Neutral Citation: 2000 ONFSCDRS 93
FSCO A97-000956
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
PATRICIA ARMSTRONG
Applicant
and
GUARDIAN INSURANCE COMPANY OF CANADA (now known as Nordic Insurance Company)
Insurer
REASONS FOR DECISION
Before:
Shari Novick
Heard:
November 16, 17, 18 and 19, 1998, February 9 and 10, March 8, 9, 10 and 11, May 4 and 5, June 10, August 30, September 2 and 9, 1999, at the offices of the Financial Services Commission Of Ontario In Toronto.
Appearances:
Colin Still for Ms. Armstrong
Joan Takahashi for Guardian Insurance Company of Canada
Issues:
The Applicant, Patricia Armstrong, was injured in a motor vehicle accident on January 31, 1994. She applied for and received statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), payable under the Schedule.1 On October 29, 1996 Guardian terminated the weekly income replacement benefits it had been paying Ms. Armstrong. The parties were unable to resolve their disputes through mediation, and Ms. Armstrong applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
I was advised during the course of the hearing that Guardian was purchased by Halifax Insurance Company in 1998, at which time Guardian ceased to exist as a separate entity. All of Guardian's business is now conducted under the name of Nordic Insurance Company. Notwithstanding this change, I will refer to the Insurer throughout my decision as Guardian, as that was the name used during the hearing of this matter.
The issues in this hearing are:
Is Ms. Armstrong entitled to loss of earning capacity benefits ("LECB") pursuant to section 20 of the Schedule?
If so, what is her pre-accident earning capacity ("PEC") under section 29 of the Schedule?
If so, what is her residual earning capacity ("REC"), if any, under section 30 of the Schedule?
Is Ms. Armstrong entitled to a special award pursuant to section 282(10) of the Insurance Act on the grounds that Guardian unreasonably withheld or delayed payments?
Is Ms. Armstrong entitled to her expenses of the arbitration?
Is Guardian entitled to its expenses of the arbitration?
Result:
Ms. Armstrong is entitled to loss of earning capacity benefits from October 30, 1996 at the rate of $459.58 per week.
Ms. Armstrong's pre-accident earning capacity is $510.64 per week.
Ms. Armstrong's residual earning capacity is nil.
Ms. Armstrong is not entitled to a special award.
Ms. Armstrong is entitled to her expenses of the arbitration.
Background:
Patricia Armstrong was struck by a car on January 31, 1994 as she crossed the street near her home in Toronto. The front bumper of the vehicle came into contact with her left knee causing a fracture to the lateral tibial plateau. She underwent knee surgery to repair the fracture two days after the accident, and spent eight days recovering from the surgery at Sunnybrook Hospital. Ms. Armstrong was discharged with crutches and was instructed not to bear any weight on her left leg for a few months.
At the time of the accident, Ms. Armstrong was on her way to work at a brokerage firm where she had recently accepted a job as a clerk. This was to be her first day of work there. She had become licensed to work as a registered nurse in late 1992, and had spent most of the following year working on temporary assignments through three different nursing agencies at hospitals and private homes. Despite having accepted the job as a brokerage clerk just prior to the accident, Ms. Armstrong's long-term goal was to secure full-time employment as a registered nurse. These circumstances, coupled with the fact that her hours of work varied widely from week to week over the course of the year preceding the accident has led to several difficulties in calculating Ms. Armstrong's entitlements under the Schedule.
Ms. Armstrong moved to Peterborough to recuperate from her injury shortly after undergoing knee surgery in February of 1994. Although the degree of her disability and her ability to return to work at various points in time is in dispute, it is common ground that the job market for nurses in Peterborough was more limited than it was in Toronto during the relevant period. Extensive evidence was led during the hearing regarding the existence of nursing jobs in Peterborough. The question of whether Ms. Armstrong's residual earning capacity should be assessed based on the relevant circumstances in Toronto or Peterborough was also raised as an issue.
Fifteen witnesses testified about various medical, accounting and vocational issues throughout the course of 16 days of hearing in this matter. Several reports authored by medical experts who did not testify were also filed. I have also considered these reports in reaching my conclusions. While the evidence before me is voluminous, I will attempt to focus my recitation of it on that which is directly relevant to the main issues to be decided, namely, what Ms. Armstrong's pre-accident earning capacity was, and what, if any, residual earning capacity she has.
Overview of Main Events:
In order to appreciate the evidence that follows in the proper context, it is useful to set out the main events that followed the accident on January 31, 1994. As mentioned above, Ms. Armstrong moved to Peterborough after her knee surgery in early February 1994. She began bearing full weight on her left leg in late April 1994. She followed an initial course of physiotherapy from May until the end of June 1994, after which she was discharged with some restrictions. Her recovery was supervised by Dr. Stuart Parker, an orthopaedic surgeon in Peterborough that she was referred to by the doctor who had performed her knee surgery at Sunnybrook Hospital in Toronto.
Despite indications that the fracture had healed well, Ms. Armstrong continued to experience discomfort and tightness around her knee. In early July of 1995 Dr. Parker operated to remove the hardware that had been placed in the knee during the initial surgery, after which the Applicant resumed physiotherapy for approximately five months. In October of 1995 Ms. Armstrong settled the tort action commenced as a result of the accident.
As a result of continuing complaints of discomfort and a snapping or clicking sound, Dr. Parker conducted an arthroscopy of the Applicant's knee in late January 1996. While some minimal articular cartilage damage was noted, Dr. Parker reported that the fracture had healed well. In early April 1996 Guardian terminated the weekly benefits it had been paying to Ms. Armstrong, on the basis of Dr. Parker's opinion that she was ready to return to light duty nursing and clerical duties. Ms. Armstrong disputed the termination, and her benefits were subsequently reinstated.
Guardian forwarded a "nil" loss of earning capacity offer in late May 1996, which the Applicant rejected.
Ms. Armstrong attended a residual earning capacity DAC ("REC DAC") assessment in Oshawa in September 1996. Guardian advised Ms. Armstrong on October 16, 1996 that her benefits were being terminated as a result of the REC DAC assessment, which had determined that she was capable of returning to full-time employment as a nurse in a clinic or doctor's office at a higher annual salary than she had been earning prior to the accident.
EVIDENCE AND ANALYSIS
Applicant's evidence:
Patricia Armstrong was 41 years old at the time of the accident. She testified that she had worked at a variety of jobs after leaving high school and began working as a coding clerk at Wood Gundy, a brokerage firm in Toronto, in 1980. She explained that she had often considered becoming a nurse, and that she eventually left Wood Gundy in September of 1989 to pursue a four-month upgrade course in preparation for the nursing program at George Brown College. After completing that course, she enrolled in the nursing program in January 1990 and graduated in September 1992. Ms. Armstrong wrote her qualifying exams, and became a licensed registered nurse in December 1992.
The Applicant explained that she was interested in "floor nursing," but that there were very few full-time nursing positions available in hospitals in early 1993 as a result of extensive cutbacks in the health care field. She testified that she was unable to find full-time employment after graduation and that she registered with three nursing agencies - Paramed, CAPS and Carecor - from which she received various temporary assignments to care for patients at either hospitals or private homes.
Both the length of shifts and the number of shifts she was assigned to work per week varied over the course of the year prior to the accident. The evidence indicates that Ms. Armstrong worked between three and six shifts per week between February 1993 and mid-May 1993 on assignments from Carecor. She then worked between three and five shifts per week for eight consecutive weeks from May through July on an assignment from Paramed, caring for a palliative care patient at home. She testified that she worked several shifts as a floor nurse at St. John's Convalescent Hospital (St. John's) during the last half of 1993 on assignment from Carecor, interrupted only by a four-week assignment from CAPS in September and early October to care for a patient in hospital with a broken hip.
The nursing agencies paid Ms. Armstrong between $17 and $20 per hour for these assignments, inclusive of vacation pay.
The Applicant stated that she preferred working in a hospital setting over caring for patients at home, and had really enjoyed working at St. John's. She testified that she had approached someone in the personnel department there in September 1993 to inquire about being hired as a part-time casual employee. She explained that hospitals were not hiring full-time employees at that time and that "part-time casual" employees were generally assigned full-time hours, but did not receive any benefits. She stated that she was told that her name would be put on a list of candidates and that she was advised towards the end of 1993 that she was second on this list.
Ms. Armstrong testified that she found out from a former co-worker in early January 1994 that Bunting & Warburg, a brokerage house in Toronto, was looking for a brokerage clerk. She explained that at that point in time she felt somewhat uncertain about her ability to earn enough income from temporary nursing assignments, and decided to apply for the job. After completing a three-week training session, Ms. Armstrong was offered a full-time job as a clerk. She stated that she advised the manager who had offered her the position that she was interested in the job, but had concerns about accepting full-time employment as she wanted to remain available for nursing work, which was her first priority. She testified that she was told that a flexible arrangement could be worked out that would accommodate her nursing schedule, and that she accepted the job on that basis.
Ms. Armstrong stated that she had arranged to work at Bunting & Warburg from Monday through Wednesday, and had advised the nursing agencies that she would be available to work nursing shifts from Thursday to Saturday. She explained that she had been excited about these arrangements, as this would give her the "best of both worlds" — a guaranteed steady income from the brokerage work, as well as the opportunity to work as a nurse, which she enjoyed.
The accident occurred as Ms. Armstrong was on her way to work on the Monday morning of the first "split shift" week. She recalled that the driver of the car that hit her brought her to Sunnybrook Hospital, where she was told that she would require surgery to repair her fractured tibial plateau.
Ms. Armstrong testified that she decided to move to Peterborough after her surgery, explaining that her brother and sister-in-law lived there and had offered to look after her. She stated that she had originally intended to return to Toronto after four months but that she grew to like Peterborough and enjoyed being around her family, and decided to move there permanently in April 1994.
Ms. Armstrong testified that she had began to inquire about employment opportunities in Peterborough in March 1994, and estimated that she had sent out between 30 and 40 resumes to various potential employers for nursing positions. She stated that when she did not receive any responses to her nursing inquiries by the fall of 1994, she began sending out resumes to businesses seeking clerical workers, but was told that her skills were outdated. Ms. Armstrong stated that she began taking a critical care nursing course in March 1996 in order to qualify for work in a hospital intensive care unit. She explained that she completed six of the seven required courses but due to problems she was experiencing with her knee, was not able to complete the last course which consisted of a 300-hour clinical placement. She testified that she had become quite discouraged about finding a job as a nurse after consistently hearing about nurses being laid off, especially in the area of critical care.
Finally, when asked whether she would have been physically capable of performing nursing duties if she had been able to find a job in that field, Ms. Armstrong responded that while she had not initially believed that she was physically restricted from doing so, she realized as time passed that she would likely not be physically capable of doing what was required.
Medical evidence and findings:
The medical evidence in this case focussed on two issues — Ms. Armstrong's level of disability with regard to her left knee and associated symptoms, and whether she was psychologically disabled as a result of the accident and suffering from chronic pain syndrome or somatoform pain disorder.
Orthopaedic evidence:
Dr. Terry Axelrod, the surgeon who performed the open reduction and internal fixation procedure on Ms. Armstrong in Toronto, reported that the Applicant sustained a lateral tibial plateau fracture in her left knee with significant joint depression. Dr. Axelrod noted that the surgery and related bone graft were successful and that the usual recovery time for this type of injury is four to five months. He predicted that Ms. Armstrong would likely be able to return to her duties as a floor nurse in six month's time.
Ms. Armstrong was seen by four different orthopaedic surgeons after relocating to Peterborough. As mentioned, Dr. Axelrod referred her to Dr. Parker, whom she saw several times until April 1996. Ms. Armstrong was sent to Dr. Basil Johnston for an Insurer's Examination in March 1996, and due to the differing opinions of these two doctors regarding her ability to return to nursing work, an assessment was arranged by the rehabilitation consultant retained by Guardian with Dr. R.C. Webster at the Oshawa Clinic in July 1996. Subsequent to this, Ms. Armstrong requested a referral from her family doctor to another orthopaedic surgeon, and she then saw Dr. Bernard Blastorah in late 1997 and early 1998. As Ms. Armstrong's complaints changed significantly over time, I will outline the findings of each of these doctors below.
Dr. Parker's notes of his consultations with Ms. Armstrong through the spring and summer of 1994 indicate that her fracture had healed well, and that she had regained full range of motion in her knee. In an August 1994 note to the rehabilitation consultant, Dr. Parker indicated that the Applicant was capable of returning to work as a nurse on a gradual basis. He recommended that she start by working four hours per day and suggested that she limit the time spent standing and walking. Dr. Parker subsequently noted in September 1994 that Ms. Armstrong seemed to be doing well, and that other than some discomfort over the outside of her knee when she climbed stairs, she had no other complaints of pain.
Ms. Armstrong testified that by the summer of 1994 she was able to walk around town for several hours each day. She stated that she would generally cover between five and seven miles during these walks, but emphasized that she walked slowly and took many breaks.
Ms. Armstrong returned to see Dr. Parker in April 1995, with complaints of persistent aching and tightness around her knee. He felt that this was likely being caused by the soft tissue surrounding the knee rubbing against the screws that had been inserted into the side of her knee during her surgery. He testified that while this would not have interfered with the functioning of the knee he felt that it would benefit Ms. Armstrong to have the plate and screws removed, and that he operated on her knee for this purpose in July 1995. Ms. Armstrong completed a five-month course of physiotherapy afterwards, and at the time of her discharge in November 1995 was described as "still having problems, but functional."
Dr. Parker noted in follow-up several months later that although the Applicant's knee seemed stable on examination, she continued to complain of pain and tightness in the area and of her knee "locking." He testified that he decided to perform an arthroscopy to check the state of the cartilage on the surface of her knee, and to determine whether there were any meniscal tears. The arthroscopy was performed on January 31, 1996, exactly two years after the accident. Dr. Parker's report of the procedure indicates that no meniscal tears were found, that there was a small groove in the articular cartilage and that early, minimal degenerative changes in the articular cartilage were evident on the medial side or inside of Ms. Armstrong's knee. He also noted some tiny osteophytes or spurs in the area, explaining that this usually indicates the onset of osteoarthritis in the joint. He testified that while the small groove in the cartilage could occasionally cause pain, the minimal degenerative changes he noted were common in a patient her age who had not sustained any trauma.
Dr. Parker stated that he had not observed anything during the arthroscopy that would explain either the pain that Ms. Armstrong complained of or her reports of the knee locking. He testified that while some mild residual symptoms were to be expected from the type of injury she had sustained, he would not expect them to be disabling two years later.
Ms. Armstrong testified that she had begun to develop hip pain at this point in time, and that she could not bend, stoop or walk quickly. She also reported having difficulty walking up and down stairs.
Dr. Parker was asked by the rehabilitation consultant in February 1996, shortly after performing the arthroscopy, whether Ms. Armstrong was capable of returning to work. He responded that she would soon be able to return to light nursing duties for four to six hours per day. He felt that after a six-week period of reduced hours, she should be able to return to work on a full-time basis.
Dr. Parker last saw the Applicant for a follow-up consultation in April 1996. His note from that visit indicates that Ms. Armstrong reported many aches and pains, some of which he felt were unrelated to the accident. On examination, he reported full range of motion in her knee, no effusion or swelling and that the knee was stable. His closing comment was that while the arthroscopy had shown minimal articular damage to the cartilage in the lateral tibial plateau "which will probably predispose to some osteoarthritic changes later in life," the Applicant had made an excellent recovery and there was no need for further investigation or treatment.
When questioned closely about his opinion that Ms. Armstrong was capable of returning to work as a nurse, Dr. Parker acknowledged that as of April 1996 she would have been restricted from lifting, turning and bathing patients, and that she would likely need to sit down to rest her leg every few hours.
Guardian sent Ms. Armstrong for an insurer's examination on March 20, 1996 at Wellness Works, a multidisciplinary rehabilitation and assessment facility in Peterborough. She was examined there by Dr. Johnston, who noted that she complained of aching in her knee with a sharp pain radiating down the front of her leg, and pain on bending her knee while climbing stairs. His examination revealed restricted knee flexion accompanied by pain. Dr. Johnston commented on Ms. Armstrong's level of disability as follows:
She continues to have a degree of disability related to the knee on walking, climbing, stooping tolerance. In my opinion she would not be ready to return to an active nursing job at this stage of the game but might well be capable of performing the necessary duties of a more sedentary type of occupation.
I suspect that she will gradually improve over the current status but incomplete recovery is anticipated and she may well go on to some degree of arthritic change affecting the knee related to the fact of the intra-articular injury to begin with.
Dr. Johnston reported that Dr. Parker's statement that Ms. Armstrong was ready to return to work as a nurse at that point was "perhaps unduly optimistic given the level of discomfort I saw on interview today." He opined that she would eventually be able to perform nursing duties, but that she would likely have persistent symptoms in her knee. Finally, Dr. Johnston stated that it remained to be seen whether Ms. Armstrong would sufficiently recover from her injuries to be able to resume private duty nursing, particularly if it involved prolonged standing or "physical management of disabled patients."
Dr. Parker testified at the hearing, and was asked to comment on Dr. Johnston's findings and opinion. He noted that some of his findings upon examination of Ms. Armstrong were inconsistent with those of Dr. Johnston. He also disagreed with the opinion expressed by Dr. Johnston that Ms. Armstrong was not ready to return to active nursing as of April 1996.
Ms. Armstrong also underwent a Functional Capacity Evaluation at Wellness Works in early April 1996. Fergal O'Hagan, the clinic manager and staff kinesiologist at the facility, testified that inconsistencies in the results of the tests administered to assess Ms. Armstrong's mobility and strength led him to conclude that she had significantly underrated her ability and had not put forth maximal effort. In any event, in considering her functional deficits and the demands of both clerical and nursing work, Mr. O'Hagan testified that Ms. Armstrong's functional abilities were "largely consistent" with the critical demands of her previous job as a brokerage clerk, but were "not consistent" with the critical demands of her other pre-accident employment, namely that of a private duty nurse. Mr. O'Hagan found that Ms. Armstrong displayed the capability of "maintaining a work schedule of half days involving light physical demands."
The Wellness Works report recommends that the Insurer fund a computer upgrading course and a driver's education program for Ms. Armstrong, and that she participate in a pain management and work hardening program. In setting out the rationale for the computer course, the report states:
Ms. Armstrong will likely not be capable of returning to the nursing profession in the capacity of general or ward nurse due to functional limitations. Private duty nursing may not (be) feasible either given her physical restrictions as well as lack of independent transportation. As such any related nursing may require her to utilize her clerical skills. The competition in this area is quite fierce and these courses would enhance her skills.
On the basis of the Wellness Works report and Dr. Parker's opinion that she could return to light duty nursing and clerical duties, Ms. Armstrong's income replacement benefits were terminated.
As stated above, another insurer's examination was set up in July 1996 with Dr. Webster, an orthopaedic surgeon in Oshawa, in an effort to reconcile the differing opinions of Dr. Parker and Dr. Johnston regarding Ms. Armstrong's ability to return to nursing work. Dr. Webster determined that the Applicant was capable of returning to clerical duties and to light duty nursing, but stated that she should avoid prolonged standing and walking as well as "sustained kneeling and crouching and heavier lifting and carrying, pushing and pulling." He noted that these movements formed part of "essential functions on a routine nursing ward."
When questioned closely about his findings regarding the Applicant's ability to work as a full-time nurse, Dr. Webster stated that when he saw her in July 1996 she would have been capable of performing the duties that would be required of a nurse in a doctor's office or medical clinic, but that she would not have been capable of performing any of the heavier duties required of nurses in a hospital setting, such as lifting or transferring patients.
Ms. Armstrong began a work hardening program in late August 1996. The stated goal of the program was to improve her functional abilities to the point where she could perform nursing-type tasks on a sustained basis for 24 hours per week, which was identified as her pre-accident level of functioning. Ms. Armstrong's participation in the program was interrupted for two weeks in early September 1996 to attend a REC DAC assessment in Oshawa. Mr. O'Hagan stated that he and the other staff at Wellness Works who were involved in the Applicant's program noted that her attitude deteriorated upon her return from the REC DAC to the point where it was ultimately felt that there was no point in her continuing to participate in the program.
Mr. O'Hagan testified that Ms. Armstrong was discharged from the program without any final testing having been done and that it was therefore not possible to determine her functional level at that stage. When cross-examined about whether the Applicant's functional abilities were consistent with the duties of a nurse at that point in time, he responded that they were not.
The REC DAC report outlines various physical and vocational findings. The report's vocational findings are discussed in detail in the next section of this decision. Ms. Armstrong's physical condition is summarized in the report as follows:
She appears to have a persisting disability with respect to her left knee. She may experience greater discomfort if she spends long periods of time on her feet, and is required to do squatting, climbing or heavy lifting. Vocational possibilities have to consider the potential to limit standing and walking or provide the opportunity for postural changes during the workday. She is developing pain in the right hip which currently limits to some extent her walking tolerance and causes some discomfort if she sits for an extended period of time.
The physiotherapist involved in the REC DAC assessment reported that Ms. Armstrong would likely have difficulty in vocations requiring prolonged standing, walking and sustained squatting postures as well as stair climbing.
The REC DAC assessors concluded that Ms. Armstrong was able to perform the essential tasks of a registered nurse in a clinic or doctor's office, positions which are described as having light level work demands."
I find that Ms. Armstrong was substantially disabled in October 1996 from performing the essential tasks of either a "floor nurse" in a hospital setting or of a private duty nurse. I find, however, that she was not substantially disabled from performing lighter nursing tasks, such as those required of a nurse in a doctor's office or clinic. I also find on the evidence that she was able to perform the essential tasks of a brokerage clerk, albeit not on a full-time basis, at the relevant time.
While there was some difference of opinion among the orthopaedic surgeons who treated and assessed Ms. Armstrong, the weight of medical evidence suggests that her knee would not stand up to the physical nature of nursing tasks on a hospital ward. Dr. Parker stated that she might be able to complete the required tasks if she could sit down and rest her leg every few hours, or get someone to assist her in pushing carts or carrying heavier items. I do not find that to be a realistic expectation on a busy hospital ward. Nurses are counted on to provide care to patients and to be available to perform various tasks throughout the course of their shifts, and cannot expect to be on the receiving end of the care that they are supposed to be administering,
I note the Work Site Analysis done by WORKABLE Centres at St. John's Rehabilitation Hospital in September 1995, the facility at which the Applicant had worked most of her shifts over the course of the six months prior to the accident. That analysis rated the strength level of a nurse's job as "light," which is defined as requiring "lifting 17.5 to 27.5 pounds with frequent lifting and/or carrying of objects weighing 10 to 15 pounds" and includes the requirement to walk or stand to a significant degree. The report also sets out the following occupational requirements — pushing a medication cart down the corridor and lifting and carrying medication trays weighing up to 15 pounds, assisting in patient transfers from beds to wheelchairs or walkers and repositioning patients with casted limbs.
Both Dr. Johnston and Dr. Webster stated that Ms. Armstrong should avoid prolonged standing and walking and would not be capable of lifting and transferring patients. This is consistent with the findings of the assessors who conducted the FCE at Wellness Works in April 1996. Their report noted that Ms. Armstrong's functional abilities were not consistent with the critical demands of a private duty nurse, and I accept these findings.
I also find that the analysis of Ms. Armstrong's functional abilities should focus primarily on her ability to perform the essential tasks of a nurse in a variety of settings, and only secondarily on her ability to perform clerical duties. While she had accepted a job as a brokerage clerk at Bunting & Warburg just prior to the accident, the evidence was clear that other than the three weeks of training she had completed there in January 1994 before being offered the position, she had worked as a nurse for the entire year before the accident and intended to keep nursing as her primary vocational goal. Ms. Armstrong's evidence on this point was uncontested and I accept it. Her motivation to become a nurse was evident from her decision to leave a secure job at Wood Gundy to spend three years at nursing school, study for and write the qualifying exams and then register with three nursing agencies, seeking temporary assignments. While she was not asked to speculate about what she would have done if she had received an offer of part-time casual employment at St. John's Convalescent Hospital while working at Bunting and Warburg (if the accident had not intervened), I think it is fair to say that all factors point toward her accepting the position.
This approach is consistent with the consideration of a person's "vocational and personal characteristics" mandated in section 30 of the Schedule as part of the assessment of an insured's residual earning capacity.2
While both Dr. Webster and Dr. Parker testified that Ms. Armstrong's residual complaints of pain around her knee and hip were not directly attributable to the accident, the relevant test is whether the accident was a "significant" or "material contributing factor."3 Neither of these witnesses were asked specifically whether they considered the accident to be a significant or material contributing factor to Ms. Armstrong's residual complaints. While I accept their statements that it is not uncommon for someone in their forties who has not experienced any trauma to display early signs of osteoarthritis of the knee, there was no evidence to suggest that Ms. Armstrong had anything but a perfectly functioning left knee prior to the accident. I find it hard to believe, and do not accept, that the trauma suffered by that joint as a result of its impact with a moving car, or of the three subsequent surgical procedures conducted as a result, would not have contributed materially to the degenerative changes noted.
Ms. Armstrong subsequently consulted Dr. Bernard Blastorah, another orthopaedic surgeon in Peterborough, in November 1997 and subsequently in May 1998. Dr. Blastorah reported after the November 1997 examination that her knee pain is "not explainable on the basis of her injury nor of the arthroscopic findings of 1996" and referred her for an MRI.
The MRI was conducted in late March 1998. The radiologist's report notes some degenerative change in the medial tibial compartment of Ms. Armstrong's knee "most likely related to chronic degenerative change." Given that the location of her fracture was on the lateral (outside) and not the medial (inside) side of her knee, clarification was requested from Dr. Moore, the radiologist who performed the MRI. Dr. Moore responded in a letter confirming her report that "incidental mild changes were noted laterally."
Dr. Parker indicated in a further letter that he had reviewed the MRI films and that the degenerative changes noted in the lateral and the medial compartments of Ms. Armstrong's knee are very mild, and are consistent with what he observed during the arthroscopy. He testified that given the findings on both the arthroscopy and the MRI, he would expect Ms. Armstrong to experience only mild aching and discomfort about the knee as well as mild swelling or stiffness after prolonged activity.
A July 1998 report from Dr. Blastorah requested by Ms. Armstrong's counsel states that the Applicant's complaints of pain are out of keeping with her injury, and that there is no objective evidence to support her complaints.
Dr. Blastorah also prescribed the knee brace that the Applicant began wearing in October 1998. It is made of hard plastic and runs down the length of her left leg, with a large hinge in the area of her knee. A belt that circles her right hip is attached to the brace, and an insert fits into her left shoe. Ms. Armstrong testified that the brace keeps her knee supported and makes her feel more mobile. Even with the brace, she walks with her left foot pointing inward. This brace became the subject of much commentary by the medical experts who testified at the hearing. The relevant documentation describes the brace as a "weight relieving osteoarthritic type" brace. Dr. Parker testified that he would not have prescribed this type of brace for Ms. Armstrong, but would have suggested that she wear a "neoprene sleeve" brace if she felt that she needed extra support around her knee. Dr. Parker also stated that he would not have recommended the modifications to the brace that were effected by the orthotist who fit the brace, such as the hip belt and the shoe insert.
Finally, Ms. Armstrong was sent for a Work Capacity Evaluation at AssessMed in October 1998, approximately one month prior to the commencement of the hearing. She was examined by Dr. Jack Richman, who specializes in occupational medicine and pain management. Dr. Richman reviewed the results of the MRI, and explained that the early stages of osteoarthritis noted in the report are normal for an active person in her forties, and that he would not expect this to be symptomatic or painful. Dr. Richman stated that there was no medical reason for Ms. Armstrong to be walking with her left foot internally rotated or "toed in," and that this would likely aggravate her pain.
Dr. Richman accepted that the Applicant continued to feel pain in her left knee, stating that it is common to experience chronic pain after the type of injury she suffered. He opined, however, that despite the fact that she felt pain, she would be capable of performing the essential tasks of both clerical and nursing work. He recognised the heavy nature of the duties involved in nursing on a hospital ward, and stated that it would be preferable for Ms. Armstrong to engage in lighter duties characteristic of a non-hospital environment.
The Applicant's evidence regarding her level of disability is at odds with that of the medical experts. The gist of her evidence is that while her knee seemed to be healing well throughout 1994, its condition deteriorated as time passed to the point where she is now totally disabled from working. Ms. Armstrong testified that she continues to feel pain around her knee, that she has developed pain in her hip and lower back and that her left foot points inward as she walks. I cannot accept Mr. Armstrong's evidence that she is totally disabled. The arthroscopy performed in January 1996, the MRI done in March 1998 and the various examinations conducted before and after these events by the four orthopaedic surgeons that examined Ms. Armstrong, all indicate a lack of organic findings to support her significant complaints of pain and instability in her knee.
The focus of the inquiry into an applicant's entitlements under the Schedule is on what she is functionally capable of doing, as opposed to the precise medical diagnosis for her condition or whether she continues to feel pain as a result of her injury.4 I find that there is no medical evidence of an orthopaedic nature to support Ms. Armstrong's claims that she is unable to perform the essential tasks of a light-duty nursing job.
Psychological evidence:
A lack of objective findings to support complaints of pain is not unusual in the aftermath of trauma such as a car accident, in situations where those injured develop chronic pain syndrome or other types of somatoform disorders. Dr. Gordon Powell, the Applicant's family doctor, opined in a report dated October 21, 1998 that Ms. Armstrong has "an incomprehensible pain pattern and is severely disabled at the present time due to somatoform disorder." He stated that she was "clearly totally disabled and will probably remain so into the indefinite future." I do not accept this opinion for reasons which are explained below.
Dr. Sandra Feighen is a psychologist who was associated with Wellness Works in Peterborough at the relevant time. She conducted 15 sessions of supportive counselling with the Applicant from July 1996 to February 1997, explaining that her initial sessions with Ms. Armstrong parallelled her participation in the work hardening program at Wellness Works. Dr. Feighen explained that she had done the standard psychological screen performed on all candidates for the program, and felt that the Applicant needed psychological support during the program due to the high level of anxiety she was experiencing. Dr. Feighen testified that at the point at which she had completed her sessions with Ms. Armstrong in February 1997, there was a low probability that she would be employable from a psychological perspective in a job that involved contact with the public or co-workers. She explained that the Applicant was paranoid in her thinking, did not present herself well and was depressed.
Ms. Armstrong's counsel later asked Dr. Feighen to provide an opinion as to whether Ms. Armstrong suffers from a chronic pain syndrome or somatoform pain disorder. She indicated in a report dated November 6, 1998 that the Applicant displays significant features of a somatoform pain disorder, but that "the larger diagnostic picture indicates that motivational factors having to do with personality and adaptive functioning are responsible for her failure to respond to treatment and for the persistence of her disability behaviour."
Ms. Armstrong underwent a psychological/psycho vocational assessment as part of the REC DAC process by Dr. Allan Anderson, a psychologist. Dr. Anderson administered various tests and concluded that the assessment yielded "mixed results about the extent to which her psychological distress and pain is affecting her functioning."
The Insurer filed a report prepared by Dr. Hemendrah Shah. Dr. Shah is a psychologist who conducted a psychological assessment as part of the AssessMed evaluations in October 1998. His report notes the existence of response bias on two of the psychometric tests administered to Ms. Armstrong, and states that the results of the other tests would likely "over-represent her symptomatology." Dr. Shah concluded that Ms. Armstrong was not disabled from a psychological perspective from performing the essential tasks of her occupation or her activities of daily living as a direct result of the accident. He stated that her symptoms were most likely due to pre-existing difficulties and the lack of suitable employment in Peterborough. Dr. Shah indicated that the prognosis for Ms. Armstrong's recovery was "guarded." When subsequently asked by counsel for the Insurer to clarify what he had meant by that statement, Dr. Shah indicated in a subsequent letter that although there was no guarantee, "it is my opinion that gainful employment would improve her prognosis."
The results obtained in the testing administered by Dr. Anderson and Dr. Shah were raised in Dr. Feighen's cross-examination. When questioned about whether Dr. Shah's findings regarding response bias on the part of the Applicant would change her opinion, Dr. Feighen acknowledged that this raises the question of the validity of the information Ms. Armstrong provided, upon which she based her diagnosis. When counsel for Guardian referred Dr. Feighen to the testing done by Dr. Anderson during the REC DAC assessment that did not support a diagnosis of chronic pain disorder, she acknowledged that her opinion could be called into question. Finally, when questioned about whether there were any psychological barriers to Ms. Armstrong's employability in the fall of 1996, Dr. Feighen responded that there were not, and stated that if there had been a job available that she could have physically performed, she would have been psychologically capable of doing so.
On the basis of this evidence, I find that Ms. Armstrong was not disabled from a psychological perspective from performing the essential tasks of her pre-accident employment. While Dr. Feighen suggested that the Applicant displayed some features of a somatoform pain disorder, her opinion was not based on any testing. She also clearly retreated from her diagnosis, when confronted with the results of psychometric testing administered by Dr. Shah. Dr. Powell's opinion that she was disabled due to somatoform pain disorder was also not backed up by any testing. Considering all of the evidence, I accept Dr. Feighen's statement that if there had been a job that Ms. Armstrong could have physically performed in the fall of 1996, her psychological state would not have prevented her from doing so.
Accordingly, there is no evidence, other than that of Ms. Armstrong herself, to support a finding that at the time her benefits were terminated in October 1996, she was disabled from performing light-level nursing duties. In the face of overwhelming medical evidence that her knee fracture had healed well and that the mild degenerative changes noted would likely not be symptomatic to the degree alleged, and in light of the various examples of inconsistencies noted on assessments with respect to her mobility and strength, I cannot accept Ms. Armstrong's unsubstantiated claims of disability.
Consequently, I find that by the fall of 1996 Ms. Armstrong was not capable of performing the essential duties of a floor nurse on a hospital ward or those of a private duty nurse, but that she was capable of performing light nursing duties on a less than full-time basis, along with part-time clerical duties.
Vocational evidence and findings:
The REC provisions in the Schedule require that once an applicant's functional capabilities have been determined, the inquiry must shift to whether suitable employment exists and is accessible in the area in which the applicant lives. The parties each tendered evidence relating to the existence of suitable employment for the Applicant in Peterborough. Aside from Ms. Armstrong's testimony relating to her efforts to find work, two witnesses testified on her behalf about the state of the job market for nurses in Peterborough — Janet Donaldson, a registered nurse who sought employment in Peterborough at different times between July 1992 and November 1995, and Brad Sim, an employment counsellor at the Human Resources Development Canada office in Peterborough.
The Insurer relied on the evidence of Shanthi Howe, an occupational therapist who was part of the REC DAC assessment team, and on that of Dana McGee, a rehabilitation consultant it retained to prepare a Transferable Skills Analysis and Labour Market Survey in early 1996.
Janet Donaldson is a registered nurse who moved to Peterborough in July 1992. She explained that nursing positions have been difficult to obtain in that city since 1994, due to the merger of the two hospitals in town and cutbacks in the health care system generally. She stated that there have been numerous rounds of layoffs of nurses since 1994, and that a nurse without recent work experience has virtually no chance of getting a job.
Ms. Donaldson testified about the efforts she had made to seek employment between July 1992 and November 1995 when she began her current job. These included applications she made for nursing positions at the hospital, various clinics, a doctor's office and a nursing registry. She stated that jobs in clinics and doctors' offices are much sought after because they usually feature regular hours as opposed to shift work, and that a nurse without current skills would not be chosen for these positions over someone with experience. She stated that as a result of her personal experience and discussions she has had with her peers, she believes that the Applicant would not have been able to find a job as a nurse in Peterborough in 1996, given that she had not worked in over two years and that nurses with five to ten years of experience were being laid off.
While I accept Ms. Donaldson's evidence with regard to the general state of the job market for nurses in Peterborough up to late 1995, I do not attach much weight to her opinion regarding Ms. Armstrong's employability during 1996. She is not an expert in vocational matters or labour market analysis, and more significantly, her efforts to find employment ended in late 1995 when she began her current job. Given that the focus in this case is on whether suitable employment existed for Ms. Armstrong in late 1996, I find Ms. Donaldson's evidence to be of limited use.
I similarly found the evidence of Brad Sim to be of limited value. Mr. Sim is an employment counsellor at Human Resources Development Canada (HRDC) in Peterborough. He worked with Ms. Armstrong for approximately six months in the latter part of 1996, and wrote a letter on her behalf in which he stated that "taking into account her physical condition, experience, and the extremely competitive labour market, Pat is unemployable." He stated that there were far more qualified nurses than job openings in Peterborough during that time.
However, it became clear during the course of Mr. Sims' cross-examination that his opinion regarding Ms. Armstrong's employability was primarily based on his perception of her medical restrictions, which in reality were not as severe as he had been led to believe. As a result, I do not attach any weight to the opinion he expressed. I do, however, accept his general comments regarding the state of the job market for nurses in Peterborough at the relevant time. Dana McGee testified that she was retained by Guardian to prepare a Transferable Skills Analysis and Labour Market Survey report and that she met with Ms. Armstrong and took a detailed work history from her in the course of preparing her reports. She noted in her report that the Applicant was anxious to return to work, but had become frustrated in her job search due to the extremely poor economic situation at that time.
Ms. McGee explained that she contacted the Canada Employment Centre, Manpower and various other employment agencies in preparing her February 1996 report, and that she had come up with six suitable positions that Ms. Armstrong could perform that were in keeping with her preferences and physical restrictions. These were - nurse in a doctor's office, private duty nurse, geriatric care nurse, rehabilitation consultant, medical assistant and medical secretary. All of these positions, except the last one, offered a salary range roughly comparable to what the Applicant had earned as a nurse in Toronto before the accident, taking into account the lower cost of living in Peterborough.
Ms. McGee conceded that she had not verified that any of these positions actually existed in Peterborough. As well, she stated that with the exception of the rehabilitation company, none of the sources she had contacted were accepting resumes at that time. She noted that a vehicle was required as a condition of employment with the rehabilitation company, and that Ms. Armstrong does not drive.
Ms. McGee also noted that most health care facilities in the area were in the process of merging in early 1996 and were consequently reducing the number of nurses on staff. Her report states that despite Ms. Armstrong's genuine interest in returning to work, it would be difficult for her to obtain employment, given the poor economic situation in Peterborough. I accept her findings in this regard. Ms. McGee acknowledged in her testimony that the Applicant had done all that she could have possibly done to access the employment market at that point in time.
Ms. Armstrong also underwent a vocational assessment as part of the multidisciplinary assessment she attended at Wellness Works in April 1996. While I heard no specific evidence about this aspect of the assessment, I note that a Job Market Analysis is attached as an appendix to the report, which sets out various details regarding the position of a nurse in a clinic or doctor's office. The report sets out the applicable wage ranges for nurses in the Peterborough area, as well as the number of vacancies during the years 1994, 1995 and 1996. These figures indicate that there were no vacancies for any nursing positions of any type in 1996 at the Canada Employment Centre, and that two nursing positions were advertised in the newspaper. The report also notes that 53 people in that category had registered to claim Employment Insurance benefits in 1994 and that 43 had done so in 1995. It also comments that nursing positions in a doctor's office or clinic "are scarce, making this option in terms of reasonable employment within this district somewhat suspect." I accept these findings as being reflective of the poor job market facing nurses in Peterborough at the relevant time.
RECDAC assessment:
Ms. Armstrong participated in a REC DAC assessment in Oshawa in September 1996. After observing her performance through the various stages of the two-week program, the assessors reached the following conclusions:
...it was determined that Ms. Armstrong's residual earning capacity is best represented by the NOC Code 3152, registered nurse in a clinic or doctor's office. These positions do exist in Peterborough and Oshawa thus are accessible to Ms. Armstrong. The wage table lists the entry level salary as $32,898.00 which may require verification due to the existing differences in institutional versus private sector salaries in this job type.
Ms. Armstrong demonstrated that she is able to perform the essential tasks of this employment, with appropriate work behaviour and personal characteristics.
The Applicant's benefits were terminated in late October 1996, shortly after the REC DAC report was issued.
Shanthi Howe, the occupational therapist involved in the assessment, testified about the Applicant's participation in the REC DAC. Ms. Howe was questioned thoroughly about the underlying basis of the conclusions expressed above. She explained that the salary figure of $32,898 was obtained from the OIC 1996 Wage Guidelines for the NOC code 3152,5 which includes all nursing positions, including those who work in hospitals. She stated that the wage figures provided in the guidelines are province-wide and do not reflect regional differences or disparities in salaries paid. She also acknowledged that many of the nursing positions that comprise the category cited include heavy physical demands, and conceded that the assessment team was aware that Ms. Armstrong was restricted to performing light duties.
Ms. Howe explained that the REC figure stated above was also based on the assumption that the Applicant was capable of working full-time hours. She stated that Ms. Armstrong's attendance at the five-day work simulation between 9 and 4 p.m. during the second week of the REC DAC assessment demonstrated that she was able to work full time. When asked about what the Applicant had been asked to do during the work simulation, Ms. Howe acknowledged that she had not been given any simulated nursing tasks to perform, but had instead been tested on her manual dexterity and ability to walk, stand, reach, crouch, lift and carry items.
Finally, when asked whether any investigation had been done regarding the availability of nurses' jobs in clinics or doctors' offices in Peterborough, Ms. Howe responded that general inquires had been made, but stressed that the mandate of the REC DAC assessment did not extend to placing people in jobs or determining whether a specific job is available. When questioned closely about the inquiries that had been made, she responded that the director of the assessment centre usually makes a few calls and added that she had consulted bulletins that she received from hospitals and associations, in which available positions are mentioned. Ms. Howe ultimately acknowledged that the statement in the REC DAC report to the effect that nursing positions do exist in doctors' offices and clinics in Peterborough was imprecise."
I have several concerns regarding the conclusions reached in the REC DAC report. The assessors determined that Ms. Armstrong was capable of working full-time hours as a nurse, because she had participated in the work simulation for five consecutive days, between the hours of 9 and 4 p.m. However, it is clear from the report and from Ms. Howe's evidence that the work simulation portion of the assessment consisted of the Applicant undergoing certain tests to determine her tolerance for isolated tasks such as walking on the treadmill, or manual dexterity, as opposed to her ability to perform genuine nursing functions such as pushing a medication cart, making a bed or transferring a patient. I note that to the extent that she was asked to participate in any work activities, the focus was on office-type duties, such as keyboarding and taking dictation.
On the other hand, the conclusion reached by the assessors at Wellness Works, set out in the discharge report issued in mid-November 1996 after her participation in the work hardening program, noted that she was only capable of performing light nursing duties on a part-time basis. I prefer this evidence over that of the REC DAC, given that the work hardening program was specifically geared to improving her condition and functional abilities with respect to the physical demands of nursing, and required her to participate in nursing-type activities. I find this to be a more reliable indicator of Ms. Armstrong's ability to tolerate the demands of nursing work, as it measured her ability to perform the "whole" of the tasks that are the focus of the analysis, as opposed to isolated actions or movements.
Clearly, if Ms. Armstrong was only capable of part-time work at the relevant time, her REC would be lower than if she was able to work full time. I note that the findings in the medical part of the assessment cited above also suggest physical limitations which would restrict her to working part time, as opposed to full-time hours.
I also find the annual salary figure of $32,898 arrived at by the REC DAC assessors to be problematic from another angle. While this amount was taken directly from the OIC Wage Guidelines, it corresponds to the NOC code 3152, which includes all nurses employed in any setting. The evidence indicates that nursing positions in hospitals, which are often unionized, pay significantly higher salaries than positions elsewhere, such as in clinics or doctor's offices. As I have found that Ms. Armstrong was not able to perform the essential tasks of a floor nurse or private duty nurse, this figure should be further discounted to reflect the lower earnings that someone in an office or clinic environment would earn.
My biggest concern, however, with the conclusions reached by the REC DAC assessors is the statement in the report that nursing positions in clinics and doctors' offices "do exist and are accessible to Ms. Armstrong." Ms. Howe acknowledged in her testimony that this statement was "imprecise." In my view, the evidence tendered at the hearing proves that it is simply incorrect. Ms. McGee reported that the economic situation in Peterborough was poor, and acknowledged that Ms. Armstrong had done all that she could have by February 1996 to access the job market. The evidence of Mr. Sim regarding the state of the job market for nurses in Peterborough in 1996 supports this notion. The "job market analysis" appended to the report of the vocational assessment conducted at Wellness Works in April 1996 notes that there are "no nursing jobs of any sort" available through Canada Manpower, and that a significant number of nurses were collecting Employment Insurance. It states that nursing jobs in clinics and doctors' offices are very scarce, and suggests that it would not be reasonable to expect Ms. Armstrong to secure such employment.
Section 30(2) of the Schedule provides that a type of employment will only be considered in the determination of an applicant's residual earning capacity if it "exists in the area in which the person lives and is accessible to the person." The Commission's 1996 Guidelines6 interpret the phrase "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.
In light of this interpretation, it is clear that nursing jobs in clinics and doctors' offices did "exist" in the Peterborough area, as there undoubtedly were nurses performing these jobs in late 1996. I am not persuaded, however, that this type of work was available or accessible to Ms. Armstrong during this period. The availability of the work identified is addressed under the Guidelines 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.
I agree with this interpretation on the basis of the evidence cited above, I find that there was virtually no likelihood of Ms. Armstrong securing employment as a nurse in a clinic or doctor's office in Peterborough in October 1996. I find that even if such an opening had presented itself at that time, she would not have been able to reasonably compete for the job, in light of her lack of experience and the significant numbers of experienced nurses who had been laid off, who would have been competing for the position. While Ms. Armstrong would have been qualified to apply for such a position, I find that the analysis outlined in section 30(2) of the Schedule requires a consideration of the realities of the situation, which in this case would not have resulted in Ms. Armstrong obtaining such a position. Consequently, I find that suitable employment was not accessible to Ms. Armstrong and that her REC at the relevant time was zero.
This finding will lead to an order that LEC benefits be paid from the date Ms. Armstrong's benefits were terminated in late October 1996 forward. Section 33 of the Schedule mandates a review of these benefits after three years. While the three-year point has already passed, I make the following comments regarding issues that were addressed during the course of the hearing that may be relevant for the review, in an effort to assist the parties.
Subsection 30(2) of the Schedule sets out various criteria to consider in arriving at an insured's REC, including that employment must exist "in the area in which the person lives." It is clear that Ms. Armstrong lived in Peterborough at the time of the REC DAC assessment, and had been doing so for more than two and one-half years. Given the clear and unambiguous language of the provision, I see no merit in the Insurer's argument that her REC should be based on the existence of employment for nurses in Toronto, where she lived at the time of the accident. The fact that people move from one city to another as their life circumstances change is a fact of contemporary life, which may or may not accrue to their benefit with regard to their entitlement to statutory accident benefits. The reasons underlying Ms. Armstrong's move to Peterborough were entirely reasonable, and short of language in the applicable provision to the effect that the locations of the accident or her pre-accident employment must be taken into account, I find it entirely appropriate to calculate her REC on the basis of the availability of nursing jobs in Peterborough.
Having said that, it appears that the lack of a driver's license would likely be a barrier to Ms. Armstrong re-entering the work force, given the poor public transit system in Peterborough. I do not read the requirement in section 30(2) that employment be "accessible" to the applicant to mean that she can decline to apply for positions that are outside of the downtown core of the city, which I understand is the only area regularly serviced by public transit. In my view, a reasonable approach is required in addressing this issue. Given the Applicant's move from a large centre to a significantly smaller one, and the corresponding decrease in the number of available jobs for her, it would not be reasonable for her to further limit her chances of obtaining suitable employment by restricting her job search to areas that are serviced by public transit.
The evidence indicated that at the time of the hearing, Ms. Armstrong did not have a driver's license. I do not know if that has changed. Wellness Works recommended after its multidisciplinary assessment in April 1996 that Guardian fund her participation in a driver's education program, but I was advised that that did not take place. Witnesses from Guardian testified that Ms. Armstrong never submitted a request for funding for driver's education, and that they presumed that she was not interested in pursuing such a program, given her expressed fear of driving. Ms. Armstrong explained that no offer for funding was ever communicated to her by Guardian. The Insurer must bear the responsibility for this lack of communication. I would recommend that the appropriate arrangements be made between Guardian and Ms. Armstrong to enroll her in a driver's education program, if she is agreeable. If she does not wish to pursue this, she must be prepared to bear the possible consequences that decision may have on her future entitlements under the Schedule.
Accounting evidence and findings:
The accounting evidence tendered by the parties was lengthy and complex. The Applicant retained Norm McCully of McCully & Associates to review Guardian's calculations regarding the quantum of income replacement benefits (IRBs) paid out, as well as its calculations in support of the LECB offer made. Mr. McCully prepared two lengthy reports, and testified at the hearing. Counsel for the Insurer disputed Mr. McCully's qualifications to provide opinion evidence on the accounting issues he was retained to assess, but after reviewing his curriculum vitae and hearing evidence about his education and experience, I determined that Mr. McCully was qualified to provide expert opinion evidence on the calculations of Ms. Armstrong's IRBs and LECBs.
Guardian retained Daniel Edwards of Price Waterhouse to provide advice with respect to the accounting issues in dispute. Mr. Edwards also prepared two reports in which he discussed the relevant calculations, and testified at the hearing as well. Mr. McCully and Mr. Edwards agreed on one issue, namely that both sets of calculations that had been performed by Guardian to arrive at Ms. Armstrong's IRB figure were incorrect. They disagreed on the following issues — whether the extrapolation permitted under section 9(7) of the Schedule was appropriate in calculating Ms. Armstrong's IRB, or whether the extrapolation permitted under section 9(2) of the Schedule was appropriate for the same purpose, and whether section 86 of the Schedule should be taken into account in calculating the Applicant's pre-accident earning capacity (PEC) and if so, how the calculation should be done. They also disagreed on the manner in which vacation pay should be treated and how the amounts in issue should be indexed for inflation. I will address each of these issues below.
At the conclusion of the hearing, Guardian abandoned its claim for a repayment of IRBs that it claimed had been overpaid.
Given my earlier findings that a "zero" REC should be substituted for the REC DAC's findings regarding Ms. Armstrong's residual earning capacity, I will not address the evidence and the parties' arguments relating to the calculation of the REC.
Income Replacement Benefits:
Ms. Armstrong was paid IRBs from early February 1994 to late October 1996, a period of approximately two years and eight months. She initially received a weekly amount of $406.50, which was raised to $470.52 in early April 1994. That amount was subsequently indexed and increased to $480.86 per week. The Insurer acknowledged in May 1996 that the above amounts were incorrect. Much confusion surrounded the issue of how the various amounts had been calculated, and what effect, if any, the errors made would have on determining the correct figure for Ms. Armstrong's PEC.
As set out earlier in the decision, Ms. Armstrong worked at various temporary nursing assignments throughout most of the 52 weeks prior to the accident. She had, however, worked full-time hours at Bunting & Warburg, the brokerage house, for three weeks prior to the accident, completing a training program for the position that she was subsequently offered. Ms. Armstrong's actual gross income over the 52 weeks prior to the accident was $23,254.76.
Martine Sliva was the manager of accident benefits for Guardian at the relevant time. She explained that she took over the handling of Ms. Armstrong's file in June 1995, six months after the accident benefits unit was started at Guardian. Ms. Sliva testified that she reviewed the IRB calculations and realized that errors had been made, but that she did not change the amount of benefits paid out to Ms. Armstrong because she was unsure of what to change it to. She stated that certain information required for the calculation had not yet been received, and explained that she had felt that it would be better to wait for it to come in.
The accountant subsequently retained by Guardian during the arbitration process also disagreed with the figures that had been calculated earlier. Mr. Edwards calculated three different sets of figures for Ms. Armstrong IRB, depending on whether or not each of the extrapolations provided for in sections 9(2) and 9(7) of the Schedule applied. Section 9(2) essentially states that if persons who designate the four weeks prior to the accident as the relevant period for determining their IRB, began the employment in which they were engaged at the time of the accident within that four-week period, the amount earned from that employment can be extrapolated over the rest of the four-week period to arrive at their gross annual income. The relevant part of section 9(7) of the Schedule provides that if a person was employed at the time of the accident but was not employed for a period of time before that, the income they earned from employment can be extrapolated over the period of time that they were not employed.
In either case, extrapolation will result in a higher gross income figure and will therefore be to an applicant's benefit.
Although there was some discussion about the applicability of the section 9(2) extrapolation during the accountants' testimony at the hearing, the Applicant took the position in her final submissions that this provision did not apply. Counsel claimed that the four-week period prior to the accident was atypical, in that Ms. Armstrong barely worked as a nurse during those weeks in contrast to the numerous weeks throughout 1993 when her income was derived exclusively from the temporary nursing shifts that she worked. I agree that the calculation provided for in section 9(2) is not applicable in this case, given that Ms. Armstrong did not designate the four-week period prior to the accident as the relevant one for the purposes of calculating her IRB, and that the real question to be determined is how to treat the nursing income that she earned over 46 of the 52 weeks prior to the accident.
The crux of the parties' dispute regarding the correct IRB figure revolved around the question of whether the section 9(7) extrapolation applied in this case. The Applicant contended that it did apply. Mr. McCully characterized Ms. Armstrong's income stream as being comprised of periods of employment, consisting of those days that she was actually out on assignments from any of the three agencies she was registered with, and periods of not being employed, when she was not out working a shift. He stated that he considered the definition of "employment" in section 5 of the Schedule, the relevant part of which provides that a person is employed if they are "engaged in employment," in his analysis to arrive at the conclusion that Ms. Armstrong was not employed on those days that she was not out working a nursing shift either at a hospital or private home.
Mr. McCully prepared a breakdown of the hours Ms. Armstrong worked during each of the 52 weeks preceding the accident. Ignoring the last three weeks of the period in which she worked full-time hours at Bunting & Warburg, the weekly number of hours worked varies widely from 13 weeks in which the Applicant worked 15 hours or less, to 10 weeks in which she worked 36 hours or more.
Mr. Edwards testified that it was more appropriate to characterize Ms. Armstrong as being continuously employed during the period in question. The IRB figure he calculated without taking the section 9(7) extrapolation into account was $363.07 per week. Mr. McCully's figure, which incorporated the extrapolation under section 9(7), was $457.50 per week.
The determination of whether or not a section 9(7) extrapolation should be done in these circumstances involves a consideration of whether or not Ms. Armstrong was "employed" during the days on which she was not assigned nursing shifts. This is essentially a legal question, involving an interpretation of the Schedule and the relevant jurisprudence. In my view, Ms. Armstrong remained employed throughout the period in question, despite the fact that there were several days on which she was not actively at work. I base this conclusion on the Commission's jurisprudence on this issue and on general employment law principles.
Joyce and Co-operators General Insurance of Canada (OIC A-015688, November 23, 1995) concerned an applicant who was also a registered nurse who worked for two agencies that assigned her to temporary shifts in private homes, caring for terminally ill patients. Ms. Joyce had done very little work during the two months preceding her accident, as a result of a decreased caseload at the agencies. The question in that case was whether she was entitled to benefits under either section 12 or section 13 of the Bill 68 Schedule, which raised the issue of whether or not she was employed at the time of the accident. The arbitrator found that Ms. Joyce was unemployed during the periods that she was not working on an assigned shift, and concluded that as she was not on an assignment at the time of the accident she could only be entitled to benefits under section 13.
On appeal, Director's Delegate Naylor overturned the arbitrator's decision7 and determined that there was an ongoing employment relationship between the applicant and the agencies for which she worked, which was not severed each time she completed an assignment and had no immediate work to follow. She stated that a contract of employment may continue to exist between the parties even though no work is performed or wages earned, and the fact that the employer has no obligation to guarantee work or that the employee has the discretion to either accept or decline an assignment is not determinative of employment status. An application for judicial review of the Director's Delegate decision was dismissed.8
I agree with these findings. It is clear that employment relationships can span the spectrum from those that involve regular, full-time hours that are worked on a predictable basis to those characterized by a more casual or unpredictable schedule. There is a clear distinction between time actively spent at work, for which wages are received, and the existence of an employment relationship between two or more parties, which could involve long periods of time in which no work is performed or wages received. Employees who become ill or injured, or who take pregnancy leaves or other leaves of absence for significant periods of time generally remain employed throughout these periods, unless clear action is taken to sever their relationship with their employer.
It is worth noting, however, that the instant case falls to be determined under a different Schedule than the Joyce case. The Bill 164 Schedule includes a definition of employment in section 5 that was not part of the earlier Bill 68 version. The question then becomes whether the existence of this definition, that "a person is employed if ...[they are] engaged in employment," changes the analysis with respect to whether Ms. Armstrong was "employed" on the days that she did not perform nursing assignments through the agencies she was registered with. In my view, it does not. The definition contains the phrase being "engaged in employment," as opposed to being "actively at work" or "earning wages."I conclude that the use of this more passive language by the legislators is indicative of an intention that the definition of "employment" in the Schedule be consistent with the common law notion of an employment relationship, as outlined above.
This issue also arose in the case of Tustin and Canadian General Insurance Group,9 a case decided under the Bill 164 Schedule. That case involved a truck driver who was self-employed, but worked exclusively with an excavation company that did no work during the winter months. In determining whether it was appropriate to apply the extrapolation in section 9(7) to calculate his IRBs, the arbitrator referred to an earlier case decided under the previous Schedule in which a self-employed applicant who did not actually work for long periods of time was found to still be employed during those periods, but distinguished it on the basis that the new definition of "employment" dictated a different approach. That decision was overturned on appeal, with Director's Delegate Draper finding that the reasoning in Gibson10 still applies.
Accordingly, I find that Ms. Armstrong's IRB should have been calculated without reference to either of the extrapolations provided for in sections 9(2) or 9(7) of the Schedule. I find that the appropriate figure is $363.07 per week, as calculated by Mr. Edwards.
Pre-accident earning capacity:
Section 29 of the Schedule provides that the weekly income figures used to calculate an applicant's IRBs are deemed to be her pre-accident earning benefits "converted to full-time net weekly income in accordance with section 86, if section 86 applies." Section 86 sets out detailed rules regarding when a conversion is applicable, as well as the manner in which the conversion is to be performed.
In its LECB offer delivered on May 23, 1996, the Insurer proposed that Ms. Armstrong's PEC was $411.88 per week. The Applicant disputed this and put forward two higher figures, $638.86 per week and $534.77 per week, depending on whether or not section 86 of the Schedule applied. The Insurer's calculations contained in the LEC offer did not include a section 86 conversion. Ms. Sliva testified that she felt that this section was inapplicable, as Ms. Armstrong was employed on a full-time basis on the day of the accident, and had had many weeks in the year preceding the accident in which she had worked full-time shifts as a nurse. Mr. Edwards calculated four separate sets of figures representing Ms. Armstrong's PEC, depending on whether the various extrapolations and conversions applied.
The Applicant submitted that section 29 of the Schedule requires that the PEC figure must be based on the amount of IRBs received, even if that amount was incorrect. I do not agree with this argument. Despite the use of the phrase "shall be deemed to be" in section 29, I cannot accept that the drafters of the Schedule would have intended that a mistake made at the outset in calculating an applicant's entitlement to IRBs should be carried forward into the PEC calculation. This would be manifestly unfair in a case where an insurer had under calculated an applicant's initial entitlement, and correspondingly, is not fair in a case such as this where Guardian paid IRBs at a level far in excess of what the appropriate figure has subsequently been determined to be.
Section 86 permits part-time income to be converted into full-time income, if:
(a) the person was employed on a part-time basis at some point during the period of time used under section 9 for the purpose of determining the amount of the person's weekly income replacement benefits;
(b) the person would have worked on a full-time basis at some time after the accident; and
(c) the gross income used under section 9 for the purpose of determining the amount of the person's weekly income replacement benefits includes income from employment other than self-employment.
[emphasis added]
The two issues to be resolved in order to determine whether this section applies are whether Ms. Armstrong was employed on a part-time basis at some point during the relevant period of time, and whether she would have worked on a full-time basis at some time after the accident. With respect to the first point, I find that the evidence supports a finding that she was employed on a part-time basis "at some point" during the period used to calculate her IRBs, namely the 52 weeks prior to the accident. The Appendix to Mr. McCully's report setting out the number of hours worked by Ms. Armstrong each week from February 1993 to the end of January 1994 indicates that she worked fewer than 36 hours per week for more than 70 percent of the weeks in question. While Ms. Armstrong may have been working full-time hours as of the date of the accident, it is clear that she worked part-time hours at many points during the designated previous period and accordingly, she satisfies the requirement set out in subsection 86(1)(a). Based on the clear language of that section, I see no merit in the Insurer's argument that the provision requires that an applicant have worked on a part-time basis during the entire period in question.
The second branch of the inquiry is more difficult. The wording in section 86(1)(b) "would have worked on a full-time basis at some time after the accident" suggests some degree of speculation, albeit with the benefit of hindsight usually available by the time the hearing of an application takes place. This language was considered in Kennelly and Wawanesa Mutual Insurance Company (FSCO A99-000139, January 21, 2000). In that case, Arbitrator Baltman commented that the phrase in question must be interpreted in the context of the Schedule as a whole, and that the expanded benefits provided by Bill 164 with regard to economic losses sustained by injured applicants requires that "future work plans be recognized and rewarded." She went on to state that section 86 was designed to compensate for "anticipated but unrealized full-time employment. "
Arbitrator Baltman also referred to Director's Delegate Draper's statement in Gan Canada and Lehman11 that the determination of pre-accident earning capacity requires a realistic assessment of what the applicant could reasonably have earned at the time of the accident. She determined that a broad interpretation of the language of 86(1)(b) was merited, and found that there was "at least a real or cogent possibility" that Ms. Kennelly, who had been working part time as a nursing instructor at a local university and had left full-time nursing work earlier in her career due to a work-related back injury, would have worked full time at some point in the future. The evidence in that case indicated that the applicant had unsuccessfully applied for various full-time positions prior to the accident, and that she had faced a poor job market for nurses during the early 1990s.
I agree that section 86 invites a broad interpretation, given both the language used and the remedial nature of the Schedule. As well, an examination of the language of section 29, the provision addressing the determination of an insured person's PEC, reveals an intention to predict the value of what an insured person who is not yet at his or her full earning capacity could earn. I find that on the evidence before me, there is "at least a real or cogent possibility" that Ms. Armstrong would have secured full-time employment as a nurse, if the accident had not occurred. Her uncontradicted evidence was that she had been advised at the end of 1993 that she was "second on the list" to be hired as a part-time casual employee at St. John's Convalescent Hospital. Again, the uncontested evidence was that despite its part-time label, this position would offer full-time hours. While counsel for the Insurer argued that I should not accept this evidence as it was uncorroborated, I note that Guardian arranged a Work Site Analysis at St. John's in September 1995, which indicates that it was prepared to accept her statement in this regard at point in time.
Given all of the above, I find that Ms. Armstrong satisfies the criteria set out in section 86(1)(b). The requirement that income be from employment as opposed to self-employment, as required by subsection 86(1)(c) was not in issue in this case.
Consequently, I find that Ms. Armstrong is entitled to convert the income she earned during the 52 weeks prior to the accident to full-time income, in accordance with section 86 for the purpose of determining her PEC. While I appreciate the concerns expressed by Mr. Edwards that accepting Mr. McCully's figures in this regard will result in a gross annual income figure that is more than twice what the Applicant actually earned in the year preceding the accident, I find that the scheme in the Schedule providing for LEC benefits as compensation for future economic losses permits this result.
There are two aspects of the conversion of income under section 86 that must be determined — the applicable hourly rate and the number of hours in a regular work week for a person employed on a full-time basis for the designated employment. Not surprisingly, the accountants disagreed on both components of this calculation. Mr. McCully used an hourly rate of $19.76, multiplied by 46.6 hours per week, while Mr. Edwards testified that a rate of $18.13 per hour was applicable and that a 40-hour week should be used.
The hourly rate applied by Mr. McCully was the rate Ms. Armstrong was paid for her last week of nursing work with Carecor before the accident. While this is not an unreasonable approach, I prefer that of Mr. Edwards, who took the average of the different hourly rates that Ms. Armstrong was paid for all the nursing work she did over the 52 week period preceding the accident. Section 86(2) sets out the mechanics of the conversion calculation and includes the "hourly rate of wages or salary in the employment designated under subsection (3)." Subsection (3) refers to the period of time used under section 9 for the purposes of determining the appropriate IRB, which in this case was the 52 weeks prior to the accident. Given this specified time frame, I find that an average of the wage rates earned over the 52-week period would be a more appropriate measure of Ms. Armstrong's true hourly wage for the purposes of calculating her PEC.
The issue of the appropriate number of hours to multiply against that hourly wage figure requires a more detailed analysis. Section 86(4) provides a set of rules to be used in determining the number of hours "in a regular work week for a person employed on a full-time basis" in the designated employment. The rules appear in descending order of application, such that if the first one does not apply, the second one is considered; if it does not apply the third is then considered and so on. Both Mr. McCully and Mr. Edwards agreed that rules one through four were inapplicable, and that rule 5 therefore dictated that a reasonable method for establishing the number of hours in a regular work week" be used. Their views of what constituted a reasonable method for arriving at this figure differed, however. Mr. McCully counted the number of weeks in which Ms. Armstrong worked at least 36 hours (there were seven), totalled these hours and then divided by seven to arrive at an average number of 46.6 hours per week. Mr. Edwards referred to written material received from Human Resources Development Canada on NOC code 3152 for registered nurses, which refers to a full-time workload varying from 66 to 88 hours over a two-week period, and chose a figure of 40 hours per week.
I find Mr. Edwards' approach to be more reasonable than that of Mr. McCully. While nurses often work long shifts and odd hours and do not generally fit into the standard 9 a.m. to 5 p.m., Monday to Friday 40-hour work week, I find that this estimate bears more resemblance to Ms. Armstrong's schedule than the alternative approach. Mr. McCully's method of taking only 7 weeks of the 52 that the Applicant worked before the accident into account results in a figure that is not really representative of the number of hours in a regular work week."
Using a 40-hour work week and an hourly rate of $18.13, Ms. Armstrong's pre-accident earning capacity is $725.20 per week gross, which amounts to $510.64 on a net basis.
Vacation pay:
Mr. Edwards claims that an amount equivalent to 4 percent of the net income figures should be deducted from any extrapolations done, given that the wages Ms. Armstrong received included an extra 4 percent for vacation pay. Alternatively, he stated that if this amount is not deducted, the calculations should be performed on the basis of 49 or 50 weeks instead of the 52 weeks generally used, to reflect the fact that it is standard practice to take a few weeks of vacation each year during which employees do not get paid, apart from the vacation pay they have accrued.
Mr. Edwards conceded that there is no reference in the Schedule to deducting vacation pay from any income calculations.
I do not agree with Mr. Edwards' position on this point. Given the nature of Ms. Armstrong's work over the 52 weeks prior to the accident, the statutorily mandated 4 percent vacation pay12was built into the hourly rate she received during the course of her assignments. While she did not work every week during this period, the evidence suggests that that was due to a lack of work as opposed to her decision to take vacation time. Theoretically, she could have worked on assignments during each of the 52 weeks during the designated period. In that case, there would be no basis for deducting 4 percent from her annual earnings, nor do I see a reason to do so when extrapolating in an attempt to approximate what her full-time income would be. Most importantly, I find the fact that there is no mention of this in the Schedule mitigates against a finding that this should be worked into each calculation required.
Indexation for inflation:
Ms. Armstrong's IRBs were indexed for inflation in accordance with section 79 of the Schedule, effective January 1, 1996. They were not indexed on January 1, 1995. In Mr. McCully's calculations of the applicable PEC figure, he includes an adjustment for both January 1995 and 1996. Mr. Edwards testified that this was incorrect, and that when the Applicant's IRBs are transferred to LECBs, she should not receive the benefit of another adjustment. Subsection 79(2) of the Schedule precludes an indexation for inflation of benefits in January of a new year if an applicant has been receiving IRBs for less than a year. Ms. Armstrong began receiving IRBs in February 1994, and hence would not have been entitled to an indexation adjustment in January 1995. Her IRBs were terminated in late October 1996. Given the findings set out above, she is entitled to receive LECBs as of that date. In accordance with paragraph 4 of subsection 79(1), the appropriate amount (set out in the next section) should be indexed for inflation as of January 1997, January 1998, January 1999 and again in January 2000, at the applicable rate.
Loss of Earning Capacity Benefits:
Section 28 of the Schedule provides that an applicant's LECB equals 90 percent of the difference between her PEC and her REC. In accordance with my findings above, Ms. Armstrong's LEC benefit amounts to $459.58 [.9 x (510.64 - 0)]. This amount would be subject to the annual indexation for inflation adjustment, as outlined above.
Special Award:
Ms. Armstrong submitted that she was entitled to a special award under section 282(10) of the Insurance Act, as a result of various actions taken by the Insurer throughout the course of the adjustment of her claim. The gist of her argument was that the medical opinions received by Guardian did not support the decision made to terminate her IRBs; that it was unreasonable for the Insurer to have relied on the REC DAC report in light of Mr. McCully pointing out its deficiencies; that Guardian should have funded the driver's education and computer upgrading courses Wellness Works recommended; and that Guardian's delay in forwarding the adjusters' notes and calculations with regard to Ms. Armstrong's IRBs to Mr. McCully forced her to incur extra, needless costs.
While Guardian's conduct was less than exemplary and co-operative throughout the process, I do not feel that there are grounds to order a special award in this case. Special awards are payable in specific circumstances in which an insurer has unreasonably withheld or delayed payments to an applicant. They are not awarded in cases in which an insurer has merely been unco-operative, but whose actions have not resulted in a withholding or delay in payments. While I agree that the medical information available from Drs. Johnston and Webster, as well as the conclusions reached by the assessors at Wellness Works after the FCE conducted in April 1996, which Guardian relied on to terminate Ms. Armstrong's benefits, did not support a decision to terminate, there was no resulting delay or withholding of benefits. I heard no evidence that Ms. Armstrong's benefits were not reinstated upon her advising Guardian that she disputed the decision to terminate, or that she was not paid up until after the completion of the REC DAC as required by the Schedule.
Similarly, Guardian was permitted to rely on the results of the REC DAC, and cannot be faulted for not responding to Mr. McCully's concerns. Mr. McCully is a chartered accountant and despite his experience in calculating entitlements under the Schedule, has no vocational expertise. As mentioned above, it is unfortunate that the parties did not communicate more effectively regarding the Wellness Works recommendations that the Insurer fund the courses referred to, but I do not find that this amounts to an unreasonable withholding or delay in payments.
Finally, counsel for the Applicant argued that Guardian should have paid the "deemed minimum" LEC amount during the course of the arbitration process pending the final outcome of these matters, and that its failure to do so should result in a special award. I do not agree. Ms. Armstrong could have brought a motion for interim benefits, but chose not to do so. While counsel for the Applicant raised this issue at the commencement of the hearing, the Insurer was under no obligation to agree to pay this amount, and its failure to do so does not justify a special award.
EXPENSES:
In light of the Applicant's success in this matter, I exercise my discretion to award her expenses of the arbitration hearing. I leave the amount of expenses to the parties to determine among themselves, failing which I can be spoken to.
May 23, 2000
Shari Novick Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 93
FSCO A97-000956
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
PATRICIA ARMSTRONG
Applicant
and
GUARDIAN INSURANCE COMPANY OF CANADA (now known as Nordic Insurance Company)
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Arbitrator Nordic Insurance Company shall pay Ms. Armstrong Loss of Earning Capacity benefits from October 30, 1996, at the rate of $459.58 per week based on a PEC of $510.64 per week and a REC of zero. This order is subject to the reviews established in sections 33 to 35 of the Schedule.
Nordic Insurance Company shall pay Ms. Armstrong interest on overdue amounts in accordance with section 68 of the Schedule.
Nordic Insurance Company shall pay Ms. Armstrong her expenses of the arbitration.
May 23, 2000
Shari Novick Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
- "Personal and vocational characteristics" are defined in section 1 as including employment history, education and training, vocational interests and aptitudes, vocational skills, physical abilities, cognitive abilities and language abilities.
- Slivecka and Canadian General Insurance Cornpany,(OIC A-008342, September 27, 1995)
- Edwards and State Farm Mutual Auto Insurance Company (OIC A-001707, July 12, 1993), confirmed on appeal (OIC P-001707, February 26, 1996).
- The National Occupational Classification (NOC) system was first published by Human Resources Development Canada in 1992.
- Commission's Guidelines for Designated Assessment Centres to Conduct Residual Earning Capacity Assessments for Accidents on or after January 1, 1994 and before November 1, 1996, published in 1996. The 1999 Guidelines did not contain any interpretations of provisions found in the Schedule.
- Appeal decision (FSCO P96-000014, March 4, 1997)
- Ont. Court (Gen. Div.), unreported (February 9, 1998).
- (FSCO A97-001209, December 30, 1998), appeal decision (FSCO P-002213, August 13, 1999)
- Gibson and York Fire Casualty Insurance Company (OIC A-006150, January 4, 1995)
- (OIC P97-00064, August 10, 1998)
- Employment Standards Act, R.S.O. 1990, c. E.14, as amended, section 15.