August 31, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: March 8, 2013
Heard Before: Adjudicator Joyce Miller
Lucrecia Hensworth was injured in a motor vehicle accident on July 29, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance payable under the Schedule. State Farm terminated weekly income replacement benefits on November 10, 2009. The parties were unable to resolve their disputes through mediation, and Ms. Hensworth applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.
The issues in this hearing are:
Pursuant to section 5 of the Schedule is Ms. Hensworth entitled to receive an income replacement benefit from September 13, 2010 and ongoing, less amounts earned?
Pursuant to section 5 of the Schedule Ms. Hensworth is entitled to receive an income replacement benefit from September 13, 2010 and ongoing, less amounts earned.
EVIDENCE AND ANALYSIS
Ms. Hensworth is 39. She is a single mother and has a daughter. At the time of her accident she was working full time since November 2003 as a Wheels-Trans Driver for the Toronto Transit Commission (TTC) averaging more than 40 hours a week. She also was working part time at Humber River Regional Hospital as a porter, averaging almost 25 hours a week. She began her part time job in November 1999 as a housekeeping aid and began her work as a porter in November 2002.
(1) The Accident
Ms. Hensworth testified that she was travelling 50 to 60 kilometres an hour on her motorcycle through an intersection when a vehicle turned in front of her. There was no time to stop. Her motorcycle collided with the oncoming vehicle on the passenger’s side. She flew off her motorcycle, crashed into the windshield, became airborne and landed on the pavement.
Ms. Hensworth does not recall hitting her head. However, the immediate pain was so severe she passed out. She recalls receiving smelling salts and intravenous. She does not recall being transported to St Michael’s Hospital.
At the hospital Ms. Hensworth underwent emergency surgery for multiple fractures to her left forearm and pelvis. She required metal and pins to hold her fractures. She also fractured her right hip but did not require surgery for this fracture.
Ms. Hensworth remained in the hospital for a week. She testified that she slept most of the time. The only exercise she could do was to be helped out of bed to sit for a while in a wheelchair and then be helped back into bed.
After her hospital stay Ms. Hensworth was transferred to Bridgepoint Active Health, a rehabilitation hospital. When asked to describe her experience at Bridgepoint, Ms. Hensworth broke down and cried.
Ms. Hensworth testified that she found her stay at Bridgepoint very depressing. She stated the staff was nice and tried to make her stay pleasant but she could not adjust to the atmosphere. Aside from being in a lot of pain, she was surrounded by people who were very sick with sad stories and some who were not going to make it out.
After three months, Ms. Hensworth insisted on being discharged from Bridgepoint against advice not to. She went to stay with a friend.
Ms. Hensworth stated that when she left Bridgepoint she was unable to walk without crutches. She was unable to care for herself and could not live on her own. She stated that she stayed with her former partner for quite a while and left sometime in 2008.
(2) Injuries as a Result of the Accident
Ms. Hensworth testified in detail about her injuries and the symptoms she still has today. These include the following:
Left Arm Pain: As a result of the multiple fractures to her left arm, she suffers constant pain in her arm. She testified that it is an annoying pain that does not let her forget that the arm was broken. At times she can feel the hardware in her arm. Activity will exacerbate her pain, which affects her function. Although she has a high tolerance for pain in those instances she will take medication. In addition to her arm pain she also has lost dexterity in her left hand. Her left hand feels numb and tingling. She has trouble holding things. She frequently drops items. She sometimes uses an arm brace.
Pelvic Pain: Ms. Hensworth testified that she feels constant pain in her pelvis and low back area on a daily basis. The pain becomes exacerbated and increases when sitting, standing, walking, squatting, climbing stairs, sleeping on her side or something as simple as falling asleep on the couch in a not too good position.
Ms. Hensworth testified that she tries not to take medication, and that makes her “grumpy.” She stated that at times she can have very painful episodes out of the blue. She has to stop what she is doing. If the exacerbation happens at work she takes medication.
Right Hip Pain: Ms. Hensworth testified that she feels pain in this area every day. It is constantly in the background that can erupt into a stronger pain brought on by activities such as sitting for a lengthy period. She gave the example, that the continuous sitting while giving testimony the day before resulted in her developing a lot of pain. As a result, she had to take pain medication.
Knee and Ankle Pain: Pain in this area was constant after the accident. However, when she began to work in 2010, she experiences pain on an intermittent basis. It is usually aggravated by activity or certain movements.
Fatigue: As a result of the accident Ms. Hensworth suffers from chronic fatigue. She tries hard to persevere despite the fatigue, however, aside from her sedentary job, her fatigue disables her from any continuous activity. All she can do when she comes home from work is shower. She is too tired to even exercise.
Ms. Hensworth’s problem with fatigue is documented in the reports of a psychologist, Dr. RM,; and a physiatrist, Dr. PK. Both confirming that Ms. Hensworth is working at her maximum physical capacity in her sedentary job and because of her fatigue she is limited in her ability to do any additional work or activity such as exercise.
Depression: Ms. Hensworth testified that after the accident she was very depressed. She has had bouts of depression but has worked hard not to fall into depression. Going back to work became a necessity for this reason.
In order to qualify for the post-104 week benefit, Ms. Hensworth must show that as a result of her accident she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Accordingly, a review must be undertaken of Ms. Hensworth’s pre-accident education, training and experience.
(3) Pre-accident Education and Training
Ms. Hensworth graduated high school in 1992. Secondary education was delayed until 1995 as she had a child which she was raising as a single mother.
In 1995 Ms. Hensworth started a college program in aircraft maintenance and engineering at Centennial College of Applied Arts and Technology (Centennial College). She completed the program in 1999, after taking some time off to deal with her duties as a single mother.
In order to qualify to work as aircraft maintenance personnel, an apprentice program must be completed. Unfortunately, Ms. Hensworth was not able to get an apprenticeship as an aircraft mechanic in the Toronto area. As a result she was forced to give up her chosen career path.
In 2001, Ms. Hensworth returned to Centennial College and enrolled in a Large Vehicle Maintenance Program. She completed this program in 2002.
(4) Pre-Accident Work History
Ms. Hensworth began working while still in her last year of high school as a telephone operator taking orders for 2-4-1 Pizza.
From 1994 to 1998 Ms. Hensworth worked at physically demanding part-time jobs. Ms. Hensworth worked at the following jobs:
As an apprentice at El Salvador Auto Body. She started in the office answering the phone and did paper work. She also shadowed the owner when he went to do estimates on collision vehicles. She did not do body work – but cleaned up afterwards e.g. vacuuming the vehicles. She was responsible for inventory, ordering parts and picking up parts. She did this for a few months part-time.
As a groundskeeper for York University. Her duties involved removing outside trash containers; going to the nurseries to buy flowers for the flower beds; carrying bags of soil and planting flowers. As a groundskeeper she carried a leaf blower and weed-whacker on her back to remove leaves and weeds.
In maintenance for the Durham Regional Housing Authority. Her duties involved cleaning and preparing apartments for new tenants as well a property maintenance and landscaping.
As a groundskeeper for the Workman’s Compensation Board. Her responsibilities included maintaining the lawn, flower beds and pruning trees. She was responsible for getting flowers from the nurseries, carrying soil and planting flowers.
As a groundskeeper for the Sick Children’s Hospital. With similar duties to her other groundskeeping jobs, she was responsible for emptying trash containers; maintaining flower beds and cleaning outside litter and generally maintaining the property.
As a cleaner in a union job with the Sick Children’s Hospital. Her job included cleaning offices, labs, corridors, patient and non-patient rooms; wet mopping, dry moping; waste removal and vacuuming. The position, which was part time, gave her a minimum of 21 hours a week with the ability to get 5 shifts a week.
In 1999, in addition to her part time job at the Sick Children’s Hospital, Ms. Hensworth began to work part time at Humber River Regional Hospital as a Patient Transporter for the S.P.D. Department.
Ms. Hensworth continued to work at both these part time jobs while attending the Large Vehicle Maintenance Program at Centennial College. She worked at the Sick Children’s Hospital, Monday, Wednesday and Friday from 4 p.m. to midnight. She worked at Humber River Regional Hospital Saturday and Sunday. Her two part time job hours amounted to a full-time job.
It takes four years to be certified by the Ministry of Transportation as a large vehicle mechanic. Not only is an exam involved, but one needs proof that he/she had worked a certain amount of hours. In the last few months of her course Ms. Hensworth began to volunteer at Big Wheels, a truck trailer mechanic shop in Scarborough. She volunteered twice a week to learn and have hands-on training. The owner of the shop told her if she successfully completed her program he would hire her.
Although Big Wheels hired Ms. Hensworth as an apprentice, unfortunately, she was unable to continue in this job. The day before she began work, she brought her tools to the shop. While there she volunteered to get a part for the shop. The truck she was given to drive had a bench seat without a functioning seat belt. While stopped at a red light, a vehicle, travelling very quickly, collided into her truck. The impact caused neck and back injuries and she had to be transported to the hospital.
Ms. Hensworth testified that she was in severe pain. Her neck muscles were swollen. She could not turn her neck. She had to wear a neck brace.
Ms. Hensworth testified that the job of large truck mechanic is very physically demanding. Everything is bigger and heavier. Unlike cars which can be lifted up, the trucks cannot. As a result the mechanic must crawl under the truck and get into unusual positions in small tight spaces while using heavy big tools. In addition, the job requires a lot of lifting and bending.
Ms. Hensworth testified that she did not return to Big Wheels. She stated that she could no longer do the work of a big truck mechanic given the physical demands of the job. As well, she did not want to risk injuring herself anymore.
After this accident, Ms. Hensworth returned to her two part time jobs with modified duties to accommodate her injuries.
In 2003, Ms. Hensworth obtained employment as a Wheels-Trans operator for the TTC. She still had neck and back pain when she started the job but she decided she wanted a full time job with benefits to provide stability to take care of her daughter. She stated that she was very mindful of her body position as she had been taught to do in her jobs to minimize injury.
The Wheels-Trans operator was a physical job. It provided door to door service for seniors and disabled patrons. The patrons either had wheelchairs or walking devices to keep them mobile. She would assist them on to the bus. Some needed their wheelchairs strapped in to secure them. She had to make sure that the patrons had their seatbelts on.
In 2004 Ms. Hensworth gave up her part time job at Sick Children’s Hospital. She continued to work on reduced part-time hours at Humber River Regional Hospital. However, by the time of her motorcycle accident in in 2007 she was working two to three eight-hour shifts as a porter.
Ms. Hensworth testified that she derived a lot of satisfaction working at both jobs because her work involved helping people which she very much liked to do.
(5) Post-Accident Employment
In September 2010 Ms. Hensworth returned to work at the TTC. Although post-accident she continued to suffer from chronic pain, Ms. Hensworth had a strong desire to get her life back into some sort of normalcy. She contacted the TTC Human Resources and was able to bid for a job as a fare collector.
Ms. Hensworth testified that the collector division is where the TTC puts problematic people. Few people choose to do this job. People are there because of medical issues or are close to retiring and want to spend the last few years as a collector.
The collector’s job is not a physical job. It is a sitting and standing job, which Ms. Hensworth described as being very boring. She stated that as a collector she is confined to a very narrow work area. She stated that collectors are regularly abused by the public. They are sworn at when there are TTC delays and are generally spoken to poorly and disrespectfully. There is constant verbal abuse that she must tolerate every day while she must be courteous and pleasant in return. She finds the job very demoralizing and is aware that modernizing and automating the system will soon eliminate her job.
Ms. Hensworth testified that she works 12 hour split shifts. She is paid one hour for three hours between shifts. She gets compensated for travelling from one collector booth to another. While she works 40 hours a week, because of split shifts and travel time she works five 12 hour shifts, totalling 60 hours. She has on occasion done overtime when there is need and she is feeling well enough to do it. She has turned down requests. She can get as much as $30 to $60 in overtime pay. The higher amount is dependent on whether she is working on a statutory holiday.
Ms. Hensworth testified that at the end of the day the job leaves her exhausted and depleted. It leaves her with very little energy to do anything else.
Ms. Hensworth testified that the collector’s job is not a job she would choose to do but she needed to work and was “lucky to have this job.”
Section 5(2) (b) of the Schedule provides:
(2) The Insurer is not required to pay an income replacement benefit,
(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.
ANALYSIS AND FINDING
The burden of proof rests with Ms. Hensworth to prove on a balance of probabilities she meets the post-104 week test. For the following reasons, the Arbitrator found that Ms. Hensworth meets the post-104 week test.
The Arbitrator gave full weight to Ms. Hensworth’s testimony. Ms. Hensworth was an intelligent, articulate witness. She testified in a credible, detailed, sincere and straightforward manner. The Arbitrator fully accept her testimony, supported by the medical evidence, that as a result of her accident she now lives with physical limitations and chronic pain which have a debilitating effect on her ability to carry out a normal life.
State Farm did not question Ms. Hensworth’s credibility, but under cross examination and in its submissions, focussed mainly on the fact that Ms. Hensworth’s post-accident earnings were competitive with her pre-accident income. Succinctly, State Farm focused on two points — one, Ms. Hensworth is working, and two, she is earning a salary comparable to her pre-accident earnings. Accordingly, State Farm submits that Ms. Hensworth does not meet the post-104 test. The Arbitrator disagreed.
The post-104 week test is very clear. It is not limited to a complete inability to do any employment. The complete inability must be in relation to any employment by which an individual is reasonably suited by education, training or experience. The legislation does not make it a condition to meet the post-104 week test that post-accident income has to be less than pre-accident income.
There are Commission decisions, for example, Mack and Kingsway General Insurance Company wherein on the facts of that particular case it was held that the applicant was entitled to post-104 weekly benefits where as a result of the accident there was a change in occupation that resulted in a substantially lower remuneration. In my view, this does not automatically translate that where remuneration is competitive with pre-accident employment, but the new occupation does not reasonably reflect the applicant’s “education, training or experience,” that benefits should be denied.
It is very clear from Ms. Hensworth’s credible testimony and supporting documentation that from her teenage days Ms. Hensworth was a very hard worker. Despite significant setbacks over the years, including a previous car accident, the evidence shows that Ms. Hensworth consistently displayed a very strong work ethic.
The Arbritrator found that this strong work ethic is reflected in the fact that, despite her significant limitations, physically and emotionally, Ms. Hensworth sought out the fare collector job.
In the case of Thompson and Non-Marine Underwriters, Members of Lloyd’s London which cites Francis Mills and Canadian General Insurance Company where the Arbitrator stated:
Judicial cases have considered similar wording [re entitlement to post 104 benefits] in earlier automobile policies and disability policies.[Appendix of cases omitted]. These cases emphasise [sic] that the question of suitable employment in any case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. They have taken into account such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant’s employment experience and length of time spent in different jobs, his or her age and his or her qualifications and technical training and know-how. The statutory requirement focuses primarily on an applicant’s functional limitations, and not on the broader availability of work in the job market.
Based on the documentary evidence and her credible testimony, the Arbitrator found as a fact that the fare collector’s job does not reasonably reflect Ms. Hensworth’s “education, training or experience”. Succinctly, the fare collector’s job is not reasonably comparable in nature and status of her pre-accident employment and experience.
The Arbitrator further found the fact that Ms. Hensworth’s remuneration is comparable to her pre-accident employment must not be viewed in isolation as a factor to override her present inability to work at any job that reasonably reflects her “education, training or experience.”
Prior to the accident Ms. Hensworth was able to work at two jobs that gave her personal satisfaction that she was helping others. Both jobs were physically and emotionally demanding. However, Ms. Hensworth physically could do the two jobs and enjoyed doing these jobs because she felt she was helping people.
Post-accident Ms. Hensworth is now working at a lowly, monotonous, sedentary job that is planned to be automated in the near future. It is a job where she is physically isolated in a small, confined environment and is subjected to the frustrations of TTC passengers, who heap abuse onto her when the subway is delayed. It is a job which leaves her physically and emotionally drained at the end of the day. According to Ms. Hensworth, it is not a job that she would ever want to do, or that reflects her pre-accident education, training or experience, but it is the only job she could get with her disabilities.
Based on the evidence and testimony presented at the hearing, the Arbitrator found that Ms. Hensworth should be commended for seeking out this job despite her serious physical limitations, her seeking out the collector’s job is a clear reflection of her life long work ethic. The Arbitrator found that while the collector’s job accommodates Ms. Hensworth’s physical limitations, the job does not reasonably reflect her pre-accident “education, training or experience”.
Accordingly, for all these reasons, the Arbitrator found that pursuant to section 5 of the Schedule, Ms. Hensworth is entitled to receive an income replacement benefit from September 13, 2010 and ongoing, less amounts earned.