April 10, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Fred Mack was injured in a motorcycle accident on April 4, 2001. Kingsway discontinued his income replacement benefits as a result of a DAC disability assessment. Mack suffered a serious injury to his left (dominant) wrist which required surgery and a bone graft from his right hip. He continued to suffer significant pain and impairment to his left wrist and right hip.
The issue to be decided was whether Mack continued to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training and experience (the post 104 week test for income replacement benefits).
Mack´s continuing impairments in his left wrist include severe limitation in movement and decreased grip strength.
Mack completed grade 13 and a 1 year program at college for an Emergency Medical Care assistant certificate. He also completed training as a heavy equipment operator and was qualified to drive a tractor-trailer.
Prior to the accident he was employed as an uncertified radio service technician. He also worked in the storage department and as a porter at two hospitals. He earned $19.56 per hour. He also worked a few shifts a month as a casual part-time paramedic and did some truck driving.
Mack found some employment after the accident. He worked briefly with an inventory counting firm but he could not cope with the physical demands of the job. He eventually found work as a school bus driver. The work was able to accommodate his personal needs. The runs were of a limited duration, there was no loading or unloading, there was a long break between the morning and afternoon runs, he was able to move his legs as needed to stop his hip from seizing up. The pay was $9.80 per hour.
A transferable skills assessment was completed on August 29, 2002. The assessment identified a number of direct entry positions, mainly clerical or in sales, all tended to be low paying, at or around minimum wage. Higher paying positions required retraining. The arbitrator felt that the report did not sufficiently take into consideration Mack´s physical limitations. For example, one of the positions listed was a home inspector, but the arbitrator found that Mack did not have the physical ability to crawl in spaces as required. It was also noted that a labour market survey found that few of the jobs listed in the transferable skills assessment were available in Mack´s geographic region.
It was also noted that many of the occupations identified required experience and expertise in the industry. It was further noted that many of the occupations would not match Mack´s training, experience or physical abilities.
A post 104 DAC report was completed August 11, 2003. The DAC assessment extrapolated Mack´s ability to perform a function for a short period of time and used that information to state that Mack could do it for the entire day. For example, based on a questionnaire the DAC stated that Mack could sit on a constant basis over an 8+ hour workday despite noting difficulties when sitting for 40 minutes.
The arbitrator found that Mack was a credible witness and accepted his evidence regarding his pain complaints and limitations.
The DAC found that Mack did not suffer a complete inability. The arbitrator found that the suggested occupations were not suitable given Mack´s documented and acknowledged physical limitations.
The arbitrator noted that the DAC did not consider factors such as:
1) whether Mack was physically able to perform the types of occupations listed;
2) whether such work required retraining;
3) whether the work was available in the geographic area; and
4) whether the jobs offered appropriate remuneration.
As a result, the post-104 DAC was given little weight.
The arbitrator then considered the meaning of "complete inability". The arbitrator did not accept that a literal meaning would apply to the term "complete inability". If "complete inability" were given a literal meaning it would mean that the insured would have to be unable to perform any function of any job to qualify. In such a circumstance, the insured would have to be completely unable to perform a job which is reasonably suitable for the insured.
Even though Mack was able to work for two and one-half years since the accident, and even though there was little difference from a prestige or job satisfaction point of view between his pre and post accident employment, there was a substantial difference in remuneration.
Jobs suggested by the transferable skills analysis and the post-104 DAC were considered inappropriate for Mack because they were:
1) physically unsuitable;
2) required as a prerequisite extensive retraining;
3) had significantly lower remuneration; or
4) were not shown to be available in the geographic location.
Despite the fact that Mack was working, he was found by the arbitrator to have suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.