Neutral Citation: 2000 ONFSCDRS 60

FSCO A98-000102

BETWEEN:

JEFFREY BLAKE

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

November 29 and 30, 1999, in Barrie, Ontario.

Appearances:

Robert H. Littlejohn for Mr. Blake

Brian Bangay for Jevco Insurance Company

The Applicant, Jeffrey Blake, was injured in a motor vehicle accident on October 13, 1994. He applied for and received statutory accident benefits from Jevco Insurance Company ("Jevco"), payable under the Schedule.¹ Jevco terminated weekly income replacement benefits on June 3, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Blake 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:

What is Mr. Blake's residual earning capacity?
Is Mr. Blake entitled to income replacement benefits from June 3, 1997 until 14 days after the issuance of the WORK ABLE Report dated September 13, 1999?
Is Mr. Blake entitled to a special award?

Mr. Blake's residual earning capacity is $268.49 per week.
Mr. Blake is entitled to income replacement benefits from June 3, 1997 until September 27, 1999, plus interest.
Mr. Blake is not entitled to a special award.

Jeffrey Blake injured his right ankle in a motorcycle accident on October 13, 1994. He developed arthritis in his right ankle which is chronic and degenerative. There is no dispute that the 1994 accident made a material contribution to the impairment in his right ankle. Mr. Blake has developed left hip and back pain, likely related to his altered gait pattern. He is also moderately depressed. He is currently taking Tylenol 3 for pain, anti-inflammatory medication to control swelling, anti-depression medication, and medication to help him sleep. At the time of the hearing, Mr. Blake was 33 years old. He lives alone in a two bedroom apartment and has not worked regularly since the accident. He is receiving disability support payments.

There is no dispute that Mr. Blake's right ankle condition prevents him from returning to his pre-accident employment as a steel fitter and welder. Initially, Mr. Blake disputed whether his pre-accident earnings and hence his income replacement benefits had been properly calculated. By the commencement of this hearing, he no longer disputed that his income replacement benefits were properly calculated at $292.07 per week and that his pre-accident earning capacity should be based on the net weekly income which gives rise to this amount.² However, the parties dispute the amount of Mr. Blake's residual earning capacity, and hence, the amount of his loss of earning capacity benefits, if any.

Mr. Blake asserts that he is not capable of remunerative productive employment and therefore his residual earning capacity is zero. Jevco relies upon the findings of WORK ABLE Centres Inc. ("WORK ABLE"), a Residual Earning Capacity Designated Assessment Centre (a "REC DAC"), that Mr. Blake is able to return to a full-time position of electronics assembler and that his residual earning capacity is $21,424.

The Weight to be Given to WORKABLEs Findings and Conclusions

Mr. Blake participated in the residual earning capacity assessment over a two-week period in August 1999. During that time he underwent a medical evaluation by Dr. D. Ozimok, Physician, a physiotherapy evaluation by Ms. C. Parr, Physiotherapist, and a psychovocational assessment with Dr. K. Lawson, Psychologist.

The WORK ABLE team hypothesized that Mr. Blake was likely able to work full time, in work tasks at the light-medium strength level, with no continuous walking, stair stepping, low level activities, ladder climbing, heavy lifting or carrying. In light of his employment abilities, four occupational categories or subcategories were chosen from the National Occupational Classification ("NOC") for work simulations: Electronics Assemblers, Fabricators, Inspectors and Testers (NOC # 9483), Cashier (NOC #6611) Other Elemental Sales Occupations (NOC#6623) and Ticket Takers and Ushers (NOC #6683.6). Mr. Blake then participated in a five-day situational assessment with Ms. L. Korhonen, Occupational Therapist and Mr. E. Stone, Certified Kinesiologist.

The assessors concluded Mr. Blake was capable of and qualified to perform the essential tasks of the Electronics Assembler employment on a full-time basis.

Finally, a Labour Market Survey was performed by Ms. C. Gibson, a Vocational Rehabilitation Specialist, who determined that the work exists in Mr. Blake's area and is accessible.

The 56 page report of WORK ABLE was filed in evidence. No witnesses from WORK ABLE were called to testify. Apart from the evidence of Mr. Cameron Adams-Webber, a vocational rehabilitation expert who testified about the existence and availability of the position of electronics assembler in and near the Barrie area, and the gross annual income generated by such work, there was no evidence directly challenging the findings of the REC DAC. I find that the report was written in a clear, straightforward, and neutral manner, by qualified assessors. The procedures followed were consistent with the recommendations set out in the Commission's Residual Earning Capacity Designated Assessment Centre Assessment Guidelines, July 1999 (the 1999 Guidelines). Mr. Blake did not dispute the factual accuracy of the test results or the assessors' descriptions of his participation. The report indicates that extensive medical documentation was reviewed in the preparation of the report, and numerous tests were performed by the various assessors. The results of the tests are summarized in some detail in the report and the reasons for the various inferences and conclusions explained. During the assessment, Mr. Blake demonstrated sincere and consistent effort.

Accordingly, I accept that the results obtained during the 1999 residual earning capacity assessment are a reliable and accurate measurement of Mr. Blake's physical, mental, and vocational abilities at that time.

I agree with the comments of Arbitrator Rotter in the case of Walker and State Farm Mutual Automobile Insurance Company³ with respect to the weight to be given to DAC assessments:

...In my view, the evidence of a DAC assessor is and remains opinion evidence, which I must weigh carefully in coming to any conclusion. The weight to be accorded any such evidence must be in the discretion of the adjudicator, based on a careful evaluation of the thoroughness, relevance, neutrality and value of the opinion provided. Such factors as, for example, the familiarity with the details and history of a particular case, the length and thoroughness of the examination, and the particular area of expertise of the evaluator must all be carefully assessed. Ultimately, the arbitrator has the responsibility of considering all the evidence not just the evidence from the DAC and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case. The Legislature has ultimately given the statutory decision-making authority to the arbitrator. I find it would be an abdication of that authority or an inappropriate fettering of discretion to accept the opinion of a DAC assessor in lieu of exercising the authority conferred on me.

I conclude, having regard to the thoroughness, relevance, and neutrality of the report, the expertise of the assessors, and the absence of evidence directly contradicting the test results, that it is appropriate to give the findings and conclusions of the WORK ABLE Report significant weight.

1997 WORK ABLE Report

Mr. Blake participated in an earlier REC DAC assessment in March 1997. WORK ABLE issued a report dated May 1, 1997 stating "The assessment findings do not represent a valid profile of Mr. Blake's ability to earn based on his poor effort secondary to a strong pain focus and the resultant poor worker behaviour evidenced. No residual earning capacity can be determined." During the assessment Mr. Blake tested inconsistently for effort and was believed to be putting forward submaximal effort. No one from the 1997 assessment team testified and Mr. Blake did not testify about his experience during this assessment. I have reviewed the 1997 WORK ABLE Report (and the written statement of S. Boddam, the physiotherapist who participated in the assessment) and have concluded that the report is too ambiguous to be useful. On the one hand, there are indications that Mr. Blake was not putting forth a consistent effort and the results obtained under represented his true abilities. On the other hand, there are indications that Mr. Blake's participation was influenced by genuine pain symptoms which significantly diminished his residual earning capacity at that time. In light of these contradictions, I am unable to attribute much weight to this report. Further, the assessment occurred in 1997 and Mr. Blake's condition may have changed since that time.

Determining Residual Earning Capacity

A person's residual earning capacity is determined in accordance with section 30 of the Schedule. First, the employment, if any, which best satisfies the criteria in subsection 30(2) must be determined. The employment must exist in the area in which the person lives, be compatible with the person's personal and vocational characteristics, and take account of the possibility of deterioration in the person's condition.

WORK ABLE concluded that Mr. Blake was best suited to perform the work of electronics assembler on a full-time basis, that the work existed within a reasonable commuting area from which Mr. Blake lives, and that Mr. Blake could earn a gross annual income of $21,424 from that work. Mr. Blake disputes that he is capable of doing this work productively and competitively on a full-time or even a part-time basis,⁴ that the work exists in his area, and that he could earn a gross annual income of $21,424 from that work.

1. Able and Qualified to Perform the Essential tasks of the Employment

The first statutory criteria in determining whether a proposed employment is suitable is to determine if the person is able and qualified to perform the essential tasks of the employment.

Subsection 30(3) provides that a person is able and qualified to perform the essential tasks of an employment if

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

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

i) Medical and Physical Abilities and Restrictions

The preponderance of medical evidence supports the finding that Mr. Blake experiences moderate osteoarthritis in his right ankle. This causes pain and swelling in his right ankle and prevents him from weight bearing on his right ankle for any significant period of time. Mr. Blake walks with an altered gait pattern because of his ankle pain.

Mr. Blake also suffers from pain in his left hip and lower back. X-rays confirmed mild degenerative changes in both hips. Dr. Ozimok, the medical assessor at WORK ABLE, concluded that these were likely the result of his altered gait pattern, and thus, indirectly related to the accident.

In light of these physical conditions and restrictions, Dr. Ozimok recommended that Mr. Blake be considered for positions of a "sedentary to light strength" level, predominantly in a sitting position, with the flexibility to get up and move about as he sees fit, but to avoid prolonged standing or walking.

These restrictions were confirmed by the WORK ABLE Physiotherapist and Kinesiologist. They recommended that Mr. Blake should avoid continuous walking, stair stepping, low level activities, climbing ladders, heavy lifting/carrying and should have the ability to alternate between sitting, standing and walking as required. They noted that he had good function in his upper extremity, good endurance for sustained sitting, and was able to perform walking/standing on an occasional level.

These restrictions are consistent with the restrictions found by Dr. P. Welsh, an orthopaedic specialist who examined Mr. Blake in November 1997, and by Dr. N. Patel, a podiatrist who examined him in April 1998. Dr. I. Lindsay, Mr. Blake's family physician, agreed that work in the light sedentary category was appropriate in light of Mr. Blake's ankle condition. Dr. R.C. Bull, an orthopaedic specialist who examined Mr. Blake at his request in March 1999, also believed that Mr. Blake would be capable of sedentary type work.

Mr. Blake relied upon a work assessment conducted by VOC-CARE Rehabilitation Management Inc. in August 1996, at the request of Jevco. He was assessed on his dynamic strength, position tolerance, mobility, fine motor skills, balance, coordination and endurance. The assessment results did not demonstrate that Mr. Blake was capable of work, even on a sedentary basis, because he was not able to walk, even on an occasional basis. Even sedentary work requires some ability to ambulate.

I do not accept that Mr. Blake is unable to work at a sedentary level. I note that the VOC-CARE assessment took place in August 1996. By the time of the 1999 assessment, Mr. Blake was assessed as physically capable of walking, at an occasional level, which indicates that Mr. Blake's ability to weight bear on his right leg has improved since 1996. Since this inability to ambulate even occasionally was the basis for concluding that Mr. Blake was unable to work on a sedentary basis, the 1996 test results are no longer valid.

Further, Mr. M. Petersson, the Occupational Therapist who conducted the assessment, was of the opinion that despite the test results, Mr. Blake:

realistically demonstrated the ability to perform sedentary work for an 8 hour day, provided he does not have to weight bear on his right leg to manage his job tasks.

Based on this evaluation we feel that the client may be able to work at the sedentary level provided he does not have to weight bear on his right leg to manage job tasks. Because the client did not actually score as being able to work at a sedentary level however, there is some uncertainty as to whether he actually can handle this level of work. Further specific testing to determine this is therefore indicated.

While Mr. Petersson's opinion that Mr. Blake would be able to perform sedentary work on a full-time basis was speculative, the further specific testing he suggested was in fact done during the 1999 assessment. The results of the assessment will be discussed below.

The physical demands of the electronics assembler position include sitting, forward reaching, grasping/handling/fingering, upper limb coordination, sedentary strength level lifting and carrying. I am satisfied that the physical demands of the electronics assembler position are compatible with Mr. Blake's physical restrictions. The issue of limitations caused by pain will be discussed below.

ii) Sleep Difficulties

Mr. Blake has difficulty falling asleep and wakes up during the night. Mr. Blake submitted that WORK ABLE failed to appropriately consider his sleep disorder in its assessment of his ability to work. On the contrary, I find that the psychovocational assessor specifically tested Mr. Blake's sleep dysfunction, noted that his test scores revealed above average sleep dysfunction and noted that the findings were consistent with Mr. Blake's self-reports of sleep difficulties.

However, she concluded that despite this difficulty, he was not prevented from working. Further, despite his sleep disturbances, Mr. Blake was able to attend the work simulations over five days and perform adequately.

There was no medical evidence which directly contradicted this conclusion.

iii) Depression

Similarly, Mr. Blake submitted that the assessors did not adequately take into account the effect of depression on his ability to work.

Mr. Blake tested in the moderate category with respect to depression and anxiety. The scores from the self-perceived disability test indicate a "somatoform disorder that is now chronic in nature." The psychologist concluded that Mr. Blake meets the requirements for a diagnosis of Adjustment Disorder, associated with Anxiety and Depression and a secondary diagnosis of Pain Disorder. However, he concluded that Mr. Blake's level of psychological distress did not prevent him from returning to the work world "in some manner."

There was no medical evidence which directly contradicted this finding.

iv) Cognitive Abilities

The occupational therapist rated the cognitive demands of the position of electronics assembler as follows: general learning: mid average; verbal ability: low average; numerical ability: low average; spatial perception: mid average; form perception: mid average; clerical perception: low average; motor perception: mid average; manual dexterity: mid average. The NOC does not identity essential aptitudes, and despite Mr. Blake rating at low average in some of these areas, the occupational therapist assessed this position as one for which Mr. Blake was cognitively qualified.

Mr. Cameron Adams-Webber, a certified vocational evaluator who has participated in REC DAC assessments for three years, testified that the Canadian Classification and Dictionary of Occupations ("CCDO") specifies three essential aptitudes for an electronics assembler — general learning ability: mid-average; spatial perception: mid average; and form perception: mid average. He testified that if a person's cognitive aptitudes do not match the essential requirements, this would be an indicator that the person would likely not be able to perform the position.

Mr. Blake submitted that the cognitive tests showed his general learning ability and spatial aptitude were low average, below the required mid average requirement, on two essential aptitudes.

I am satisfied that the preponderance of evidence establishes that Mr. Blake has the cognitive ability to perform the position of electronics assembler. First, the aptitude testing is merely a prediction of Mr. Blake's general learning and spatial aptitudes. Assuming, without finding that the aptitudes identified as essential by the CCDO should be considered essential, they are simply predictions. Despite not meeting the predicted aptitudes, when he actually performed the work simulation, Mr. Blake was cognitively capable of performing the work. During this simulation he remarked that he had previous experience "following blueprints and constructing things, and found it within his capabilities."

I prefer the evidence of the work simulation over the aptitude testing as an indication of whether Mr. Blake has the cognitive aptitude to perform the work of electronics assembler.

Mr. Blake's cognitive ability to perform the work of electronics assembler is reinforced by the fact that he worked as a steel fitter and welder for many years and that position has similar or higher cognitive demands as that of electronics assembler. I find that Mr. Blake's previous work experience and the work simulation provide strong evidence that Mr. Blake has the cognitive abilities to perform the work of electronics assembler.

v) Pain Restrictions

Mr. Blake submitted that his level of pain and the frequency of his pain flare-ups prevented him from performing any work on a full-time basis. He further submitted that even though he might be capable of going through the motions required to perform the work of electronics assembler, he was unable to perform the work in a productive and remunerative way, even on a part-time basis.

Mr. Blake testified that he experienced pain and swelling whenever he put any weight on his foot, and sometimes even when he did not. He advised the WORK ABLE assessors that he did not believe he would be capable of working, because of pain and swelling "flare-ups" which he had experienced approximately twelve times in the past year. Apart from an initial, unsuccessful attempt to return to his pre-accident employment in 1995, Mr. Blake has not attempted to find any work, full or part time, within his physical restrictions.

If the pain Mr. Blake experiences interferes with his ability to function, and prevents him from performing the work of an electronics assembler consistently and productively, on a full-time or part-time basis, then this would reduce his residual earning capacity.

Dr. Lindsay, Mr. Blake's family doctor, testified that Mr. Blake has attended at his office on a regular basis since November 1994, complaining of pain and swelling in his right ankle. He diagnosed chronic, progressively degenerating arthritis in his right ankle. He prescribed Tylenol 3 for pain, anti-inflammatory medication and medication for Mr. Blake's depression. Based on his years of experience in treating Mr. Blake, Dr. Lindsay was of the opinion that Mr. Blake would not be capable of working on a full-time basis. He testified that in his opinion it would be beneficial for Mr. Blake to attempt part-time employment, although he was unable to predict whether such attempts would be successful. Dr. Lindsay's opinion that Mr. Blake's pain complaints are genuine is valuable, as he is the practitioner most familiar with Mr. Blake's condition. However, I am unable to accord as much weight to his opinion with respect to Mr. Blake's work potential. Dr. Lindsay has no expertise in vocational assessment and did not perform any vocational tests or work simulations on Mr. Blake.

Dr. P. Welsh, an orthopaedic specialist, examined Mr. Blake in November 1997 and advised that Mr. Blake was incapable of returning to his pre-accident work or other non-sedentary work. He was of the opinion that "With regard to alternative job situations in a sedentary capacity, the ongoing pain he experiences would to a considerable extent interfere with his ability to concentrate, and would impair his functioning capability as well."

Dr. N. Patel, a podiatrist who examined Mr. Blake in April 1998, concluded that Mr. Blake was not able to work at all.

Dr. R.C. Bull, an orthopaedic specialist who examined Mr. Blake at his request in March 1999 believed that Mr. Blake would be able to perform sedentary work on a part-time or full-time basis, with a back up. He noted that Mr. Blake would not be totally dependable, because of his pain.

Drs. Welsh, Patel and Bull each examined Mr. Blake on only one occasion. They also have no expertise in vocational assessment, and performed no vocational testing or work simulations in reaching their conclusions about Mr. Blake's ability to work in sedentary occupations.

Mr. Blake also relied on a signed statement of Sandra Boddam, the physiotherapist who participated in the 1997 WORK ABLE REC DAC assessment. In July 1999, Ms. Boddam provided a written statement indicating that during the 1997 assessment Mr. Blake did not demonstrate that he could work on a full-time basis. She further stated that no one would hire him because of his poor productivity, timeliness, and pain focus. She did not believe he was malingering. Ms. Boddam's 1999 statement supports a finding that the 1997 assessment results were valid, that Mr. Blake was genuinely limited by pain, and that he was not capable of working full time. This contradicts the written report, which Ms. Boddam signed in 1997, that the results of the assessment were not reliable. This contradiction, which was not explained as Ms. Boddam did not testify, significantly lessens the weight to be given to Ms. Boddam's 1999 opinion that Mr. Blake's pain complaints were genuine and disabling. At the same time, her statement that Mr. Blake's pain complaints were genuine and disabling casts doubt on WORK ABLEs 1997 statement that Mr. Blake was not co-operating. In any event, Ms. Boddam's comments relate to Mr. Blake's condition in 1997.

Mr. Blake participated in work simulations on August 10, 11, 12, 13 and 16, 1999 over a period of seven to eight hours each day.⁵ He arrived on time and was assessed as putting forth a sincere effort. Although 60 minutes of breaks were scheduled (30 minutes for lunch and two 15 minute breaks), Mr. Blake frequently took longer than the scheduled breaks and required additional breaks as well.⁶ Some of the extra time was requested because of pain and fatigue; some of the time was simply due to being late returning from break, or requesting extra time for lunch.

Mr. Blake was present for the full seven or eight hours. On the 10th Mr. Blake worked a total of 5 hours and 26 minutes; on the 11th he worked 4 hours and 3 minutes; on the 12th he worked 3 hours and 48 minutes; on the 13th he worked 5 hours and 43 minutes and on the 16th he worked 6 hours and 13 minutes.

The assessors noted that Mr. Blake's accuracy was fair, his productivity varied and his pace was consistently slow.⁷ The WORK ABLE report did not discuss the implications of varied productivity or define what is meant by a "slow pace." Despite these findings, the assessors concluded that Mr. Blake was capable of performing the work. Mr. Blake relied on the findings of slow pace and varied productivity in support of his claim that he was not capable of productive, competitive employment, even on a part-time basis.

The comments of Arbitrator Naylor in Fleming and Wawanesa Mutual Insurance⁸ with respect to the capacity to perform the essential tasks of employment are equally applicable in the context of residual earning capacity assessments:

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

However, Mr. Blake did not lead any evidence to suggest that his test results on the work simulation fell below the industry standard of productivity or otherwise contradict the assessors' conclusion that his varied productivity, pace, and accuracy were adequate.

Mr. Blake rated his pain as increasing by the end of the day, and returning to usual levels by the following morning. He advised the assessors that he followed his usual evening routine and had the usual difficulties sleeping. On the first two days, his right ankle swelled noticeably by the end of the day. However, when he used a tensor bandage on the remaining three days, there was no significant swelling by the end of the work day. This evidence confirms that although Mr. Blake experiences pain, it does not disable him from working at suitable employment during the work day, nor incapacitate him from his usual activities afterwards.

Mr. Blake simulated the work of an electronics assembler on August 10th in the morning. He sustained the activity over a period of 158 minutes, with scheduled and unscheduled breaks. He repeated the work simulation over an eight-hour period on August 13th, taking 60 minutes of scheduled breaks and 33 minutes of unscheduled breaks. He demonstrated the ability to meet the required cognitive and interpersonal demands of the position. He was assessed as capable of the physical demands, provided he can periodically change positions.

During the remainder of the days, he simulated the work of cashier, telephone solicitor, and ticket taker. He was assessed as capable of the cognitive, interpersonal and physical demands of those positions, provided he could alternate between sitting/standing/walking as needed.

Mr. Blake submitted that it was inappropriate for the assessors to extrapolate his ability to work for a day and half at the electronics assembler position to an ability to work five days a week, year round. He relied upon the analysis of Arbitrator Blackman in DesRoches and Economical Mutual Insurance Company:⁹

The flaw in WORKABLE's analysis is the unstated assumption that a "snapshot" ability to sustain a task for five hours on a single day automatically translates into the ability to do that task on an ongoing basis, eight hours a day, five days a week, fifty-two weeks a year.

The evidence in DesRoches was significantly different than in the present case. In DesRoches the arbitrator noted that the applicant's ability to perform the work fluctuated over the five days. It appears that WORKABLE's conclusion about the applicant's abilities was based on a five-hour period.

In this case, although Mr. Blake performed the work of electronics assembler for only one and a half days, he did work at other tasks with similar physical demands for the remainder of the period. Thus, he demonstrated the ability to attend at work and engage in work-related behaviour over five days. While the ability to work over a five-day period does not necessarily translate into an ability to work on a weekly basis throughout the year, it is the most reliable evidence available. I find that the five-day work simulation is a more reliable indicator of Mr. Blake's ability to work than those medical opinions based on Mr. Blake's subjective complaints of pain. I find it significant that Mr. Adams-Webber was provided with a copy of the 1999 REC DAC report and asked to comment on the existence and availability of the electronics assembler position, as well as the gross annual income generated from such a position in the Barrie area, but was not asked to comment on the reliability and validity of the situational assessment. There was no evidence directly challenging the results of the work simulation conducted in 1999.

I conclude that Mr. Blake does not have any impairment that permanently prevents him from performing the tasks of an electronics assembler and that he has the job skills required to perform those tasks. I find that Mr. Blake is able and qualified to perform the essential tasks of the electronics assembler position on a full-time basis.

2. Subsection 30(2)2 — Employment Exists in the Area and is Accessible

The second statutory criteria in determining the insured's residual earning capacity is to determine whether the employment, which the insured is able and qualified to perform, exists in the area in which the person lives and is accessible to the person.

i) Exists in the Area

The Commission's 1996 Guidelines interpreted "exists in the area" as follows:

...the term "exists" means whether or not the designated employment can be found in the area in which the claimant lives. The employment "exists" if there are people employed in that employment type in the claimant's area. The term "area" defines the labour market that the claimant could be reasonably expected to seek employment within.¹⁰

I agree with this interpretation.

Ms. Gibson, the WORK ABLE Vocational Rehabilitation Consultant, conducted a labour market survey in respect of the Electronics Assembler/Printed Circuit Board Assembler position. She reviewed the Human Resources Development Canada ("HRDC") job bank for postings of these positions and reported that none were found in Barrie. There were postings for positions in Markham, Concord and Thornhill.

She also surveyed over thirty electronics and manufacturing companies in the Keswick and Newmarket areas. Two companies reported that they have positions as electronics assemblers but they were not willing to provide any further information.

A company in Newmarket reported that they currently have eight employees working in positions assembling circuit boards. The work is performed seated at a station, putting electronic components on a pad and inspecting assembled pads. The Human Resources Manager advised that if necessary, employees can take short breaks to stand and stretch their legs. There were no minimum education requirements and training is provided on the job. The Human Resources Manager reported that the work requires fine finger dexterity, motor coordination, patience and colour vision.

The company stated that it occasionally hires people on a part-time basis or for six-month contracts, during their busy times over the winter months. Mr. Blake submitted that this is an indication that no full-time electronics assembler work exists. I reject that characterization of the evidence. Taken in context, the evidence indicates that the Newmarket company currently has eight employees working and additionally, hires people on a part-time or contract basis during their busy times.

In addition, Mr. Adams-Webber conducted a labour market survey at Mr. Blake's request to determine if the position of electronics assembler was available, on a full or part-time basis, in the Barrie area. He also used the HRDC job bank and found that no positions were advertised in Barrie or Simcoe County. He found that the position of electronics assembler (NOC #9483) was advertised in Vaughan and Richmond Hill.¹¹

Mr. Blake submitted that he could not be reasonably expected to seek employment outside the Barrie/Simcoe area, and that the evidence did not establish that the position of electronics assembler exists in that area.

Mr. Blake submitted that the travel expenses associated with a 65 kilometre commute would be $195 per week (65 x 2 trips per day x 5 trips per week x $.30/km) [the government rate paid for mileage] = $195). He submitted that the expense alone would make a 65 kilometre commute unreasonable.

I agree that the evidence does not establish whether the position of electronics assembler exists in Barrie. However, I do not agree that the area in which Mr. Blake can be reasonably expected to accept employment should be restricted to Barrie.

I heard no evidence that the government rate of $.30 per kilometre is an accurate estimate of Mr. Blake's likely commuting expenses. Mr. Adams-Webber, Mr. Blake's own expert, testified that in his opinion a reasonable commute for a person living in Barrie would be 65 kilometres and I accept his uncontradicted evidence on this point.

Mr. Adams-Webber estimated the distance between Barrie to Vaughan as 55 to 60 kilometres and from Barrie to Richmond Hill as approximately two-thirds of that distance (approximately 40 kilometres). His own labour market survey established that positions as full-time electronics assembler (NOC #9483) existed and were posted in those areas.

Based on Mr. Adams-Webber's evidence, I conclude that full-time electronics assembler positions exist in Vaughan and Richmond Hill and that these are within reasonable commuting distance for Mr. Blake.

Further, the WORK ABLE Labour Market Survey establishes that the position of electronics assembler also exists in Markham, Concord, Thornhill, Keswick, and Newmarket.¹² Apart from Markham, Mr. Adams-Webber did not dispute the WORK ABLE Report's conclusion that those positions existed "in the area."¹³ I conclude that the positions in Concord¹⁴, Thornhill¹⁵, Keswick¹⁶ and Newmarket¹⁷ also "exist in the area" within the meaning of subsection 30(2) 2.

ii) Accessible

The Commission's 1996 Guidelines interpreted the term "accessible" as follows:

...The term "accessible" means the likelihood of a claimant securing the employment type selected by the DAC. In considering the designated employment, it is "accessible" if the claimant could reasonably compete for a job of that employment type, should such a job become available.

In Monnet and Commercial Union Assurance Company,¹⁸ Arbitrator Renahan commented on the Guideline interpretation and the meaning of the term accessible as follows:

In my opinion, the Guideline definition is not much different from "able...to perform the essential tasks of the employment" used in subparagraph 30(2)1 i and is therefore redundant. I see no reason to depart from the dictionary definition of "accessible" as "that can readily be reached, entered, or used." In the context of disability coverage and the physical requirement in paragraph 30(2)2 that the employment "exists," I think "accessible" refers to the physical ability of the insured to get to the work site.

I agree that "accessible" should include an analysis of whether the insured has the physical ability to get to the worksite.

Mr. Blake submitted that his physical impairments limit his ability to drive to worksites 65 kilometres away. However, Mr. Blake advised various WORK ABLE assessors that he was able to drive for 30 to 45 minutes.¹⁹ In addition, the physiotherapist assessed Mr. Blake as capable of sustained sitting. Mr. Blake estimated that it would probably take half an hour to drive to Aurora or Newmarket. This is consistent with Mr. Adams-Webber's estimate that a commute of 65 kilometres would involve a drive of 30 to 35 minutes.²⁰ I am not satisfied that Mr. Blake has established that his impairments prevent him from driving approximately 65 kilometres for work. I find that the electronics assembler positions which exist in Vaughan, Richmond Hill, Thornhill, Keswick and Newmarket are "accessible" to Mr. Blake.

I am not persuaded that the term "accessible" should be limited to the physical ability to get to the worksite. I agree with the 1996 Guidelines that the term encompasses other considerations which affect whether a worker could reasonably compete for the employment.

Mr. Blake submitted that several factors affected his ability to reasonably compete for the position of electronics assembler.

First, Mr. Blake submitted that as a black man living in a predominantly white community, the likelihood of racial discrimination should be taken into account. While I accept the existence of such discrimination in Canadian society, there was no evidence presented to demonstrate that the impact of racial discrimination on Mr. Blake was so great that he was not able to reasonably compete for such positions.

Second, Mr. Blake submitted that being out of the workforce for over five years is a significant barrier. The 1997 WORK ABLE Report noted that Mr. Blake had been out of the workforce for over 24 months at that point. The assessor noted that "statistically speaking, this is predictive of a very low probability that he will return to employment in a spontaneous and unassisted manner." I note that in all cases in which residual earning capacity is being determined, the injured worker is likely to have been out of the workforce for over 24 months. That in and of itself does not lead to a finding that employment is not accessible.

Mr. Blake also relied upon the case of DesRoches, supra, in which Arbitrator Blackman found that being out of work for over two years was a barrier to returning to employment. As I read that portion of Arbitrator Blackman's decision, I find that it was a combination of factors, taken together, which led him to conclude the suggested work was not accessible, including the two-year absence from the workforce, Mr. DesRoches' deconditioning, his fear of re-injury, his limited education and training and the hesitation of employers to hire previously injured workers.

While I accept that being out of the workforce would lessen Mr. Blake's competitive advantage in a competition for electronic assembler positions, no evidence was led to support a finding that Mr. Blake was not able to reasonably compete because of that barrier. I am not prepared to make such an inference in the absence of some evidence on this point.

Third, Mr. Blake submitted that employers are unwilling to hire disabled workers. The only evidence before me on that point is that of Mr. Adams-Webber who reported that "in response to inquiries as to whether prospective employers would be willing to hire applicants who have disabilities, the common response was that they do not discriminate based on disability."²¹

The evidence before me establishes that the Electronics Assembler position is accessible to Mr. Blake.

3. Subsection 30(2)3 Deterioration and Personal and Vocational Characteristics

The third statutory criteria is that it would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

i) Possibility of Deterioration

Mr. Blake submitted that I should assess his residual earning capacity based, not only on his current physical condition and restrictions, but also taking into account what his restrictions will likely be when he is 43 and 53 and 63. While my authority under subsection 30(2)1i is limited to determining whether the person is currently able and qualified, I must also consider the possibility of deterioration and the effect of the proposed work on the insured's condition under subsection 30(2)3.

There is no dispute that Mr. Blake's arthritis is chronic and degenerative. Dr. Lindsay testified that Mr. Blake's arthritis will worsen whether he works or not. The WORK ABLE assessors specifically recognized the likelihood of Mr. Blake's condition deteriorating and selected work situations which could be performed regardless of deterioration in Mr. Blake's right ankle.

I find that it would be reasonable for Mr. Blake to engage in the work of electronics assembler even though his right ankle is likely to deteriorate. That work is not likely to contribute to any deterioration of his condition nor is the deterioration likely to render him unable to perform that work.

ii) Personal and Vocational Characteristics

"Personal and vocational characteristics" are defined in Part I of the Schedule to include:

(a) employment history,

(b) education and training,

(d) vocational skills,

(e) physical abilities,

(f) cognitive abilities, and

(g) language abilities.

After completing some Grade 11 in Barrie in 1984, Mr. Blake began working as a steel fitter for Dettleff Steel Company from 1985 to 1993. During that time he also attended George Brown College and completed a three-year apprenticeship program in Structural Steel Plating in 1993. Upon completing the program he began working at Linesteel as a steel fitter and welder. At the time of the accident, he was working 40 to 44 hours per week and earning approximately $10 per hour.

Aptitude testing revealed that Mr. Blake's vocational interests consistently demonstrated an interest in working with tools, equipment and machinery, repair and fabrication of objects.

The tasks in the occupational group of electronics assemblers included: assembling electronic equipment, parts, and components such as resisters, diodes, transistors, capacitors, integrated circuits; visualizing assemblies and final products from drawings; detecting irregularities on printed circuit boards and examining products for defects; using hand and small power tools to install, mount, fasten, align and adjust parts, components, wiring, and harnesses to sub-assemblies and assemblies.

Mr. Blake did not dispute that it would be reasonable to expect Mr. Blake to engage in the work of electronics assembler, having regard to his personal and vocational characteristics.

Gross Annual Income

I conclude that the work of electronics assembler best satisfies the criteria in subsection 30(2). To determine Mr. Blake's residual earning capacity, I must now determine the gross annual income that he could earn from that employment.

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

[emphasis added]

The Schedule does not stipulate how the gross annual income that the person could earn from the type of employment is to be calculated. The 1999 Guidelines require the DAC to use the Commission's Wage Table to determine the gross annual income which can be derived from the suitable employment. However, the Guidelines contemplate that in some circumstances the Wage Table may not be an appropriate tool.

WORK ABLE concluded that Mr. Blake could earn a gross annual income of $21,424 from full-time work as an electronics assembler. This is the figure found in the Commission's 1999 Wage Table. The Wage Table is a provincial average.²²

Mr. Adams-Webber determined that entry level electronics assemblers in Mr. Blake's area actually earn considerably less than the gross annual wages set out in the Commission's Wage Table. The electronics assembler positions (NOC #9438) advertised in Vaughan offered an entry level wage of $9.50 per hour and the position in Newmarket was advertised at $7.50 per hour. Mr. Adams-Webber calculated that these averaged out to an annual wage of $17,680.²³

I find that Mr. Adams-Webber's calculations are more indicative of the gross annual wages that Mr. Blake could earn from the position of electronics assembler in his geographical area, than the Commission's 1999 Wage Table, which are based on provincial averages. I am not bound by the Commission's Guidelines concerning the use of the Wage Tables, and the Schedule itself does not dictate how gross annual income is to be calculated. Accordingly, I conclude that the gross annual income that Mr. Blake could earn from the electronics assembler position is $17,680, which translates to a gross weekly income of $340 ($17,680 divided by 52).

Residual Earning Capacity - Net Weekly Income

Subsection 30(1) provides that the insured's residual earning income shall be deemed to be the net weekly income derived from the gross annual income from that employment which best satisfies the criteria in subsection 30(2). The Commission has published Net Weekly Income Tables which can be used to convert gross weekly income to net weekly income. In accordance with the Commission's Net Weekly Income Table—Other than Self-Employment, November 25, 1993, the net weekly income derived from a gross weekly wage of $340 is $268.49.²⁴

Accordingly, I conclude that Mr. Blake's residual earning capacity under section 30 is $268.49 per week. I leave it to the parties to calculate the amount of Mr. Blake's loss of earning capacity benefits, if any.

Income Replacement Benefits Pending REC DAC Findings on Residual Earning Capacity

In an earlier decision, Arbitrator Alves awarded Mr. Blake interim benefits at the rate of $292.07 per week from June 3, 1997 until 14 days after the delivery of a REC DAC report. A REC DAC report determining that Mr. Blake's residual earning capacity was $21,424 per year was issued on September 13, 1999.

Res Judicata

Mr. Blake submitted that the issue of income replacement benefits ("IRBs") between June 3, 1997 and September 27, 1999 is res judicata, as Arbitrator Alves had heard and determined that issue. However, Arbitrator Alves characterized this part of her decision as an interim decision and specifically stated that her order with respect to IRBs was subject to a further order of the hearing arbitrator.

Therefore, the issue which was decided by Arbitrator Alves on an interim basis, and is now before me for final determination, is whether IRBs at the rate of $292.07 are payable from June 3, 1997 until September 27, 1999 (14 days after the REC DAC report of September 13, 1999).

Some background facts giving rise to this issue must be clarified. Following the accident, Jevco accepted that Mr. Blake's injuries prevented him from returning to his pre-accident employment and paid him IRBs. He was paid at the rate of $292.07 per week just prior to the termination of his benefits. Mr. Blake does not dispute this amount. As Mr. Blake continued to be eligible for IRBs at the 104-week mark, Jevco made a loss of earning capacity benefits ("LECBs") offer to Mr. Blake, of $7.78 per week. Mr. Blake did not agree with Jevco's estimate of his pre-accident earning capacity or his residual earning capacity. Jevco arranged for WORK ABLE, a Designated Assessment Centre, to conduct a Residual Earning Capacity evaluation. The assessment was scheduled to take place in February 1997, but Mr. Blake did not attend. Jevco corresponded with Mr. Blake's family doctor about the reasons for his non-attendance and then rescheduled the assessment. Mr. Blake attended at WORK ABLE over a two-week period commencing March 31, 1997. WORK ABLE submitted a lengthy report on May 1, 1997, stating: "The assessment findings do not represent a valid profile of Mr. Blake's ability to earn based on his poor effort secondary to a strong pain focus and the resultant poor worker behaviours evidenced. No residual earning capacity can be determined."

Following receipt of this REC DAC report, Jevco wrote to Mr. Blake stating that WORK ABLE had been unable to determine his residual earning capacity because he failed to co-operate. Jevco advised Mr. Blake that it was exercising its right under subsection 23(6) of the Schedule to pay loss of earning capacity benefits based on its original offer. Jevco also clarified that its original offer contained a calculation error and clarified that its loss of earning capacity benefit offer was zero. Accordingly, Jevco advised that effective June 3, 1997, it would be paying LECBs of zero and that no further weekly income benefits would be paid. Jevco further advised that it would not schedule a further REC DAC until he reimbursed Jevco for the cost of the 1997 assessment, and repaid weekly benefits for the period March 31, 1997 to June 2, 1997.²⁵

Mr. Blake applied for mediation and arbitration to resolve various disputes with Jevco including the termination of his IRBs effective June 2, 1997, his pre-accident earning capacity, his residual earning capacity and the amount of LECBs, if any. A pre-hearing discussion was held in June 1998 and the parties agreed that a follow-up REC DAC would be arranged. This had not taken place by the commencement of the arbitration hearing in July 1999.

Following the hearing in July 1999, Arbitrator Alves made several rulings. She denied Jevco's request for a stay of the proceedings, but granted an adjournment of the LECBs issue. She made a final determination with respect to housekeeping expenses. She made an interim decision that IRBs were payable at the rate of $292.07 from June 3, 1997 until 14 days after the receipt of a REC DAC report.

A second REC DAC assessment was carried out over a two-week period in August 1999 and WORK ABLE issued a report on September 13, 1999, concluding that Mr. Blake's residual earning capacity was $21,424 per year.

Jevco applied for a variation or revocation of Arbitrator Alves' interim order regarding the payment of IRBs in light of the conclusion of the 1999 REC DAC report, but this was refused by Director's Delegate Draper on November 9, 1999.

A second arbitration hearing was held before me on November 29 and 30, 1999. Mr. Blake no longer disputed the calculation of his IRBs. The remaining issues in dispute were Mr. Blake's residual earning capacity and the payment of IRBs between June 3, 1997 and September 27, 1999. I have addressed the former issue above and will now address Mr. Blake's entitlement to IRBs.

It is now conclusively settled that, with respect to accidents occurring between January 1, 1994 and November 1, 1996,²⁶ where the insured disputes the insurer's estimate of residual earning capacity, IRBs continue to be payable until one of the following occurs²⁷:

the parties reach agreement on the payment of LECBs;
the insurer opts to replace IRBs by LECBs in accordance with the findings of the REC DAC 14 days after receiving the report from the REC DAC (ss. 23(5));
the IRBs are replaced by LECBs based on the insurer's offer made under section 21, because of the insured's failure to co-operate in the REC DAC (ss. 23(6));
the IRBs are replaced by LECBs as determined under Part VI (section 31); or
it is determined under Part VI that no LECBs are payable (section 31).

The parties have reached an agreement on the payment of LECBs. Until this hearing, no final determination with respect to LECBs has been made. The only other circumstances which would permit Jevco to cease paying IRBs are subsections 23(6) or 23(5) of the Schedule.

Subsection 23(6)

Subsection 23(6) of the 1995 Schedule permits an insurer to begin making weekly LECBs based on its offer made under section 21 (in this case, the insurer made an offer of zero), if the DAC informs the insurer that no report has been submitted because of the insured person's failure to co-operate. I agree with Arbitrator Alves that section 23(6) has no application here, as WORK ABLE did not issue such a statement in 1997 following the two-week assessment. At Jevco's request, WORK ABLE subsequently issued a clarification in July 1999 explaining that the data obtained during the 1997 assessment was deemed to be both unreliable and invalid, secondary to Mr. Blake's inconsistent performance.²⁸ Again, this is not a statement that Mr.Blake failed to co-operate. Thus, subsection 23(6) does not relieve Jevco of its obligation to pay IRBs.

Subsection 23(5)

Subsections 23(5) and (5.1) of the 1995 Schedule provides that an insurer may commence paying LECBs in accordance with the findings of the REC DAC 14 days after receiving the report from the DAC under subsection 27(5). Subsection 27(5) provides that the centre shall submit a report that includes, among other things, a statement identifying the employment that best satisfies the criteria in subsection 30(2) and the centre's determination of the gross annual income that the person could earn from that type of employment.

The issue before Arbitrator Alves, and now before me, is when subsection 23(5) comes into play in this case, given the fact that two REC DAC evaluations have been held, and two REC DAC reports have been issued.

As mentioned earlier, WORK ABLE issued a lengthy report in May 1997, but it failed to include a statement identifying the employment that best satisfies the criteria in subsection 30(2) and the gross annual income that he could earn from that employment, as required by subsection 27(5). Accordingly, this was not a report under subsection 27(5), and Jevco was not entitled to invoke subsection 23(5) to begin paying LECBs to Mr. Blake based on it.

The September 1999 REC DAC concluded that the position of electronics assembler satisfied the criteria in subsection 30(2) and Mr. Blake could earn a gross annual income of $21,424 from that report. Jevco was entitled (pending this hearing) to commence paying LECBs 14 days after this report, as it met the requirements of subsection 27(5). It was entitled to pay LECBs based on its offer with respect to pre-accident earning capacity and the REC DAC's finding with respect to residual earning capacity.

Jevco submitted that in the unusual circumstances of this case, I should substitute the results of the September 1999 REC DAC for the results of the May 1997 REC DAC, allowing it to pay LECBs in accordance with subsection 23(5) from 14 days after the May 1997 assessment. Jevco pointed out that the results of many of the tests conducted in 1999 were similar to the results obtained in 1997 and, therefore, I can infer that Mr. Blake's condition remained the same throughout that period. Jevco submitted that the only significant difference between the test results was Mr. Blake's failure to co-operate fully in the 1997 assessment. Jevco submitted that Mr. Blake should not obtain a windfall from his failure to co-operate. Jevco submitted that requiring it to pay IRBs until the second REC DAC amounts to a penalty. Jevco emphasized that it was not responsible for the flaws in the first REC DAC report and that it had no means to compel Mr. Blake to submit to a second REC DAC assessment.

As stated earlier, the 1997 report is worded ambiguously and is equally consistent with a finding that the poor results were due to lack of effort or a finding that Mr. Blake's residual earning capacity was diminished by his chronic pain. I am not satisfied that the report demonstrates a failure to co-operate. Nor am I prepared to infer that Mr. Blake's condition has remained static since 1997. The change between the 1997 and the 1999 REC DAC results is equally consistent with a finding that Mr. Blake's pain tolerance has improved since 1997.

Neither Jevco nor Mr. Blake is responsible for WORK ABLE's failure to comply with subsection 27(5) by issuing a proper report or its failure to withhold a report and issue a statement of non co-operation under subsection 23(6).

Nonetheless, the obligation to continue paying IRBs continues until the issuance of a REC DAC report under subsection 27(5) and this did not occur until September 13, 1999. By virtue of subsection 23(5), Jevco is obliged to pay IRBs to Mr. Blake at the rate of $292.07 until 14 days after the issuance of this report, September 27, 1999. After that date, Mr. Blake is entitled to LECBs, if any are owing, calculated in accordance with my determination with respect to his residual earning capacity.

The payment of IRBs during this period does not result in a "windfall" for Mr. Blake, if by that Jevco means the receipt of benefits to which Mr. Blake is not entitled under the Schedule. The Schedule clearly contemplates that weekly benefits must be paid after 104 weeks, until one of the conditions outlined above occurs. There is no dispute in this case that Mr. Blake continued to meet the IRB entitlement test of being incapable of returning to his pre-accident employment throughout the period June 3, 1997 to September 27, 1999.

While the period of time between the 104-week mark and the issuance of a REC DAC is unusually long in this case, that is simply the result of the unique circumstances of this case.

The payment of benefits in accordance with the procedural provisions of the Schedule is not a "penalty." With respect to the argument that the interest provisions of the Schedule "penalize" insurers, I am obliged to apply the mandatory provisions of the Schedule regarding interest, and I have no authority to relieve against these provisions.

Finally, I note that Jevco was not entirely without a remedy. Upon receiving the report of the first REC DAC, Jevco opted to treat this as a statement that Mr. Blake was not co-operating.

That was not the only option open to it. Jevco could have arranged to have Mr. Blake attend another REC DAC.²⁹ Had Mr. Blake failed to co-operate, the provisions of subsection 23(6) come into play. There was no evidence before me that Mr. Blake was responsible for the delay in arranging the second assessment. Had Jevco taken steps to arrange the second assessment earlier, this might have shortened the time frame during which it was required to pay IRBs. On the other hand, it may be that Mr. Blake's condition improved between May 1997 and August 1999, such that his residual earning capacity increased. If so, the delay may have worked to the advantage of Jevco in this case.

SPECIAL AWARD:

At the commencement of the proceedings on November 29, 1999, Mr. Blake sought a special award for Jevco's delay in payment of the benefits owing as a result of the interim orders. In her letter decision dated September 14, 1999, Arbitrator Alves ordered Jevco to pay the interim benefits and disbursements, together with interest, forthwith. Her reasons were issued on October 28, 1999. Director's Delegate Draper's decision refusing Jevco's request for variation or revocation of the interim award was issued on November 9, 1999. By letter dated November 12, 1999, Mr. Blake's counsel advised that the outstanding amount was $72,811.53 and requested payment by November 19, 1999. By letter dated November 19, 1999 Mr. Blake's counsel advised that since payment had not been received, he would be seeking a special award. By letter dated November 26, 1999 counsel for Jevco advised that the funds to satisfy the interim order had been requisitioned, and that he anticipated they would be available by December 2, 1999.

When the hearing was held on November 29 and 30, 1999, the interim award had not been satisfied, but counsel for Jevco reiterated his earlier assurance that the funds would likely be made available by December 2, 1999.

I agree that interim orders should be complied with promptly. However, in light of the above chronology of events and Jevco's undertaking to satisfy the award by December 2, 1999, I am not satisfied that the delay of slightly more than two months was so unreasonable as to attract a special award.

EXPENSES:

The parties are urged to resolve the issue of expenses between themselves, failing which they may address this issue to me.

March 22, 2000

M. Kaye Joachim Arbitrator

Date