Kwabena Adu-Agyei v. Zurich Insurance Company, 2002 ONFSCDRS 82

Neutral Citation: 2002 ONFSCDRS 82

FSCO A97-001546

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KWABENA ADU-AGYEI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

January 31, February 1, 2, 3, August 21, 22, 23, 24, November 3, 6, 7 and 8, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mark Baker for Mr. Adu-Agyei

Darrell P. March for Zurich Insurance Company

Issues:

Kwabena Adu-Agyei was injured in motor vehicle accidents on March 10, 1995 and May 10, 1995. Zurich Insurance Company ("Zurich") paid Mr. Adu-Agyei statutory accident benefits as a result of these accidents under the provisions of the Schedule.¹ Mr. Adu-Agyei claims ongoing entitlement to income replacement benefits (IRBs) after December 13, 1997, IRBs at a higher rate than was paid, rehabilitation benefits, interest on overdue benefits and his expenses in respect of the arbitration. Zurich disputes all of Mr. Adu-Agyei's claims. Zurich claims its expenses of the arbitration and an award in respect of its assessment. The parties were unable to resolve their disputes through mediation, and Mr. Adu-Agyei applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Adu-Agyei entitled to be paid an income replacement benefit based on self-employment as a taxi driver, or based on a contract of employment as a truck driver as a result of the accident on May 10, 1995?

2. Is Mr. Adu-Agyei entitled to be paid an income replacement benefit after December 13, 1997 under section 7 of the Schedule?

3. What is the amount of Mr. Adu-Agyei's income replacement benefit?

4. Is Mr. Adu-Agyei entitled to a vocational assessment and the services of a case manager, claimed as rehabilitation benefits pursuant to paragraphs 40(5)(b) and (c) of the Schedule?

5. Is Mr. Adu-Agyei entitled to be paid for the cost of transcripts as an interim expense under section 282(11.1) of the Insurance Act?

6. Is either party liable to pay the other's expenses in respect of the arbitration, under section 282(11) of the Insurance Act?

7. Is Mr. Adu-Agyei liable to pay Zurich an award in an amount which does not exceed the amount of its assessment in respect of the arbitration under section 282(11.2) of the Insurance Act?

Mr. Adu-Agyei also claims interest on any amounts owing.

Result:

1. Commencing May 25, 1995, Mr. Adu-Agyei is entitled to be paid an income replacement benefit based on a contract of employment as a truck driver. He is entitled to these payments until such time as Zurich Insurance Company fulfills its obligations with respect to the loss of earning capacity benefit provisions under Part VI of the Schedule.

2. The income replacement benefit is to be calculated based on the amount of $500 per week, net. The amount of the benefit is to be calculated pursuant to section 10, and sections 81 or 82 of the Schedule, as Zurich may elect, and is subject to the indexation provisions of section 79 of the Schedule. If the parties are unable to agree on the amount of this benefit, I remain seized of this issue.

3. Zurich Insurance Company is entitled to a credit for income replacement benefits it paid Mr. Adu-Agyei at the rate of $185 per week between May 25, 1995 and June 23, 1996, and of $340.48 a week between June 24, 1996 and July 25, 1997, and of $185 per week between July 26, 1997 and December 13, 1997.

4. Mr. Adu-Agyei's claim that he is entitled to an income replacement benefit at a higher rate than $185 per week from his work as a taxi driver is dismissed.

5. Mr. Adu-Agyei is entitled to $3,516 for a vocational assessment at Goodwill Industries pursuant to section 40 of the Schedule. He is also entitled to the reasonable cost of up to 30 hours of case management services, by a case manager of his choice, pursuant to section 40 of the Schedule.

6. Subject to any further Order as to expenses at the conclusion of the hearing, Mr. Adu-Agyei is entitled to interim expenses in the amount of $1,286.68 for the cost of transcripts as an interim expense under section 282(11.1) of the Insurance Act.

7. If the parties are unable to agree, the issues of interest, expenses and Zurich's entitlement to an award in respect of its assessment may now be addressed.

EVIDENCE AND ANALYSIS:

Background

Mr. Adu-Agyei was injured in motor vehicle accidents on March 10, 1995 and May 10, 1995. At the time of these accidents, Mr. Adu-Agyei was 38 years of age, married, with three sons. He was self-employed as a taxi driver. Zurich is the insurer that is obliged to respond to Mr. Adu-Agyei's claims for statutory accident benefits as a result of both accidents.

Zurich paid Mr. Adu-Agyei income replacement benefits between March 17, 1995 and June 23, 1996 and from July 26, 1997 to December 13, 1997, at the rate of $185 per week based on restrictions in his activities of daily living, pending receipt of income documentation.² Between June 24, 1996 and July 25, 1997, Zurich paid Mr. Adu-Agyei at the rate of $340.48. No claim for repayment was asserted by Zurich.

Mr. Adu-Agyei alleges that after the first accident, he was entitled to be paid IRBs at the rate of $450 per week based on his self-employment as a taxi driver. He also alleges that after the second accident he was entitled to be paid at the rate of $500 per week based on a contract of employment as a truck driver. Mr. Adu-Agyei submits that he continues to be disabled from performing each job as a result of his injuries, and is therefore entitled to further income replacement benefits. He also seeks entitlement to case management services, a vocational assessment, interest and expenses.

Zurich disputes all of Mr. Adu-Agyei's claims. Zurich claims its expenses and an award in respect of its assessment.

On April 30, 2002, I issued the Order with reasons to follow. These are my reasons.

IRB amount as a taxi driver

Mr. Adu-Agyei's involvement in the taxi business began in 1989, when he and a partner decided to buy a car and rent it 24 hours a day to two taxi drivers. They borrowed $23,000, purchased a vehicle, and leased a plate from Beck Taxi, a taxi brokerage and dispatch company in Toronto.

In 1990 his partner defaulted on the loan, and GM decided it would pursue Mr. Adu-Agyei for the full amount of the debt. Mr. Adu-Agyei testified he could not return the vehicle to GM, and was unable to sell the car for an amount that would extinguish the debt. He considered raising the rent he charged the drivers, but concluded that this would only place increased pressure on them to earn more. The likely result would be that the drivers would be involved in more accidents, cause increased repair costs, insurance claims and premium increases. On one occasion when one of the drivers called in sick, Mr. Adu-Agyei decided to operate the vehicle himself. While driving the taxi one of his fares assaulted him and as a result he lost one or more of his teeth.

Mr. Adu-Agyei testified that between 1989 and 1995 he did not report earnings from the taxi business on his income tax return because while he was able to cover the expenses, he was not earning any money. He testified that the drivers were involved in numerous accidents, and increased insurance premiums and car repair costs made the business unprofitable.

In about late 1994, the day driver was about to buy his own taxi with someone else, and the night driver had smashed the car. Mr. Adu-Agyei had been laid off from his job. At the time, the Toronto area was affected by a recession and jobs were hard to come by.³ Mr. Adu-Agyei decided that he would drive the car himself for a 12-hour shift. He testified he did so between January 1995 and March 10, 1995, the date on which he was injured in the first accident.

Mr. Adu-Agyei provided trip sheets and financial statements prepared by a bookkeeper to support his claim for a higher benefit rate than Zurich paid. Fatal to his claim on either basis, was his admission that during 1995, his expenses were greater than the money he brought in driving the taxi.

In the context of his admission that he earned no income for the period in question, I found Mr. Adu-Agyei's claim for a higher benefit rate troubling. In the course of advancing this claim, Mr. Adu-Agyei admitted receiving unemployment insurance benefits, then social assistance benefits while driving the taxi. I found his explanation of how this came about unconvincing. Mr. Adu-Agyei also admitted that he inflated his driving history on his resume. I will nevertheless address the evidence Mr. Adu-Agyei presented in relation to his claim for an IRB at a higher rate.

Mr. Adu-Agyei filed run sheets, one for each day between January and April 1995. He testified that the documents were prepared contemporaneously with the trips he made. He testified that he typically worked six days a week, usually taking Sundays off. Sometimes he would work on Sunday to make up a Saturday he had taken as a day off. He could not explain how it was that he had a run sheet for each day of the week during the entire January to April 1995 period.

I note that Mr. Adu-Agyei's statement to Zurich made on May 4, 1995, shortly after the accident, indicates that he drove seven days per week. However, that statement was not put to him during his testimony. Even if I were to accept that the run sheets reflected his revenue in the vicinity of $200 per day, Mr. Adu-Agyei did not complete the portions of the run sheets with respect to his expenses.

I have considered whether the expenses detailed in the financial statements, plus the additional expenses he admitted, could be subtracted from the revenue shown on the run sheets to permit me to obtain a reasonable estimate of Mr. Adu-Agyei's income. I am not persuaded that this would yield a reliable result. Mr. Adu-Agyei admitted that he had not provided the bookkeeper with documents in relation to all of his expenses. These admitted monthly expenses for the three-month period would have been $180 for car washes, $162.71 for the radio and meter rentals, $1,500 for repairs and maintenance, and $1,170 for car loan payments. The effect of including those admitted expenses would be to cut the net income shown on the financial statements almost in half. There was also one admitted expense, the monthly payment due on a $2,500 debt for a 1994 car repair, which was not quantified. Even if this entire amount was allocated as an expense for the period, these additional expenses do not reduce his income for the period to zero, and there must therefore be other expenses. The financial statements therefore overstate Mr. Adu-Agyei's net income.

Mr. L. Swaby, the bookkeeper who prepared the financial statements for Kwabena Taxi Services for the period ending March 31, 1995, testified that he no longer had the original file due to the passage of time, and because Mr. Adu-Agyei had not been an ongoing client. Mr. Swaby testified that he did not use the run sheets in preparing the financial statements. He testified he would have prepared the statements from source documents such as bank statements, cancelled cheques, invoices, and receipts, and could therefore confirm the accuracy of the figures he used.

Mr. Swaby suggested that the effect of the omission of these expenses would be neutral if the expenses were incurred and paid with cash from the business. Mr. Adu-Agyei testified that the amounts shown as fares included the tips he received, and that although no expenses were shown for gas, oil and car washes, he used money from his fares to pay for such expenses. In my view, two things would have to be established for this suggestion to be accepted. Firstly, Mr. Adu-Agyei would have to provide evidence that those expenses were paid. Secondly, there would have to be a closed loop of cash inputs. That is to say the only source of cash to pay those expenses would be income from the cab business. In light of Mr. Adu-Agyei's testimony that in 1995 he also received unemployment insurance benefits of $1,610, and social assistance benefits in the amount of $4,431, a total of $6,041, an amount which is quite close to the amount stated as net income on the income statement, I am not persuaded that this can be said to be a closed loop, in which his revenue from the taxi business was the only source of cash.

In this case, I find no reliable basis for estimating or determining Mr. Adu-Agyei's income as a taxi driver between January to March 1995. I am not persuaded that the trip sheets and financial statements, whether viewed separately or together, accurately reflect Mr. Adu-Agyei's earnings for the period. I find no basis for concluding that Mr. Adu-Agyei was entitled to be paid an income replacement benefit at a higher rate than $185 per week. Mr. Adu-Agyei's claim for a higher benefit rate as a taxi driver is dismissed.

IRB entitlement as a truck driver

Was there a contract of employment?

Mr. Adu-Agyei alleges that he secured a contract of employment with Mr. Sampson Tano to drive a transport truck as a trainee. Zurich disputes there was a contract. In the alternative Zurich submits that if there was a contract, it was not a contract of employment.

Section 7(1)3. of the Schedule provides:

7.—(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

3. The insured person,

i. was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii. as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

To succeed, Mr. Adu-Agyei must show that there was a legitimate contract of employment made before the accident, that he was entitled to start work within one year of the date of the accident, that the contract was evidenced in writing, and that he suffers a substantial inability to perform the essential tasks of the job of a long distance transport truck driver trainee.

In November 1994, Mr. Adu-Agyei was laid off from his job. He decided he would pursue work as a truck driver. He completed a truck driving course at Humber College and obtained his AZ licence. He testified he was taught to drive a truck, load and unload vehicles, and how to safely transport various goods such as petroleum, animals and other products. Mr. Adu-Agyei had about 10 years of experience making six-hour trips by truck while he lived in Ghana. Mr. Adu-Agyei testified that he made various attempts to find a job driving a truck, but was repeatedly rejected based on a lack of Canadian experience.

Mr. Adu-Agyei testified that sometime between March 10, 1995 and early April 1995, he completed an application at Astro Transport to drive one of their trucks but was again rejected due to a lack of Canadian experience. On his way out of Astro Transport's premises, Mr. Adu-Agyei saw a driver who he surmised was also from Ghana. Mr. Adu-Agyei approached him, introduced himself, confirmed that he too was from Ghana, and began speaking to him in Twi, their mother tongue. Mr. Adu-Agyei related his story of repeated rejections and asked Mr. Tano whether he could help him.

Mr. Tano testified that he owned his truck and had a contract to drive Astro Transport's trailers between Ontario and Texas. In March 1995, he was driving two trailers a week down to Texas. He was limited in the number of loads he could transport because by regulation, he could only drive 10 hours out of every 24. With someone like Mr. Adu-Agyei to spell him off, he could make the trip in a shorter number of hours, increase the number of trips he made per week, and, since he was paid $1.00 per mile, increase his income.

Mr. Tano testified he was leaving that day to go to Texas. He approached his foreman with his plan. His foreman was agreeable, provided Mr. Adu-Agyei obtained and filed a driver's abstract, so he would be covered by insurance, and provided he produced a satisfactory criminal record search which Astro Transport would keep on file. This was to permit Mr. Adu-Agyei to cross the Canada-United States border without difficulty. A copy of a criminal record search performed on April 25, 1995 by the Peel Regional Police, which certified that Mr. Adu-Agyei had no record of criminal convictions, was filed as an exhibit.

Mr. Tano's costs would be reduced if JobsOntario also covered a portion of Mr. Adu-Agyei's remuneration. Typically, these subsidies were approximately 25% of the total wage.⁴ Mr. Tano testified that he told Mr. Adu-Agyei to go to JobsOntario and give them Mr. Tano's telephone number.

Mr. Adu-Agyei filed a copy of a JobsOntario interview sheet filled out in his handwriting on April 3, 1995. Mr. Tano testified that he was then contacted by a lady from JobsOntario, who informed him that JobsOntario would pay a percentage of Mr. Adu-Agyei's wages, and that he would not be required to remit income taxes on any payments made to Mr. Adu-Agyei since these payments were considered a training allowance.

Mr. Tano testified that he returned from Texas on a Thursday. On Friday, the following day, he received a telephone call from Mr. Adu-Agyei informing him that he had been injured in a car accident, was in hospital and would be unable to drive the truck. Mr. Tano testified that he really did not believe this was the case, until Mr. Adu-Agyei, accompanied by his wife, came to visit him at his apartment, following his discharge from hospital. At that time he saw that Mr. Adu-Agyei was on crutches.

Mr. Tano confirmed that following the accident he gave Mr. Adu-Agyei a letter with respect to their agreement which stated:

This is to hereby confirm that Mr. Sampson Tano of Toms Transport is willing to hire Mr. kwabena Adu Agyei as a Truck Driver. And his weekly pay will be $500.00 net. Due to the accident which occure to him he couldnt start. Any time he get well I will hire him. [sic]

The arrangement was to Mr. Tano's financial advantage. The terms he proposed and which I find were accepted were reasonable. The training allowance Mr. Adu-Agyei was to be paid, when extrapolated, amounts to $26,000 net income per annum. It is not unusual for long-haul truck drivers to earn in excess of $50,000.⁵ I find the amount to be paid as a training allowance was reasonable in regard to the earnings a full-time truck driver would have made.

I found Mr. Tano's testimony persuasive. His testimony is supported by documentation from JobsOntario, and the existence of the clear criminal record search dated prior to the second accident. Mr. Adu-Agyei had the requisite training and AZ licence. Mr. Adu-Agyei's communication to Mr. Tano that he was injured and therefore unable to do the job, and Mr. Tano's initial disbelief that Mr. Adu-Agyei had been injured both strike me as events which would likely occur, in the context of a business arrangement.

I found Mr. Tano credible. I accept his testimony that the letter he provided to Mr. Adu-Agyei documents the arrangements made prior to the second accident. I also accept that the arrangement was reduced to writing following that accident. I am satisfied that Mr. Tano and Mr. Adu-Agyei did intend to have a business relationship which would be to their mutual advantage. Both parties took steps to further the plan. Mr. Tano acted promptly in obtaining the foreman's agreement to the plan and ensuring that insurance arrangements would be in place for Mr. Adu-Agyei to drive the vehicle.

Mr. Adu-Agyei filed a copy of a JobsOntario interview sheet filled out on April 3, 1995. JobsOntario in turn contacted Mr. Tano and agreed to provide funding. Mr. Adu-Agyei obtained a criminal record search dated April 25, 1995 in furtherance of the arrangement.

I find in this case Mr. Tano agreed to hire Mr. Adu-Agyei as a trainee to drive a transport truck with him between Ontario and Texas, and to pay Mr. Adu-Agyei the sum of $500 per week, net. During cross-examination, Mr. Adu-Agyei testified that the agreement was to work for six months. I find the agreement was contingent on Mr. Adu-Agyei being an acceptable driver to Astro Transport. That is to say he would provide a satisfactory criminal record search, and driver's abstract. I infer that it was also contingent on agreement from JobsOntario to provide funding. However, it is possible that even without such funding Mr. Tano would have sufficient financial incentive to hire Mr. Adu-Agyei. With the assistance of JobsOntario, the cost to Mr. Tano would be reduced. I find no discrepancy between Mr. Adu-Agyei's statement that he would be paid $500 per week plus expenses and Mr. Tano's version of $500, net per week. The amount in Mr. Adu-Agyei's pocket on a weekly basis was $500. Since Mr. Adu-Agyei would be accompanying Mr. Tano, Mr. Tano would be in a position to pay for such expenses on the spot. Based on all of the evidence I find that there was sufficient certainty that there was a contract.

I find that this is one of those contracts in which certain terms have been agreed, and in which one of the terms, namely a start date, was not identified by the parties to the agreement. I find both Mr. Adu-Agyei and Mr. Tano were conducting themselves on the basis that time was of the essence. I find that their arrangements were sufficiently certain, that the start date can be implied.

The start date was not entirely under the control of Mr. Tano and Mr. Adu-Agyei. The earliest start date would have been the date on which various conditions were satisfied: namely, a driver's abstract and a satisfactory criminal record search were obtained and filed with Astro Transport, JobsOntario had committed to funding, and made any necessary administrative arrangements to provide funds on an ongoing basis to Mr. Tano. On a balance of probabilities, I find that by May 25, 1995 these arrangements would all have been in place. I find it was a legitimate contract made before May 10, 1995, the date of the second accident. I find written evidence of the contract in the letter provided by Mr. Tano following the accident.

The Schedule requires the contract to be "evidenced in writing". Arbitrators have noted that there is no requirement that the writing be made prior to the motor vehicle accident.⁶ I agree. In my view, few people obtain written contracts prior to their start date. In most cases a verbal job offer is made, the employee shows up on the agreed upon date, works, completes necessary forms and receives payment. To interpret this provision otherwise would mean that few persons would qualify for such a benefit.

Generally, I have approached Mr. Adu-Agyei's evidence with considerable caution because of my concerns regarding his evidence as it related to his claim for a higher rate of IRBs as a taxi driver. However, I have no such reservations with respect to Mr. Tano's evidence regarding the existence of the contract. I am satisfied that potentially there was a significant financial advantage to him in the arrangement. In addition, the documentation from independent third parties is consistent with the arrangements about which he testified.

Was the training allowance income from employment?

Zurich submits that the arrangement between Mr. Tano and Mr. Adu-Agyei was not employment, but a training program. Mr. Adu-Agyei disagrees. Many trades and professions require persons who wish to qualify for a licence to participate in an apprenticeship program during which they are subject to the direction and control of a person who is fully qualified to practice that trade or profession. While there is an educational and skill building component to the training period, this does not take away from the fact that the apprentices or trainees are engaged in work and receive remuneration for doing so. I find Mr. Adu-Agyei's situation as a truck driver trainee to be no different from such arrangements.

Section 5 of the Schedule provides:

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

I find Mr. Tano hired Mr. Adu-Agyei to work as a truck driver trainee. Mr. Tano owned the transport truck, and Mr. Adu-Agyei would be under his direction and control. Mr. Tano would make arrangements with Astro for the number of trailer loads to be driven between Ontario and Texas. He would determine the routes, the hours they drove, and would be responsible for paying Mr. Adu-Agyei. In my view, the indicia of an employment relationship were present, and the $500 remuneration was to be in exchange for his work driving the vehicle.

Zurich submits that since the remuneration was not subject to income taxes, it should not be considered to be income from employment. Although the payments were not subject to income taxation, this in my view is not determinative. In this regard, I agree with the reasons of Arbitrator Mackintosh in Mouawad and Alpina Insurance Company, Limited (OIC A-003226, June 30, 1994), and with Arbitrator Makepeace in Prouse and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A98-000701, March 12, 1999), that the fact that remuneration is not taxable under the Income Tax Act is not determinative of the question of whether the amount is income for purposes of the Schedule. Further, the fact that payment is made by a third party does not prevent the moneys received from being income from employment.⁷ I find that the fact that a portion of the funds to pay Mr. Adu-Agyei came from JobsOntario did not alter the character of the employment relationship between Mr. Adu-Agyei and Mr. Tano.

Arbitrators have consistently taken a broad approach in defining what constitutes both income from employment, and employment.⁸ In Bress and Bress and State Farm Insurance Companies (OIC A-000191 and A-000192, March 23, 1992), Arbitrator Naylor held that

The scheme and purpose of the legislation support a broad definition of the term " income" so as to capture the real return from employment or self-employment generated to an applicant in these periods. Money accrued but not received could be included. Moreover, it might reasonably extend beyond money to money's worth - to remuneration or return capable of being estimated in monetary terms.

Arbitrator Naylor went on to state that "the word income implies that something — money, money's worth, a thing of some value, greater command over goods and services — comes into an applicant's hands or accrues to him or her in return for their employment or occupational endeavours."

In Zehr and The Guarantee Company of North America (OIC A-001963, July 30, 1993), Arbitrator Makepeace held that "income" may include cash payments that are not specifically identified as "salary," and payments in kind, including food in exchange for work done on a farm. In Mouawad and Alpina Insurance Company, Limited (OIC A-003226, June 30, 1994), Arbitrator Mackintosh held that amounts paid by an employer to the employee's union which the union retained in order to pay the premium on an employee benefits package constituted "income" since it was part of the "value" received in return for the insured person's labour. Similarly, in Crevier-Lamarche and Missisquoi Insurance Company (OIC A96-000865, January 12, 1998), Arbitrator Rotter held that the employer contribution to an employee's benefit package formed part of the "value" which Mme. Crevier-Lamarche received in return for her labour. I agree with the reasons and conclusions of Arbitrators Naylor, Makepeace, Mackintosh, and Rotter. I find that the funds which would have been paid to Mr. Adu-Agyei by JobsOntario and Mr. Tano were a salary or "other remuneration" provided in exchange for the value of Mr. Adu-Agyei's work and therefore income from employment within the meaning of section 5 of the Schedule.

IRB amount as a truck driver

Under section 9(5)1. of the Schedule, the amount of Mr. Adu-Agyei's gross annual income is deemed to be the gross income payable under the contract of employment, extrapolated to reflect an annual income. In this case, $500 net per week would be annualized to $26,000, net.

The amount of Mr. Adu-Agyei's income replacement benefit under section 10 of the Schedule is 90% of net weekly income from employment determined in accordance with section 81 or 82. Under the provisions of the Schedule, Zurich is required to make an election as to whether to calculate Mr. Adu-Agyei's benefit based on the net weekly income table – other than self-employment or to use the formula under section 81 of the Schedule. I remain seized of the amount of the benefit if the parties are unable to agree on the amount of Mr. Adu-Agyei's IRB.

Entitlement to IRBs

Essential tasks

I find Mr. Adu-Agyei's essential tasks as a long distance truck driver trainee are to inspect the truck for defects before and after trips, pick up trailer loads, team drive over long distances for 10 to 20 hours per day, deliver trailer loads of products, maintain a driving log, perform emergency roadside repairs, and other assigned duties under the direction and control of his employer, Mr. Tano.

Injuries and treatment

In March 1995, Mr. Adu-Agyei sustained soft tissue injuries to his neck, low back, ankle and arm in a motor vehicle accident. While returning from physiotherapy for these injuries, on May 10, 1995, the car in which Mr. Adu-Agyei was a front-seat passenger collided with and slid under the trailer of a transport truck.

In the second accident, the engine and dashboard of the car were shoved into the passenger compartment, and Mr. Adu-Agyei sustained a severe blow to the front of his right knee and a displaced transverse fracture of the shaft of his right femur (thigh bone). Mr. Adu-Agyei also had a contusion of his right knee and of his sternum (breast bone), and his earlier neck and low back strain injuries were aggravated.

Mr. Adu-Agyei was extricated from the car by emergency personnel and taken to Peel Memorial Hospital. At the hospital, Dr. C.B. Paitich, orthopaedic surgeon, repaired the fracture surgically by inserting an intramedullary nail and locking screws near Mr. Adu-Agyei's hip and knee. Mr. Adu-Agyei was discharged from hospital after about eight days, on crutches to avoid putting weight on his right foot. He went on to have two further surgeries. In June 1995, Dr. Paitich operated on Mr. Adu-Agyei to remove the lower set of locking screws so as to cause a 6 mm. gap at the fracture site to close and heal, without a leg length discrepancy.

The third surgery, in November 1995, addressed Mr. Adu-Agyei's complaints of significant pain around the area of the greater trochanter (part of the upper and outer end of the thigh bone to which several muscles are attached). X-rays showed heterotopic bone formation in and around the tip of the greater trochanter. During this surgery, Dr. Paitich removed the intramedullary nail and the remaining locking screws because of Mr. Adu-Agyei's ongoing complaints of pain in his right hip. He also removed a great deal of heterotopic bone during the surgery. However, the x-ray report following this surgery stated that "Extensive myositis ossificans at the fracture site and proximally remains apparent."

Heterotopic bone refers to bone which has developed in an abnormal place in the body — in this case, in Mr. Adu-Agyei's thigh muscles. Dr. P. Kirwin, a physiatrist who treated Mr. Adu-Agyei, preferred to describe the bone which developed in Mr. Adu-Agyei's muscles as myositis ossificans, or inflammation of muscle, characterized by bony deposits in or on top of the muscle, in the presence of direct trauma to the tissue. This is a common complication following the type of fracture Mr. Adu-Agyei sustained.

In Dr. Paitich's opinion, transverse fractures through bone, such as the one Mr. Adu-Agyei sustained, are associated with higher velocity injuries. Generally, the soft tissue capsule around the bone suffers more damage in such injuries, and there is greater muscle damage. In Dr. Paitich's opinion, the heterotopic bone in Mr. Adu-Agyei's muscles was evidence of the damage to his muscles.

Mr. Adu-Agyei's fracture eventually united solidly. However, he developed heterotopic bone posterolaterally at the back and side of his leg, above his hip and in the upper region of his gluteus maximus. He testified that this makes it difficult for him to sit for prolonged periods of time. Since sitting is a constant physical requirement while driving a truck over long distances, Mr. Adu-Agyei submits he is substantially unable to perform his essential tasks.

Mr. R. Lychenko, a rehabilitation consultant who assessed Mr. Adu-Agyei, testified that many businesses now operate on the basis that deliveries are made "just in time." I find that, in order for such work to be reasonably remunerative, a team driver would be required to sit constantly over extended periods of time during a 10 to 20-hour day in order to perform his essential tasks. For the reasons which follow, I conclude that Mr. Adu-Agyei is substantially disabled as a result of this impairment.

Mr. Adu-Agyei used crutches for approximately one month following this third surgery in November 1995. There then appears to have been a four-month gap during which Mr. Adu-Agyei did not receive treatment to further address his injuries. On March 26, 1996, Mr. Adu-Agyei was assessed at Goreway Physiotherapy and Rehabilitation. He complained of diminished sitting tolerance due to posterior right hip pain, periodic clicking in his right hip, diminished walking tolerance, discomfort at the site of his two surgical incisions, and of sleep disturbances due to pain. Mr. Adu-Agyei completed a program designed to provide pain relief, gait retraining, strengthening, general reconditioning and work conditioning. When he was discharged from Goreway on June 21, 1996, Mr. Adu-Agyei reported a sitting tolerance of 30 minutes before he felt pain over the lateral aspect of his right hip and knee. On "objective" assessment, Mr. Adu-Agyei's sitting tolerance had increased to 45 minutes. When he began the program his sitting tolerance had been 25 minutes. Given that constant sitting is a physical requirement while driving long distances, I find that even with a 45-minute sitting tolerance, Mr. Adu-Agyei remained substantially disabled.

In August 1996, Mr. Adu-Agyei attended at Health Recovery Clinic for an assessment. In the opinion of the assessors, the job of a long distance truck driver required medium strength, and Mr. Adu-Agyei's physical strength and sustained sitting tolerance fell below the essential requirements of the job. Mr. Adu-Agyei began an eight to ten week work hardening program.

Mr. Adu-Agyei became concerned that the therapy program was overly aggressive, and reported two incidents to his family physician, Dr. B.C. Rodrigues-Nascimento. Mr. Adu-Agyei discontinued the program at Health Recovery Clinic in October 1996, a few sessions short of the conclusion of the work hardening program and Dr. Rodrigues-Nascimento referred him to a physiatrist, Dr. P. Kirwin, to address his rehabilitation needs and follow-up.

Dr. Kirwin assessed and treated Mr. Adu-Agyei between November 1996 and December 1997. Mr. Adu-Agyei complained of discomfort over the right lateral mid thigh area, over the right upper hip area, sometimes over the right upper iliac crest area, discomfort over the right lateral knee and occasional pain over the body of his sternum. He complained that he could only sit for 35 minutes and stand for 40 minutes before there was an aggravation of his right thigh pain. Lifting, twisting and bending also aggravated his right thigh and knee pain. He also complained that at times he was awakened from sleep by his right thigh pain.

Dr. Kirwin was of the opinion that Mr. Adu-Agyei suffered from mechanical lumbar pain, heterotopic bone formation over the right hip, a right greater trochanteric bursitis, fascia lata fasciitis, postoperative paresthesia over the right thigh with an element of a right meralgia paresthetica. In his opinion the heterotopic bone formation would cause stress on associated structures such as his bursa, in the fascia, causing bursitis, fasciitis and pain. Dr. Kirwin prescribed an anti-inflammatory medication, exercise and hydrotherapy.

In January 1997, Dr. Kirwin reported some improvement with respect to Mr. Adu-Agyei's right lateral thigh pain, and Mr. Adu-Agyei's sternal contusion and post-traumatic headache appeared to be gradually resolved. Later in 1997, Dr. Kirwin noted some improvement in Mr. Adu-Agyei's low back pain, right thigh pain, hip pain and right lateral knee pain. In December 1997, Mr. Adu-Agyei also experienced some improvement in the myositis ossificans formation over his right hip. However, he continued to experience residual pain. In light of the improvement, Dr. Kirwin recommended that he discontinue his anti-inflammatory medication because of the associated risks. He also recommended that Mr. Adu-Agyei continue his community-based exercise program.

Despite these improvements, in Dr. Kirwin's opinion, between 1996 and 1997 Mr. Adu-Agyei continued to have significant impairments in prolonged sitting, dismounting, mounting, climbing, heavy lifting, walking and standing. In his opinion these impairments rendered Mr. Adu-Agyei substantially disabled from performing his essential tasks as a taxi driver and as a truck driver.

Dr. Kirwin testified that he relied on his everyday knowledge of the work of a taxi driver or a truck driver. He was of the opinion that a taxi driver would be required to sit for long periods of time, mount and dismount out of the vehicle, assist clients with their baggage, etc. Since a truck driver would be required to do similar activities, based on his assessments and examinations Dr. Kirwin was of the opinion that Mr. Adu-Agyei could not do either job on a full-time competitive basis.

In December 1997, Mr. Adu-Agyei reported to Dr. Kirwin that he intended to return to work in the new year as a truck driver. Dr. Kirwin testified that since Mr. Adu-Agyei had experienced some improvement in his condition, he was willing to approve that he attempt such work, but only on a trial basis. If Mr. Adu-Agyei experienced further problems, Dr. Rodrigues-Nascimento would consult him.

In February 1999, Dr. Paitich noted that Mr. Adu-Agyei had formed further heterotopic bone at the top of his right greater trochanter. Dr. Kirwin reassessed Mr. Adu-Agyei in 1999, at the request of his counsel. Dr. Kirwin was of the opinion that Mr. Adu-Agyei remained substantially unable to return to work as a taxi driver or a truck driver for the foreseeable future.

During cross-examination, counsel for Zurich put a hypothetical question to Dr. Kirwin as to whether in December 1997 Mr. Adu-Agyei would have been physically capable of working at a taxi service that would only require Mr. Adu-Agyei to drive when he pleased, and pick up passengers when he felt able to do so. Dr. Kirwin agreed that he could do this. Dr. Kirwin was then asked if there was the same truck driving service that provided certain accommodations, whether Mr. Adu-Agyei could do that work. Dr. Kirwin also agreed that Mr. Adu-Agyei could do such work. However, the truck driving in which Mr. Adu-Agyei would have been engaged involved remunerative work. I find that Dr. Kirwin's answers to these hypothetical scenarios do not support Zurich's submission that Dr. Kirwin agreed that Mr. Adu-Agyei was able to return to his pre-accident work.

Dr. Kirwin testified that he planned to give Mr. Adu-Agyei a cortisone shot in his right hip. He expected that this would produce a moderate reduction of Mr. Adu-Agyei's outside right hip pain, and might also provide a moderate improvement in his level of function. Dr. Kirwin testified that nothing had happened to change his opinion that Mr. Adu-Agyei was substantially disabled from working as a truck driver.

I accept Dr. Kirwin's opinion concerning the impact of Mr. Adu-Agyei's injuries on his ability to work because of his expertise in soft tissue trauma and because he followed Mr. Adu-Agyei over time. I find Mr. Adu-Agyei's complaints plausible on their face. They are supported by the opinion of Dr. Kirwin, a physiatrist, and generally by Dr. B.C. Rodrigues-Nascimento, Mr. Adu-Agyei's family physician.

None of the orthopaedic surgeons who assessed or treated Mr. Adu-Agyei was of the opinion that Mr. Adu-Agyei's injuries continue to disable him from working as a long distance truck driver trainee. However, I prefer the opinion of Dr. Kirwin, a physiatrist, to the opinions of the orthopaedic surgeons. In my view, this physiatrist offers greater expertise than the orthopaedic surgeons in the area of the soft tissues in question, namely, the bursa, muscles and fascia of Mr. Adu-Agyei's right thigh.

I find Mr. Adu-Agyei's injuries prevent him from substantially performing his essential tasks as a truck driver because he is unable to sit for long periods of time. He also needed to meet medium strength requirements. Although there have been various assessments of Mr. Adu-Agyei's ability to sit, I am not persuaded by the evidence that Mr. Adu-Agyei has the requisite sitting tolerance.

In May 1997, Mr. Adu-Agyei was assessed by a multidisciplinary disability DAC consisting of a functional capacity assessment, a psychosocial and psychological assessment, and a medical assessment. The physiotherapist was of the opinion that Mr. Adu-Agyei had some residual weakness in his right thigh, and that he required a more rigorous flexibility and strengthening program. The kinesiologist who conducted the functional capacity assessment concluded that despite inconsistencies, Mr. Adu-Agyei met all the job requirements except for a sustained sitting tolerance. He only maintained 34 minutes of continuous sitting due to pain in his right hip and thigh.

In November 1997, as part of a further multidsciplinary disability DAC, Mr. Adu-Agyei underwent another functional assessment by a physiotherapist, Ms. D. McCormack, and a kinesiologist, Ms. M. Hingorani. In their opinion Mr. Adu-Agyei had sufficient strength and endurance to perform the essential tasks of his pre-accident job as a taxi driver. While noting that the majority of Mr. Adu-Agyei's job as a taxi driver requires him to sit, and noting Mr. Adu-Agyei's statement that his tolerance for sitting is one hour with occasional shifting, they nevertheless concluded that he was not disabled from working as a taxi driver.

In an addendum dated February 3, 1998, the assessors responded to Zurich's request for an opinion as to whether Mr. Adu-Agyei was able to work as a truck driver. They reported that there was no reason why Mr. Adu-Agyei could not perform the essential tasks of a truck driver, based on Mr. Adu-Agyei's demonstrated capacity and the strength and endurance levels required for a truck driver according to the Dictionary of Occupational Titles, (revised 4^th edition) #913.663-014.

The difficulty with this conclusion is that the job description does not match the work that Mr. Adu-Agyei had under the contract with Mr. Tano. The job number #913.663-014 refers to a mobile-lounge driver who "Drives mobile lounge to transport aircraft passengers between airport terminal building and aircraft on runway." The reported strength for this position is light. The position involves driving relatively short distances between terminals and aircraft, not long-haul truck driving. Earlier assessors indicated that the strength requirements for a long distance truck driver were medium. Mr. Lychenko noted that the examination results in lifting and carrying were closer to the light category or the very lower margins of the medium category. He noted that the actual maximums recorded of sitting was 15 minutes and 8 minutes, and the total cumulative time was 50 minutes. Dr. Toman, who assessed Mr. Adu-Agyei as part of the May 1997 DAC, was of the opinion that he should be encouraged to sit and drive for prolonged periods to increase his sitting tolerance. For these reasons, I reject the conclusions of the assessors.

Conclusions as to disability

The most serious of Mr. Adu-Agyei's injuries was the fracture to his thigh. I find that the thigh bone is a very strong one, and considerable force is required in order to fracture it. I accept Dr. Paitich's opinion that transverse fractures through such bone, such as the fracture Mr. Adu-Agyei sustained, are associated with higher velocity injuries. Based on his thigh fracture, his inability to bear weight on his right leg, which would ordinarily be used in driving, I find that Mr. Adu-Agyei was substantially unable to perform the essential tasks of a truck driver trainee from the time of his injury on May 10, 1995.

I have approached Mr. Adu-Agyei's testimony with considerable caution. I have concerns about his credibility based on his admissions in relation to his IRB claim for a higher rate as a taxi driver. I also conclude that he has a poor ability to assess his own ability. Dr. Kirwin in his reports noted his need to clarify with Mr. Adu-Agyei just what he meant by his complaints. Nevertheless, Mr. Adu-Agyei's complaint of difficulty sitting for a long period of time has been a consistent one. There is objective physical evidence of the heterotopic bone formation, which seems to me to be a plausible basis for his complaint. His complaint is supported by the opinion evidence of Dr. Kirwin, a physiatrist who followed Mr. Adu-Agyei over an extended period of time. Despite my credibility concerns, given the objective physical basis of his complaint, I am persuaded that Mr. Adu-Agyei is unable to sit for the duration which would be necessary to work as a long distance transport truck driver.

Various estimates of the length of time during which Mr. Adu-Agyei can sit comfortably have been offered. At the low end is Mr. Adu-Agyei's estimate of 30 to 35 minutes, at the high end is that of Mr. Winch, who testified he interviewed Mr. Adu-Agyei for about 1.75 hours, and did not recall any specific difficulty with respect to Mr. Adu-Agyei's ability to sit on that occasion. I appreciate that Mr. Winch's focus at the time would have been interviewing Mr. Adu-Agyei and that he was not engaged in a forensic assessment. I am not persuaded that even at the 1.75 hour level, that Mr. Adu-Agyei has the necessary tolerance to do the job of a long distance truck driver trainee. I conclude that he is therefore unable to do either form of commercial driving, since a significant component of this work is sitting.

I find that Mr. Adu-Agyei was substantially unable to perform his essential tasks as a taxi driver or as a truck driver trainee from the time of his injury. Mr. Adu-Agyei testified that in July 1995 he was doing an exercise as instructed by his physiotherapist when he missed his step and fell. As a result he had pain in his right knee and was limping. I find no new intervening cause as a result of this incident.

In the material filed, there was evidence with respect to a dizziness problem, commencing in early 1997. The evidence is equivocal as to whether the dizziness is caused by anxiety, and as to whether it is true dizziness which would cause him to be a hazard to the public as a driver. I find no opinion evidence which links this dizziness to the injuries Mr. Adu-Agyei sustained in this accident and I have therefore not considered it in my assessment.

Other evidence was presented with respect to Mr. Adu-Agyei's psychological response to his injuries and their sequelae, for which he has received some treatment. In view of my findings that Mr. Adu-Agyei is disabled on a physical basis, and since there is no claim for psychological treatment before me, I do not need to address this evidence.

Mr. Adu-Agyei has not returned to commercial driving or other work. He does daily volunteer work at a church for about 2 to 2.5 hours. He uses a small vacuum to vacuum the offices of the secretary and the pastor, dusts the table and picks up garbage around the building. When the pastor is away and his wife needs something from the grocery store he will pick it up for her. At such times, he will also drive the pastor's daughter to school and drive her home after school. Sometimes on Friday evenings and on Sundays he will direct traffic into the church parking lot. I accept that this is something he does to have social contact and to feel useful.

Under section 8 of the Schedule Mr. Adu-Agyei would be entitled to receive an IRB based on his earnings of $500 net per week, from May 25, 1995 during the period he suffers a substantial inability to perform the essential tasks of long distance truck driver trainee.

I have found that Mr. Adu-Agyei was substantially unable to perform the essential tasks of a long distance truck driver trainee from the time of his injury on May 10, 1995. However, under subsection 8(2)(a) of the Schedule, he is only entitled to receive income replacement benefits at a higher rate from May 25, 1995, the date he would have been entitled to start work under the contract.

Under this Schedule, when a person suffers a substantial inability to perform the essential tasks of his employment at the 104 week mark, the insurer must make an offer in respect of loss of earning capacity benefits ("LECBs"). The parties may agree to extend the period for the making of the offer.⁹ In this case, Mr. Adu-Agyei's IRBs were terminated on December 13, 1997, at the 135 week mark The parties agreed to extend the date on which an offer was due to the 146^th week, or to February 28, 1998. However, Zurich did not make an offer at that time.

I further find that as of the end of February 1998, Mr. Adu-Agyei continued to be substantially unable to perform the essential tasks of a truck driver due to his inability to sit for extended periods of time. Zurich was therefore obliged to deliver an offer with respect to the payment of loss of earning capacity benefits at that time. Under the provisions of the Schedule and under the arbitral and appeal case law which has developed, Zurich is obliged to pay Mr. Adu-Agyei income replacement benefits until such time as it fulfills its obligations under the loss of earning capacity provisions of the Schedule.¹⁰

Rehabilitation benefits

Adding the issue

At the beginning of the arbitration hearing, counsel for the Applicant asked that Mr. Adu-Agyei's claims for rehabilitation benefits be included as an issue in the arbitration. Zurich opposed this request.

The issues to be arbitrated are usually identified at the pre-hearing. At the hearing, parties are usually restricted to dealing only with the issues which have been so identified. In this case, the hearing date had been repeatedly adjourned for various reasons, and the hearing commenced about a year after the pre-hearing was held. During the period leading up to the hearing, Zurich denied payment of rehabilitation benefits and the Applicant sought mediation of the dispute.

Counsel for the Applicant wrote to counsel for the Insurer and to the Commission, at least as early as May 1999, and again in August 1999, requesting the inclusion of the issue of Mr. Adu-Agyei's entitlement to rehabilitation benefits in the arbitration hearing. The arbitration hearing commenced on January 31, 2000, some eight months later. Thus, there was no element of surprise in Mr. Adu-Agyei's request to add this issue to the arbitration.

I ruled that the quickest and least expensive way of dealing with this issue was to include it in this arbitration proceeding. In my view, any possible prejudice to Zurich of including the issue in the arbitration would be eliminated by allowing Zurich to file reports which responded to those prepared by the Applicant in relation to this claim. Since the next set of dates agreed upon for the resumption of the hearing was six months later, Zurich would have ample opportunity to obtain and provide further opinions or assessments which responded to Mr. Adu-Agyei's claims for rehabilitation benefits. However, Zurich did not file any further material with respect to Mr. Adu-Agyei's claims for rehabilitation expenses.¹¹

Entitlement to rehabilitation benefits

In this arbitration, Mr. Adu-Agyei seeks payment of a program at Goodwill Industries, and the services of a case manager with respect to Mr. Adu-Agyei's rehabilitation under subsections 40(5)(b) and (c) of the Schedule. Zurich opposes his claims.

Section 40 of the Schedule provides that where an insured person has sustained an impairment as a result of an accident, the insurer shall pay for reasonable measures to reduce or eliminate the effects of any disability resulting from the impairment, and to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society. This includes payment for vocational rehabilitation measures that are reasonably necessary to enable the person to engage in employment that is as similar as possible to employment in which he or she engaged before the accident, or to lead as normal a work life as possible. These measures include vocational rehabilitation, employment counselling, and services provided by a case manager related to the co-ordination of rehabilitation services for the insured person.

I have concluded that Mr. Adu-Agyei sustained an impairment of his right leg and hip from the May 10, 1995 accident from which he continues to suffer, and that he is substantially unable to engage in driving as a long distance transport truck driver trainee, because he is unable to meet the sitting requirements of such work.

Mr. Adu-Agyei seeks to participate in a Goodwill program which is geared towards assessing what he can do and which will provide him with the necessary skills to return to the labour market. I find that such a program is a vocational rehabilitation measure geared to reduce or eliminate the effects of his disability which results from the impairment, and may provide a basis to facilitate his reintegration into the labour market and which may assist him in leading as normal a work life as possible.

In determining what payments are required, the Schedule requires consideration of the insured person's personal and vocational characteristics. These characteristics include a person's employment history, education and training, vocational skills, interests and aptitudes, as well as physical, cognitive and language abilities.¹²

Mr. Adu-Agyei is presently 45 years old. He has been out of the workforce for some seven years. He was born in Ghana, where he completed ten years of schooling and two years at a technical institute. At the technical institute, Mr. Adu-Agyei studied carpentry and automotive repairs. Mr. Adu-Agyei then worked at his father's saw mill performing carpentry for about 13 years. He also loaded his father's truck with furniture, plywood, cassava and plantains, and drove the truck from his village to a town about a six-hour drive away. In 1985, his father's business collapsed following a military coup and, towards the end of 1985, Mr. Adu-Agyei went to Egypt where he did subway construction work until 1987.

In February 1987 he travelled to Canada, and obtained a work permit two years later. Since that time, Mr. Adu-Agyei has worked as a machine operator at a muffler manufacturing company and at a door manufacturing company, as a loader and off-loader of trucks, at factory jobs, and as a taxi driver. He has also obtained an Ontario AZ drivers licence.

I did not hear evidence which specifically addressed Mr. Adu-Agyei's physical ability to return to the jobs he has done in the past. However, because of his difficulty with prolonged standing as well as sitting, and some indication that lifting places strain on his right leg, I accept that he would encounter difficulty in performing such work. As a transport truck driver trainee, he would have earned $26,000 net per year. He has lost the benefit of his training and of the contract as a result of his injuries.

Dr. J.E. Alcock, a psychologist who treated Mr. Adu-Agyei for depression and driving anxiety, is of the opinion, based on a psychometric assessment, that Mr. Adu-Agyei functions intellectually within the low average range of intelligence. While Dr. Alcock considered that Mr. Adu-Agyei's emotional functioning could have affected his scores, these test results were consistent with Dr. Alcock's experience with Mr. Adu-Agyei. In Dr. Alcock's opinion Mr. Adu-Agyei was not a candidate for academic upgrading or technical retraining because Mr. Adu-Agyei's test scores on different measures indicated that he was of below average intelligence and literacy. He scored at approximately grade 6 level in reading, high school level in spelling and grade 5 level in arithmetic. Dr. C. Orme, a psychologist who assessed Mr. Adu-Agyei as part of a disability DAC in May 1997, concluded that Mr. Adu-Agyei's reading comprehension was not adequate for the administration of more complex measures of personality and psychopathology. I accept these opinions.

Mr. R. Lychenko, a rehabilitation consultant, testified that without the accident what he saw in the cards for Mr. Adu-Agyei was "lower to medium skill type of work at best." He testified that Mr. Adu-Agyei will be a challenging person to rehabilitate because his problems with prolonged standing and lifting will make it difficult for him to manage work from either of these two static positions. In addition, given his limited intelligence and literacy skills, he is not suited for office work. Mr. Lychenko therefore recommended a full assessment of Mr. Adu-Agyei's residual vocational skills, followed by an active program to assist him in achieving this skill.

Mr. Lychenko noted the many losses Mr. Adu-Agyei suffered following this accident: economic security, the loss of his position as head of the household, the loss of his 18 year marriage, the death of one of his sons, and as a result he has lost his confidence. A further function of this type of program is that it provides a supportive environment to people who have lost confidence in themselves.

Goodwill Program

In Mr. Lychenko's opinion, Goodwill Services offers such a program. That facility tends to do well with somewhat lower functioning clients and provides a supportive environment. The individual is provided with a series of experiential in-house occupations placements to help determine which one is the most suitable, given his particular interests, past work history and physical functioning. Mr. Lychenko recommended a work assessment and work hardening program at Goodwill Industries in the amount of $3,516. The program takes place over 12 to 15 weeks. Mr. Winch, who was an associate of Mr. Lychenko, testified that he had communicated with the co-ordinator of the Goodwill program to determine the suitability of the program for Mr. Adu-Agyei. Based on the advice he received, he also concluded that the program would be a good one for Mr. Adu-Agyei.

Given the difficulties which have been identified by Dr. Kirwin, Dr. Alcock, Dr. Orme and Mr. Lychenko, I find the proposed program to be a reasonable one for Mr. Adu-Agyei. It is geared to determining what types of work he can do, his interests and aptitudes in a very practical manner. The Goodwill program is staffed by vocational counsellors rather than physical therapists. In Mr. Lychenko's opinion, Goodwill Services can provide the necessary supportive environment to help Mr. Adu-Agyei obtain required vocational direction.

I accept Mr. Lychenko's opinion. I find the proposed program is a reasonable one because it is geared to addressing Mr. Adu-Agyei's needs. I also find the cost of the 12 to 15 week program to be reasonable. For these reasons, I conclude that Mr. Adu-Agyei is entitled to the cost of the program.

Case manager

The Schedule provides for the services of a case manager "related to the co-ordination of medical, rehabilitation and attendant care services for the insured person." Given Mr. Adu-Agyei's losses, his level of functioning, and the history of conflict, mistrust and suspicion which have accompanied his rehabilitation in the past, I find that in addition to the supportive environment at Goodwill, Mr. Adu-Agyei needs someone to personally coach him through the process, and address his concerns in a pro-active fashion. That person can also address Mr. Adu-Agyei's additional rehabilitation needs such as workplace modifications or devices in a pro-active way and on a timely basis. I find the claims for the Goodwill Services Program and a case manager to be reasonable measures to reduce the effects of the disability resulting from the impairment and which may facilitate his reintegration into the labour market and the rest of society. Based on the limited evidence before me, I find up to 30 hours should be sufficient to move him through the process at Goodwill while addressing Mr. Adu-Agyei's concerns.

Zurich has rejected Mr. Adu-Agyei's initial choice of case manager. Failing agreement of the parties, the Applicant is entitled to choose the case manager. Zurich is obliged to pay the reasonable cost of case management services for up to 30 hours.

Interest, Expenses and Award

Counsel for Zurich advised that he wished to make submissions with respect to the issues of interest and expenses once a decision was issued on the remaining issues. I understood this request to include the question of Zurich's entitlement to an award in respect of its assessment. If the parties are unable to agree, those issues may now be addressed.

Interim expenses

Counsel for the Applicant sought interim expenses to cover the cost of transcripts. He advised that he learned that they had been ordered by counsel for the Insurer, from the court reporter. He submitted that he made a judgment call that he, too would require them so as not to be at an unfair disadvantage. Counsel for Zurich opposed this request. He questioned an arbitrator's jurisdiction to make the order sought, and submitted that this disbursement was a luxury, not one required for the conduct of the arbitration.

For the reasons given earlier in Adu-Agyei and Zurich Insurance Company (FSCO A97-001546, June 16, 2000), I find I have jurisdiction to make the order sought under section 282(11.1) of the Insurance Act. One of the functions of an award of interim expenses is to ensure that parties participate on a level playing field. I note as well that this hearing extended over 10 months. For these reasons, I exercise my discretion to award Mr. Adu-Agyei the sum of $1,268.68, as interim expenses to cover the cost of copies of the transcripts he obtained prior to submissions. This award is subject to any agreement which the parties may reach or any further Order with respect to expenses.

May 24, 2002

Suesan Alves Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 82

FSCO A97-001546

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KWABENA ADU-AGYEI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. (a) Zurich Insurance Company shall pay Mr. Adu-Agyei an income replacement benefit based on a contract of employment as a truck driver under which Mr. Adu-Agyei was entitled to be paid the amount of $500 per week, net. The amount of the income replacement benefit is to be calculated pursuant to section 10, and sections 81 or 82 of the Schedule, as Zurich may elect, and is subject to the indexation provisions of section 79 of the Schedule. If the parties are unable to agree on the amount of this benefit, I remain seized of this issue.

(b) Zurich Insurance Company is entitled to a credit for income replacement benefits it paid Mr. Adu-Agyei at the rate of $185 per week between May 25, 1995 and June 23, 1996, and of $340.48 a week between June 24, 1996 and July 25, 1997, and of $185 per week between July 26, 1997 and December 13, 1997.

(c) Zurich Insurance Company shall pay Mr. Adu-Agyei an income replacement benefit at the rate calculated under paragraph 1 (a) from May 25, 1995, until such time as it fulfills its obligations in respect of the loss of earning capacity provisions of the Schedule.

2. Mr. Adu-Agyei's claim that he is entitled to an income replacement benefit at a rate which is higher than $185 per week from his work as a taxi driver is dismissed.

3. Zurich Insurance Company shall pay Mr. Adu-Agyei $3,516 for a vocational assessment at Goodwill Industries pursuant to section 40 of the Schedule. Zurich Insurance Company shall also pay the reasonable cost of up to 30 hours of case management services, by a case manager of Mr. Adu-Agyei's choice, pursuant to section 40 of the Schedule.

4. Subject to any further Order as to expenses at the conclusion of the hearing, Zurich Insurance Company shall pay Mr. Adu-Agyei interim expenses in the amount of $1,286.68 for the cost of transcripts as an interim expense under section 282(11.1) of the Insurance Act.

5. If the parties are unable to agree, the issues of interest, expenses and Zurich's entitlement to an award in respect of its assessment may now be addressed.

May 24, 2002

Suesan Alves Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2Explanation of Assessment dated September 14, 1995
3. 3Vocational assessment of Evergreen Rehabilitation Services Inc. dated February 16, 1999
4. 4Report of Mr. R. Lychenko
5. 5Ibid
6. 6See, for example, Oshana and Progressive Casualty Insurance Company and State Farm Mutual Automobile Insurance Company (OIC A-002167 and A-002092, November 17, 1994)
7. 7Bress and Bress and State Farm Insurance Companies (OIC A-000191 and A-000192, March 23, 1992)
8. 8See for example Bress and Bress and State Farm Insurance Companies (OIC A-000191 and A-000192, March 23, 1992), Zehr and The Guarantee Company of North America, (OIC A-001963, July 30, 1993), Mouawad and Alpina Insurance Company, Limited (OIC A-003226, June 30, 1994) and Crevier-Lamarche and Missisquoi Insurance Company (OIC A96-000865, January 12, 1998)
9. 9See subsection 21(8) of the Schedule.
10. 10Rocca and GAN Canada Insurance Company (FSCO P99-00003, July 20, 1999); Blake and Jevco Insurance Company (FSCO P99-00050, November 9, 1999); Simpson and Trafalgar Insurance Company of Canada (FSCO A98-000215, July 16, 1998); Rocca and Gan Canada Insurance Company (FSCO A97-000147, December 31, 1998), and Martins and Commercial Union Assurance Company (FSCO A98-000552, March 24, 1999)
11. 11Similarly, Zurich's claim for an award in respect of its assessment raised at the outset of the hearing was not part of the issues identified in the pre-hearing report.
12. 12Section 1 of the Schedule.