Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2006 ONFSCDRS 64

FSCO A04–000219

BETWEEN:

A. K. P.

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

January 9, 10, 11, 2006 in Thunder Bay, February 9, 2006, final submissions by telephone conference

Appearances:

Wendy Moore Johns for Ms. P

Greg Birston for ING Insurance Company of Canada

Issues:

The Applicant, A. K. P., was injured in a motor vehicle accident on October 31, 1995. As a mother of a four year old child, she started to receive caregiver benefits payable under the Schedule.¹ She was still receiving this benefit at the time of the hearing. On January 27, 2003, Ms. P elected to be governed by Part VI of the Schedule, the Part dealing with loss of earning capacity benefits (LECBs). This benefit is equal to 90% of the amount left, if anything, when the insured person's residual earning capacity (REC), determined in accordance with section 30, is subtracted from his/her pre-accident earning capacity (PEC), determined in accordance with section 29. Since the parties agreed that Ms. P's REC was zero, her entitlement to LECBs depended entirely on the determination of her PEC. The parties were unable to resolve this and the other disputes listed below through mediation and Ms. P 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 were:

1. What is the gross annual income that Ms. P's PEC should be based on?

2. Did ING unreasonably withhold or delay the payment of benefits and was it, therefore, required to pay Ms. P a special award under section 282(10) of the Insurance Act?

3. Was Ms. P entitled to attendant care benefits under section 47 of the Schedule from January 17, 1996 to May 6, 1996?

4. Was Ms. P entitled to recover the cost of an actuarial report prepared for settlement discussion purposes under section 57 of the Schedule?

Result:

1. Ms. P's PEC will be based on a gross annual income of $18,000.

2. Ms. P will advise within 30 days of the date of this decision if, despite observations contained in the decision, she still seeks a special award.

3. Ms. P is not entitled to attendant care benefits for the period January 17, 1996 to May 6, 1996.

4. Ms. P is not entitled to recover the cost of the actuarial report under section 57.

ISSUE 1: THE GROSS ANNUAL INCOME ON WHICH MS. P'S PEC SHOULD BE BASED

Introduction

At the time of her accident in October 1995, Ms. P was 27 years old. She had lived most of her life in Thunder Bay. She had been a slow learner at school but managed to complete a modified form of Grade 11 in 1987 at the age of 18. Two later attempts to continue her studies beyond that level were unsuccessful and she received no further education or training after 1988. In the spring of 1989, she got her first and only pre-accident job as a part-time counter attendant in a donut shop in Thunder Bay. She worked there for two or three months and then quit and moved to White River to take care of her ailing great-grandmother. While she was there she got pregnant and, in May 1991, she moved back to Thunder Bay, having been away a year and a half. With the birth of her son, Brett, in June 1991, she became eligible for mother's allowance. From then until the accident, she stayed at home with her child and did not work, or look for work, outside the home. Her son started to go to school half days in the fall of 1995. She testified that her intention was to return to paid work when he started to go to school on a full-time basis in the fall of 1996.

On October 31, 1995, Ms. P was a seat belted passenger in a vehicle which left the road, rolled over several times and collided with a utility pole. She was admitted to St. Joseph's General Hospital in Thunder Bay for treatment of the following injuries: a fracture of the right clavicle, a bilateral left tibial plateau fracture, a severely compounded comminuted fracture of the left ankle and a compound laceration of the right knee. The hospital Discharge Report noted that the left tibial plateau fracture was stabilized with plate and screws but that good stabilization of the ankle fracture could not be obtained using this method because "the fragments were so small."²

In his opening statement, Mr. Birston confirmed that his client did not dispute that Ms. P’s REC was zero but maintained that even without the injuries sustained in the accident, Ms. P’s PEC was also zero. This argument focussed on Ms. P’s pre-accident disabilities and limitations and was based principally on the written report and oral evidence of Dr. Deborah Cowman, a clinical psychologist who examined Ms. P at a Residual Earning Capacity Designated Assessment Centre (RECDAC) on November 26, 2003.

Mr. Birston also submitted that Ms. P’s PEC should not, in any event, be determined to exceed her "demonstrated" pre-accident employment history and that, accordingly, her PEC should be based on what a part-time counter attendant in a donut shop would have earned at the time of the accident. This remained the Insurer's position at the hearing despite its submission that Ms. P's PEC was zero.

Ms. P relied on the opinion of Mr. Robert D. Katz, a social worker specializing in vocational counselling and assessments. Ms. Moore Johns submitted that Ms. P’s PEC should be based on the income of a full-time unskilled industrial worker.

The governing provisions of the Schedule and three preliminary questions

The nature of the issues in the present case make it appropriate to begin by addressing three preliminary legal issues. First, can a caregiver have a PEC greater than that demonstrated by his/her pre-accident employment history? Second, how do a caregiver's pre-accident disabilities affect the determination of his/her PEC? Third, are a caregiver's pre-accident intentions with respect to future employment relevant for the purpose of determining his/her PEC?

The answers to these questions must be founded upon and consistent with the governing provisions of the Schedule. In the present case, the governing provisions are section 1 which defines the phrase "personal and vocational characteristics", section 21(1) paragraph 6, section 29(3) and section 29(6). Sections 29(1) and 29(2) are important for comparative purposes. All these sections are set out below.

1. "personal and vocational characteristics" include,

(a) employment history,

(b) education and training,

(c) vocational interests and aptitudes,

(d) vocational skills

(e) physical abilities

(f) cognitive abilities, and

(g) language abilities

21.—(1) Subject to subsections (7) to (9), an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs:

6. The insured person qualified for weekly caregiver benefits under Part IV, is unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident, elects at any time 104 weeks or more after the onset of the disability in respect of which he or she first qualified for weekly caregiver benefits to be governed by this Part instead of Part IV or V and,

i. continues to qualify for weekly caregiver benefits, or

ii. ceases to qualify for weekly caregiver benefits because there is no longer any person who meets the qualifications set out in subsection 18 (5).

29.—(1) For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1, 3, 4 or 6 of subsection 7 (1) shall be deemed to be the person's net weekly income from employment used in section 10 in determining the amount of weekly income replacement benefits immediately before payment of the weekly loss of earning capacity benefits begins, converted to a full-time net weekly income in accordance with section 86, if section 86 applies.

(2) Despite subsection (1), the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1 of subsection 7 (1) and who was self-employed at the time of the accident shall be the net weekly income determined in accordance with section 81 or 82 using the gross annual income from employment that the person could reasonably have earned at the time of the accident, having regard to the person's personal and vocational characteristics at that time.

(3) For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 2 or 5 of subsection 7 (1), weekly caregiver benefits under Part IV or weekly disability benefits under Part V shall be deemed to be the person's net weekly income determined in accordance with section 81 or 82 using the gross annual income from employment that the person could reasonably have earned at the time of the accident, having regard to the person's personal and vocational characteristics at that time.

(6) For the purpose of subsections (2) and (3), a temporary disability that the person had at the time of the accident shall not be considered in determining the gross annual income from employment that the person could reasonably have earned at that time.

First preliminary question: can a caregiver's PEC be determined to be greater than that demonstrated by his/her pre-accident employment history?

In a recent decision cited by both parties, I set out my general understanding of the LECB provisions of the Schedule. For the purposes of that decision, I mentioned only two of the four categories of insured persons whose PECs are determined in accordance with section 29(3): "persons who were not employed or were caregivers at the time of the accident but who were employed at some point in the 156 weeks before the accident."³ These are the insured persons who were eligible to income replacement benefits under section 7(1), paragraphs 2 and 5. They are persons with pre-accident employment histories, though those histories may be neither easily ascertained nor recent.

For purposes of the present case, I must now identify the other two categories of insured persons whose PECs are determined in accordance with section 29(3): persons who were eligible to caregiver benefits under Part IV or other disability benefits under Part V. Since a history of employment is not a condition of eligibility for either caregiver or other disability benefits, these latter two categories may include persons who were never employed prior to the accident or who had extremely limited pre-accident employment histories.

Now, I would certainly agree with Director's Delegate Draper in Lehman and GAN Canada Insurance Company that an insured person's PEC should be determined realistically and not in its broadest or theoretical sense.⁴ As pointed out by Director’s Delegate Makepeace in Ironside and Royal Insurance Company of Canada, a PEC determination under section 29(2) must be based on what the person could reasonably have earned at the time of the accident.⁵I also accept Director's Delegate McMahon's comment in Desroches and Economical Mutual Insurance Company that when applying section 29(2) to an insured who "has a significant work history, care must be taken before assigning a PEC that exceeds the insured’s historical earnings" (my emphasis).⁶

However, I note that Director’s Delegate Draper’s comment in Lehman about "demonstrated capacity" was made in relation to section 29(1) which covers persons with recent employment histories. Director’s Delegate Makepeace’s comment in Ironside that "the PEC cannot be based on mere possibility or speculation" was made in relation to section 29(2) which covers persons with self-employment histories. Director’s Delegate McMahon’s comment in Desroches about the importance of "a significant work history" was also made in relation to section 29(2). The present case involves the application of section 29(3) which covers persons who may have never been employed prior to the accident.

I do not agree that when applying section 29(3) to a person who does not have a significant or demonstrated work history, this must be the predominant factor in determining his/her PEC. Section 29(3) does not require that the person's PEC be determined by exclusive or primary reference to his/her pre-accident employment history. "Employment history" is only one of the seven factors listed in the definition of the phrase "personal and vocational characteristics" and this definition is not exhaustive or closed. Other personal and vocational characteristics may also be considered. Moreover, in my view, determining the PECs of persons with no or limited employment histories will necessarily involve some element of speculation, speculation that is both required by section 29(3) and circumscribed by the definition of personal and vocational characteristics.

I, therefore, conclude that a caregiver's PEC can be determined to be greater than that demonstrated by his/her pre-accident employment history if such a determination is justified having regard to all of his/her personal and vocational characteristics.

Second preliminary question: how do a caregiver's pre-accident disabilities affect the determination of his/her PEC?

Section 21(6) states that the caregiver must be "unable as a result of the accident to earn what he or she could reasonably have earned at the time of the accident" (my emphasis). Section 29(3) then states that his/her PEC is the income that he/she "could reasonably have earned at the time of the accident." Finally, section 29(6) states that a "temporary disability" at the time of the accident "shall not be considered" in determining his/her PEC under section 29(3). These provisions can, in my view, be explained as follows.

First, section 29(3) requires an assessment of the pool of employment possibilities, including self-employment, which the caregiver reasonably had on the day of the accident, having regard to his/her personal and vocational characteristics. Section 21(6) then authorizes the consideration of only those employment possibilities which the caregiver could not have pursued as a result of the accident. This prevents a caregiver from basing his/her PEC on employment possibilities which he/she could not have pursued at the time of the accident in any event, even without the accident, due to pre-accident disabilities which were not the result of the accident.⁷

However, in order to determine the causation issue, ie, whether the caregiver was unable as a result of the accident to earn the income that he or she could reasonably have earned at the time of the accident, and in order to determine the quantum issue, ie, the amount of income that the caregiver could reasonably have earned at the time of the accident, section 29(6) stipulates that any temporary disability, including any pre-accident disability that was not a result of the accident, must not be considered. This makes sense when one remembers that while the PEC determination is made by reference to a single point in time, the date of the accident, LECBs are payable for minimum periods of three years or eight years⁸ and may well be payable for life. In my view, section 29(6) is intended to attenuate the unfair results that such a regime might produce if temporary disabilities were taken into consideration.

Third preliminary question: are a caregiver's pre-accident intentions with respect to future employment relevant for the purpose of determining his/her PEC?

Section 29(3) focuses on the date of the accident but it clearly does not require a caregiver to establish that he/she was actually looking for employment on that date. Does it nevertheless require the caregiver to establish that, on that date, he/she intended to look for employment at some future point?

One might argue that a caregiver whose pre-accident intention was to never look for employment in the future must be determined to have a PEC of zero. But a caregiver may not, at the time of the accident, have had any settled intentions with respect to future employment. Requiring proof of such intentions may impose upon him/her an unreasonable obligation to predict a future not yet fully contemplated as of the date of the accident. Moreover, on its face, section 29(3) does not restrict LECBs to caregivers who can demonstrate their pre-accident intention to seek employment in the future. Nor does it ask whether the caregiver would have earned income from employment. Instead, it asks whether he/she "could reasonably have" (my emphasis) earned income from employment having regard to a list of personal and vocational characteristics which does not specifically refer to his/her pre-accident intentions with respect to future employment. This statutory language appears to focus attention on the caregiver's employment potential, rather than his/her employment intentions.

Nevertheless, in my view, evidence of a caregiver's pre-accident intentions with respect to future employment may be considered a relevant "personal and vocational" characteristic for the purpose of determining his/her PEC.

Ms. P's pre-accident life, health and aspirations

Like both her parents, Ms. P is an aboriginal Canadian. She was born on August 24, 1968 in Wawa, Ontario. Her school records were not put into evidence but summarized in Mr. Katz's "vocational assessment report" dated August 14, 1998. There was no dispute about Mr. Katz's summary of the school records or the additional comments he obtained about them from Ms. P when he interviewed her in August 1998. His report contained the following description of Ms. P's education.

Miss P attended Sir James Dunn Public School in Wawa. School records indicate that she was a quiet, cooperative student who had a lot of trouble with learning how to pronounce, identify and use words. She attended speech therapy sessions, and her language skills improved a bit, but she continued to struggle with her studies.

She learned how to knit and to latch hook, and she enjoyed these handicrafts. Meantime, she made slow progress at school; mathematics was her best subject, but she needed extra help with the other courses. In 1977, she underwent an educational assessment, and she was subsequently placed in a special education class.

In January 1980, Miss P moved with her family to Thunder Bay. She enroled at Drew Street School, and was placed in a Grade IV/V class. She continued to have difficulty with her studies, and apparently she became withdrawn and tense. In April of that year, her learning abilities were again tested. The educational assistants, Ms Phyllis A. Gardiner and Ms Phyllis D. Skuta, found that language skills were poorly developed, ranging in the Grade II to Grade III levels, and her overall mathematical skills at the Grade III [level]; in contrast, she was performing at a much higher level in multiplication and money transactions. They also found "poor long term memory of factual data" [8 April 1980].

In April 1980, she was transferred to the special education program at Crawford Public School. She apparently felt more comfortable in this milieu, and she regained her equanimity. She continued there until June 1981, and completed the Intermediate Opportunity level.

In September 1981, Miss P commenced the Senior Opportunity level at McKellar Park School, where she attended for the next two years. She made slow progress; her language skills remained weak.

In September 1983, Miss P advanced to the pre-Grade IX program at Northwood High School, and a year later, she moved on to the basic Grade IX level. On interview, she told me: "I was good in my math, but all the other subjects – it got complicated – I just made it through to other classes."

During the next several years, she worked gradually upwards, though her marks in this basic program remained marginal. In her leisure time, she kept up with her handicrafts, and also became an avid bingo player.

In June 1987, Miss P completed Grade XI, and that fall, she started Grade XII. Of course this was not a regular Grade XII program and would not have qualified her for admission to college. After a couple of months, she felt herself floundering in her studies, and left school: "I didn't like it no more." For a period of time, she continued to founder [sic], mostly staying home, watching television, knitting and latch hooking, or visiting with her friends.

In 1988, she enroled in an upgrading program at Redwood School, and continued there for several months. She told me that at that point, personal problems intervened, and she left the school.⁹

Ms. P did not pursue any formal studies after leaving the Redwood School in 1988 at the age of 19 or 20. She continued to live at home with her parents in Thunder Bay. Since both parents worked, she initially took care of the house and cooked meals but, in the spring of 1989, she applied for and obtained employment as a counter attendant at a Robbins Donuts. She testified that her duties included serving customers, handling cash and washing the floor but not making donuts. She thought she worked three or four midnight shifts a week for about three months, making $5 per hour, the minimum wage at that time. However, a summary of her 1989 income tax return showed T4 earnings of $941¹⁰ which would roughly correspond to 23 shifts worked, ie, approximately two nights per week over a period of slightly less than three months.

Ms. P quit her job at Robbins Donuts in July 1989, partly because she didn't enjoy it and partly so she could go to White River to take care of her ailing great-grandmother who needed help going to the toilet, bathing, cooking meals, cleaning, doing laundry and running errands. The evidence was not clear about when Ms. P stopped providing this assistance to her great-grandmother. Ms. P apparently told Mr. Katz that "in 1990, a nurse was brought in to assist Miss P's grandmother [sic] and, feeling homesick, she returned to Thunder Bay."¹¹However, Ms. P testified that while she was living in White River, she got pregnant and decided to come back to her parents home in Thunder Bay about a month before her son, Brett, was born on June 1, 1991.

After her son was born, Ms. P started to receive mother's allowance and, sometime in 1992, moved to a basement apartment and, sometime later, to an apartment on the Kingsway in Thunder Bay. In the four years prior to the accident, she did not work, look for work or receive any training or upgrading. She stayed at home, taking care of her son who started part-time junior kindergarten in the fall of 1995 at the age of four. The accident took place on October 31, 1995. Her Application for Accident Benefits, dated March 20, 1996, indicated that she was still living at the Kingsway address at that time.¹²

Ms. P attached to her Application for Accident Benefits a completed Activities of Daily Living form. She indicated through check mark answers on this form that, prior to the accident, she could do all of the following categories of activities without assistance: personal care, mobility, shopping, meals, cleaning, laundry and home maintenance. The form then asked for a description of "any other activities you normally engaged in prior to the accident that you are no longer able to do." The response read: "child play & care - wrestling, playing, went for walks." The form also asked: "At the time of the accident, did you intend to return to work?", and the "no" box was checked off.¹³ When questioned about this answer at the hearing, Ms. P testified that she did not intend to return to work until after her son had started to attend school full-time.

On October 26, 1999, at the request of Parallel Medical Services Ltd., Ms. P completed another form in which she indicated through check marks her pre-accident and post-accident abilities to carry out the activities of daily living. Apart from the fact that she indicated through this form that she "never did" drive a car, cut grass, garden or shovel snow, her answers again indicated that, prior to the accident, she was able to operate independently in the areas covered in the Activities of Daily Living form attached to her Application for Accident Benefits. However, the list of activities on the Parallel Medical Services Ltd. form was longer than the list on the Activities of Daily Living form. Her check mark answers on this longer list indicated that she was able to do all the following additional activities before the accident: balance a bank book, keep appointments, remember errands, read and remember what you have read, follow and remember a movie or TV show, prioritize activities, plan and organize meals, remember and follow directions, riding [presumably in a vehicle], relate to others without irritability or temper, keep track of a conversation, find words to express your thoughts, write so others can understand and participate in social activities.¹⁴

Another form prepared by Parallel Medical Services Ltd. asked Ms. P to identify any pre-accident health problems but it was clear that her answers were in relation to her then current health concerns.¹⁵ However, Ms. P acknowledged at the hearing that she had certain health problems in the years prior to the accident. She suffered from back pain but obtained partial relief when she underwent a breast reduction.¹⁶ Her left knee "gave out" once every three months or so, causing her to fall. She took Tylenol #3 for back and leg pain before the accident but "not often." She had what she thought were arthritic restrictions in her fingers as a result of cracking them. At five feet, six inches, she weighed between 220 and 230 pounds before the accident. She smoked and had had both bronchitis and asthma. Mr. Katz's report stated that "she has a constant, bronchial cough which she said developed after her son was born. She noted that her physician had advised her to quit smoking but she has not been able to do so."¹⁷ She experienced anxiety attacks and other emotional problems and, about ten months before the accident, her family doctor prescribed Lorazepam, a medication that did not cause drowsiness. She was also referred to counselling but she did not go.

Still, Ms. P testified that none of these problems interfered with her pre-accident abilities to speak or read English (including the instructions on medical products), maintain a home, do housework, get around or do other physical things, work at Robbins Donuts, care for her great-grandmother and her son, get out of the house, socialize or pursue her hobbies of latch-hooking and knitting. She denied ever being the victim of abuse or having any substance abuse problems though she did admit that, prior to the accident, she drank too much alcohol "once in a while. "

Ms. P testified that she was not content living on mother's allowance and that she would have looked for work and tried to better herself after Brett started going to school full time in September 1996. She would have looked for work as a waitress or in an office, part-time or "full-time down the road."

Ms. P's mother, Barbara P, gave the following description of her own life, education and work history. She was born in 1947, left school after Grade 8 at the age of 14 to look after her grandmother, two years later started to work at a variety of hospital, factory and hotel jobs until her children were born, stayed at home with her children until Ms. P was three and then returned to work in another series of hospital and factory jobs. She started to work as a plastics processing machine operator in 1981 and was still employed there. She stated that, before the accident, she was going to get Ms. P to apply to work in the same factory "because she could do what I do." However, this plan ended when Ms. P got pregnant.

Ms. P’s mother testified that before the accident, Ms. P was a good mother who read to, went for walks with, fed and cared for Brett on her own. She further testified that Ms. P was also able to maintain her home, receive friends and family and continue her knitting and latch-hooking. Ms. P’s mother estimated that she visited Ms. P twice a week after Brett was born. She denied that Ms. P had any problems standing or walking before the accident. She confirmed that her daughter was not content with the amount she received in mother’s allowance and that she had intended to return to work "at something that would pay better" once Brett was full-time at school.

Ms. P’s brother, Kevin P, was born three years before her. He testified that he got as far as Grade 10 in the same modified program at Northwood High School that Ms. P later attended and had worked steadily since then. By the time of Ms. P's accident in 1995, he testified, he had been working for an exporting company in Toronto for about seven years, making crates and loading rail cars. As a result of the accident, he explained, his mother asked him to come back to Thunder Bay to help take care of Ms. P and he did so in December 1995. In March of 1996, he started to work at the same job in the same factory as his mother and continued to work there.

Ms. P's father, Henry P, was born in 1945 and, like his wife, got as far as Grade 8 in school. He identified himself as Ojibway and Ms. P's mother, Barbara, as Blackfoot and stated that they were married in 1965. He testified that he worked for 26 seasons as a fire fighter until he injured his knee in August 2001 but that he resumed work as a driver/security guard in early 2004.

Mr. P testified that Ms. P provided the following services to her great-grandmother in White River: helping her to go to the bathroom, cooking, laundry, housecleaning and shopping. He stated that after she came back to Thunder Bay and had a child, she was able to take care of both her child and her home. He stated that prior to the accident, she had friends and socialized. He saw her a couple of times per week. He acknowledged that "her knee would give out the odd time" but stated that she was otherwise physically well before the accident.

Ms. P's pre-accident personal and vocational characteristics

In accordance with section 29(3), my task was to determine the income from employment that Ms. P could reasonably have earned at the time of the accident in 1995 having regard to her personal and vocational characteristics at that time. Each party presented opinion evidence in relation to that issue. Ms. P relied upon the opinion of Mr. Katz and ING relied upon the opinion of Dr. Cowman. However, before analysing their evidence in relation to the relevant characteristics, I will first explain why I considered Dr. Cowman's evidence and how her qualifications and assessment techniques differed from those of Mr. Katz.

Why I considered Dr. Cowman's evidence

Dr. Cowman’s initial involvement with this case was limited to expressing an opinion about Ms. P’s REC. In her RECDAC report, dated December 15, 2003, Dr. Cowman concluded that Ms. P was unemployable. She did not specifically address the issue of Ms. P's PEC. I have nevertheless considered Dr. Cowman’s opinions in relation to Ms. P’s PEC for the following reasons.

First, Dr. Cowman’s RECDAC report made it clear that, in her opinion, Ms. P would have been unemployable even "without considering the physical/functional limitations" caused by the accident. That opinion, which Dr. Cowman repeated in her oral evidence, was known to Ms. P's counsel before the hearing began and was clearly relevant to the issue of Ms. P's PEC. Second, Ms. P’s counsel did not, correctly in my view, object to my considering this opinion so long as a right of reply was allowed and it was. Third, sections 29 and 30 made Ms. P's "personal and vocational characteristics" relevant in determining both her PEC and her REC.¹⁸

How Dr. Cowman’s and Mr. Katz’s qualifications and assessment techniques differed

As previously indicated, Dr. Cowman is a clinical psychologist. She obtained an Honours Bachelor of Science from the University of Toronto in 1985, a Masters in Psychology from York University in 1988 and a PhD in clinical counselling from York University in 1995. She testified that she spends approximately 60% of her time performing assessments for the WSIB, DACs and other assessment facilities and that she has done this type of work for about ten years. Her curriculum vitae confirmed that she has been associated with Work Able Centres Inc., the facility where she assessed Ms. P., since 1996.¹⁹

In accordance with the RECDAC Assessment Guidelines²⁰, the team assembled to write the RECDAC report about Ms. P included a psychologist, Dr. Cowman, a physician, a physiotherapist and an occupational therapist. The physician and physiotherapist focussed on the physical limitations resulting from Ms. P’s accident-related injuries and their reports are not, therefore, pertinent for present purposes. An "Occupational Therapy/Situational Assessment" was not undertaken because it was considered to be unnecessary to reach a conclusion. Because it was a RECDAC assessment, the team did not include anyone with a professional background in helping people to find competitive employment in the labour market that existed in 1995. Dr. Cowman acknowledged that she did not have this kind of background. She testified that her experience was limited to assisting mentally challenged persons to find "work" in sheltered or volunteer work environments as opposed to competitive employment.

Dr. Cowman explained that she used a "triangulated" assessment technique, that is, she relied upon three sources of information: the documents provided to her with the referral, her interview of Ms. P and the results of the multiple psychometric tests she administered to Ms. P. It was clear from her evidence that Dr. Cowman placed strong reliance on the results of the psychometric testing, especially since, in her view, these results were consistent with what she learned about Ms. P from the documents she was given and the interview. Dr. Cowman stated that she would never attempt a vocational assessment without administering such tests because they were supported by valid science and were predictive of performance and behaviour. Her confidence in these tests is shared by others; their use is specifically contemplated by the RECDAC Assessment Guidelines.²¹

Nonetheless, Mr. Katz arrived at his opinion about Ms. P's PEC without conducting a single psychometric test, many of which he acknowledged he was not qualified to either administer or interpret. He also acknowledged that he was not a "certified vocational evaluator" though it was not made clear to me what qualifications such a certification would signify. Mr. Katz's qualifications were, instead, founded on his 1978 Bachelor of Social Work degree from York University, his 1987 Masters degree in Adult Education from the Ontario Institute for Studies in Education, his over twenty years (1966 to 1989) with the Canada Employment and Immigration Commission during which he provided or coordinated employment programs for disabled, youth, immigrant, women and indigenous workers, and his private practice since 1979 in which he provides vocational assessment and counselling services to disabled and disadvantaged workers and conducts research into employment counselling and labour market adjustment issues.²²

Mr. Katz's assessment was based on the documents he was given and his interview with Ms. P in 1998, more than five years before Dr. Cowman's. He was made aware of the testing done by Dr. Cowman but it did not alter his opinion. On the contrary, he questioned both the reliability of the test results and, even if they were accurate, the conclusions about Ms. P's employability which Dr. Cowman drew from them.

Since the dispute about the reliability and the utility of the psychometric test results related most directly to the question of Ms. P's pre-accident "cognitive abilities", I will begin by examining the evidence in relation to that enumerated personal characteristic.

Cognitive Abilities

In order to determine Ms. P's cognitive abilities, Dr. Cowman administered the Wechsler Adult Intelligence Test. She testified that this test constituted the "gold standard of intelligence testing", that it was widely used and that she always administers it. She explained that this test produces three scores: verbal, non-verbal (performance/spatial) and overall intelligence. These scores can then be expressed in two different ways: as percentiles of the population or as numbered IQs falling into the following categories: below 69, mentally retarded; 70 to 79, borderline; 80 to 89, low average; 90 to 109, average; 110 to 119, above average; 120 to 129, superior; 130 and above, very superior.

Dr. Cowman testified that Ms. P’s verbal score put her in the 2^nd percentile and gave her an IQ of 70, placing her in the borderline category, her performance/spatial score put her in the 14^th percentile and gave her an IQ of 84, placing her in the low average category, and her overall intelligence score put her in the 5^th percentile or gave her an IQ of 75, again placing her in the borderline category.

The overall IQ score of 75 was neither as precise nor as balanced as it might appear. First, Dr. Cowman acknowledged that it could be off by "a couple of points" due to error. Second, her written report contained the following additional observations: "A statistically significant elevation was noted on the Arithmetic subtest (25^th percentile), which involves mental mathematical calculations. Perceptual Organization and Working Memory were both significantly elevated in comparison to Processing Speed and Verbal Comprehension. Overall, Performance I.Q. was statistically significantly higher than Verbal I.Q."²³ (my emphasis). In other words, as Dr. Cowman put it at the hearing, Ms. P had "relative strengths." By placing Ms. P's overall intelligence in the 5^th percentile with an IQ rating of 75, the Wechsler test assigned greater weight to Ms. P's lower Verbal IQ score than it did to her higher Performance IQ score. The score of 75 thus reflected Ms. P's relative weaknesses better than her relative strengths. One might, therefore, by correcting for error and re-balancing the verbal and performance scores, arrive at a score of 80, placing Ms. P in the low average category.

However, speculation of this kind was unnecessary. There were more fundamental reasons to question the reliability of the test results obtained by Dr. Cowman.

First, while Dr. Cowman obviously assumed that the results obtained would have been the same or similar had the test been administered prior to the accident in 1995, rather than in 2003, she did not explain her reasons for making this assumption. She may have believed that the accident did not affect Ms. P's cognitive abilities or she may have believed that any adverse effect was only temporary. In the latter case, she may have regarded the school records and other information she had about Ms. P as being sufficiently consistent with the test results to establish that Ms. P had returned to her pre-accident level of intellectual functioning by 2003.

However, Dr. Cowman failed to refer to the opinion of Dr. G. Bartolucci, a psychiatrist whose report, dated September 9, 2002, was provided to her.²⁴ This report stated that Ms. P probably suffered a "Mild Brain Injury" in the accident and that there was "no clear neuropsychological or psychometric evidence" that the "cognitive sequelae" of this injury had resolved to the point that she was "functioning at a level comparable to her pretraumatic level which was probably at the low/average to borderline IQ."²⁵

Dr. Bartolucci’s opinion did two things. First, it raised the possibility that the accident did affect Ms. P’s cognitive abilities in more than a temporary way and second, it stated, logically enough, that this possibility could be neither confirmed nor denied without "clear neuropsychological or psychometric evidence." But that kind of evidence only existed for the post-accident period. When compared to the highly specific ratings and scores obtained by administering the Wechsler test, it was apparent that neither Ms. P's school records, which ended in 1988, nor any of the other information available by Dr. Cowman constituted "clear neuropsychological or psychometric evidence" of Ms. P's 1995 pre-accident cognitive abilities. There was no evidence that Ms. P underwent psychometric testing before 2003.

I acknowledge Dr. Bartolucci’s comment that "she was probably at the low/average to borderline IQ" before the accident and I accept that this comment was probably based on Mr. Katz’s description of Ms. P's school records, which he also had. But this comment was clearly not offered as a definitive or reliable opinion. In the next sentence, Dr. Bartolucci recognized that such an opinion would require more information than he possessed, namely, "clear neuropsychological or psychometric evidence."

In my view, Dr. Bartolucci's report should have made Dr. Cowman aware of the possibility that the accident affected Ms. P’s cognitive abilities in more than a temporary way and should have also made her realize that this possibility could not be reliably ruled out without "clear neuropsychological or psychometric evidence" comparing Ms. P's pre-accident cognitive state to her post-accident cognitive state. Dr. Cowman lacked the first half of that evidence, indeed, the only evidence required to express a reliable opinion about Ms. P's pre-accident cognitive abilities.

Second, Dr. Cowman was aware that at the time of her assessment, Ms. P was taking three kinds of medicine. Her report stated that Ms. P was taking "six Percocet per day for pain ... reduced ... from eight Percocet per day over the last two months", "four or five 10mg Diazepam tablets per week", "as well as Ritalin in order to help her feel more energized and engaged."²⁶ When asked how this medication might affect Ms. P's test results, Dr. Cowman responded that since Ms. P's use of this medication conformed to a stable practice established before the testing and since Ms. P seemed alert, bright and able to put forth a full effort, the test results obtained could be considered accurate.

This response overlooked the relevant question for PEC purposes: since there was no evidence that Ms. P took any of this medication prior to 1995, could test results obtained in 1995 have, for that reason alone, been different than those obtained in 2003? Without providing a reliable negative response to that question, Dr. Cowman could not, in my opinion, base a reliable opinion about Ms. P's pre-accident cognitive abilities on the test results she obtained in 2003.

Third, Mr. Katz expressed the concern that the Wechsler test may not produce reliable results when administered to aboriginal persons, even if they live in urban environments. He testified that such tests have a "cultural bias" and may underestimate the potential and abilities of aboriginal persons. In response, Dr. Cowman acknowledged that cultural factors may lower test results but she denied that they "invalidated" those results. She maintained that the Wechsler test was designed to test people from many different backgrounds, including native Americans, not just "white Americans." Still, when pressed by me to estimate how much cultural factors may have affected Ms. P's scores, Dr. Cowman was unable or unwilling to do so. In other words, she was unable or unwilling to provide an opinion about how reliable those scores were.

This analysis leads me to conclude that insofar as her opinion about Ms. P’s pre-accident cognitive abilities was based on the results she obtained by administering the Wechsler test, Dr. Cowman's opinion was unreliable. Still, as previously noted, her opinion was not based only on the test results. It was also based on what she learned about Ms. P from the documents she was given and the interview she conducted. This additional information will be analysed below but I will now address Dr. Cowman's opinion that this information was all consistent with the scores she obtained by administering the Wechsler test. As she put it at the hearing: "everything pointed to Ms. P's general intelligence falling in the lowest 10% of the population."

At no point did Dr. Cowman testify that she could have arrived at this conclusion without first obtaining the overall intelligence score placing Ms. P in the 5^th percentile. She testified only that all the other information she obtained was consistent with that test result. However, none of the other information involved controlled comparisons with the rest of the population. Dr. Cowman did not, for example, testify that all "slow learners" with limited work histories have a general intelligence placing them in the lowest 10% of the population. It follows that once I reject the 5^th percentile test result, I must also reject Dr. Cowman’s conclusion that Ms. P’s general intelligence fell into the lowest 10% of the population. Of course, there remained a possibility that this conclusion was accurate but, in my view, there was no reliable evidence that it was accurate.

In any event, even if I were to accept this conclusion, there was a fundamental flaw in Dr. Cowman’s use of that conclusion to reach the opinion that Ms. P was unemployable before the accident.

Dr. Cowman testified that the National Occupational Classifications (NOCs) do not contain "a single job" for persons whose intelligence level places them in the lowest 10% of the population. She stated that the NOCs have adopted the General Aptitude Test Battery (the GATB) "aptitude rating system" and that, according to that system, persons whose intelligence level places them in the lowest 10% of the population are considered to be of "below average" intelligence. She stated that she agreed with the NOCs that this level of intelligence falls below the minimum required to engage in competitive employment. She maintained that a "low average" intelligence, on the other hand, was sufficient and was actually "best" for jobs involving repetitive tasks.

In the testimony which he gave before Dr. Cowman testified, Mr. Katz denied that Ms. P's test scores, if accurate, would have wiped out her vocational options. He testified that her scores were still above those of many people who are working. He also stated he was "extremely familiar" with the NOCs as they are used in conjunction with the Wage Tables authorized by the RECDAC Assessment Guidelines to determine RECs. He explained that he did not refer to the NOCs to determine Ms. P's PEC because that would have inflated her pre-accident earning potential.

After Dr. Cowman testified, Mr. Katz was asked to give written reply evidence responding to the following agreed-upon question: "Can you use the NOC as a way of determining the minimum level of intelligence required to qualify for competitive employment?" Mr. Katz's complete answer was three and a half pages long but a succinct summary was contained in the very first paragraph which read: "No. The authors of the National Occupational Classification (NOC) and its predecessor, the Canadian Classification and Dictionary of Occupations (CCDO) have specifically warned against using the NOC and CCDO in this manner."²⁷ The language of that warning was set out in a CCDO extract attached to Mr. Katz's response. It read as follows:

Five levels are provided for each aptitude with the exception of Intelligence (G), which reflects only four levels. Although many jobs require no more Intelligence than that possessed by the lowest 10% of the working population, it is felt that reliable ratings cannot be made for that level of the Intelligence factor without actually testing individuals in the occupation.²⁸

In addition, Mr. Katz pointed out that intelligence was only one of nine work-related aptitudes measured by the GATB. He stated that GATB studies have "identified many jobs ... in which there was no significant correlation with Intelligence. For many other jobs, Intelligence was a factor but was only necessary at a very low level - lower than Miss P’s level as reported by Dr. Cowman’s tests."²⁹

Mr. Katz's evidence in reply was not challenged and I accept it. It follows that even if I were to accept Dr. Cowman's opinion that Ms. P's cognitive abilities placed her in the lowest 10% of the population, I would not accept her opinion that this meant, according to the NOCs, that she lacked the minimum cognitive abilities required for competitive employment.

Still, just as I acknowledged that Dr. Cowman’s opinion about Ms. P’s cognitive abilities was not based entirely on test results, I also acknowledge that her opinion about Ms. P’s employability was not based entirely on her belief that Ms. P lacked the minimum cognitive abilities required for competitive employment. I now turn to the other personal and vocational characteristics considered by Dr. Cowman and Mr. Katz.

Employment history

Dr. Cowman testified that notwithstanding Ms. P's test results and the NOCs, she recognized that "some people beat the odds", i.e., that a person of Ms. P's cognitive abilities might still be able to enter the competitive work force if she had the right "constellation of personal characteristics - a nice disposition, well motivated, good personal habits, consistent, takes direction well." Dr. Cowman's report expressed the same idea in the following terms: "It would be expected that individuals who test in [Ms. P's intellectual] range would experience significant difficulties securing and maintaining competitive employment. That being said, some individuals in this range of intellectual functioning do manage to find an adaptive working niche. Presumably they draw on their unique constellation of personality factors, innovation and other supports."³⁰

Nevertheless, Dr. Cowman gave little or no weight to these factors in Ms. P's case because, she explained, there was no evidence that Ms. P had been able to use them to establish a "strong work history." Dr. Cowman testified that since Ms. P had only worked for a couple of months and since her employer may have been "unhappy" with her performance, her pre-accident work history did not demonstrate an ability to find and keep competitive employment. This testimony echoed Dr. Cowman's report in which she wrote: "A solid work history is the best evidence that such a constellation is present in a particular individual. Ms. P, however, reported that she has only ever been gainfully employed once, briefly, and that she did not settle into working life. This is a predictor of future employability."³¹

In Mr. Katz's opinion, Dr. Cowman grossly overstated the importance of Ms. P's pre-accident work history. In his view, the periods Ms. P spent taking care of her great-grandmother and staying at home with her child were "acceptable" or "understandable" and should not be regarded as either "holes" in her work history or as a "predictor of [her] future employability." He stated that it was a "normal thing" for women under 34 years of age to have sporadic work histories before their children go to school but then work full-time once their children were in school.

In my view, Mr. Katz was well qualified to express this opinion and I accept it. Moreover, in my view, Dr. Cowman's opinion was contrary to both the evidence and the law.

The evidence established that Ms. P did not work in the more than six years before the accident because she was either taking care of her great-grandmother, pregnant or the mother of a small child. When challenged on the relevance of the fact that Ms. P was a single mother, Dr. Cowman testified that Ms. P was not really raising her child on her own as he spent about half of his time with his grandparents. She later admitted that she did not know whether this was the case prior to the accident. The evidence before me establishes that it was not.

As to the law, Dr. Cowman's opinion would make it difficult or impossible for many unpaid caregivers to qualify for LECBs. Indeed, their PECs would always be zero if they had not worked for more than five years before their accidents because, according to Dr. Cowman, "what a person has done in the last five years is highly predictive of what the person will do in the next five years." In addition to its inherent implausibility, this view would be contrary to section 29(3) which, as previously explained, allows unpaid caregivers with no or limited pre-accident work histories to establish their PECs by reference to personal and vocational characteristics other than their employment histories. Section 29(3) does not presume, as Dr. Cowman apparently did, that a person who engaged in unpaid caregiving before making a significant entry into the workforce could not later make a significant entry into the workforce.

Personality, motivation to work and "other supports"

These are not enumerated personal or vocational characteristics but, as Dr. Cowman recognized, an individual's "unique constellation of personality factors", including motivation to work and other supports" may affect his/her employability. I, therefore, note the following evidence.

Based on her interview of Ms. P in 2003, Dr. Cowman's report contained these observations about Ms. P's personality: a very pleasant woman, who was fully cooperative", seemed in good spirits, and expressed a range of appropriate affect", "did not seem emotionally distressed", "she approached questions in a straightforward manner, without apparent embellishment", "Ms. P was pleasant and cooperative throughout the psychometric testing", "she appeared to put forth a good effort", "no evidence of symptom magnification."³²

Mr. Katz's report described Ms. P as "congenial with polite manners. Her demeanour is warm, affectionate and unassuming."³³ At the hearing, he testified that, in his opinion, Ms. P was capable of relating to others as would be required of either a counter attendant or a caregiver.

Ms. Lorie Bortolon, who adjusted Ms. P's claims for many years, stated that she found Ms. P to be an "honest, frank and up-front" person with whom she had no difficulty getting along.

On the other hand, Dr. Cowman raised certain doubts about Ms. P's motivation to work.

In her oral testimony, she stated that Ms. P did not tell her that she left her job at Robbins Donuts because she wanted to take care of her great-grandmother. Instead, she testified, Ms. P told her that she was "in too much of a party mood." Dr. Cowman then referred to this desire to party as one of a number of possible reasons for Ms. P's limited employment history.

I certainly acknowledge the evidence that Ms. P's desire to party, at least occasionally, continued up to 1995. Ms. P did not contradict the evidence before me that the accident took place following a party involving drinking.³⁴ She also admitted that she drank too much "once in a while" prior to the accident.

Nevertheless, I reject any suggestion that this behaviour constituted a part of the explanation for Ms. P's limited employment history prior to the accident or a barrier to her employment in 1995. There was no evidence before me that people who occasionally drink to excess are, for that reason, incapable of holding down jobs. Nor was there any evidence to suggest that Ms. P would not have been able to control her drinking habits sufficiently to keep a job for which she was otherwise qualified.

Dr. Cowman's report raised another concern about Ms. P's motivation to work. It stated: "In terms of models of illness behaviour in the family, her father is disabled from work due to knee problems, at the age of 58." This concern was ill-founded. Ms. P's father testified that he had stopped working as a fire fighter due to an injury in August 2001 and that he resumed work at a different job sometime in 2004. In other words, his illness" developed long after 1995, the relevant time for PEC purposes.

In fact, to the extent that "models of illness behaviour" established by Ms. P's family may have influenced her motivation to work, the evidence established that they could only have done so positively. The three other members of Ms. P's family, her parents and her brother, testified that they have all been more or less steadily employed since they started to work, though Ms. P's mother stopped work while Ms. P and Kevin were little and Mr. P's father stopped working for a while following his injury. Ms. P clearly comes from a family with a strong work ethic. I accept Mr. Katz's opinion that this "model" would encourage Ms. P to want to also work for a living in order to provide for herself and her son.

Where other supports" were concerned, Dr. Cowman maintained that far from benefiting from any supports that might have helped her to find and keep employment, Ms. P would have been incapable of meeting the many challenges of competitive employment on her own, without the support of others. To substantiate this view, Dr. Cowman referred to the fact that Ms. P's mother made the travel arrangements for the trip from Thunder Bay to Barrie where the RECDAC assessment took place. She further noted that Ms. P was assisted by her family to do her laundry, grocery shopping and banking. But Dr. Cowman was describing Ms. P's post-accident activities, some of which involved important physical components. As for Ms. P's pre-accident capacities, I note that Dr. Cowman was given, but did not refer to, the task list Ms. P completed at Parallel Medical Services Ltd. in October 1999.³⁵ In that list, Ms. P indicated that she was able to do all of the following things before the accident: balance a bank book, keep appointments, remember errands, read and remember what you have read, follow and remember a movie or TV show, prioritize activities, plan and organize meals, remember and follow directions, riding [presumably in a vehicle], relate to others without irritability or temper, keep track of a conversation, find words to express your thoughts, write so others can understand and participate in social activities.³⁶ More significant than this checklist was the evidence of Ms. P's parents. It established that Ms. P was a self-reliant and autonomous single mother before the accident.

Moreover, in my view, Ms. P did have "other supports" that should be considered in determining whether she could have found and kept competitive employment. Ms. P's mother testified that she had intended to try to get Ms. P a job in the same factory where she worked prior to the accident but that Ms. P got pregnant. Ms. P's brother testified that he got a job in this same factory when he returned to Thunder Bay, at his mother's request, to help take care of Ms. P after her accident in 1995. Mr. Katz testified that there is a statistical, though not predictive, correlation between a child's occupation and his/her parents' occupations. Still, I recognize that the question of whether Ms. P could reasonably have worked at the same job in the same factory as her mother and brother must also take into account her psychological limitations, her physical abilities and her educational and training, all examined below.

Psychological limitations

Psychological limitations can clearly have a major impact on a person's earning capacity. The Ontario Court of Appeal has recognized "psychological make-up" as a relevant personal characteristic for LECB purposes.³⁷ I, therefore, note the following evidence.

The assessments performed at Parallel Medical Services Ltd. included a psychiatric evaluation conducted by Dr. L. Feldman on October 27, 1999. Relying on the clinical notes and records of Ms. P's family physician, Dr. G. W. Milne, Dr. Feldman concluded: "The claimant, by documentation, has had previous bouts of depression and fits criteria for a Major Depressive Disorder recurrent."³⁸

Dr. Bartolucci disagreed with this opinion. After analysing both the records relied upon by Dr. Feldman and other records not mentioned by Dr. Feldman, Dr. Bartolucci's report dated September 9, 2002 stated: "I do not believe that her past history is suggestive of anything other than a succession of Adjustment Disorders with Depressed Mood rather than major depressive disorders."³⁹

The report of another psychiatrist, Dr. Sam Ozersky, who examined Ms. P on September 13, 2002, stated: "From a psychiatric point of view, this woman has had a pre-existing problem with anxiety and likely depression. It is interesting that she did not become significantly depressed until two years after the accident, when her boyfriend was caught with another woman." Like Dr. Feldman, Dr. Ozersky diagnosed "Recurrent depression, unipolar depression in remission."⁴⁰

Dr. Bartolucci once again responded that, in his opinion, no "Major Depressive Disorder" diagnosis was warranted at the time of the accident. In a report dated November 11, 2002, he wrote: "Ms. P may have been vulnerable to a recurrence of depressive symptoms but there is no evidence that these symptoms were present at the time of the accident or that they would have occurred without the precipitant of the serious trauma and resultant loss of function as well as physical deformity and chronic pain" caused by the accident.

Dr. Cowman agreed with Dr. Bartolucci that Ms. P only met the diagnostic criteria of an Adjustment Disorder of mild proportions." She also observed: "In terms of pre-accident psychological distress, Ms. P has suffered from anxiety with occasional panic attacks through much of her adult life. She apparently has had one episode of depression following a relationship break-up subsequent to the subject motor vehicle accident."⁴¹

This evidence did not establish that Ms. P suffered from any psychological limitations which would have prevented her from engaging in competitive employment in 1995. It established only that, prior to the accident, Ms. P suffered from occasional panic attacks and bouts of depression. In my view, these symptoms constituted, at most, temporary" disabilities within the meaning of section 29(6) and cannot, therefore, be taken into consideration in determining her PEC.

Education and training

Ms. P's school records, as described by Mr. Katz, are set out above. For Dr. Cowman, the main significance of these records was that they were consistent with her opinion about Ms. P's level of intellectual functioning. Her report stated: "At this level of functioning, she would likely experience difficulty 'catching on' to new tasks, instructions, and abstract theoretical concepts."⁴²However, Dr. Cowman did not provide any evidence or opinion to the effect that Ms. P's level of education and training, as opposed to her level of intelligence, rendered her unemployable.

Mr. Katz's report recognized Ms. P's "limited education" but expressed the following opinion: "Once her son was in school full-time, she would probably have resumed employment as a counter person, or caregiver; or she might have followed in her mother's footsteps and entered into an industrial job such as: packaging or machine operation."⁴³ Mr. Katz made it clear in his testimony that he was referring to unskilled industrial jobs. He stated that "tens of thousands" of people with less education and training than Ms. P, and with no understanding of English and no work experience outside the home, find employment as unskilled industrial workers or cleaners.

In considering the question of Ms. P's education and training, I have assigned little weight to Ms. Moore John's submission that Ms. P actually had more formal education than her two parents and brother, all of whom had strong work histories. None of the other family members, two of whom were men, entered the workforce at the same time or at the same age as I must determine whether Ms. P could reasonably have done.

Still, the evidence of Ms. P's mother and brother did demonstrate that the educational qualifications referred to in the NOCs can be misleading. The NOC for "Plastics Processing Machine Operators" was produced in evidence by Mr. Katz. Under the heading "Employment requirements", it stated: "completion of secondary school may be required..., Completion of a statistical process control (SPC) course may be required..., Completion of courses in hydraulics, pneumatics and electronic systems may be required for moulder process operators."⁴⁴ There was no evidence that Ms. P's mother and brother satisfied any of these "requirements" when they were hired as plastic processing machine operators.

I, therefore, accept Mr. Katz's testimony and conclude that Ms. P's education was sufficient to engage in the three kinds of employment he identified.

Physical Abilities, Vocational Interests and Aptitudes and Language Abilities

Ms. P was assessed by Dr. D. J. Ogilvie-Harris, an orthopaedic surgeon, in June 2002 and his report dated June 15, 2002 made the following comments about her pre-accident physical health: In the past, she has had a broken wrist. She has also had intermittent low back pain in the past but it has never been a limiting factor. She has had no significant ligament injuries or cervical spine problems." Dr. Ogilvie-Harris also observed: "Prior to the accident, she was capable of working in a standing capacity."⁴⁵

The report of Dr. Paul Robert, another orthopaedic surgeon, dated September 13, 2002, provided the following information under the heading Past Medical/ Treatment History": In the past, she has been in good health, with no serious medical problems. She has no prior injuries or complaints of pain in her neck, lower back, left knee or left ankle prior to the accident. ... She has no previous injuries as a result of motor vehicle accidents. She has no previous work related injuries."⁴⁶

Of course, Ms. P acknowledged at the hearing that "intermittent low back pain" was not her only pre-accident physical problem. She also had a weight problem, an unstable left knee, arthritic fingers and bronchitis or asthma. While Dr. Cowman found her to be unemployable for reasons unrelated to these problems, Mr. Katz agreed that Ms. P would not have been employable in a highly physical" job, like fighting fires. He also acknowledged that her bronchitis might have been "inflamed" by working in a plastics factory. Still, he considered Ms. P physically capable, prior to the accident, of engaging in the three types of employment previously mentioned, including the type of employment engaged in by her mother. In that last regard, I note that Ms. P's mother testified that workers in her factory used or had access to respirators.

There is, however, a reason why I have decided to deal with Ms. P's "physical abilities" at the same time as her "vocational interests and aptitudes" and "language abilities." When interviewed by Mr. Katz, Ms. P told him that she would have liked to have "enroled in vocational upgrading and trained to perform basic office procedures." In Mr. Katz's opinion, clerical work of this kind was never an option for Ms. P because she lacked both the "ability to speak and write formal English, and the finger dexterity associated with rapid keyboarding."⁴⁷

But clerical work was not the only type of employment under consideration that required finger dexterity. According to the GATB studies included in his reply evidence, some measure of finger dexterity was also required to do two of the three jobs he thought Ms. P was capable of doing, namely, as a "counter attendant" and as a "compression moulding machine operator (plastic prod.)."⁴⁸

There was conflicting evidence about Ms. P's finger dexterity. Mr. Katz's report had referred to a 1998 test showing that Ms. P had "slow speeds with fingering and handling [and this may] limit placement in production environments which require fine finger dexterity."⁴⁹ But another set of test results, obtained in 1999, indicated that Ms. P had "excellent fine motor skills and is qualified for Assembly Tasks of pieces in the 1-4 mm. range or larger at a Non Production Rate, but she should be capable of a Production Rate with a short period of training on job acclimation; therefore, she is classified as High Speed Trainable."⁵⁰

Since the question of Ms. P's finger dexterity cannot be reliably answered on the basis of these conflicting test results, I have decided to resolve it in her favour on the basis of her long established interest in knitting and latch-hooking, activities which, I find, probably required greater finger dexterity than that required to be a counter attendant or an unskilled industrial worker.

I, therefore, conclude that Ms. P's physical abilities, prior to the accident, were sufficient to engage in the three kinds of employment identified by Mr. Katz.

Vocational Skills

Mr. Katz expressed the opinion that Ms. P had, in fact, demonstrated her pre-accident ability to do the work of a counter attendant and a caregiver, even if she was not paid for the caregiving services she provided to her great-grandmother. Dr. Cowman stated that she could not express any opinion without first obtaining an "employer's assessment" of how Ms. P performed at Robbins Donuts and an "independent assessment" of the services she provided to her great-grandmother. In any event, it was clear that Ms. P had very limited vocational skills in 1995. Still, I find that Mr. Katz only identified those types of employment which required no greater vocational skills than those Ms. P possessed at the time of the accident. In my view, Mr. Katz was well qualified to express this opinion and I accept it.

Pre-accident intention to look for employment in the future

I accept Ms. P's testimony that, prior to the accident, she was not content living on mother's allowance and that she intended to look for full-time work "down the road." She was clearly a long way down the road" by the time she elected LECBs in 2003.

Conclusion about Ms. P's employability prior to the accident

For all the foregoing reasons, I conclude, having regard to her personal and vocational characteristics at the time of the accident, that Ms. P could reasonably have engaged in the three kinds of employment identified by Mr. Katz. There was no suggestion that such employment did not exist in Thunder Bay in 1995 or thereafter.

Quantifying Ms. P's PEC

In my view, Ms. P’s pre-accident intention to look for full-time employment after her son started school full-time was realistic. It was consistent with her own ability to engage in competitive employment, her desire to get off mother's allowance, her family's strong work ethic and Mr. Katz's opinion about the pattern of women's participation in the workforce. Accordingly, I reject ING’s submission that Ms. P’s entitlement to LECBs should be based on a part-time income only.

Since Mr. Katz provided no evidence about the income earned by caregivers, that type of employment cannot be used in quantifying her PEC.

Mr. Katz estimated the gross income of a full-time counter attendant to be between $14,250 and $15,600 per annum.⁵¹ The lower figure was based on the 1995 minimum wage of $6.85 per hour⁵² but Mr. Katz testified that tips of $1.00 to $1.50 per hour should have also been included. If tips of $1.50 per hour were added in, the higher figure would have been $17,370 per annum. The middle of this range can be roughly estimated at $15,810 per annum.

Mr. Katz estimated the gross income of a full-time unskilled packer, machine operator or janitor to be between $15,600 and $20,800 per annum.⁵³ However, he was using 1998 rates rather than the relevant 1995 rates. The correct range would have been somewhat lower. The middle of this lowered range can be roughly estimated at $18,000 per annum, rather than $18,200.

In my view, Ms. P's PEC should be based on the higher of these two incomes. This was not because I find that Ms. P would have been more likely to obtain employment as an unskilled industrial worker than as a counter attendant, perhaps because her mother and brother were in a position to help get her the former. While I have recognized the availability of that kind of help as a relevant personal and vocational characteristic", my ultimate task was not to determine the income that Ms. P would have earned from employment had the accident not happened. It was rather to determine her earning capacity at the time of the accident in accordance with section 29(3). In my view, once it is determined that an insured person could reasonably have earned income from more than one kind of employment at the time of the accident, his/her PEC should always be based on the kind of employment that would have produced the higher income. To do otherwise would be to underestimate his/her pre-accident earning capacity.

In the event the parties cannot agree on the calculations required to convert the gross annual income of $18,000 into Ms. P's PEC, they will so advise me within 30 days of the date of this decision.

ISSUE 2: CLAIM FOR A SPECIAL AWARD

Once Ms. P elected to be governed by the LECB provisions of the Schedule, section 21(1) required ING to deliver its LECB offer to her "promptly." Ms. P made her election by letter dated January 27, 2003⁵⁴ and ING made its LECB offer to her by letter dated June 23, 2003,⁵⁵ though this offer was subsequently revised.⁵⁶ Ms. Moore Johns submitted that ING’s offer was not delivered "promptly" and that it should, therefore, be required to pay a special award in respect of the six month "delay" between January and June 2003.

Section 282(10) of the Insurance Act authorizes the imposition of a special award when the "insurer has unreasonably withheld or delayed payments(my emphasis) In the present case, there was no dispute that Ms. P continued to receive caregiver benefits throughout the six month period in question. Moreover, Mr. Birston maintained that the caregiver benefits Ms. P received during this period were higher than the LECBs she would have received during the same period even if her PEC were determined in accordance with the position taken by Ms. Moore Johns at the hearing. If that were so, then I would accept Mr. Birston's submission that any delay in ING’s LECB offer could not have resulted in any delay in payments to Ms. P and could not, therefore, attract a special award.

However, Mr. Birston's submission was based on a comparison which I was unable to verify: I was not informed of the rate at which Ms. P received caregiver benefits during the period in question and I have not determined the rate at which she should have received LECBs during that period. In the event the parties are unable to agree that the caregiver benefits would have been higher than the LECBs during the relevant period, as alleged by Mr. Birston, and in the event the Applicant still seeks a special award in relation to any alleged difference, Ms. Moore Johns will so advise me within 30 days of the date of this decision.

ISSUE 3: CLAIM FOR ATTENDANT CARE BENEFITS FROM JANUARY 17 TO MAY 6, 1996

Ms. Lorie Bortolon testified on behalf of the Insurer that she only became aware of Ms. P's claim for attendant care when she received the October 25, 2002 report of Ms. Martha Binstock, a physiotherapist. The Insurer denied the claim both on the ground that it was submitted long after the time limit imposed by section 59(3) of the Schedule and on the ground that the evidence did not establish Ms. P's entitlement to attendant care benefits under section 47 of the Schedule.

The limitation period defence

The relevant provisions of the Schedule, sections 47(1), (2) and (9), 48(1) and section 59, read as follows:

47.—(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

(2) For the purposes of clause (1) (a), an aide or attendant may be any person who is capable of providing the services, including a family member of the insured person, even if the aide or attendant does not possess any special qualifications.

(9) The benefits payable to an insured person under this section shall be determined in accordance with Form 1 and subsection 50 (10).

48. —(1) The insurer may require a person claiming payment of an expense under section 47 to furnish a certificate from a member of a health profession who is authorized by law to treat the person's impairment stating that the expense is reasonable and is necessary for the person's care.

59.— (1) A person who wants to apply for benefits under this Regulation shall notify the insurer within thirty days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and

(c) written information to assist the person in applying for benefits, including information to assist the person in making any possible elections.

(3) The person shall submit an application for the benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a time limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse.

The Insurer (a predecessor of ING) first heard about Ms. P's injuries when it received a letter on March 5, 1996 from her lawyer (not Ms. Moore Johns) which stated: Ms. P's "injuries consist of a severely broken ankle which has just recently been removed from its cast. She is still confined to a wheel-chair and unable to walk. She also suffered two broken knee-caps and a broken collarbone. Ms. [P] has just been released from the hospital."⁵⁷ The Insurer responded that "we do not have this report on file and are currently investigating."⁵⁸ It did not raise, then or before me, a l imitation period defence under section 59(1) of the Schedule.

Instead, it forwarded an Application for Accident Benefits form which it received back from Ms. P on April 9, 1996. The Application form indicated that Ms. P was presently in a wheelchair and requires the use of a walker ... cannot walk on her own." The Activities of Daily Living form attached to the Application for Accident Benefits form asked whether, after the accident, Ms. P "can do", "can do partially", can do with help" or cannot do" certain mobility activities. The answers given were as follows: walking - can do with help, requires a walker ", climbing stairs - cannot do", riding in car - can do with help, needs wheelchair beside car ", public transportation - cannot do", standing - can do partially, walker & hold on to counter." The following entries were made under the heading ability to control emotions or behaviour ": she cannot walk - confined to wheelchair "and fear of not walking normally."⁵⁹

In my view, by April 9, 1996, the Insurer had received sufficient information about the consequences of Ms. P's injuries to trigger its obligations to do the following four things: first, to inform Ms. P of the availability of, and her right to claim, attendant care benefits, in accordance with sections 47(1) and 59(2)(b) of the Schedule; second, to inform Ms. P of her right to claim attendant care services even if provided by a friend or family member, in accordance with sections 47(2) and 59(2)(c) of the Schedule; third, to provide Ms. P with a copy of Form 1, in accordance with sections 47(9) and 59(2)(a) of the Schedule; and fourth, to inform Ms. P that if she did not submit an application for attendant care benefits within ninety days of receiving the Form 1, in accordance with section 59(3), she ran the risk of losing her right to claim attendant care benefits unless she provided a reasonable excuse in accordance with section 59(4).

My opinion is based on the Supreme Court of Canada's decision in the case of Smith v. Co-operators General Insurance Co.⁶⁰, as explained and applied in my decision in the case of Horvath and Allstate Insurance Company of Canada.⁶¹ As I wrote in the Horvath case: "The Smith decision clearly establishes that consumer protection is a main objective of automobile insurance law, that this objective is of particular importance in cases involving an insurer’s obligation to inform the insured person and that the realization of this objective requires the insurer to provide the insured person with complete and accessible information."⁶²

In this case, the Insurer discharged, at best, its obligation to inform Ms. P of the availability of, and her right to claim, attendant care benefits under section 59(2)(b). It did so through the Application for Accident Benefits form itself which asked her whether she was applying for certain kinds of "expenses", including, among others, "Attendant Care - i.e. : At-home care provided by another person...."⁶³ However, this was not a very clear description of the purpose of attendant care benefits. Indeed, section 47(1)(a) itself does not provide a clear description either: since Ms. P was not in a "long-term care facility", the section simply stated that she could claim for "services provided by an aide or attendant", without specifying the nature of those services. In my view, in order to provide Ms. P with complete and accessible information about the availability of attendant care benefits, the Insurer was obliged to provide her with a copy of Form 1. This form was the only place where the nature of the services covered by attendant care benefits was clearly described and, for that same reason, this form also constituted "the appropriate application form" under section 59(2)(a).

I acknowledge and accept the testimony of Ms. Lorie Bortolon, the adjuster who handled the claim for the Insurer from the outset, that Ms. P's initial lawyers never submitted a claim for attendant care benefits. Their letters to Ms. Bortolon (at least the ones entered into evidence) focussed on Ms. P's entitlement to caregiver benefits and other expenses.⁶⁴ Nevertheless, as also explained in Horvath and the other decisions referred to therein, the fact that Ms. P was represented by counsel did not relieve the Insurer of its obligations to provide her with a Form 1 and the other information noted above.⁶⁵

I also acknowledge the last sentence of the report written by Ms. Eleanor Gardiner, an Occupational Therapist who, at the Insurer's request, conducted an in-home assessment on April 30, 1996. Ms. Gardiner wrote: "There were no apparent needs for assistance in self care ... and none requested." However, in the same report, Ms. Gardiner wrote: Ms. P also volunteered that she had never wanted a homemaker as she saw this as an invasion of her privacy."⁶⁶ In my view, Ms. Gardiner's report provided a clear illustration of the importance of the Insurer's duty to provide "information to assist the person in applying for benefits...", in accordance with section 59(2)(c). Had Ms. P first been informed of her right to obtain services from a friend or family member, in accordance with sections 47(2), she might well have submitted an attendant care claim at the time.

In the absence of any evidence that the Insurer complied with either of its own obligations under section 59(2)(a) and (c) or its obligation to inform Ms. P of the potential consequence of her failure to comply with section 59(3) without providing a reasonable excuse, I find that the Insurer cannot rely upon the time limit imposed by section 59(3) to defeat her claim for attendant care benefits.

Had I been required to address the question of whether Ms. P had "a reasonable excuse" for failing to comply with the time limit imposed by section 59(3), including the question of prejudice, I would not have found that the late submission of Ms. P's claim for attendant care benefits caused any prejudice to the Insurer. First, an insurer which did not discharge its own obligations to inform, as set out above, cannot, in my opinion, later allege that its right to demand a certificate under section 48(1) was prejudiced. This right did not arise until there was a claim for attendant care benefits but the absence of such a claim may have been the result of the Insurer's own failures to inform. Second, Ms. Gardiner had the opportunity, on behalf of the Insurer, to assess Ms. P's attendant care needs during her in-home visit on April 30, 1996. Third, as explained immediately below, Ms. Binstock's assessment of those needs was based primarily on two VON home care assessments conducted during the period in question. Those records were, or would have been, equally available to the Insurer during, or soon after, that period.⁶⁷

Entitlement on the merits

In her report dated October 25, 2002, Ms. Binstock purported "to retrospectively determine [Ms. P's ...] attendant care needs following hospital discharge [on January 17, 1996] until becoming independent in self-care tasks [on May 6, 1996]."⁶⁸She did this by referring to hospital records written prior to Ms. P's discharge, to two VON home care" reports written during the period in question and to family reports." Her report stated:

It is my opinion that [Ms. P's] attendant care needs from January 17, 1996 to May 6, 1996 were a combination of supervision (Part 2 ($6.85 per hour) on the Form 1 using the 1996 indexed amounts) and assistance with exercise (Part 3 ($14.85 per hour) on the Form 1). I have used $10.60 per hour as an average, and calculate that assistance was provided at the rate of 12 hours per day. This amounts to $127.20 per day x 110 days = $13,992.00. I believe this to be a reasonable past attendant care calculation using the Form 1 Legislated amounts."⁶⁹

Since the hospital records were written prior to Ms. P's discharge, they did not, in my opinion, provide a reliable basis for determining Ms. P's attendant care needs after her discharge from the hospital. In any event, these records were unclear. A January 10, 1996 progress note referred to the need for a "standby" person when Ms. P was on crutches. The January 17, 1996 discharge summary stated that her condition was "unchanged since progress note Jan. 10/96" but it then went on to observe: "Pt is able to return home at this time. She is functionally [independent] in all activities."⁷⁰

On the other hand, I accept that the first of the two VON reports, dated February 23, 1996, did establish that Ms. P continued to experience mobility problems after her discharge from hospital. It stated:

Mobility to date has been restricted to rental manual wheelchair. Is able to rise to standing using arms from normal height. Has difficulty maintaining standing balance on one leg. Still fearful to use left leg. Finding crutch walking difficult due to feeling generally weak. Unable to stand and walk using crutches more than 10-20 ft. Feeling frustrated about not being able to walk...

...To date client has been non-weight bearing left leg. Has difficulty walking using crutches and difficulty applying 30lbs pressure left leg. Requires a lot of gait reeducation and reassurance.⁷¹

Furthermore, Ms. Gardiner's report to the Insurer dated April 30, 1996 confirmed that while Ms. P's mobility had improved, she continued to experience difficulties through to the end of the period in question. Ms. Gardiner's report contained the following observations: Ms. P "no longer uses her wheelchair"; "inside the apartment and building, Ms. [P] uses a folding two wheeled ski walker"; "for trips outside she uses her crutches"; "Ms. [P] has a kitchen chair next to her bed which is lifted into the tub for her. She is then able to enter the bathroom turn and sit on the 21" height seat in the tub"; Ms. [P] admits only to limited standing tolerance in the kitchen, she says Brett [her son] brings a chair from the dining area and she is able to stand and sit at will to make a meal "; Ms. [P's] only lament was that she gets out only once per week."⁷²

Finally, the second VON report, dated May 6, 1996, was not entered into evidence before me but it was quoted by Ms. Binstock as follows: "Client progressed from using wheelchair (manual) most of the day to walking using 2-wheeled walker and now has progressed to independent ambulation weight bearing to tolerance using crutches."⁷³

Nevertheless, my task was not to determine whether or not Ms. P experienced mobility problems during the period in question. It was rather to determine whether or not she required the services of an aide or attendant in order to deal with those problems. Part 1 of Form 1 contemplated the types of assistance that might be required to deal with the mobility impairments caused by an accident. At the time, the form read as follows:

Number of Minutes X

Times per week =

Total minutes per week

Mobility

(location change: such as to and from the bedroom for afternoon rest)

assists client from a sitting position (for example, wheelchair, chair, sofa)

supervises/assists in walking performs transfer needs as required (for example, bed to wheelchair, wheelchair to bed)

Subtotal

I would agree that the Form only provides examples of the type of assistance an injured person might require to deal with his/her mobility problems. Still, in my view, neither the two VON reports relied upon by Ms. Binstock nor the report of Ms. Gardiner established that Ms. P required the kind of assistance mentioned in Form 1 or indeed that she required much, if any, assistance to move around inside her own apartment. At most, Ms. Gardiner's report established that Ms. P needed someone to move a chair to various locations in the apartment, something her son could apparently do. I also note that, contrary to Ms. Binstock's opinion that Ms. P needed assistance with exercise, Ms. Gardiner's report stated that: Ms. [P] uses her exercycle in her bedroom regularly and independently."⁷⁴

I would also agree that Ms. P's mobility outside her apartment should also be considered but, in my view, so should the fact that during the period in question, she was still convalescing from her injuries and was, therefore, not as likely to go out as she might have otherwise. But, here again, the VON reports said nothing specific about Ms. P's ability to go out and Ms. Gardiner's report stated: "for trips outside she uses her crutches."⁷⁵

It follows that Ms. P's claim for attendant care benefits was ultimately based on her own and her family members' evidence. However, that evidence had to do more than establish that Ms. P required or received attendant care services during the period in question. Two other issues had to be addressed in order to establish her entitlement.

First, there was no doubt that Ms. P's family members and friends were providing other types of assistance to her during the same period, including caring for her four year old son and housekeeping. This was confirmed by the evidence of Ms. P and her family and by Ms. Gardiner's report which observed: "Her parents visit daily to take her four year old son to and from school" and, under the heading "housekeeping": "Ms. [P] manages with a friend doing her vacuuming, and her mother assists her with changing beds. Her parents do her grocery shopping."⁷⁶ This situation gave rise to the probability, if not the certainty, that family members and friends who provided caregiving and housekeeping services were also available to provide attendant care services to Ms. P, both in her home and outside of her home. I note in this regard that Ms. P's child was only four years old at the time and would, therefore, have required close to constant supervision when he was in the apartment. Taking him to school and going grocery shopping would have also provided Ms. P's family and friends with opportunities to help her get out of her apartment.

In my view, Ms. P was not entitled to recover attendant care benefits unless the evidence established some basis for calculating the additional time, if any, spent by her family and friends providing attendant care services. I was not prepared to simply assume that these services required additional time or to arbitrarily assign time allocations to them as required by Form 1. The evidence of Ms. P and her family had to establish some basis for calculating the additional time, if any, spent providing attendant care services.⁷⁷ It did not.

The second issue that had to be addressed arose from both the evidence and the likelihood that Ms. P's condition improved over the period in question, thus reducing her need for attendant care services. Ms. Binstock's opinion made no allowances for a declining need for attendant care services. Nor did the evidence of Ms. P and her family.

In my view, Ms. P's claim for attendant care benefits could not succeed without evidence addressing these two issues. She may well have required and received attendant care services from her family and friends during the period in question but, in the absence of evidence establishing a basis for determining the quantum or the amount of attendant care benefits payable, if any, her claim must be dismissed.

In reaching this conclusion, I acknowledge the possibility that the evidence in support of this claim might have been stronger had the Insurer discharged its obligations to inform Ms. P, as noted above. However, as explained in my decision in Antony and RBC General Insurance Company⁷⁸ the "bright-line boundaries" approach, endorsed by the Supreme Court of Canada in Smith, discourages any enquiry into the question of whether the claimant would have acted any differently had the insurer discharged its own obligations to inform. In other words, the Insurer's failure to inform vitiated the limitation defence but it did not establish Ms. P's entitlement to benefits. She still had to prove her entitlement on the merits.

ISSUE 4: CLAIM FOR THE COST OF THE ACTUARIAL REPORT

It is important to begin by explaining how the actuarial report in question came into being.

In a letter to Ms. Bortolon dated August 24, 1998, Ms. P's lawyer (still not Ms. Moore Johns) wrote:

You have previously indicated that the insurer would like to close its file by offering [Ms. P] a cash settlement representing the present value of her future entitlement to no-fault benefit. If that is still the case, please authorize me to retain an actuary to prepare a report estimating the present value of her future entitlement.⁷⁹

Ms. Bortolon testified that the Insurer never responded to this letter. Despite this, Ms. P's lawyer obtained an actuarial report written by Mr. Murray Segal of Eckler Partners Ltd. dated September 8, 1999 and forwarded it to the Insurer by letter dated November 2, 1999. That letter was not addressed to Ms. Bortolon, who testified that she was not involved in any discussion about a lump sum settlement. It was instead addressed to another adjuster, Ms. Susan Beattie, who was evidently appointed by the Insurer to handle a mediation session at the Financial Services Commission of Ontario (FSCO). The letter read as follows:

As agreed earlier this afternoon, the mediation in this matter will be adjourned to November 15^th, 1999; the adjournment was made on my consent and upon your express undertaking to provide me forthwith upon receipt, with copies of the reports of the IME evaluations which were carried out in Toronto last week.

I agreed to provide you with a copy [of] the report of Eckler Partners Ltd. as to the present value and cost to the insurer of some of [Ms. P's] entitlements to accident benefits under Bill 164. Murray Segal's report dated September 8^th, 1999 is enclosed.

Please contact me after you have had an opportunity to read Mr. Segal's report. Perhaps it may be possible for us to negotiate a settlement of this matter even without resort to the services of the FSCO officer who has been appointed to mediate.⁸⁰

Based on this evidence, I find that Ms. P's lawyer obtained and delivered the actuarial report to the Insurer for settlement discussion purposes but without first obtaining any undertaking or agreement from the Insurer to assume or share the cost of the report.

It is also necessary to describe briefly the contents of the actuarial report. Mr. Segal was asked to assume that Ms. P was entitled to caregiver benefits until October 1997 and to LECBs for the rest of her life based on a specified gross annual income. He was asked to make assumptions about Ms. P's entitlement to medical and rehabilitation expenses for "future needs and related costs of living" involving an initial expenditure and ongoing annual payments until the Insurer's $1,000,000 maximum exposure was reached. He was asked to make further assumptions about Ms. P’s entitlement to housekeeping benefits involving annual payments for the rest of her life. Mr. Segal's report then set out his understanding of Rule 53.09(1) of the Rules of Civil Procedure which, he stated, "stipulates the use of a net interest rate of 22 % per year as the excess of estimated investment over price inflation rates in determining the capitalized value of an award in respect of future pecuniary damages." Next, the report estimated Ms. P's life expectancy based on the average Canadian population mortality rates, less 10 years in accordance with the assumption he was told to make. Using these assumptions and net interest rate, Mr. Segal generated lump sum present values expressed in 1999 dollars for each of the three types of entitlement previously identified: LECBs, medical and rehabilitation benefits and housekeeping benefits. As his report explained, the total of these present value figures represented "the capital sum" that would have to be invested in order to replace "future payments." He concluded his report by mentioning, but not making, the gross-up calculations required to reflect the fact that Ms. P's investment income would be subject to income tax, contrasting that fact with the observation that "any ongoing no-fault benefits that she would receive in the absence of such a lump settlement would be completely exempt from such tax."⁸¹

Turning next to the arguments, Ms. Moore Johns maintained that since this actuarial report dealt specifically with Ms. P's entitlement to statutory accident benefits, its cost was incurred "for the purpose of this Regulation" within the meaning of section 57 of the Schedule, set out below. Mr. Birston replied that this report could not be used to determine Ms. P's entitlement to benefits under the Schedule and that, absent a prior agreement to the contrary, its costs must be absorbed by the party that ordered it.

Section 57 of the Schedule reads as follows:

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

(a) fees charged by a person who conducts an examination or assessment or provides a certificate or report; and

(b) transportation expenses incurred in attending an examination, including transportation expenses for an aide or attendant.

(2) Transportation expenses under clause (1) (b) in respect of an insured person's automobile are limited to expenses for fuel, oil, maintenance, tires and parking.

I would certainly agree that settlement discussions should always be encouraged. Still, it must be recognized that discussions about the settlement of claims for statutory accident benefits may sometimes involve issues which go well beyond the scope of the Schedule. The Schedule only requires the payment of ongoing, indexed benefits while the insured person is entitled to them and the payment of interest and special awards when those payments are late or unreasonably delayed. The Schedule does not govern the complex issues inherent in settlements involving lump sum payments in lieu of future ongoing payments. Mr. Segal's report identified four of those issues: the likelihood of future entitlement, the appropriate net interest or discount rate, the insured person's life expectancy and the tax implications.

I acknowledge that the Schedule establishes the basic rules of entitlement from which these issues arise but, as Mr. Birston correctly pointed out, Mr. Segal's report was of no use to Ms. P in establishing her entitlement to benefits under the Schedule. It simply assumed her entitlement to benefits into the future and then used those assumptions to address issues which, if not resolved by way of settlement, could certainly not be resolved by invoking the Schedule. In my view, this report cannot be said to have been prepared or obtained "for the purpose of this Regulation" within the meaning of section 57 of the Schedule. Accordingly, insofar as Ms. P's claim for the cost of the actuarial report was advanced under section 57, I find that it must be dismissed.

EXPENSES:

In the event the parties are unable to resolve the issue of expenses, they will comply with the requirements set out in Rules 75 through 79 of the Dispute Resolution Practice Code, 4^th edition.

May 3, 2006

David Leitch Arbitrator

Date

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2006 ONFSCDRS 64

FSCO A04–000219

BETWEEN:

A. K. P.

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Ms. P's PEC will be based on a gross annual income of $18,000.

2. Ms. P will advise within 30 days of the date of this decision if, despite observations contained in the decision, she still seeks a special award.

3. Ms. P is not entitled to attendant care benefits for the period January 17, 1996 to May 6, 1996.

4. Ms. P is not entitled to recover the cost of the actuarial report under section 57.

May 3, 2006

David Leitch 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. These benefits were first paid by Canadian Surety Company, by Allianz Insurance Company of Canada from 1999 to 2005 and then by ING, the respondent in this proceeding, since 2005.
2. 2Exhibit 1, Tab 2.
3. 3Cole and Allstate Insurance Company of Canada (FSCO A04-001504, November 23, 2005) at p. 7. This decision is currently under appeal.
4. 4Appeal (FSCO P97-00064, August 10, 1998), p. 15 - 16.
5. 5Appeal (FSCO P99-00011, November 30, 1999), p. 8.
6. 6Appeal (FSCO P99-00062, June 7, 2002), p. 9.
7. 7See, for example, B.H. and Citadel General Assurance Company (FSCO A99-000273, November 9, 2000). In that case, Arbitrator Allen said that section 21(6) requires the caregiver to prove "both the aptitude and abilities associated with earning a wage at particular types of work, as well as the physical and psychological functional capacity at the time of the accident to have earned the income." (emphasis in the original) In my view, this approach does not permit the question of the caregiver's abilities at the time of the accident to be clearly distinguished from the question of why he or she did not have those abilities at that time, as required by section 21(6). Arbitrator Allen's analysis also made no reference to section 29(6).
8. 8In accordance with the mandatory review provision, section 33.
9. 9Exhibit 1, Tab 7.
10. 10Exhibit 1, Tab 5.
11. 11Exhibit 1, Tab 7.
12. 12Exhibit 2. A Transferable Skills Analysis report dated November 30, 1998, Exhibit 1, Tab 8, stated that Ms. P was residing with her brother at the time of the accident. However, the author of this report had no contact with Ms. P. Other evidence established that she lived with her brother after the accident, not before.
13. 13Ibid.
14. 14Exhibit 1, Tab 12.
15. 15Ibid.
16. 16The report found at Exhibit 1, Tab 14 indicated that Ms. P's breast reduction surgery (bilateral) was conducted in March 1994.
17. 17Exhibit 1, Tab 7.
18. 18One of the criteria identified by section 30 of the Schedule reads as follows: "It would be reasonable to expect the person to engage in the employment [used to determine his/her REC] having regard to ... the person's personal and vocational characteristics."
19. 19Exhibit 16.
20. 20http://www.fsco.gov.on.ca/english/insurance/auto/dacs/residualearning.pdf
21. 21Ibid.
22. 22Exhibit 7.
23. 23Exhibit 1, Tab 36, p. 18.
24. 24This report was referred to in the "List of Documents Received" on p. 5 of the RECDAC report, Exhibit 1, Tab 36.
25. 25Exhibit 1, Tab 18.
26. 26Exhibit 1, Tab 36, p. 12. The report completed by the physician at the RECDAC stated that she had "recently stopped" Diazepam but was taking Zoloft.
27. 27Exhibit 18.
28. 28Exhibit 19.
29. 29Ibid.
30. 30Exhibit 1, Tab 36.
31. 31Ibid.
32. 32Ibid.
33. 33Exhibit 1, Tab 7.
34. 34see, for example, Exhibit 1, Tabs 6, 14, 15 and 20.
35. 35This document was referred to in the "List of Documents Received" on p. 6 of the RECDAC report, Exhibit 1, Tab 36.
36. 36Exhibit 1, Tab 12.
37. 37Attavar v. Allstate Insurance Company of Canada 2003 CanLII 7430 (ON CA), 63 O.R. (3d) 199, [2003] O.J.No. 213.
38. 38Exhibit 1, Tab 14.
39. 39Exhibit 1, Tab 18.
40. 40Exhibit 1, Tab 20.
41. 41Exhibit 1, Tab 36.
42. 42Exhibit 1, Tab 36.
43. 43Exhibit 1, Tab 7.
44. 44Exhibit 8.
45. 45Exhibit 1, Tab 17.
46. 46Exhibit 1, Tab 25.
47. 47Exhibit 1, Tab 7.
48. 48Exhibit 19.
49. 49Ibid.
50. 50Exhibit 1, Tab 16, p. 10.
51. 51Exhibit 1, Tab 7.
52. 52http://www.labour.gov.on.ca/english/es/factsheets/fs_wage.html
53. 53Exhibit 1, Tab 7.
54. 54Exhibit 1, Tab 27.
55. 55Exhibit 1, Tab 33.
56. 56Exhibit 1. Tab 37.
57. 57Exhibit 9.
58. 58Exhibit 14.
59. 59Exhibit 2.
60. 602002 SCC 30, [2002] 2 S.C.R. 129
61. 61Horvath and Allstate Insurance Company of Canada (FSCO A02-000482, June 9, 2003)
62. 62Ibid, p. 14-15.
63. 63Exhibit 2.
64. 64Exhibit 9, 11, 12 and 13.
65. 65op. cit., footnote 61, p. 30-31.
66. 66Exhibit 1, Tab 4.
67. 67Exhibit 11 indicated that Ms. P provided the Insurer with her written authorization to obtain these reports by letter dated April 26, 1996.
68. 68Exhibit 3, p. 12.
69. 69Exhibit 6.
70. 70Exhibit 1, Tab 1, p. 12.
71. 71Exhibit 1, Tab 3.
72. 72Exhibit 1, Tab 4.
73. 73Exhibit 3.
74. 74Exhibit 1, Tab 4.
75. 75Ibid.
76. 76Ibid.
77. 77The evidence I am referring to includes both the family's testimony at the hearing and the family reports" obtained by Ms. Binstock to the effect that Ms. P's "friend and brother made themselves available to assist with mobility while she was wheelchair bound and with supervision while she learned to use the crutches." see Exhibit 3.
78. 78(FSCO A02-000217, March 12, 2003) upheld on appeal.
79. 79Exhibit 12.
80. 80Exhibit 13.
81. 81Exhibit 1, Tab 10.