would have peaked at some point in 1996 or thereabout.

Dr. Ameis acknowledged that Ms. Riley’s energy level, comfort and stamina are below average for someone of her age group. He indicated that her complaints of pain and discomfort are real, and consistent with the injuries she sustained. He agreed that because of her hip problems, Ms. Riley was likely to be more easily fatigued than others engaged in the same sorts of physical activities, such as choir performances. However, despite her relative weakness and lesser stamina, Dr. Ameis felt that Ms. Riley’s problems were not sufficiently disabling to prevent her from working.

Dr. Ameis expressed the unambiguous opinion that Ms. Riley was not prevented or limited by her disabilities or by problems of strength and stamina from doing suitable full-time work. He indicated that suitable work for Ms. Riley would be a sedentary occupation which did not demand physical activities such as kneeling. Her ability to use her hip was restricted.

Dr. Ameis further indicated that, in his view, Ms. Riley’s work with the choir was equivalent to the work done by most musicians, and that she was fully capable of pursuing full-time work in a non-standard profession, such as that of a musician. Dr. Ameis noted that many musicians look for work teaching or do something else in order to support themselves, but stated that if an individual chooses to solely devote herself to music, this is a choice that she is entitled to make. However, if she so chooses, Ms. Riley could be engaged in a wide variety of sedentary occupations. Her pain comes from vigorous physical activities and would not affect her ability to work a full day at a sedentary job.

Dr. Ameis confirmed it is likely that Ms. Riley will eventually require a hip replacement, and that her situation will be enhanced when that occurs. However, she does not need the hip replacement now and her current status does not prevent her from working all day in suitable employment.

I accept the medical opinions expressed by Dr. Ameis: I found his testimony reasonable, fair and considered. It was not seriously challenged by any medical evidence from Ms. Riley.

I am satisfied that Ms. Riley has recovered from her physical injuries to the extent that they no longer prevent her from engaging in suitable employment. As discussed below, the evidence discloses that for the past five years or so, Ms. Riley has in fact been engaging in suitable employment.

B. Work with choir: 1995 to present

At the initial arbitration hearing, Ms. Riley characterized her work with Faith Chorale as a part-time recreational and therapeutic activity. She testified that she spent about 15 hours a week on the choir, but she denied that this work had any professional or vocational significance. Both she and the choir’s manager, Richard Picart (who testified at the initial hearing as well as at the variation hearing) described the choir as a volunteer organization closely connected with their Seventh Day Adventist church. Most choir members belonged to the church. Rehearsals were held in the church basement and according to the evidence before me, the choir performed in the church, usually at least every other Saturday.

At the initial hearing Ms. Riley acknowledged that the choir had become quite successful, and had performed in various engagements outside the church. But this success was described in the context of a part-time amateur church organization. In the 1995 hearing, all of the evidence regarding the choir and its activities came from Ms. Riley and her witnesses and no conflicting account of the facts was presented at that time.

At the variation hearing, Ms. Riley submitted that no material change had occurred in respect of her activities in connection with Faith Chorale. She submitted that her work with the choir should still be viewed as a part-time hobby, or recreational activity, which does not reflect on or affect her ability to engage in suitable employment.

I cannot accept this submission. At the variation hearing, the Insurer led evidence which persuades me, on the balance of probabilities, that various material changes in the circumstances have occurred.

1. Choir organization

First of all, the choir itself has evolved. The organization was incorporated in the summer of 1995. It is now a not-for-profit corporation rather than an informal voluntary association. The name of the corporation is Faith Chorale Gospel Music, as listed on the Corporation Profile Report issued by the Companies Branch of the Ontario Ministry of Consumer and Commercial Relations.¹⁷ The choir’s letterhead says Faith Chorale Gospel Music Inc. It is governed by a corporate board and must comply with the laws governing corporations. The Board is composed of seven members and meets regularly, at least quarterly. Ms. Riley is a member of the Board, as is Mr. Robert Picart (who serves as the organization’s treasurer). Ms. Riley’s friend Jean Lawrence, who testified at the variation hearing, is the president. The organization is obliged to maintain formal financial records, and must file tax returns. Faith Chorale earns some income, although not a great deal, out of which it pays for expenses.

The choir no longer rehearses in a church basement, nor does it have an affiliation with any particular church. Robert Picart, a choir member and its treasurer, explained that the group is an independent entity, not a church choir. It is neither endorsed by nor sponsored by a church. He described it as an interdenominational organization and, although the majority of its members are Adventists, some belong to other Christian denominations. More importantly, the choir no longer regularly performs at or maintains an ongoing connection with any particular church: it now performs in a variety of religious and non-religious venues, including non-Adventist churches.

The choir now leases rehearsal premises: Robert Picart indicated that the rental paid was $7,900 for 1999. Mr. Picart testified that in about 1995 it was decided that the church basement, where the choir originally rehearsed, was no longer appropriate. More stable, permanent premises were required, both for choir rehearsals and organizational meetings, and for rehearsals of the backup band (which regularly rehearses separately from the choir, as well as with the choir). The choir’s expenses include insurance on the premises, and for any musical items or instruments, and utility expenses: electricity, gas, telephone and the like.

Robert Picart testified that the band musicians are not volunteers, they are paid. Similarly, on occasion, additional singers may be engaged and paid, if required.

The choir also now pays for the services of its manager, Richard Picart (the brother of Robert). Richard Picart testified as to his duties as the choir’s business manager at the original arbitration hearing. At that time he testified that he did the managerial work on a voluntary basis, as part of his commitment to his church.

At the variation hearing, Richard Picart testified that he had formed his own management company, the Mekehla Music Group, in October 1994. Mekehla Music Group has a formal contract to manage Sharon Riley and Faith Chorale. In return for its services, it charges the choir 19% of any revenue earned. Mr. Picart is also reimbursed for any expenses he incurs in connection with his work with the choir.

Mr. Picart testified that he formed his company as a way of showing that he took his career as the manager of Faith Chorale seriously. The contract was entered into to clarify his relationship with the choir, and to allow him to participate in any financial success which it might enjoy.

The group is now publicly known as “Sharon Riley and Faith Chorale.” Ms. Riley and the other witnesses who testified indicated that at a certain point it was decided, for publicity reasons, that the group should appear professionally as Sharon Riley and Faith Chorale, rather than just as Faith Chorale. According to Treasurer Robert Picart, the change of name was a deliberate decision which was meant to highlight the uniqueness of the group and the fact that it is led by a female. I will discuss the significance of this change at a later point in these reasons.

I conclude, therefore, that material changes have occurred in respect of the structure and organization of Faith Chorale. The choir is no longer a loose recreational volunteer church group, but a carefully structured organization that has incurred serious professional and corporate responsibilities. This has occurred in tandem with its growing professional success and recognition.

2. Artistic achievements

The evidence is that Sharon Riley and Faith Chorale have enjoyed a significant measure of critical and artistic success. The choir has performed widely, in a number of important venues. It has appeared in the Oscar Peterson Arts Person of the year Award Show. It has appeared on various television specials with well-known Canadian artists like Salome Bey and Joe Sealy.¹⁸ The choir members each made about $200 for the “Africville” television appearance with Joe Sealy. The choir toured with Joe Sealy in connection with his “Africville Suite” performances, and has earned some revenue from a song it performed in the “Africville” recording.¹⁹ It has appeared in Massey Hall in a concert with the internationally successful Irish group, the Chieftains. Among other important engagements, it has appeared in the prestigious Harry Jerome awards ceremonies and in the closing ceremonies for the Special Olympics in 1997.

The group has appeared at both the Toronto and Montreal jazz festivals. It has performed in Ottawa and at various venues throughout southern Ontario (Belleville, London, St. Catharines, etc.). The choir has also performed in the United States: it has appeared in Baltimore, Syracuse, Cincinnati, Buffalo and Cleveland. Ms. Riley and the other witnesses who testified concerning the choir’s activities all acknowledged that the choir now travels much more frequently than it did in the past and that additional significant time is spent by the choir in travelling to its various engagements. Robert Picart testified that Ms. Riley as well as the other choir members are reimbursed for travel expenses, including meals, accommodation and other expenses. In 1996, Ms. Riley and the choir performed in a film called Light to the Power of Two, dealing with the life of Albert Einstein.

Richard Picart testified in 1995, at the first arbitration hearing, that he and Ms. Riley had considered the possibility of a recording, but he stated at that time that no realistic plans were in place. However, at the variation hearing Richard Picart testified that the choir started working on a recording that same year, in the fall of 1995, and worked on it through to the fall of 1996. Their first album, Caught Up,²⁰ was released in January 1997. This album, an independent production, was nominated for the 1998 Juno Award in the category of Best Gospel Album. It won the 1998 Canadian Urban Music Awards for best gospel album of the year. Ms. Riley was paid $500 by Faith Chorale, in recognition of her work on it, although Richard Picart testified that to date, the choir has not made any money from the album nor recouped its production expenses.

In March 1998 Ms. Riley and the choir signed an exclusive recording contract with EMI Christian Music Group Inc. Their second album Life Is²¹ was produced that year, by EMI Gospel, a division of EMI Christian Music Group Inc. That album won the 1999 Juno Award for Best Gospel Album. EMI Gospel paid advance royalties totalling approximately $5,000 American in respect of this album: $4,000 to Faith Chorale, and $1,000 to Ms. Riley personally (out of which she was obliged to pay Richard Picart’s management fee). Robert Picart, the group’s treasurer, testified that no additional royalties from this album have thus far been earned.

At the time the recording contract was signed with EMI Christian Music, Ms. Riley also signed an exclusive songwriter’s agreement with River Oaks Music, a division of EMI Christian Music Publishing. In this connection, she testified, she received about $600 for the sale of the rights to her song “Holy Spirit,” which was recorded on Caught Up (the first, independently produced, album.) Ms. Riley testified that she still occasionally receives small royalty cheques, if the song is played on the radio.

In 1998 Ms. Riley and members of the choir appeared in the film Blues Brothers 2000, together with a number of very successful and well-known recording artists, including Aretha Franklin, James Brown, B. B. King, Wilson Pickett, Eric Clapton, Taj Mahal and others. In the film, the choir is featured in a sequence lasting approximately seven minutes, performing a gospel song called “John the Revelator.” At the variation hearing, Ms. Riley testified that she co-arranged this piece with Paul Shaffer, the well-known musician and performer. This song appears on the audio recording of the soundtrack from the movie Blues Brothers 2000, and Taj Mahal, James Brown, Sam Moore and other musicians perform it together with Ms. Riley and the choir. Ms. Riley received about $4,000 for her appearance in the film, according to Richard Picart. She testified that she also received an additional payment for her work in arranging the song.

The choir is also featured on a track of Long Journey Home, an album recorded by the Chieftains in connection with their 1998 North American tour. The group provides choral support to Van Morrison in his rendition of “Shenandoah.” This piece was nominated for a 1999 Grammy Award for Best Pop Collaboration with Vocals, and won the 1999 Grammy Award for Best Traditional Folk Song.

Richard Picart also testified that in June 1999 the choir was involved in another movie shot in Toronto, a film called Dietrich von Hoffer, in which they performed one song. I heard no evidence whether Ms. Riley or Faith Chorale received remuneration for this appearance.

Richard Picart, the group’s manager, acknowledged that Ms. Riley and the group have achieved relative prominence and significant media exposure within the Christian or gospel music industry in Canada. The group has also won some name recognition and exposure in the United States and further abroad (they have had radio exposure in Japan, England, and the Netherlands according to Mr. Picart.)

At the variation hearing Richard Picart testified at length about the gospel music industry in Canada. He explained that gospel music represents 3-4% of the overall music industry, but in Canada the industry is not yet sufficiently developed, in terms of infrastructure and supports, to provide artists with significant opportunities for exposure and success. The industry is much more developed in the United States, where there are larger markets for this music, better systems of distribution for the musical product, and more resources and supports for musicians, such as professional consultants and advisors. Therefore, Mr. Picart testified, gospel artists in Canada are faced with almost insurmountable barriers to professional success (measured in terms of financial success and commercial exposure).

3. Ms. Riley’s activities

As I noted above, the group is professionally known as Sharon Riley and Faith Chorale. On the cover of their second album, Life Is, Ms. Riley’s name is in larger print, and given more prominence than Faith Chorale (although the reverse is true on their first album). Richard Picart testified that highlighting Ms. Riley’s name was a marketing decision made by EMI Gospel, to which he and the group agreed. I note that the group’s letterhead, on which a biography of Ms. Riley has been printed,²² shows the names Sharon Riley and Faith Chorale in the same ratio or proportion as on the cover of the second album (i.e. the name Sharon Riley is larger and more prominent).

I find that the prominent identification of Ms. Riley reflects not only the fact that she is the choir’s musical director, but also that she is its featured performer and soloist. Ms. Riley is an excellent and accomplished solo vocalist and she sings solo or is the lead vocal in five of the ten tracks in Life Is, the group’s second album. Only one other individual sings in a lead vocal role on that album, on one track. On the four remaining tracks, the choir sings as a group with no soloists performing. In the group’s first album, Ms. Riley was featured as the lead vocalist in three of ten tracks. I note also in the surveillance video taken of a performance by the group at the Erin Mills Town Centre, Ms. Riley is featured prominently as a soloist.²³ I conclude that the group’s public and professional change of name was meant to provide personal recognition and identification of Ms. Riley as a performer, as well as recognition for the choir.

Ms. Riley and the other witnesses testified that in terms of the time she spends, her involvement with the choir has not changed. She testified she still normally spends about 15 hours weekly in choir activities, including selecting music, regular Friday-night group rehearsals and teaching the choir the music, and performances on weekends. According to Ms. Riley, this is about the same amount of time as she has always spent with the choir and represents about the same level of activity as in 1995, when the original arbitration was held.

Both Ms. Riley and Robert Picart testified that Ms. Riley normally attends and monitors band rehearsals. The band generally rehearses Monday evenings while the choir rehearses Friday evenings. It was not clear whether band rehearsals were included in the 15 hour per week estimate of time spent. The witnesses also all agreed that considerably more time was spent by the group than before in travelling to out of town venues and this was not included as part of the standard 15 hours weekly.

I also heard evidence that Ms. Riley spent additional extensive time in rehearsals and in recording and post-production activities in connection with the albums made by the group. Robert Picart testified that many extra rehearsals were scheduled in connection with the recordings, and that Ms. Riley was personally involved in the post-production work, which she oversaw. Ms. Riley testified that for their first recording, Caught Up, the group spent about four months doing two extra rehearsals weekly (rehearsing on Saturdays and Sundays as well as their usual Fridays).

Ms. Riley testified that the recording of Life Is involved studio sessions four nights a week, from 7 to 11 p.m. over the course of four or five months, plus additional post-production work. She testified that she would arrive at the studio before the other choir members, to learn the song they were doing and come up with ideas for performing and arranging it. She then had to teach the song and rehearse it with the choir. She also had to learn and practice her own solo numbers.

Additional time was spent afterwards in publicity appearances to promote the recordings. Richard Picart testified that the performance at Erin Mills Town Centre, which was videotaped under surveillance²⁴, was one such promotional appearance. The estimate of 15 hours weekly also apparently did not include or account for time spent on special events like movie and television appearances. Ms. Riley testified that the appearance in Blues Brothers 2000 required her attendance for three days of filming, plus several evenings for studio recording sessions.

The estimate of 15 hours weekly spent with the choir seems not to include the time Ms. Riley dedicates to rehearsing her own solo roles. It is also not clear whether that time includes attendance at regularly scheduled or specially convened Board and general meetings of the choir.²⁵

In describing her normal activities, Ms. Riley said that she does nothing much other than her work with the choir. She said she stays home and rests, does some household chores as she can manage them²⁶ and spends much of her time “thinking of ideas I’m going to do with Faith Chorale.” She testified that otherwise, she may occasionally do a solo church performance or participate in workshops with youth and other groups. Richard Picart testified that over the years, Ms. Riley has done a number of individual or solo performances without the choir. He indicated that she might have about five or six such engagements every year.

Ms. Riley submitted no documents or records (such as engagement books or calendars) to substantiate her estimate of the time she spends in connection with Faith Chorale or her other musical endeavours. In the circumstances, I am not persuaded that the figure of 15 hours weekly remains an accurate or valid estimate.

In any event, and regardless of the actual number of hours she spends at this work, I find that when considered in terms of her accomplishments — the significant media exposure, critical success and recognition achieved by Ms. Riley and Faith Chorale — her activity in connection with the choir cannot be viewed as simply an amateur pastime of no vocational significance.

In connection with this, it seems appropriate to comment on the video and audio recordings which were presented in evidence by Pilot.²⁷ Although I am not qualified to judge the performance of Ms. Riley and Faith Chorale by professional musical standards, I found that Ms. Riley has an excellent, warm and compelling voice, and that she is an exciting and vibrant performer. Faith Chorale is an accomplished, professional-appearing and professional-sounding ensemble. The performances which I viewed (the video surveillance and the episode from Blues Brothers 2000) show that, in addition to being of high quality musically, the choir also makes a strong visual impact, moving and dancing rhythmically with the music.

Although at an earlier stage Ms. Riley’s work with the choir may have been fairly characterized as a hobby or recreational, or even therapeutic, this is no longer the case. I am satisfied that the professional status and recognition she and the choir have achieved represent a material change in Ms. Riley’s circumstances.

Considering the evidence as a whole, I heard nothing about Ms. Riley’s activities that would distinguish them from those of any other committed and aspiring musician or performing artist. She spends a certain amount of time thinking about and planning for performances. She regularly spends time in rehearsals, and performs regularly with her group when they have engagements booked, generally on weekends. She spends extra time as necessary preparing for or travelling to and from engagements. She also spends additional time as necessary on special projects, like films and recordings. The evidence from Ms. Riley and the other witnesses is that she has rarely missed either a rehearsal or performance with the choir. Ms. Riley testified that over the years she has been absent from rehearsals perhaps two or three times and has only missed one performance (while she was in hospital). Richard Picart, the choir’s manager, testified that, to his recollection, Ms. Riley had never refused a performance. Ms. Riley did not dispute this.

I conclude that Ms. Riley’s normal activities with the choir are typical of the occupational activities of professional performing and recording artists, who must plan and prepare their work, attend rehearsals, performances and studio sessions, travel as required, and generally promote and pursue their careers. I find that she has demonstrated through her activities over the last few years that she is fully capable of and not continuously prevented or disabled by her injuries from engaging in the occupation of or in employment as a professional musician.

C. Suitable occupation or employment

To summarize, I find that Pilot has established on a balance of probabilities that Ms. Riley is not limited or restricted by her injuries from successfully pursuing a professional musical career. Indeed, she has successfully made a musical career, by almost all the important indicia: she has performed widely, achieved name recognition and respect, signed a recording contract with a major company, and won honours and awards for her work.

I find that the major difference between Ms. Riley and other professional musicians is not in the nature, quality or quantity of her activities. Rather it is that Ms. Riley has chosen to undertake these activities without seeking remuneration for them.

Ms. Riley candidly testified that she considers her work with the choir as her “ministry,” to which she has dedicated herself. She acknowledged that it was her choice to provide her musical services for free, rather than to seek payment for them. However, that is a choice she has made, in the context of her view of her work. She is not prevented from accepting payment for her work as a result of her injury. She could have chosen to accept or require remuneration from Faith Chorale, just as the band musicians are now paid and the choir’s manager is now paid.

The fact that the choir is not structured as a profit-making organization, but rather as a non-profit corporation, is also a function of the choices made by Ms. Riley and her colleagues in Faith Chorale, and does not result from any physical disability sustained by Ms. Riley. Similarly, the fact that the choir has never made much money and may never be a very profitable venture is due to the nature of and limited opportunities inherent in the gospel music industry in Canada, as described by Richard Picart.

Ms. Riley testified that she has not attempted to earn a living, either through her music or otherwise, but agreed she could “possibly” do so if she made a conscious effort. I find Ms. Riley is not prevented from earning a living through her music by reason of her disability, but rather is not earning a living because she has made certain lifestyle choices.

I find Ms. Riley’s situation is analogous to the facts described in Wilson and Jevco Insurance Company (OIC A-008409, January 13, 1995). In that case, the applicant claimed entitlement to benefits under paragraph 12(5)(b), on the basis that he was no longer able to do the relatively heavy work in which he had been engaged prior to the accident, and that no other suitable work was available to him. Shortly after the accident, the applicant had moved to a farm on which a charitable animal shelter was being operated. The applicant had become involved as a volunteer at the shelter and also developed a personal relationship with its proprietor.

Arbitrator Draper found that the applicant had made significant decisions about his life that affected his rehabilitation and employment options. He had become committed to his life at the farm and his charitable work at the shelter. Arbitrator Draper wrote:

I do not intend to criticize Mr. Wilson’s decisions in any way. He is certainly free to live where and how he chooses. However, I do not feel that I can ignore these choices in determining his entitlement to weekly income benefits.

I find that the same observation is applicable in Ms. Riley’s case. I conclude that Ms. Riley’s activity and success with Faith Chorale demonstrates that she is now able to be engaged in a variety of suitable occupations or employment in the field of music. She has shown that she has the talent and ability to work as a choir director and as a performing and recording artist, and also on the musical arrangement and production of recordings, and is not prevented by her injury from doing so. In cross-examination, Ms. Riley agreed that she was competent to lead a church choir, although she was not sure whether she could get paid for such work.

In this regard, I note that Pilot filed documentary evidence regarding the employment of church musicians and choir masters in Canada.²⁸ Robert Katz, a professional social worker who specializes in vocational matters, testified that in his view, Ms. Riley is capable of being employed as a choir master, and that such positions are available to persons with qualifications similar to Ms. Riley’s. Given her background and experience, she could probably earn between $10,000 and $25,000 per year, depending on the number of hours she worked (anything between 10 and 29 hours weekly is considered normal for such work).

Mr. Katz indicated that Ms. Riley could also be employed in the public school system as a music teacher, since formal academic credentials are no longer required for such employment. She could also provide private tutoring or instruction in music.

I found the professional opinions of Mr. Katz helpful and I accept his testimony that Ms. Riley could be employed as a choir master or music instructor, and that such employment is generally available. I also find that such employment would be suitable for Ms. Riley, given her background, education and experience.

Finally, Mr. Katz noted that in the course of her performances (he had viewed the surveillance video), Ms. Riley was moving with the music and performing some dance steps. He commented that Ms. Riley was probably doing more, physically, than she would be doing if she were employed in a sedentary occupation. Mr. Katz testified that in his view, Ms. Riley was capable of performing a clerical job, and that the work of a clerk is not as onerous as directing a choir.

I agree with Mr. Katz that Ms. Riley’s current level of physical activity, dancing and moving with the music of her choir, is more physically onerous and demanding than sedentary clerical work.

Ms. Riley’s history of paid employment has not changed since the first hearing of this matter. She has not sought or chosen to pursue any further professional, vocational or occupational training. It was not argued at the variation hearing that full-time clerical work is no longer a suitable occupation or employment for Ms. Riley, by reason of her education, training or experience. Thomas Phin, Pilot’s accident benefits supervisor, confirmed that Ms. Riley had refused to attend a work capacity evaluation, and had also refused vocational assessment and training programs offered by Pilot.

I conclude that Ms. Riley is not continuously prevented from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. Accordingly, she no longer qualifies to receive benefits under paragraph 12(5)(b) of the Schedule.

I am satisfied, based on all of the evidence discussed above, that there has been a material change in circumstances sufficient to warrant the variation and revocation of my previous arbitration order. I heard no specific evidence or submissions as to precisely when this change occurred and, in my view, the evidence suggests that the situation evolved gradually, over the years. Under the circumstances, I find that Pilot should no longer be obliged to pay weekly income benefits under paragraph 12(5)(b) of the Schedule as of December 3, 1999, the date the variation hearing ended.

IV EXPENSES

The parties made no submissions on expenses. If they are unable to resolve the issue of expenses, they may apply to the Commission for an assessment of the expenses related to this hearing.