Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 3

FSCO A06-002426

BETWEEN:

ALAN BROOKES Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby

Heard: October 20, 21, 22 and 23, 2008, in Whitby, Ontario.

Appearances: David J. Gillespie for Mr. Brookes Joseph W. Griffiths for Aviva Canada Inc.

Issues:

The Applicant, Alan Brookes, was injured in a motor vehicle accident on July 1, 1994. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Mr. Brookes disputes Aviva’s calculation of his pre-accident earning capacity and residual earning capacity. The parties were unable to resolve the dispute through mediation, and Mr. Brookes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

What is the amount of Mr. Brookes’ pre-accident earning capacity as determined in accordance with section 29 of the Schedule?
What is the amount of Mr. Brookes’ residual earning capacity as determined in accordance with section 30 of the Schedule?
What is the amount of Mr. Brookes’ loss of earning capacity benefit as determined in accordance with section 28 of the Schedule?
Is Aviva liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Brookes?
Is Aviva liable to pay Mr. Brookes’ expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Brookes liable to pay Aviva’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Brookes entitled to interest for the overdue payment of benefits pursuant to section 68 of the Schedule?

Result:

The amount of Mr. Brookes’ pre-accident earning capacity, as determined in accordance with section 29 of the Schedule, is $754.49.
The amount of Mr. Brookes’ residual earning capacity, as determined in accordance with section 30 of the Schedule, is $28,952.00 for the period from September 23, 1999 to June 15, 2004 and $48,321.00 for the period from June 16, 2004 to March 7, 2007.
Aviva shall pay Mr. Brookes a loss of earning capacity benefit of $80,048.00 for the period from September 23, 1999 to June 15, 2004 and $33,924.00 for the period from June 16, 2004 to March 7, 2007.
Aviva is not liable to pay Mr. Brookes a special award pursuant to subsection 282(10) of the Insurance Act.
The issue of expenses is deferred.
Mr. Brookes is entitled to interest for the overdue payment of benefits pursuant to section 68 of the Schedule.

Background:

On July 1, 1994, Mr. Alan Brookes was the front seat-belted passenger in a car which was involved in a head on collision with another vehicle. The driver of the vehicle, in which Mr. Brookes was a passenger, was killed. Mr. Brookes’ brother, Paul Brookes, survived with relatively minor injuries. The Applicant sustained severe injuries and was airlifted to Kingston General Hospital. There, Mr. Brookes underwent surgery on his left knee and his hip. The four screws with which the surgeon stabilized the hip during surgery remain in Mr. Brookes’ hip. Mr. Brookes was discharged from the hospital on August 11, 1994.²

On February 26, 1995, Mr. Brookes was admitted to Huntsville District Memorial Hospital as a consequence of falling down a flight of stairs. He was diagnosed as having sustained a compound fracture to his left patella. The fracture required surgery. On March 3, 1995, Mr. Brookes was discharged from the hospital.³

Mr. Brookes’ treating orthopaedic surgeon has advised that he will at some point need a hip replacement. However, given his age and the estimated 15 year life span of hip replacements it has been recommended that this surgery be delayed as long as possible.⁴ Mr. Brookes testified that he has chosen to heed this advice and manage his pain with the use of medication.

At the time of the accident, Mr. Brookes was a member of the International Association of Heat & Frost Insulators and Asbestos Workers and was on their unemployed members list. He had completed his apprenticeship in 1991 and at the time of the accident was a journeyman insulator.

Mr. Brookes subsequently became a member of the International Teamsters Union as a warehouseman. Since the accident he has been intermittently employed in this capacity.

EVIDENCE AND ANALYSIS:

Mr. Brookes, his brother Paul Brookes, and his spouse of 19 years, Sherryl Barrett, testified on his behalf. They each gave their evidence in a forthright and honest manner. I found them all credible witnesses. As well, Joel Kumove, Rehabilitation Counsellor, testified for Mr. Brookes. Mr. Kumove was a founder of MDAC and participated in residual earning capacity assessments (REC DAC). On consent of the parties, he was qualified as an expert in vocational rehabilitation.

Bruce J. Webster, a chartered accountant retained by Aviva to calculate Mr. Brookes’ loss of income capacity benefit, also testified. On consent of the parties, he was qualified as an expert in accounting.

Paul Brookes testified that as with his brother, at the time of the accident, he too was a journeyman insulator and a member the International Association of Heat & Frost Insulators and Asbestos Workers. Following the accident in 1994 he was regularly employed due to the stronger economy. Paul Brookes testified that although there were periods of unemployment they were shorter than those experienced prior to the accident. He also testified that he has been working in Alberta since April 2008 due to a lack of work in Ontario.

Alan Brookes testified that following the accident he took courses in an attempt to retrain for more sedentary employment. He testified that he upgraded his education to grade 12 at a Community College. He then enrolled in another Community College’s two year “Entrepreneurship” program commencing in the fall of 1997.⁵ He found the program too difficult and at the end of the first semester requested a transfer to the general business program. This program was more difficult than the Entrepreneurship program and less interesting. He did not complete either course.

Mr. Brookes testified that Aviva’s representative recommended sales work. In 2001, Mr. Brookes found a job at “Boatland Canada” selling boats and recreational vehicles.⁶ He made approximately $12,000.00 in commission income during the year.⁷ This job was unsuitable because it required him to attend shows, stand for long hours exhibiting the company’s products and the income was inadequate.

In 2002, Mr. Brookes joined the Teamsters Union as a warehouseman. All of his employment since has been as a result of his union membership. His first job was at Ontario Power Generation’s (OPG) Darlington Nuclear Generation Plant (Darlington) where he worked in the steel yard with another worker. They would fill orders from the plant for pipe and angle iron. This work required him to input the information on the computer and issue the order to a fork lift driver who would deliver the materials to the plant. This job suited his abilities and limitations as it was sedentary but did not require long periods of sitting, standing or walking. Mr. Brookes did not require any accommodation in this position. On December 3, 2003 he was laid off due to shortage of work.

On October 7, 2002, Mr. Brookes returned to work at OPG’s Pickering Plant. He had previously worked for OPG in 1993. This job was more physical than the one he held at Darlington. It required him to spend time working in the “tool crib” which meant a long walk to the site. He testified that he could not have done this job had it required him to work full time in the “crib.”

Mr. Brookes has not worked for OPG since May 27, 2005. He earned $24.78 per hour from October 7, 2002 to May 3, 2004. Mr. Brookes earned $28.02 per hour from May 4, 2004 to March 31, 2005 which increased to $30.87 per hour from April 1, 2005.⁸

Mr. Brookes next worked for Hydro One in Sudbury from approximately August 2006 to December 2006. He would drive to Sudbury on the weekend and stay in a motel and drive back to his home at the end of the week. This position was similar to the Darlington work in which he filled computer orders for materials needed throughout the province. Again, Mr. Brookes was laid off due to lack of work and has not been called back.

Mr. Brookes testified that he might have been called back to work at the Bruce Nuclear Plant (Bruce). However, the drive to and from Sudbury each week had been extremely difficult for him and as the distance from his home to the Bruce was similar, he removed his name from the recall list for that plant.

Mr. Brookes testified that while he can lift heavy materials he cannot walk with them. He walks with a pronounced limp which he finds embarrassing. He is unable to squat, kneel or bend down without keeping his leg straight.

Both Mr. Brookes and Ms. Barrett testified that since the accident Mr. Brookes’ dosage of pain medication has increased steadily and substantially. Mr. Brookes testified that initially he took Tylenol 3 (T3) every four hours. Frequently he would wait 6 to 7 hours before taking another tablet. He seldom took medication more than once every four hours. However, in approximately 2000, the pain had progressively worsened. Mr. Brookes significantly increased the frequency of the T3 medication such that his family doctor was concerned about the possible side effects. His doctor prescribed Percocet.

Initially, Mr. Brookes took 1 to two Percocet tablets every 4 hours. In 2006, this dosage was increased to 10 tablets a day. He recently sought a further increase in the prescription because the pain has continued to increase and the medication is not providing sufficient relief. Mr. Brookes’ doctor has suggested he begin taking Oxycontin rather than the Percocet. He has not started this new medication.

Mr. Brookes testified that he has not advised either his union or the companies for whom he has worked about his physical limitations and the medication he is taking. He has not requested accommodation for his limitations nor has he left any of the foregoing jobs due to accident-related medical symptoms. Each job ended due to lack of work. Mr. Brookes also testified that he has not asked Aviva to assist him with finding suitable employment since he joined the Teamsters Union because their assistance was not required.

On November 12, 1996, Aviva assessed Mr. Brookes’ loss of earning capacity as 0 based on a PEC of $431.27 per week and a REC of $315.17 per week which it calculated to be a LECB of $104.49 per week. Aviva indicated that Mr. Brookes could work as an office clerk, chauffeur or as a light bench assembler.⁹ On February 10, 1999, Aviva offered a LECB of $70.52 per week. It assessed Mr. Brookes’ PEC as $688.99 per week and his REC as $610.64 and suggested he could work as a locomotive operator helper.¹⁰ On April 14, 1999, Aviva advised Mr. Brookes that as he had not accepted the LECB offer pursuant to subsections 23(1) and (2) he was being referred for a DAC assessment.¹¹

On September 16, 1999, Aviva advised Mr. Brookes that it was enclosing his final “income replacement benefit” cheque as his future payments would be a LECB at the weekly rate of $244.40. Aviva provided Mr. Brookes with the calculation that it relied upon and indexed its figure pursuant to the Commission’s wage table.¹²

Loss of Earning Capacity Benefit (LECB):

There is no dispute that, as a result of the injuries Mr. Brookes sustained in the accident, he could not return to employment as an insulator. Therefore, Mr. Brookes qualified for a section 20 LECB pursuant to subsection 21(1)1 of the Schedule.

The formula for determining the LECB equals 90% of the pre-accident earning capacity (PEC) minus the residual earning capacity (REC) as set out in section 28 of the Schedule. Mr. Brookes disputes both the calculation of the PEC and REC.

Section 33 of the Schedule requires that the LECB be reviewed 3 years and 8 years after the benefit is first paid. Mr. Brookes has had two REC DAC assessments. In July 1999, he underwent the first assessment to establish the REC. In May 2004, he was assessed for the second time as part of the 3 year mandatory review. Presently, the 8 year review is in progress. This review is not in dispute at this proceeding.

Mr. Webster calculated Mr. Brookes’ LECB as $80,048.00 from September 23, 1999 to June 15, 2004 and $33,924.00 from June 16, 2004 to March 7, 2007 based on a PEC of $754.49 and the RECs established by the two REC DACs.¹³

Pre-Accident Earning Capacity (PEC):

In a preliminary issue decision released on November 7, 2007, the Arbitrator held that Mr. Brookes’ income replacement benefit should be determined pursuant to subsection 7(1)2(ii) of the Schedule as an insured person who was employed at some point during the 156 weeks before the accident.

As a consequence of this determination, Mr. Brookes’ PEC is calculated in accordance with subsection 29(3). It provides:

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.

Mr. Brookes submits that Aviva has interpreted “the person’s personal and vocational characteristics at that time” too narrowly to his prejudice. He maintains that the calculation should be based on his union’s Business Manager’s letter dated July 14, 1994.¹⁴ The Manager indicated that Mr. Brookes would have been recalled to work within a week of the accident at an hourly rate of $32.46 for 38 hours per week.

Mr. Brookes also submits that the economic outlook, at the time of the accident, was much improved as evidenced by his brother’s full employment in the year following the accident. As a consequence, the calculation of his income should not include an average of his periods of employment and unemployment as calculated by Aviva. Mr. Brookes further submits that such averaging does not result in an income which comports with his personal and vocational characteristics at the time of the accident as it includes periods when he was inexperienced.

Aviva submits that the calculation of Mr. Brookes’ PEC, by its accountant Bruce J. Webster, complies with the statutory requirements and is consistent with the income Mr. Brookes would have received had he been working at the time of the accident and his personal and vocational characteristics at that time.¹⁵

Mr. Kumove testified that in his opinion Mr. Brookes’ PEC was approximately $64,000.00 per year.

In arriving at this amount, Mr. Kumove used the figures set out in the Business Manager’s letter. He calculated $32.00 per hour for a 38 hour week which equalled approximately $1,200.00 per week for 52 weeks.

Mr. Kumove testified that in his opinion there was an improvement in the Ontario economy in 1994 which resulted in more work and fewer layoffs. He based his opinion on the post-accident employment record of Mr. Brookes’ brother Paul, the Business Manager’s letter of July 1994 and Alan Brookes’ recollection.

Mr. Kumove reasoned that in light of the improved economy a straight line method of income calculation was a fairer approach as it would more accurately reflect Mr. Brookes’ PEC over the life of the benefit.

Mr. Kumove did not provide a PEC calculation in his report dated March 27, 2008.¹⁶

Mr. Webster issued his report on May 9, 2007. He determined the best 52 weeks of income during the 156 weeks prior to the accident as the period from July 6, 1991 to July 3, 1992. He calculated an income of $55,067.00 calculated as $49,889.00 of income plus non-taxable benefits of $6,090.00 less union dues of $912.00. Using this calculation he found Mr. Brookes’ PEC on July 1, 1994 to be $754.49.

Mr. Webster also calculated Mr. Brookes’ income using the information set out in the Business Manager’s letter. For the purposes of this calculation he averaged Mr. Brookes’ periods of employment and unemployment. He determined Mr. Brookes was employed 47% of the time for the period from July 6, 1991 to July 1, 1994. Based on these calculations Mr. Webster estimated that Mr. Brookes would be employed 24.5 weeks within a 52 week period for 38 hours each week at an hourly rate of $32.46. This calculation results in Mr. Brookes having an annual income of $42,018.00 plus 27.5 weeks of Employment Insurance Benefits (EI) at the maximum rate of $429.00. Although not provided in Mr. Webster’s report I find that Mr. Brookes’ total income inclusive of IE would be $53,815.50.¹⁷

Both parties cited the case of Lehman and GAN Canada Insurance Co. and the appeal decision upholding the Arbitrator’s reasoning as it pertains to Mr. Brookes.¹⁸ Mr. Lehman, like Mr. Brookes, had been employed within the 156 week period prior to his accident. The hearing arbitrator reasoned:

Although I find that the May 1994 recall evidence is relevant, I disagree with the view espoused by both parties that to consider this evidence is necessarily to adopt a prospective interpretation of the section 29(3) test. In my opinion, it depends on how one employs the post-accident evidence whether a prospective or retrospective approach has been adopted. For instance, if the evidence reveals that a person could have earned a particular income at a certain time, it would not be unreasonable to infer, everything being equal, that this evidence might be relevant to establish income capacity at a point four months earlier. In my opinion, this is not a prospective approach to the evidence, but rather a retrospective one. Applying this to Mr. Lehman’s case, the May 1994 recall evidence can be employed not to assess future, post-accident earning potential, but to assess his capacity, (i.e., what he would have been earning with Bell but for his final lay-off), looking back to the time of the accident. However, this is not to suggest that in all cases evidence that arises post-accident should be considered when assessing pre-accident earning capacity. The particular factual context in each case will determine this. The temporal proximity of the post accident evidence to the accident, the particularities of that evidence and the person’s pre-accident employment experience are factors that might be considered.¹⁹

In the appeal, the Director’s Delegate found:

I agree with GAN, as did the arbitrator, that the focus is the time of the accident. However, any information relevant to the person’s earning capacity at that time should be considered, including information that does not become available until after the accident. I do not accept that the arbitrator used the Bell Canada recall to calculate Mr. Lehman’s loss of future income or opportunity. If she had, it would have been an error. Instead, she found that the recall provided information relevant to the question of Mr. Lehman’s earning capacity at the time of the accident. In my opinion, this was proper.²⁰

Applying Lehman to the present case, I find that the Business Manager’s statement, that had Mr. Brookes been able to return to work in mid-July 1994, he would have earned an hourly wage of $32.46 for a 38 hour week, is relevant to determining what income Mr. Brookes might reasonably have anticipated given his personal and vocational characteristics at the time of the accident.²¹

Mr. Brookes did not submit any accounting evidence. He relied on Mr. Kumove’s evidence that given his personal and vocational characteristics at the time of the accident his PEC would be approximately $64,000.00. Mr. Kumove did not make any allowance for Mr. Brookes’ periods of unemployment relying on the brother’s Paul’s regular post-accident employment and Mr. Brookes’ information that the economic situation had improved.

I do not accept Mr. Kumove’s PEC calculation. His testimony regarding the strength of the economy in 1994 was speculative. Paul Brookes’ employment history was different when compared to that of his brother’s for the 156 week period prior to the accident.²² Paul Brookes’ records indicate that he worked at OPG Pickering from May 1993 to May 1995 while the Applicant was unemployed for the year prior to the accident in July 1, 1994. Although there was income tax information available for the period preceding the accident, in respect of Alan Brookes there was none available for Paul Brookes. Therefore, I find the comparison of the two brothers unreliable, notwithstanding they were both journeyman insulators at the time of the accident.

Further, I do not accept Mr. Kumove’s opinion that the PEC should be calculated on a straight line basis without consideration of Mr. Brookes’ history of unemployment during the 156 week period prior to the accident. Had I had evidence that the work set out in the Business Manager’s letter would have been available to Mr. Brookes for a year or more following the accident, I would have been inclined to apply a straight line approach. However, based on the evidence before me, I prefer the approach taken in Lehman that an average of the pre-accident employment and unemployment should be applied. Therefore, I accept Aviva’s calculation using an average of Mr. Brookes’ pre-accident employment.²³

On the basis of the foregoing, I find that the most advantageous calculation is that used by Aviva which calculates the PEC pursuant to Mr. Brookes’ best 52 weeks of income in the 156 weeks prior to the accident. Therefore, I find that Mr. Brookes’ PEC is $754.49.

Residual Earning Capacity (REC):

Mr. Brookes disputes the calculation of his REC. Aviva relies on the findings of the REC DACs. The first, conducted in July 1999, established Mr. Brookes’ REC as $28,952.00 on September 23, 1999. The second, conducted in May 2004, set the REC as $48,321.00 on June 16, 2004.

Mr. Brookes submits that the first REC DAC failed to provide reasonable vocational alternatives considering his pre-accident vocational characteristics and post-accident limitations. The second failed to conduct an assessment consistent with the DAC guidelines by failing to consider the negative impact his employment as a warehouseman was having on his physical health.

An insured’s REC is determined pursuant to section 30 of the Schedule which provides:

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

Subsection 30(2) provides:

The criteria referred to in subsection (1) are:

The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

The employment exists in the area in which the person lives and is accessible to the person.

It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person’s impairment and to the person’s personal and vocational characteristics.

Subsection 30(3) provides:

For the purpose of subsection (2), a person is able and qualified to perform the essential tasks of employment if,

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

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

July 1999 REC DAC:

In July 1999, Mr. Brookes attended the first REC DAC. This multi-disciplinary assessment included orthopaedic, physiotherapy, occupational therapy and psycho-vocational assessments. A three-day functional work assessment was conducted. During this period Mr. Brookes demonstrated an ability to meet medium level strength demands. The assessor contacted local employers and determined that the starting wage was $14.00 an hour increasing to $16.00 per hour after approximately 18 months of employment. The REC DAC assessed Mr. Brookes’ REC as consistent with the National Occupation Classification (NOC) classification of Mechanical Assembler #9486. The annual wage for that classification was $28,952.00 for a full-time employee with less than 36 months experience.²⁴

Mr. Brookes provided no medical evidence which was reasonably contemporaneous with the July 1999 REC DAC. In February 1997, he was assessed at the Oshawa General Hospital. It concluded that Mr. Brookes was limited in his ability to walk or stand for prolonged periods or lift or carry heavy materials but met all of the light level work demands.²⁵ As well, his family physician provided an update dated May 28, 1997 in which he opines that Mr. Brookes “suffers from persistent intermittent arthralgia of both ankles and metatarsalgia of both feet.”²⁶

Aviva had multi-disciplinary assessments conducted in December 1998 and January 1999. The conclusions, in these assessments, were not significantly different from those reached by the REC DAC.

I find that the July 1999 REC DAC’s determination that Mr. Brookes was capable of working as a Mechanical Assembler at an annual salary of $28,952.00 was reasonable in the context of Mr. Brookes’ functional abilities and vocational inclinations.

May 24, 2004 REC DAC:

The second REC DAC report was issued on May 24, 2004. In April, Mr. Brookes was assessed by a rheumatologist, psychologist, physiotherapist, kinesiologist, and an occupational therapist. A five-day Situational Assessment was scheduled for May but was not held. The assessors established Mr. Brookes’ REC as $48,321.00 per annum based on his work as a warehouseman.

The REC DAC assessors decided not to conduct a situational assessment and shortened the Functional Abilities Evaluation (FAE) on the basis that Mr. Brookes had been recently employed as a warehouseman at Darlington for 14 months.

Mr. Kumove testified that as the REC DAC failed to follow the Commission’s REC DAC guidelines, by conducting a situational assessment and curtailing the FAE, its conclusions were fatally flawed. As well, the REC DAC failed to consider the probability of deterioration if Mr. Brookes was to continue to work as a warehouseman as required by the Schedule.

The REC DAC reported that Mr. Brookes advised them of his employment with Darlington and noted the following:

Mr. Brookes feels confident that he will be able to sustain competitive employment in his current job position give[n] that he is able to adapt his work environment. He is able to utilize assistive lift devices and push/pull carts as well as forklifts as required for manual material handling. He indicates that his current job position is an ideal one in that it offers him the ability to change positions from standing to sitting as required.²⁷

Mr. Brookes’ testimony at the hearing was consistent with the foregoing. Similarly, there is no significant inconsistency with Mr. Brookes’ evidence and the rheumatologist’s findings that discomfort and limitation of movement in his left hip and knee were Mr. Brookes’ main difficulties. The rheumatologist concluded that Mr. Brookes was limited in his ability to climb, carry heavy objects and work in tight quarters. I find the use of the word “discomfort” understates the pain experienced by Mr. Brookes, given his daily intake of 2 to 4 Percocet tablets noted in the report.

In April 2002, Mr. Brookes’ family physician referred him for an assessment by an orthopaedic surgeon. This doctor did not express an opinion regarding appropriate employment. However, he was of the opinion that a hip replacement would be the alternative of choice when the pain became too problematic. In the meantime he recommended: “anti-inflammatory medication, pain medication and modification of activity.”²⁸

In respect of the May 2004 REC DAC, I agree with Mr. Kumove that the DAC failed to follow the revised guidelines for REC DAC assessments published by the Commission in July 1999. Had it conducted a full FAE and a situational assessment a different REC amount might have been established. However, I agree with the Arbitrator in Monnette and Commercial Union Assurance Company, that subsection 279(1) of the Insurance Act provides me with sufficient authority to determine the issue.²⁹

Notwithstanding the REC DAC’s flawed assessment, I agree with its conclusion. Mr. Brookes testified, and I accept his evidence, that he was able to work as a warehouseman without accommodation for his accident-related impairments. His performance on the tests conducted and his physical assessment were consistent with Mr. Brookes’ testimony regarding his capabilities. At the time of the REC DAC, Mr. Brookes would have returned to Darlington if work had been available and he had reached the top of his Union’s recall list.

Mr. Brookes’ work in Sudbury, which he described as similar to the work at Darlington, was also within his abilities. It was the long drive which caused him to decline similar work at the Bruce Nuclear Generation Plant.

Section 34 of the Schedule provides that a person receiving a LECB may have the amount of the benefit reviewed if the insurer is provided with a certificate from a health practitioner stating that the insured has suffered an accident-related permanent deterioration in his or her impairment that results in the person being unable to engage in the employment upon which the REC was determined. Mr. Brookes has not pursued this procedure.

There is no medical evidence, reasonably contemporaneous with the REC DAC that Mr. Brookes’ post-accident employment would cause him physical deterioration. His doctors’ opinions regarding his physical limitations are not significantly different from the findings of Aviva’s assessors or the findings of the REC DAC. Mr. Kumove is not a medical practitioner. His opinion, given four years after the completion of the REC DAC, cannot be relied upon.

I accept that Mr. Brookes has had to significantly increase his pain relief medication over the ensuing years. However, there is insufficient evidence to attribute it to the work Mr. Brookes engaged in at Darlington and in Sudbury.

I find that at the time of the REC DAC, Mr. Brookes’ previous employment with Darlington was the most accurate indicator of his employment capacity. Notwithstanding, he had been laid off 4 months prior to the REC DAC. Therefore, I find that Mr. Brookes’ REC on June 16, 2004 was $48,321.00 per annum based on his work as a warehouseman.

Also, I find that any employment which would require Mr. Brookes to travel a significant distance from his home would not comply with the provisions of subsection 30(2)2 of the Schedule. Therefore, while I have found the work at Darlington suitable for the purpose of the REC, his work at Hydro One, in Sudbury, is not. Further, I find it reasonable that Mr. Brookes removed his name from the recall list for the Bruce plant.

Conclusion:

Based on the foregoing, I find that the total LECB from September 23, 1999 to June 15, 2004 is $80,048.00 and from June 16, 2004 to March 7, 2007 is $33,924.00 as calculated by Aviva.

SPECIAL AWARD:

Aviva’s correspondence with Mr. Brookes in November 1996 and February 1999 indicates that it erred in its assessment of Mr. Brookes’ LECB. However, while Aviva erred there is no evidence that it acted in an imprudent, inflexible or immoderate manner in adjusting the file. Therefore, I deny Mr. Brookes’ claim for a special award pursuant to subsection 282(10) of the Insurance Act.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

INTEREST:

I have relied on Aviva’s May 9, 2007 calculation of Mr. Brookes’ LECB. The evidence before me includes a record of payments in respect of income replacement benefits and LECB payments from September 1, 1994 to June 7, 2006. The total paid to Mr. Brookes includes both the income replacement benefits paid during the first 104 weeks post-accident and the LECB payments.³⁰

As I have not been provided with a statement of LECB payments to Mr. Brookes using the amounts set out in the Accountant’s report, I am unable to determine whether there are outstanding benefits payable to Mr. Brookes. Therefore, I find that Mr. Brookes is entitled to interest on any outstanding loss of economic capacity benefit payments which were less than the amount of the benefit determined by me in accordance with Aviva’s Accountant’s calculations.

In the event the parties are unable to agree on the issue of interest, they may request a hearing before me in accordance with the Dispute Resolution Practice Code.

January 9, 2009

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario