Neutral Citation: 2001 ONFSCDRS 192

FSCO A00-000291

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JIM HORNE Applicant

and

CIBC INSURANCE Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: April 24, 25 and 26, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: John A. McLeish for Mr. Horne Thomas H. Clemenhagen for CIBC Insurance

The Applicant, Jim Horne, was injured in a motor vehicle accident on June 2, 1997. He applied for and received statutory accident benefits from CIBC Insurance ("CIBC"), payable under the Schedule.¹ CIBC terminated weekly income replacement benefits paid at the rate of $400 per week on June 2, 1999. Rehabilitation Management Inc. ("RMI") prepared a Treatment Plan on March 24, 1999, which Dr. John Cowan signed. CIBC refused to pay for the goods and services recommended in the plan. The parties were unable to resolve their disputes through mediation, and Mr. Horne applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Horne entitled to weekly income replacement benefits from June 2, 1999 to date, and ongoing, pursuant to section 5 of the Schedule?
Is Mr. Horne entitled to medical benefits in accordance with a Treatment Plan dated March 24, 1999, pursuant to section 14 of the Schedule?
Is Mr. Horne entitled to his expenses for housekeeping and home maintenance services, at the rate of $100 per week for 10 weeks, pursuant to section 22 of the Schedule?
Is Mr. Horne entitled to expenses incurred for invoices submitted by Rehabilitation Management Inc. totalling $6,658.42; for invoices submitted by Dr. Neville Doxey, psychologist, totalling $3,410; and for invoices submitted by Dr. John Cowan, family physician, totalling $6,100, all pursuant to section 24 of the Schedule?
Is Mr. Horne entitled to a special award under subsection 282(10) of the Insurance Act on the basis that CIBC has unreasonably withheld or delayed payments?
Is Mr. Horne entitled to his expenses in respect of the arbitration, pursuant to subsection 282(11) of the Insurance Act?

Mr. Horne also claims interest on any amounts owing.

Mr. Horne is entitled to weekly income replacement benefits from June 2, 1999 to date and ongoing, pursuant to section 5 of the Schedule. CIBC may deduct from the amount of the income replacement benefit 80 percent of the net income received by Mr. Horne in respect of any employment subsequent to the accident, pursuant to section 6 of the Schedule.
Mr. Horne is not entitled to a custom-made spinal corset or to payment for invoices submitted by Dr. Cowan, pursuant to section 14 of the Schedule.
Mr. Horne is not entitled to expenses for housekeeping and home maintenance, pursuant to section 22 of the Schedule.
Mr. Horne is entitled to payment of $96 in connection with invoices submitted by Rehabilitation Management Inc., pursuant to section 24 of the Schedule. He is entitled to payment under this section for invoices totalling $3,410 submitted by Dr. Doxey. He is not entitled to payment under this section for invoices submitted by Dr. Cowan.
Mr. Horne is not entitled to a special award under subsection 282(10) of the Insurance Act.

Background

On June 2, 1997, Mr. Horne was driving his car through an intersection when another vehicle suddenly made a left turn in front of him resulting in a head-on collision. As a result of the accident, Mr. Horne sustained jaw, neck, back, right shoulder and right arm injuries. His wife drove him to the hospital, where he was kept overnight for observation.

At the time of the accident, Mr. Horne was 47 years old, and was working as a welder for Interfab Steel. He was paid $15.75 per hour plus benefits. He had worked as a welder since 1971, four years after dropping out of school in grade nine.

Due to the injuries he sustained in the accident, Mr. Horne suffers from neck pain, numbness in the fourth and fifth fingers of his right hand, low back pain, fatigue, depression and frequent, painful headaches. He has been unable to return to his job as a welder, and is currently working as a car jockey at Toronto Auto Action. He is paid $8.10 per hour.

CIBC maintains that he has more lucrative vocational options open to him.

Collateral Benefits

CIBC indicated that at the time of the accident, Mr. Horne had a disability policy with Canada Life through Interfab Steel. It claims a deduction for any income that Mr. Horne is entitled to as a result of this policy.

Pursuant to subparagraph 7(1) 1. ii. of the Schedule, an insurer has the right to reduce income replacement benefits by net weekly payments for loss of income that are not being received by the person but are available to the person as a result of the accident...under any income replacement plan, unless the person has applied to receive the payments for loss of income. [My emphasis]

Mr. Home's lawyer has written to Canada Life seeking benefits. Canada Life has denied these benefits. A statement of claim was issued with the Ontario Superior Court of Justice in Toronto, and has not yet been served. I find Mr. Horne has applied to receive payments for loss of income from Canada Life and these benefits have been denied. Accordingly, CIBC is not entitled to reduce the amount of these potential benefits from any income replacement benefits it may owe to Mr. Horne.

Law regarding Income Replacement Benefits

Pursuant to paragraph 5(2)(b) of the Schedule, an insurer is not required to pay an income replacement benefit for any period longer than 104 weeks of disability, unless as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

The phrase "complete inability" has been interpreted in Lombardy and State Farm Mutual Automobile Insurance Company.² In this case, Arbitrator Sampliner states as follows:

I find that "complete inability" does not require the degree of impairment that is as high as a "catastrophic impairment" so as to preclude legitimate claims for ongoing disability, nor so low as a "substantial inability, as that would encourage specious claims after the first 104 weeks.

Arbitrator Palmer also considered the phrase "complete inability" in the recent case of Terry and Wawanesa Mutual Insurance Company.³ In it she states as follows:

It is not my sense of the test of paragraph 5(2)(b) that the meaning of "complete inability" is that the applicant has to suffer an inability to do more than 50 percent of the job,...Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits (and an employer should be obliged to hire him for that job). As Arbitrator Sampliner pointed out in Lombardy, a literal reading of total disability clauses would mean an insured would have to be unable to perform any function of any job to qualify.

Somehow the ability to engage in reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed.

I concur with the views of Arbitrators Sampliner and Palmer on this evolving area of the law.

Arbitrator Seife summarized arbitrators' comments about the question of "suitable employment" in Wigle and Royal Insurance Company of Canada.⁴ Although these comments were written in the context of Bill 68,⁵ I find them helpful and applicable to this case. Arbitrator Seife states as follows:

The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. [My emphasis]
Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative. [My emphasis]
In deciding suitable employment, one must consider such factors as the nature and status of work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how. [My emphasis]
The primary focus is on an applicant's functional limitations; however, job-market considerations are relevant in determining suitable employment.

Arbitrator Seife reiterated these principles in the case of Maas and State Farm Mutual Automobile Insurance Company.⁶ I concur with these principles and adopt them for the purposes of this case.

For what employment is Mr. Horne suited by education, training or experience?

a) Mr. Horne's pre-accident education, training and experience:

Mr. Horne dropped out of school in grade nine. School was a struggle. This may have been due to the fact that Mr. Horne's father was in the armed forces, and the family moved approximately 10 times while he was in school. As a result, Mr. Horne has very limited reading and numeracy skills. He took a three-month "Introduction to Welding" course at Georgian College in 1968. He was not able to complete it because the instructor died three days before the course ended. Mr. Horne worked at a variety of jobs involving physical labour before obtaining work as a welder at the Collingwood Shipyards in 1971. He worked there until 1976. In that year, he obtained employment as a welder at the Ontario Hydro Bruce Nuclear Power Plant in Tiverton, where he worked until 1987. In that year he left the Bruce Nuclear Plant so his wife could find work, and started at the Ontario Hydro Darlington Nuclear Power Development Plant in Bowmanville. He was a highly skilled and experienced welder, who rose to an elite level. He obtained numerous designations for various applications, and was a member of a union. As work wound down at the Darlington Nuclear Plant, he worked at various non-union jobs starting in 1994. By March 6, 1995, he was working at Interfab Steel Limited ("Interfab"), a steel fabricating shop that did work for the car industry and sewage treatment plants. When the accident occurred on June 2, 1997, his hourly wage at Interfab was $15.75 plus benefits. He had earned $17,209.50 for the months of January to June 1997. Had he continued at Interfab, his yearly earnings would have been $41,302.80 in 1997. In addition, he was hoping to obtain more lucrative union work at a Toyota plant in Cambridge. Given his high degree of skill and lengthy experience, this was a realistic expectation.

b) Mr. Horne's Post Accident Employment

CIBC conceded that Mr. Horne was unable to return to his previous job as a welder, due to his inability to flex and extend his neck in order to raise and lower the shield on his welding helmet. In a designated assessment centre ("DAC") disability assessment report dated July 9, 1998, Dr. Ralph Kern, a neurologist, stated at page 9:

This gentleman was involved in a head on collision and sustained a significant flexion extension injury of the neck resulting in a chronic cervical facet syndrome. There is no significant limitation in his ability to perform the activities of daily living. His employment as a welder does require a lot of heavy lifting, prolonged neck extension and sudden flexion and extension of the neck to retract and lower the welding screen. I don't believe he could return to this type of work at the present time. I believe Dr. Smith came to the same conclusion. Dr. Ranalli did not. This impairment is caused directly by the MVA. It is unlikely to improve. I believe his medical recovery has reached a plateau.

In conclusion, this gentleman is currently disabled and unable to return to his previous employment as a welder. It might be appropriate to consider vocational rehabilitation.⁷

On June 8, 1999, out of necessity to support his family and despite his physical symptoms and problems, Mr. Horne started to work for Armor Personnel, a temporary employment agency. He considered the alternative of driving a cube van with plumbing equipment, but was of the view that he could not do this work due to the pain that it would cause. Mr. Horne was assigned to part-time work at Budget-Rent-A-Car as a car jockey. He worked at Budget until July 7, 1999. Mr. Horne's T4 slip from Armor Personnel indicates that he earned $1,299.88 in 1999.

On July 17, 1999, Mr. Horne began to work as a car jockey at the Toronto Auto Auction in Milton. He took it as a part-time job; however, it has turned into a full-time job for him. His starting wage was $7.35 per hour and his current rate is $8.10 per hour. In 1999, Mr. Horne earned $9,466.65, and in 2000, Mr. Horne earned $21,932.00 from Toronto Auto Auction.

Mr. Horne's current position involves picking up and dropping off cars, moving cars from one location to another on site and putting the cars through a drive-through car wash. There is a lot of "down-time" spent waiting to be picked up by a van driver, and waiting his turn at the car wash. During these times, Mr. Horne is able to stretch out, move about and otherwise manage his symptoms over the course of the day. The job, unlike almost any other driving job, allows him this flexibility.

c) Is Mr. Horne's present carjockey position employment for which he is reasonably suited by education, training or experience?

Mr. Horne argues that his position as a car jockey is not employment for which he is reasonably suited by education, training or experience. He states that his job as a car jockey represents a very significant drop in income and status. There are a number of reasons for this, which are as follows:

Mr. Horne is earning approximately 50 percent of what he earned as a welder.
Mr. Horne's job as a welder was at the level of a highly skilled, highly trained, well-paid trades person, whereas his present job requires little skill and pays slightly more than the minimum wage. It also does not provide any benefits.
There is no indication that there is any chance for any upward mobility.
Mr. Horne enjoyed being a welder, whereas he does not get the same satisfaction out of his minimum wage job as a car jockey.
There has been a significant reduction in job status.
Compared to the elite level of the welding profession Mr. Horne reached, the car jockey work is trivial and inconsequential and work for which Mr. Horne is over-qualified.

CIBC did not seriously dispute Mr. Horne's contentions in this regard.

I agree with Mr. Horne. I find that his work as a car jockey is not employment for which he is reasonably suited by education, training or experience. As set out in Wigle,⁸ "If the job is substantially different in nature, status, or remuneration, it may not be an appropriate alternative." Mr. Horne's job as a car jockey is substantially different in nature from welding. It is unskilled and unchallenging. It has a much lower status than the position of a skilled tradesman, and, at $8.10 per hour it pays about one-half of the $15.75 plus benefits Mr. Horne was earning as a welder prior to the accident.

Is there other employment for which Mr. Horne is reasonably suited by education, training or experience?

CIBC takes the position that there are other jobs Mr. Horne can perform, which are at a higher level than the car jockey job he now has, and because of this, the Insurer says that Mr. Horne does not suffer the complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

a) Credibility

I found Mr. Horne and his wife, Anne Horne, to be credible witnesses. They were very straightforward and consistent in their testimony. A number of assessors, including Mr. Robert Katz, a social worker who evaluated Mr. Horne on behalf of Vocational Rehabilitation Associates for CIBC, commented on his forthrightness. At page 24 of his report, Mr. Katz states as follows:

My social work training does not qualify me to assess truthfulness. At the same time, one must appreciate that, throughout our lengthy interview, this man was entirely forthright and cooperative. As noted above, even when no one was available to greet him, he remained at our clinic under circumstances which many people would have seen as an opportunity to avoid an interview. So too, he provided clear, direct answers to all of my questions. Prior to our interview I had reviewed his medical file, but on meeting him I was struck by the fact that, based on his description, his symptoms were far more limiting than even his physicians had understood. At the same time, even though some of the activities he related he could perform should have been contraindicated if his neck was as incapacitated as he described, it was not my sense that he was 'putting me on' or exaggerating for the sake of it.⁹

b) Mr. Horne's physical abilities

In my view, CIBC did not sufficiently consider the effect of Mr. Horne's physical limitations on his ability to find other employment for which he is reasonably suited by education, training or experience.

In his report, Dr. John Cowan, Mr. Horne's family doctor, states:

Mr. Horne will never be able to resume his job as a welder...As far as Mr. Horne's ability to engage in any other employment other than welding, even if he is reasonably suited by education, training or experience, his future "jobs" should involve a minimum of head and neck movements. It is also very doubtful if he will be able to engage in continuous work over 5 hours per day.

As a result of the injuries sustained from the June 2, 1997 accident, Mr. Horne was rendered and remains to this day totally unable to perform welding tasks such as flipping his shield and using a torch and holding heavy equipment.¹⁰

In a report commissioned by Mr. Horne's counsel and dated October 11, 2000, Dr. Robert G. Gordon, orthopaedic surgeon, states as follows:

The January [sic] 2, 1997 collision was the most significant contributing factor to Mr. Horne's neck pain and restricted range of motion. He will be unable to work as a welder. Without the involvement of this collision it is my opinion that Mr. Horne would have been able to return to work as a welder and continue to work as a welder until normal retirement age.

I do not believe that Mr. Horne is a realistic candidate for any type of vocational rehabilitation or retraining. The job as a car jockey is representative of the kind of work which I believe he is able to do and as a result of his injuries from the motor vehicle accident, his future income earning capacity has been compromised.¹¹

A report dated February 20, 1998, prepared by Dr. L. Horak, Mr. Horne's treating physician at the Rothbart Pain Management Clinic, states as follows:

This patient will definitely be unable to return to his previous employment working as a welder and he should definitely be involved in some vocational rehabilitation program.¹²

As set out above, a DAC assessment report dated July 9, 1998, prepared by Dr. Ralph Kern, neurologist, also concludes that Mr. Horne is currently disabled and unable to return to his previous job as a welder.

In a Vocational Analysis dated October 19, 2000, prepared on behalf of Mr. Horne by Ms. Sue Wilkinson, an occupational therapist working for Rehabilitation Management Inc. ("RMI"), she makes the following comments about Mr. Horne's previous job as a welder:

Mr. Horne's job involved welding at various heights, locations, and environments. His job demanded alternate positioning, use of a welding helmet and faceplate, upper extremity strength and movement, prolonged hours of work, cervical and lumbar flexibility and strength, and operation of welding equipment. He worked for one employer for a number of years and was involved in regular, repetitive tasks that he was able to complete independently.

Mr. Horne is not able to wear the welding helmet and use same with any ease due to persistent and prolonged neck pain, headaches, and positional vertigo. Whilst welding, Mr. Horne is required to use both hands to operate the needed tools and supplies. He needs to be able to move his neck quickly and repetitively to remove and replace his welding helmet safely in confined spaces. He cannot maintain his head in an alternate position for any length of time without incurring increased neck pain, which leads to headaches. Due to his persistent neck, shoulder, and low back pain he cannot work in small spaces or overhead. This pattern of symptoms and functional ability does not support a return to welding.¹³

In addition, a MRI dated April 24, 2001,¹⁴ discussed in more detail below, found "multilevel degenerative facet changes" in his neck.

Mr. Horne submits that he cannot perform jobs which have the same physical requirements as that of a welder. CIBC does not seriously dispute that Mr. Horne is unable to continue as a welder. CIBC, however, is of the opinion that Mr. Horne can perform physical tasks required of other skilled trades people. Due to my findings on Mr. Horne's credibility, his motivation to work and his physical limitations, I accept his evidence when he states that he cannot physically do the occupations CIBC suggests he can.

c) Vocational Assessments

CIBC retained Marc and Liz Menard, both certified vocational evaluators with Ability Management Consultants Ltd., to prepare a vocational evaluation report. In the report dated February 24, 1999,¹⁵ they suggest that Mr. Horne is not achieving his full potential in his present job. They state in their Summary that there are occupations which Mr. Horne may be capable of performing. They list these occupations as follows on page ii:

tool and die maker,
vocational instructor - welding and
bus driver

Should formal training, apprenticeships or the opportunity to write a certification examination be an option, then Mr. Horne's evaluation results indicate he would be capable of working as a

weld inspector,
apprenticed tool and die maker and
machinist.

On page two of their report under the heading "Limitations of the Report," the Menards state as follows:

This report is limited by the fact that the occupations identified as potentially suitable do not necessarily represent specific placement options currently available to Mr. Horne.

The occupations identified are deemed to exist within the client’s geographic area.

The Menards are making it quite clear that they are not taking the position that the jobs they suggest Mr. Horne can perform are currently available to him.

Mr. Horne suggests that the Menards' report is flawed in many ways, some of which are as follows:

On page 8 of their report, the Menards list what Mr. Horne himself says are his function limitations. One of these self-reported limitations is "only able to sit for 20 minutes then must get up and walk around." On the very next page of their report the Menards state "Care has been taken to identify occupations known to be sedentary or semi-sedentary in nature ..." I am not sure how the occupations that the Menards have listed are sedentary or even semi-sedentary in nature.
On page 17 of their report, the Menards list a number of occupations they feel Mr. Horne is capable of pursuing. These are all unrealistic because they require extensive re-training and Mr. Horne is (i) incapable of re-training because he cannot read or write to any significant degree and is functionally illiterate; (ii) he would have no way of supporting his family if he was to stop working to try to upgrade his education; (iii) they are physically too demanding, and (iv) the test is what he is presently capable of doing, or could be with slight upgrading.

On page 17 of their report, the Menards focus in on the occupation of weld inspector, as the one that they thought was the most attainable and sustainable of all the occupations they identified. I find that this job also is something that Mr. Horne is unable to achieve. On page one of their report, the Menards made reference to the NOC (National Occupational Classification, prepared by Human Resources Development Canada). The Menards quite fairly indicate that the education/training requirements are "Completion of secondary school or two years of an engineering program at a college or university." Even if Mr. Horne could perform the physical requirements of a weld inspector, he could not achieve the educational and training prerequisites because he is functionally illiterate and because he cannot afford to take time away from his present job to go back to school for a number of years. In addition, the test for suitable employment is employment for which he is currently suited, not employment that he might possibly attain after significant amounts of upgrading and training.

Mr. Horne states that the Menards' qualifications are inadequate when it comes to trying to conduct the type of assessments they did. Neither of them are psychologists and because of this, neither of them are able to conduct the kinds of psychological tests which measure such things as intelligence, interests, and aptitude.

Mr. Horne argues that Dr. Neville Doxey on the other hand is well qualified to do vocational assessments. He is a psychologist and has access to all of the psychological tests that are needed to do fair and accurate vocational assessments. Dr. Doxey takes issue with the conclusions of the Menards.

Dr. Doxey performed an in-depth psycho-vocational assessment of Mr. Horne. Based on the testing and other assessments performed, Dr. Doxey analysed the occupations suggested by the Menards and concluded as follows:

In my opinion, Mr. Horne, a virtually illiterate forty-eight year old man with no more than eight years of formal education and no meaningful transferrable skills, has little, if any, realistic vocational rehabilitation potential. Marc and Liz Menard grossly over-estimated his intellectual capacity and vocational aptitudes and, consequently, I believe, arrived at suggestions concerning his alternative employability that are erroneous, invalid, unrealistic and totally unattainable. To expect a man of his age, with his profound intellectual and educational limitations, and with his past history of academic failure and underachievement, to now give up the employment he has - however modest, low skilled, and low paying - to embark on a quest for a higher level of education and new vocational skills whilst, at the same time, encumbered by pain, fatigue, depression and insomnia, would be indefensible.

Although it has been suggested that the could upgrade his education, acquire new vocational credentials, and qualify for a new career, and hence offset or mitigate any loss of employability or future income earnings capacity he may have suffered, this scenario is completely incompatible with the findings of the present examination. Mr. Horne is a man of limited education and intellectual resources; he is virtually functionally illiterate; and he possesses only rudimentary academic skills. Added to this, he is subject to chronic pain, is emotionally tormented, has disturbed sleep, and is chronically fatigued. He has little, if any, potential to upgrade his education and acquire meaningful new occupational skills. He is not a realistic candidate for vocational rehabilitation...¹⁶

In her Vocational Analysis dated October 19, 2000, Ms. Wilkinson states:

Based on Mr. Horne's limited academic ability, education and training, and intellectual ability, any formal re-training in terms of upgraded academics/ expertise would be very difficult. Given his age, lack of field experience in new positions, and market conditions for older employees with no field experience, re-training, in all probability, is not a realistic option for him. This is compounded by chronic physical impairments.

Given Mr. Horne’s ability both from a physical and intellectual standpoint, his present position at the Toronto Auto Auction is likely the maximum he can achieve and sustain over time in terms of competitive employment. Unfortunately, this does not bring about a commensurate income, status, or offer him the satisfaction he enjoyed as a Welder, and the opportunity to provide for his family and support his pre-collision quality of life.

Mr. Horne’s ability to pursue and sustain employment has been limited by his persistent pain and symptomatology resulting from the motor vehicle collision of June 2, 1997. His competitiveness, opportunity for income commensurate with his pre-collision employment, and his future employment options have all been negatively impacted by the collision. In the future, Mr. Horne will likely experience periods of acute symptomatology that will, at times, result in decreased ability; this will make it difficult for him to sustain employment over time.¹⁷ [emphasis in original]

The Menards provided an updated report dated November 30, 2000.¹⁸ It sets out the amount of money Mr. Horne could potentially earn working as a professional driver of any nature, and further information regarding Mr. Horne's ability to perform the job of weld teacher, and the Weld Inspector Certification Process. It is interesting to note that a representative of George Brown College "indicated that the Weld Instructor’s job might be heavy at times particularly if they are teaching pressure vessel welding." Representatives of the Institute of Technical Trades stated that the "Weld instructor is required to demonstrate welding techniques to the pupils, which might involve occasional bending, crouching or overhead work to demonstrate welding techniques." They also stated that "a Weld Instructor might have to demonstrate welding in awkward positions..." Rather than bolstering CIBC’s position, these comments support the view that Mr. Horne could not perform the physical requirements of this job.

Mr. Robert Katz, a social worker, provided a vocational assessment report dated November 27, 2000.¹⁹ It was prepared to assist the defendants in Mr. Horne's tort claim. He compares the Menards report and the report provided by Dr. Doxey. He states at page 26, "If Dr. Doxey is correct, one wonders how he ever mastered welding."

Dr. Doxey responds to this and other criticisms in a report dated January 8, 2001.²⁰Dr. Doxey contacted a welding instructor who pointed out that many of their trainees were illiterate and many have significant difficulty speaking English. He also said that the two primary welding certification standards are entirely practical tests requiring no reading.

Mr. Katz admits near the end of his report at page 31 that Mr. Horne "will not be able to command the same high wage as is paid to healthier, more vigorous unskilled workers in the automobile or aircraft manufacturing industries."

He also refers at page 31 to higher paying driving jobs, but he does not take into consideration Mr. Horne's physical limitations which would preclude him from such jobs as chauffeuring a limousine or delivering medical or construction supplies. These normally require heavy lifting, which Mr. Horne cannot be expected to do in a competitive employment situation.

In terms of test data, Dr. Doxey indicates that he was able to use certain test instruments such as the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III). He states that "The WAIS-III and its predecessors are widely regarded as the "gold standard" of intelligence tests..." Their sale and distribution is restricted to licenced psychologists. For that reason, the Menards were forced to employ tests of lesser quality than Dr. Doxey relied on. On that basis, (and on the basis of limitations in their report that the Menards themselves identify as set out above, and other inconsistencies set out below), where there is conflict in the conclusions in the reports provided by the Menards and Mr. Katz and the conclusions in Dr. Doxey's report, I prefer the conclusions in Dr. Doxey's report. Ms. Wilkinson’s conclusions are similar to Dr. Doxey’s.

In addition, as discussed above, I find Mr. Horne to be a credible witness. As such, I give considerable weight to his contention that he could not perform occupations in the welding trade because he can no longer flip his helmet, get into awkward positions or carry heavy loads. At page 28 of his report, Mr. Katz describes his discussion with Mr. Horne:

A number of options are possible within the welding trade. On interview I asked him about weld inspection or supervision, but he explained that neither would be suitable. Even though he could perform these duties without a helmet, he would have to extend his neck, and this, he emphasized, would be too onerous. I do appreciate that a man with as tender a neck as he describes would not be suited for either of these jobs.

Finally, CIBC suggested that if working as a car jockey was the only employment Mr. Horne could competitively perform, he could find more remunerative work in this field. It provided the report of Thea Aldrich of Vocational Pathways Inc. dated March 28, 2001²¹ to support this contention. I did not find this report persuasive. The jobs described were either seasonal, part-time, involved carrying luggage or were geographically undesirable. In my view, it is not realistic to expect Mr. Horne to relocate or to commute daily from his long-time home in Brampton to Niagara Falls or Fort Erie.

Conclusion regarding Income Replacement Benefits:

Due to my finding that Mr. Horne and his wife were credible witnesses, I accept their evidence regarding his physical inability to perform alternative employment suggested by CIBC. I also accept their evidence that Mr. Horne can read very simple things, but is virtually functionally illiterate.

In addition, as discussed above, I prefer the evidence of Dr. Doxey and Ms. Wilkinson over the evidence of the Menards and Mr. Katz. Dr. Doxey, as a licensed psychologist, was able to perform tests of a higher quality than those performed by the Menards. In addition, as set out above, there are inconsistencies in their report. For example, in their Summary they refer to "tool and die maker" as a direct entry occupation that Mr. Horne may be capable of performing. On the other hand, they state that, "Should formal training, apprenticeships or the opportunity to write a certification examination be an option, then ...he would be capable of working as ... apprenticed tool and die maker." I find it difficult to understand how tool and die maker could be a "direct entry occupation" for Mr. Horne when apprenticed tool and die maker is not. I also accept Mr. Horne’s criticism that they have not taken into consideration Mr. Horne’s physical limitations or what he is currently able to do with minimal upgrading or re-training. Mr. Katz based his assumptions on the tests performed by the Menards as well. Accordingly, I give Mr. Katz’s report less weight than Dr. Doxey’s reports.

I find that the substantial reduction in Mr. Horne's remuneration and status does not make his current unskilled employment as a car jockey suitable in view of his education, training and experience as a welder. Unfortunately, due to Mr. Horne's physical and literacy limitations, it is very unlikely that he will be able to find more lucrative employment. In addition, I find Mr. Horne to be a highly motivated individual. Despite continuing neck pain and frequent headaches, he works long hours, frequently working overtime. If he could find more lucrative full-time work as a driver, which was within commuting distance, and which he could physically perform, I am sure he would do it.

He also loved his work as a welder. I have no doubt that if he thought he could work in this field either as a teacher or inspector, he would gladly do that. It is also highly unlikely that Mr. Horne who is now almost 50 would be able to meet the physical and literacy demands of training and working in a completely different area such as tool and die maker or machinist. In any event, the test required by paragraph 5(1)(b) of the Schedule does not require this amount of upgrading or re-training. It refers to "employment for which he is reasonably suited by education, training or experience."

In Baetsen and Jevco Insurance Company,²² Arbitrator Renahan dealt with a case involving an applicant who had worked as a welder for 34 years. After a motor vehicle accident, he could no longer perform his job functions due to pain and weakness in his left thumb. He too had literacy difficulties. Although this case was under a previous Schedule, the test of "continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience" is similar to the test in the case at hand. Arbitrator Renahan found that the applicant could not physically perform a normal day of farm work he had done before on his hobby farm. In addition, Arbitrator Renahan did not consider working in a store or a gas bar to be suitable. He noted that the applicant was a well -paid skilled worker. He found that unskilled, low-paying work was not suitable for him. In addition, the applicant had a commercial driving licence, but did not know how to drive a large truck. However, since he could not maintain the written log required for truck drivers, Arbitrator Renahan did not find this work suitable for him. In addition, there was no suggestion that the applicant should undergo significant upgrading or re-training in order to enhance his skills and his employability.

I am of the view that the same considerations should apply to Mr. Horne, and the test in the Schedule under which he is making his claim. As indicated above, paragraph 5(1)(b) of the Schedule states that the insurer is not required to pay an income replacement benefit "for any period longer than 104 weeks of disability, unless, as result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience." This test is looking at a snapshot in time. It looks at what Mr. Horne can currently do in the post 104-week period. In my opinion, it does not require him to do more than a minimal amount of upgrading or re-training. Similarly, in the Wigle decision, Arbitrator Seife does not contemplate that an applicant will be required to undergo substantial amounts of upgrading or re-training in order to pass the test set out under the Schedule pertaining to Bill 68. I find that this reasoning applies to Bill 59 as the applicable wording is very similar to the wording in Bill 68.

In that context, I now examine the occupations suggested by CIBC through the Menards.

The Menards suggest that the following are sample direct entry occupations representative of the types of jobs Mr. Horne may be capable of performing: tool and die maker, vocational instructor - welding, and bus driver. I disagree.²³

In the Appendix to the Menards' report,²⁴ it states as follows regarding tool and die makers:

Some secondary school education is required. Completion of a four-year tool and die making apprenticeship program or a combination of over five years of work experience in the trade and some high school, college or industry courses in tool-and-die-making is usually required to be eligible for trade certification....

I fail to see how tool and die making could be a direct entry occupation for a person who has no secondary school education and no experience in tool and die making. In addition, Mr. Horne provided evidence that he had seen tool and die makers in shops while he worked in the power industry. He testified that it was a job that required lifting which was too demanding physically for him to do. I accept his evidence in this regard.

The Menards also refer to welding vocational instructor as a direct entry occupation for Mr. Horne. Even if Mr. Horne did not require a bachelor's degree or college diploma to teach at this level, he still would require some training to be a teacher. In addition, in my view, he lacks the literacy skills to do the paperwork and record-keeping required of a teacher. Further, as described above in the updated report dated November 30, 2000 commissioned by CIBC from the Menards, this type of work might be heavy at times. It requires him to demonstrate welding, which is something CIBC has acknowledged he can no longer do. Accordingly, I find that vocational instructor - welding is not employment for which Mr. Horne is reasonably suited by education, training or experience.

In addition, the Menards refer to bus driver as a direct entry occupation for Mr. Horne. Once again, as set out in the Appendix to their own report,²⁵ there are educational requirements. In this case, it states that:

Completion of secondary school may be required. Up to three months of on-the-job training, including classroom instruction is usually provided...

Mr. Horne is nowhere near the completion of secondary school. Even if this is not a requirement, further instruction is usually required. Accordingly, I find that bus driver is not employment for which Mr. Horne is reasonably suited by reason of education, training or experience.

In addition, bus drivers must sit for lengthy periods of time. Given Mr. Horne's acknowledged neck and back difficulties, this would not be a viable option for him. The reason his current job as a car jockey is so suited to him is that it provides him with a lot of down-time during which he can stand up, stretch and relax. This would not be available to him as a bus driver. I find that he is unable to perform the essential task of prolonged sitting required of a bus driver.

The Menards themselves acknowledge that the remaining options they raise of weld inspector, apprenticed tool and die maker and machinist require formal training, apprenticeships, or the opportunity to write certification examinations. In addition, the lifting required of a tool and die maker and of a machinist are too physically demanding given the neck and back difficulties that Mr. Horne experiences. I accept his testimony that he could not do the awkward physical positions and climbing demanded of a welding inspector. Nor could he do the report writing such an occupation would require. Based on my view that upgrading or re-training is not required by paragraph 5(1)(b) of the Schedule, and for the other physical and literacy reasons set out, I find that these occupations are also not employment for which Mr. Horne is reasonably suited by reason of education, training or experience.

Accordingly, I find that Mr. Horne suffers from a complete inability as defined above by arbitrators in Lombardi²⁶ and Terry²⁷ to engage in any employment for which is reasonably suited by education, training or experience.

Expenses Claimed pursuant to Treatment Plan

Pursuant to a Treatment Plan dated March 19, 1999, prepared by Rehabilitation Management Inc. ("RMI") and signed by his family doctor, Dr. Cowan, Mr. Horne is claiming for various benefits. These claims plus some others are listed at Exhibit 1, Tab 5. Mr. Horne has not indicated under what section of the Schedule he is claiming them. Accordingly, I have slotted them under various sections, as I thought applicable.

Medical Benefits:

Spinal Corset:

Mr. Horne is claiming a medical benefit for the cost of a custom-made spinal corset.

Under subsection 14(1) of the Schedule, "the insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit." Under subsection 14(2) "the medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for...medical services."

Mr. Horne is claiming $600 for the cost of this corset.²⁸ This is an estimated amount. Mr. Horne did not provide evidence as to the basis for RMI's recommending the corset.

In a DAC assessment report dated June 22, 1999,²⁹ Dr. C.B. Paitich, an orthopaedic surgeon, stated the following:

There is no requirement for surgical intervention or the use of a corset... As stated, the corset is neither required nor necessary and would not be beneficial to this man.

A subsequent MRI dated March 28, 2000³⁰ stated in part, as follows:

IMPRESSION

Findings consistent with partial congenital fusion involving the posterior aspect of the C-6-C-7 disc. Multilevel degenerative facet changes with minimal C-5-C-6 foraminal stenosis.

Mr. Horne argues that this may have changed Dr. Paitich's opinion. However, it appears that at least part of these problems are congenital. In any event, a spinal corset might provide more support for Mr. Horne's back; however, as these problems appear to be located in his neck, I do not see how the spinal corset might assist him. Accordingly, without a further medical opinion, I am not prepared to find that a custom-made spinal corset is a reasonable and necessary expense pursuant to section 14 of the Schedule.

Dr. Cowan's Invoices:

Mr. Horne is claiming for two invoices submitted by his family physician, Dr. Cowan.³¹ One invoice is dated August 6, 1999. It is for miscellaneous charges of $100. The other invoice is dated January 29, 2001. In it, Dr. Cowan asks for $6,000 without any verifiable breakdown of his claim. He states as follows:

Further to our conversation last week and to my conversation today with Mike Smitiuch and fees for my professional services, I would like to inform you that I am asking for the sum of $6000.00 which will include, over the past two and half to three years, at least the total of 30 hours in telephone calls with the Hornes, Mr. Smi tiuch, reviewing of multiple medical and other paramedical reports on Mr. Horne. At no time did I ever have "the meter running" to keep an accurate track of my time spent doing my professional services (ex Ohip) to Mr. Horne...

Mr. Horne states that Dr. Cowan was his long-time family physician and that his assistance was helpful to him. He did not make it clear pursuant to what provision the claim is being made. Accordingly, I have dealt with it here as a claim for a medical benefit. Below I will deal with whether it is payable under section 24 of the Schedule.

The issue is whether Dr. Cowan's accounts are reasonable and necessary expenses incurred as a result of the motor vehicle accident. The onus is on Mr. Horne to prove on a balance of probabilities, with sufficient specificity, why payment for these expenses is reasonable and necessary. Not only has Mr. Horne failed do indicate pursuant to what section he is making this claim, he has not shown why Dr. Cowan's accounts were reasonable and necessary. He has not even shown what is being claimed, except in a very general way. Mr. Horne testified that he saw Dr. Cowan approximately every two months and that Dr. Cowan got him into the Rothbart Pain Management Clinic. He stated that Dr. Cowan also performed some marriage counselling. The very general nature of Dr. Cowan's accounts makes it impossible to evaluate whether this expense is reasonable and necessary in the context of the Schedule. For example, it is not clear whether these invoices relate to medical treatment, which may have been covered by OHIP, or to assisting Mr. Horne's lawyers in the pursuit of his tort claim. Accordingly, I find that Mr. Horne has not proven that this claim is a reasonable and necessary expense.

Housekeeping:

Mr. Horne is claiming for housekeeping and home maintenance services³² at the rate of $100 a week for ten weeks, pursuant to section 22 of the Schedule. This claim is initially set out in a Treatment Plan dated March 24, 1999. It refers to seasonal assistance with lawn care/snow shovelling and handyman services. Mrs. Horne also testified that prior to the accident, Mr. Horne would clean bathrooms because she was allergic to ammonia, help with vacuuming, clean windows and do interior and exterior painting. Mr. Horne testified that "his wife, son and son-in-law take up the slack." He has made no payment to them.

Section 22(1) of the Schedule states as follows:

The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

In the June 22, 1999 DAC assessment report, Dr. Paitich indicates the following regarding housekeeping and home maintenance:

He is able to help out with daily tasks including doing dishes, laundry and blowing the snow from his driveway. He is also able to get groceries and make a bed and he is able to cut a lawn.³³

In a DAC occupational therapy assessment, Ms. Debby McQuillen, occupational therapist, states as follows:

It was evident from the discussion that Mr. Horne has almost returned to pre accident function as self reported in terms of his home environment. He does all previous household chores except cleaning the bathtub and car maintenance. He has adapted some of the activities to take into account his need to restrict neck extension. He now uses the vacuum attachments for dusting and a stool to reach all high objects. In the community Mr. Horne continues to do the grocery shopping and recreationally he plays darts...Mr. Horne also reported doing heavy outside work such as moving patio stones, with the help of his son and lawn maintenance. He stated that moving the stones took weeks instead of the hours it would previously have taken.³⁴

It appears that Mr. Horne, by his own admission, can do most of these tasks, albeit with some pain and a lot of pacing. Therefore, I find that he does not suffer from a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.

In addition, section 22 talks about "additional expenses incurred." Some work may have been performed by other family members, but Mr. Horne did not submit invoices or any evidence of any agreement to pay for these expenses. A number of recent cases³⁵ have held that this benefit is not payable under the circumstances. I concur with these cases. Mr. Horne conceded that if this was the law, he would fail to prove his claim. Accordingly, I find that Mr. Horne is not entitled to payment for housekeeping and home maintenance services.

Assessments:

Mr. Horne is claiming for the following:

Occupational Therapy, Functional Assessment and Follow-up by Rehabilitation Management Inc. - $6,658.42.
Vocational Analysis of Dr. Neville Doxey - $3,410
Consultations with family doctor, Dr. John Cowan - $1,500.³⁶

Mr. Horne claimed the first two items on this list under section 24 of the Schedule in a pre-hearing letter dated August 28, 2000. I assume that he is also claiming the third item under section 24, although he did not specify this.

Section 24 of the Schedule provides as follows:

The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan...

As Director's Delegate McMahon states in Aleman and State Farm Mutual Automobile Insurance Company:³⁷

The first limitation is that the expense must be reasonable. The second is that only expenses incurred "for the purpose of the Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan," are payable. The second limitation suggests there must be a link between the expense, and the advancement of a claim for benefits available under the SABS.

I concur with Director’s Delegate McMahon’s analysis that only expenses incurred in connection with the Regulation are payable. It would be unreasonable to expect insurers to pay for examinations and assessments which have no tie-in with the Schedule.

Mr. Horne candidly admitted that the work RMI billed with invoices totalling $6,658.42³⁸ was mostly in connection with his tort case. This included preparing a Long Term Functional Needs and Cost Analysis Report. In my view, this work was not done "for the purpose of the Regulation." Accordingly, this part of the bill was not payable by CIBC. In any event, Mr. Horne withdrew his claim for amounts expended preparing a Long Term Functional Needs and Costs Analysis Report during the hearing.

On the other hand, in the DAC disability assessment report,³⁹ dated July 9, 1998, Dr. Kern concludes as follows:

...this gentleman is currently disabled and unable to return to his previous employment as a welder. It might be appropriate to consider vocational rehabilitation.

This conclusion suggests that vocational rehabilitation was reasonable for Mr. Horne at that time. In a Treatment Plan dated March 24, 1999, RMI recommends a vocational analysis to be done by an RMI counsellor at a total cost of between $1,400 to $2,000.

RMI's invoices are dated September 15, 2000, October 15, 2000, October 25, 2000 and February 27, 2001.⁴⁰ They pertain to work RMI did from July 5, 2000 to February 26, 2001. There is no work referred to during the date of the Treatment Plan on March 19, 1999. I am therefore unable to determine what expense was incurred for the Treatment Plan. I note that by the time RMI did this work, Mr. Horne had returned to the workplace as a car jockey. He had determined that this was the best available employment for him. So a large portion of the vocational rehabilitation work proposed in the Treatment Plan dated March 19, 1999 was no longer relevant.

The invoices refer to phone calls, correspondence, document review and research. The bill dated October 25, 2000 refers to a Long Term Functional Needs and Cost Analysis Report on October 18, 2000, and a Vocational Analysis Report on October 19, 2000. Mr. Horne did not indicate what precise amount he was claiming as an accident benefit or which portions of the invoices were applicable under section 24. It is difficult to determine which portions of RMI's bills, if any, relate to vocational analysis for the purposes of the Schedule.

I also note that $2,650.93 of the invoice dated October 15, 2000 deals with Dr. Doxey's psychological assessment, which I will deal with below.

Under all the circumstances, and without a further breakdown of the invoices, I find that the amount of $96 claimed for the Vocational Analysis Report in the invoice dated October 25, 2000 to be reasonable, and for the purpose of the Regulation.

Mr. Horne is claiming $3,410 for reports prepared by Dr. Doxey dated September 11, 2000⁴¹ and January 8, 2001.⁴² Mr. Horne admitted that these were also prepared for the purposes of his tort action. The report dated September 11, 2000 was not provided to CIBC until November 2000. The follow-up report was not provided until the date of the hearing. However, this follow-up was done to address concerns Mr. Katz raised in his report dated November 27, 2000.⁴³ Notwithstanding their relevance in the tort action and the delay in providing them to CIBC, Dr. Doxey's 30 pages of reports were comprehensive, detailed, well-written, and very helpful in determining the accident benefits issue of income replacement benefits. Accordingly, I find the cost of these reports at $3,410 to be reasonable expenses for the purpose of this Regulation.

Mr. Horne is claiming $1,500 for an invoice dated November 17, 2000 submitted by Dr. Cowan, his family doctor. It pertains to the preparation of a 2 1/4 page report. Dr. Cowan admits that "at no time to ever have the 'meter running' to keep an accurate track of my time spent doing my professional services (ex Ohip) to Mr. Horne."⁴⁴

It is not clear if Mr. Horne is claiming for the cost of Dr. Cowan's report under section 24 of the Schedule. However, for the purposes of this discussion I will assume he is. Dr. Cowan's report dated November 16, 2000 was not provided to CIBC until the morning of the hearing, and also relates to the tort action. Although parts of it are helpful with respect to Mr. Horne's claim for accident benefits, those parts are extremely brief. I cannot say that $1,500 is a reasonable expense with respect to this report. Without a breakdown of the time Dr. Cowan spent or other details, it is difficult, if not impossible to determine what is a reasonable amount to expect an insurer to pay. Accordingly, under all of these circumstances, I do not find that the cost of Dr. Cowan's report is a reasonable expense pursuant to section 24 of the Schedule.

SPECIAL AWARD:

Mr. Horne is claiming a special award. He is entitled to a special award pursuant to subsection 282 (10) of the Insurance Act if CIBC unreasonably withheld or delayed payments to him. Mr. Horne was successful on the issue of his income replacement benefits. However, I find that CIBC had sufficient evidence to withhold payments to Mr. Horne. Even though I preferred the evidence of Dr. Doxey and RMI, CIBC had the evidence of the Menards, Mr. Katz and Ms. Aldrich to support its position. In addition, several reports were not provided to CIBC until November 2000 and some were not even provided until the morning of the hearing. Under these circumstances, a special award is not justified.

Although I found a small portion of RMI's accounts and all of Dr. Doxey's accounts were payable, none of Dr. Cowan's, RMI's, or Dr. Doxey's invoices were even submitted to CIBC prior to the hearing. Accordingly, I do not find a special award is justified here either.

EXPENSES:

I thank both parties for their able assistance, and for conducting the hearing in an efficient manner. If the parties are unable to agree on the entitlement to, or amount of the expenses of the proceeding, they may request an appointment with me, pursuant to Rules 73 and 77 of the Dispute Resolution Practice Code (Third Edition).

December 20, 2001

Anne Sone Arbitrator

Date