ICBC Lawyers Vancouver
Sheflo vs ICBC 2002
Sheflo v. Insurance Corp. of British Columbia
Laurie Sheflo, plaintiff, and
Insurance Corporation of British Columbia,
 B.C.J. No. 744
2002 BCSC 536
100 B.C.L.R. (3d) 368
4 C.C.L.I. (4th) 152
112 A.C.W.S. (3d) 1135
Vancouver Registry No. S012037
British Columbia Supreme Court
Vancouver, British Columbia
Heard: March 22, 2002.
Judgment: April 12, 2002.
Insurance — Automobile insurance — Accident benefits — Denial of.
Application by the plaintiff Sheflo for summary trial for an order that the defendant Insurance Corporation of BC pay her outstanding total disability benefits. The plaintiff injured her shoulder and her knee in a motorcycle accident and received disability benefits. She claimed that the defendant wrongfully discontinued her disability benefits. Medical advisers indicated that the plaintiff was permanently disabled from her employment as a fruit packer. The plaintiff claimed that she continued to be disabled. A videotape was made of the plaintiff’s co-workers doing their work. The video and job descriptions were given to the doctor to assess if the plaintiff would be able to do the work. The doctor concluded that the plaintiff would be able to do the work, but stated that some of the duties would be a problem for her. The evidence was contrary to the work capacity evaluator’s opinion and the doctor made his assessment without the evaluation.
HELD: Application allowed. The plaintiff made out a prima facie case that she continued to be disabled from her employment. The defendant did not meet the onus of showing that there were occupations reasonably suited to the plaintiff’s education, training or experience. The evidence related only to the plaintiff’s former employment as a fruit packer and a waitress. There was no evidence of other employment. The defendant did not show that the plaintiff’s former occupation of fruit packer remained available to her.
Statutes, Regulations and Rules Cited:
British Columbia Supreme Court Rules, Rules 18A, 51(10).
Insurance (Motor Vehicle) Act Regulations, ss. 80(1), 86(1), 87.
Y. Gertsoyg, for the plaintiff.
R.D. Watts, for the defendant.
1 BURNYEAT J.:– Ms. Sheflo applies pursuant to Rule 18A of the Rules of Court and Part VII of the Regulations made pursuant to the Insurance (Motor Vehicle) Act (“Regulations”) for an order that the Insurance Corporation of British Columbia (“I.C.B.C.”) pay her outstanding total disability benefits. Ms. Sheflo was injured in a motorcycle accident on April 18, 1999, received total disability benefits of $300 per week from April 28, 1999 to February 15, 2001, states that she has remained totally disabled after February 15, 2001 and that I.C.B.C. has wrongfully discontinued her disability payments. In opposition, I.C.B.C. submits that this matter is not an appropriate matter to be determined by a summary trial under Rule 18A and, in the alternative, that Ms. Sheflo is not totally disabled so that her total disability benefits were properly terminated.
SHOULD THIS MATTER BE HEARD AS A SUMMARY TRIAL UNDER RULE 18A?
2 I am satisfied that I can find the facts that it would be necessary for me to find if this matter was heard after a trial. I have also concluded that it would not be unjust to consider this matter under Rule 18A. On similar applications to require I.C.B.C. to make or continue disability benefits, our Courts have arrived at a similar conclusion: (a) Charles v. Insurance Corp. of British Columbia  B.C.J. No. 105 (B.C.C.A.); (b) Tangaro v. Insurance Corp. of British Columbia (1994) 26 C.P.C. (3d) 343 (B.C.S.C.); (c) MacKay v. Insurance Corp. of British Columbia  B.C.J. No. 2579 (B.C.S.C.); and (d) Chaplin v. Insurance Corp. of British Columbia  B.C.J. No. 2719 (B.C.S.C.).
3 I am satisfied that this is not a matter which requires a trial with witnesses or cross-examination of those who have sworn affidavits to date. There is no dispute that I.C.B.C. was initially satisfied that Ms. Sheflo was totally disabled. The only issue which remains is whether she continues to be disabled. I am satisfied that I can find the facts to determine that issue, that there is no issue of credibility which cannot be determined by me, and that any dispute on the primary issue can be decided on the basis of the materials available to date. In those circumstances, I am satisfied that it is appropriate for this matter to be dealt with under Rule 18A.
4 I am also mindful of the fact that the trial of the action between Ms. Sheflo and the driver of the motorcycle is scheduled to be heard within six months. While liability has not been admitted as yet, counsel for I.C.B.C. advises me that it likely will be and also advises me that the damages available to Ms. Sheflo will be far in excess of any total disability benefits payable to her even if those total disability payments are paid for the period February 15, 2001 to the date when the trial judgment is available. Any total disability benefits previously paid will be subtracted from the damages available to Ms. Sheflo. Accordingly, even if I am wrong in deciding that this matter can be appropriately dealt with under Rule 18A, I am satisfied that no prejudice is likely to arise to I.C.B.C. by the payment of any further disability benefits if that is what I order. In this regard, see Chaplin v. Insurance Corp. of British Columbia  B.C.J. 2719 (B.C.S.C.).
APPLICABLE PART VII REGULATIONS
5 Regulations 80(1), 86(1) and 87 state:
80(1) Where … an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the Corporation shall … pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b) ….
86(1) Where an injury for which disability payments are being paid to an insured under s. 80 … continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the Corporation shall, … continue to pay the applicable amount of disability payments to an insured described in s. 80 …
(a) for the duration of the disability, or
(b) until the insured reaches 65 years of age,
whichever is the shorter period.
87 Any benefits payable under s. 80 … or 86 may be reviewed every 12 months and terminated by the corporation on the advice of the corporation’s medical adviser.
6 After graduation from High School, Ms. Sheflo was only employed in two occupations. In her May 4, 2001 affidavit, Ms. Sheflo states:
From the time I left High School until January of 1986, I have worked as a waitress at various places of employment. My job as a waitress has always been very physical, requiring a great deal of standing, walking, bending, lifting and carrying. From January 28, 1986 until the time of this collision on April 18, 1999, I have been employed as a Packing House worker with Okanagan North Growers Cooperative. My work with Okanagan North Growers Cooperative has been no less physical than my work as a waitress.
7 In her December, 2001 affidavit, Ms. Sheflo corrected a mis-statement that she had made regarding her employment as a waitress. She said that she had not worked at “various places of employment” but had worked at only one restaurant, had only worked between 1972 when she left High School until April, 1973 when she was married, and, between April, 1973 and January, 1986, she worked as a homemaker raising two children.
DOES MS. SHEFLO CONTINUE TO BE DISABLED?
8 The injuries sustained by Ms. Sheflo were sustained when the driver of the motorcycle on which she was a passenger lost control of the motorcycle and she was ejected and thrown down an embankment. Ms. Sheflo suffered a number of injuries including damage to her left shoulder and damage to her knee. The medical advisers who examined her concluded that she was permanently disabled from her former employment and I.C.B.C. accepted that diagnosis and began total disability benefits April 28th, 1999.
9 In support of the position taken on behalf of Ms. Sheflo that she remains totally disabled from engaging in employment or an occupation for which she is reasonably suited by education, training or experience, Ms. Sheflo relies on the following:
(a) November 20, 2000 letter from Dr. Vallentyne (physical medicine and rehabilition specialist): “She was totally and temporarily disabled from the date of the MVA at least up until the time of my last assessment in July/00; she was not fit to return to her usual occupation at that point, but I have not reassessed her since that time.”
(b) March 1, 2001 – letter from Dr. Kemper (clinical psychology and neuropsychology): “… Sleep disturbance, irritability, fatigue and anxiety are likely symptoms of a significant depressive disorder. I think that this depression is in reaction to the pain and functional limitations she endures because of her shoulder and knee injuries.”; and
(c) November 8, 2001, letter from Dr. Penny (Family Practitioner) She continues to suffer pain in her left shoulder with decreased range of motion. She also has pain in her left knee. As mentioned in past reports, this would appear to be secondary to tendinous pain in the shoulder as well as pain under the knee cap in the knee. Both of these have continued unabated, and she continues to suffer moderate pain. I feel that at this time it precludes her from doing a lot of physical work with her left arm, or prolonged walking. I think this would preclude her from doing her previous job at the packing house. I feel that she would be more suited to more sedentary work with less repetitive use of her left arm. I can’t tell you what kind of work this is. It would be commensurate with her level of training and education. As to any predictions as to further recovery, certainly it has been a long time since her accident and she has not shown much in terms of further gains. I would have to assume she will continue to have some ongoing debility in both of the above-mentioned areas.
(d) August 9, 2002 – letter from Dr. Vallentyne: “She will likely have permanent limitations in full left shoulder range-of-motion; consequently, she likely requires permanent work restrictions to avoid excessive overhead reaching/lifting as well as repetitive shoulder rotation.”;
10 At the request of the Defendant, Ms. Sheflo was seen by Dr. O’Farrell (orthopaedic surgeon). In his September 15, 1999 letter to I.C.B.C. Dr. O’Farrell stated: “She is unfit to work and would be unable to until her shoulder improves with appropriate therapy.” His October 4, 2000 letter to I.C.B.C. confirms that disability: “The examination of her shoulder in sitting shows that she has restricted range of motion with 160? of abduction, pain on forced abduction or positive impingement sign. She has restricted internal rotation to L5 compared to T5 with the right arm.” “… highly suggestive of patellofemoral pain syndrome and that these might be alleviated with appropriate physiotherapy directed towards quadriceps strengthening and stretching as well as patellar mobilization.” Based on the letters received from the medical advisors of Ms. Sheflo and those two reports from Dr. O’Farrell, I.C.B.C. continued to be the view that Ms. Sheflo was totally disabled until early 2001.
11 A claims examiner at I.C.B.C. began to review the question in the Fall of 2000. An independent adjuster was asked to review the work conditions at the former employer of Ms. Sheflo and a video of individuals performing similar functions was produced for I.C.B.C.
12 The independent adjuster wrote I.C.B.C. on December 13, 2000 stating:
As outlined above, the claimant has not attempted to or inquired about returning to work. The issue of whether the employer is required to accept the claimant back or find some way of working her back into the schedule has been put to both the employer and the Union, with 2 different answers as a result. The employers states that they are not “required” to accept her back without a medical certificate verifying that she is fit to return, and are not obligated to take her back if she cannot return to her former positions. This appears to be their interpretation of the Collective Bargaining Agreement. They say that, if the claimant could only perform “lighter duties”, it would be too difficult to work her back into the schedule and unfair to the other workers. We spoke to Mr. Rob Nairn at the United Food & Commercial Workers Union Local 2000 who has a much different opinion. He states if the claimant were to request a return to work, but at reduced capacity or lighter duties, and had a medical certificate to verify that she could do the work requested, the employer must find a way of working her into the schedule.”
13 The independent adjuster also advised the Claims Examiner by a December 13, 2000 facsimile transmission:
In my report you will note I will refer to the “employer” as stating “they are not obligated” to accommodate the claimant should she request a return to lighter duties. Specifically this comment came from Jeff Vandenheuvel. He is in error and Operation Manager, Gord Heltman is the first to point out that Jeff does not really understand how the Plan works. He’s an Administrator. Gord Heltman says that they “definitely would” find a way of accommodating the claimant if she said she could come back, but only to lighter duties ….”.
14 The claims examiner forwarded the video to Dr. O’Farrell on January 23, 2001. The claims examiner described the video as follows: “An independent adjusting firm was hired to videotape her place of employment and the various job duties associated with her position as a “speciality line” or “tray line” worker. Enclosed, please find copies of the 2 job descriptions as well as a videotape showing her co-workers actually doing the work.” The following question was asked of Dr. O’Farrell: “From your October 3, 2000 examination, do you feel Ms. Sheflo can do most of the job duties shown on the video (there is some flexibility on the part of the employer)?”
15 In his January 29, 2001 response, Dr. O’Farrell confirmed that he had reviewed the video as well as the job descriptions and then stated: “I feel that on this basis Ms. Sheflo could be capable of essentially most of the job duties in the video. There exists in one part of the video a relatively highly positioned conveyor belt where culled apples are placed above shoulder level which might be a problem for her. Otherwise I do not feel that any of the other positions would really be a problem for her.”
16 The claims examiner at I.C.B.C. states that he accepted the assessment of Dr. O’Farrell in reaching his conclusion that Ms. Sheflo “was largely able to return to work, with perhaps some modification of job duties, therefore made a decision to discontinue payment of further total disability benefits.” I.C.B.C. then notified Ms. Sheflo that disability payments would be discontinued.
WORK CAPACITY EVALUATION:
17 A questionnaire was completed by the former employer of Ms. Sheflo, the Okanagan North Growers Cooperative. The answers indicate that her job entailed seven hours a day of standing, three to four hours of walking, eight hours of reaching, reaching 300 times per hour, lifting four hours a day, lifting 300 times an hour, lifting between three and 10 pounds, pushing or pulling three hours a day, pushing or pulling 300 times per hour, and pushing or pulling weights between 6.5 pounds and 12 pounds. Her duties were described as: “bagging apples into 3, 5, 6 and 10-pound bags.” “Filling and taping mini-boxes (12 lbs) and carry cartons (6.5 lbs) – also walking around this line.” “Tray boxes: putting trays in 40 lb box, 5 or 6 trays per box.”
18 Alison Henry is a Certified Work Capacity Evaluator. In a July 9, 2001 letter, Ms. Henry reviewed the ability of Ms. Sheflo to work as a waitress. Ms. Henry referred to the “National Occupational Classification” which showed the occupation of waitress as “light strength work” involving handling loads of between nine kilograms and less than 10 kilograms. Ms. Henry concluded as follows:
The results of testing showed that Ms. Sheflo’s most significant physical problem was her left shoulder and she was found to have reduced tolerance to work requiring repetitive bimanual reaching and handling of light weights. The requirement to use her left arm to hold weight loads of up to 10 kilograms while reaching and serving with her right hand would place strain on her left shoulder. Ms. Sheflo also had reduced tolerance to mild bending of her neck and upper back and this would be aggravated by bending and reaching forwards while serving. Ms. Sheflo’s left knee problem would affect her tolerance to prolonged standing and walking. In my opinion, based on the results of testing, review of the … [National Occupational Classification] and my understanding of the job demands, Ms. Sheflo would not be able to meet the physical demands of work as a waitress.
19 Ms. Henry followed up with a January 3, 2001 letter in which she states:
Ms. Sheflo is not suited to work where bimanual or left hand reaching is required to a significant extent.
In my opinion, Ms. Sheflo is considered to be employable on a full-time basis in occupations within her physical capacity. Ms. Sheflo meets the strength requirement for work in limited and light strength occupations as defined in the [National Occupational Classification] … limited strength occupations are described as work activities which involve handling loads of up to 5 kilograms. Light strength occupations are described as work activities which involve handling loads of 5 kilograms but less than 10 kilograms. Physical activity factor restrictions to work in these strength categories are as listed above include performance of tasks that place stress on her left shoulder particularly reaching and strength activities. She also has limited ability to perform low-level work because of her left knee pain and some decrease in standing tolerance.
If Ms. Sheflo’s level of function, particularly with respect to her left shoulder, remains essentially unchanged without further treatment or does not improve significantly with treatment as recommended, it is my opinion that she would not be able to return to her pre-injury job due to the requirement for highly repetitive bimanual reaching. In the event that Ms. Sheflo is not able to return to her pre-accident occupation, vocational testing would be required to determine her work options taking into account her physical restrictions as well as other factors affecting employability such as education, aptitude and experience. It should be noted that this report does not address any employment restrictions that may result from her head injury.
20 The January 3, 2001 Work Capacity Evaluation was not seen by Dr. O’Farrell so he did not have the Evaluation when he prepared his January 29, 2001 letter. When requested to do so, I.C.B.C. refused to forward the Evaluation to Dr. O’Farrell. The Claims Examiner at I.C.B.C. was of the opinion that the findings in the January 3, 2001 Evaluation prepared by Ms. Henry were: “largely consistent with” the assessment by Dr. O’Farrell although he did state: “… the only real difference is between the final conclusion with respect to the Plaintiff’s ability to perform her job duties”. In that regard, he stated in his affidavit: “… I place more weight on the conclusion of Dr. “O’Farrell, as the Defendants’ medical advisor, than on the conclusion of the Plaintiff’s Occupational Therapist.”
CASE AUTHORITIES AND DISCUSSION
21 It is submitted on behalf of Ms. Sheflo that, once she has established that she was entitled to total disability benefits and once I.C.B.C. had recognized this by making payments to her, that the onus was then on I.C.B.C. to show that she had ceased to be entitled to disability benefits. In support of that position, Ms. Sheflo cites the decisions in the Lefebvre v. C.N.A. Assurance Co. (1978), 86 D.L.R. (3d) 555 (Ont. H.C.); Blackstone v. Mutual Life Ins. Co. of New York,  O.R. 607; Fraser v. Maritime Life Ass’c. Co. (1975), 52 D.L.R. (3d) 204.
22 On the other hand, I.C.B.C. submits that this is not the law in British Columbia. In Rose v. Paul Revere Life Insurance Co.  B.C.J. No. 3372 (B.C.C.A.), Taylor, J.A. on behalf of the Court referred to decisions in in Blackstone, supra, Lefebvre, supra, Taafe v. Sun Life Assurance Company, (1979), 100 (D.L.R.) (3d) 133 (Ont. H.C.), McCulloch v. Calgary (1985), 62 A.R. 209 (Alta. Q.B.) and Budgen v. Sun Life Assurance (1990), 44 B.C.L.R. (2d) 297 (B.C.S.C.), before stating:
Cases which follow Blackstone do so on the basis that the initial acceptance and recognition of the claim prevents the insurer from thereafter placing the burden on the insured of proving continued eligibility, so that the insurer must prove termination of disability unless the language of the policy decisively provided otherwise. But it does not seem at all clear that Blackstone stands for so broad a proposition. (at p. 4)
23 Taylor, J.A. referred to the decision in Porter v. Metropolitan Life Insurance Co. (1984), 64 N.S.R. (2d) 293, affirmed (1985), 23 D.L.R. (4th) 737 which had distinguished the decision in Blackstone, supra, on the basis that the ruling with respect to onus was in the context of the particular wording of the nine policies which created a presumption that total disability was permanent after disability had continued for a specified period. Taylor J.A. noted that the decision in Porter, supra:
… has since been followed in Walls v. Constellation Assurance Co. (1986), 17 C.C.L.I. 212 (Ont. H.C.J.); MacEachern v. Co-operative Fire & Casualty Co. (1986), 75 N.S.R. (2d) 271 (N.S.S.C. C.A.); Mutual of Omaha v. MacDonald (1987), 36 D.L.R. (4th) 492 (N.S.C.A.)(at p. 4)
24 Taylor, J.A. then referred to a “third option” on the question of who has the burden of proof:
A third option is referred to by Bouck, J., in Malkin v. Crown Life (1986), 56 D.L.R. (4th) 296. This is a “shifting burden of proof” under which the plaintiff must make out a prima facie case which the defendant must meet with some evidence or the plaintiff will succeed. If the defendant meets the plaintiff’s case, the burden shifts back to the plaintiff to prove disability within the terms of the policy on a balance of probabilities. The outcome in that case did not, however, turn on this issue, because the judge found that whichever test was applied the plaintiff had established his case. It seems to me that the “shifting onus” rule laid down by Bouck J. in that case does not depart significantly from the principle normally applied in civil cases that the onus of proof, or “ultimate risk of non-persuasion”, rests on the plaintiff. In the end, in my view, the fact that the insurer has at one time accepted a claim as something which may or may not weigh in the scales of the insurer, depending on the nature of coverage and the precise wording of the policy”. (at p. 5)
25 Taylor, J.A. then concluded:
In the present case it seems to me that the insured had the burden of showing that he was still being regularly treated by a physician for a totally disabling sickness, as defined by the policy, after the date when the insurer ceased paying benefits, and that the fact that the insurer had admitted that the insured was earlier suffering from such a sickness and under such treatment, by paying benefits under the policy, involves no admission which can assist the plaintiff in this case. (at p. 5)
26 I am satisfied that the decision in Rose, supra, does not set out the law in British Columbia on the question of who has the burden of proof in circumstances such as exist in the case at bar. The decision in Rose, supra, was distinguished by Esson, J.A. in Halbauer v. Insurance Corp. of British Columbia  B.C.J. No. 13 (B.C.C.A.) on the basis that the insurance policy in Rose involved a policy of “income protection” where the burden under the contract specifically imposed upon the insured the requirement that he show that he continued to be under the regular and personal care of a physician. After Esson, J.A. noted that there was no “comparable burden” imposed under any provision under Part VII of the Regulations, Esson, J.A. did refer to the comments that Taylor, J.A. had made in Rose, supra, regarding the concept of a “shifting onus” and stated:
In this case, having regard to the nature of the coverage and the precise wording of the regulations, the fact that the insurer at one time accepted a claim is something which weighs in the scale against it. (at para. 54)
Applying the reasoning in Campbell to this case, I would hold that the appellant made out a prima facie case by establishing that benefits had been paid for some 42 months and that he continued to be disabled from his pre-accident employment and occupation. There was then an onus on I.C.B.C. to submit evidence of employment or occupations suited to the plaintiff. (at para. 55)
27 The reference to Campbell is a reference to the decision of the Manitoba Court of Appeal in Campbell v. Canada Life Assurance Co. (1990), 45 C.C.L.I. 73 where the finding of the Court is summarized in the headnote:
The insurer had not adduced evidence of employment actually available to C. The insured is not required to prove inability to perform any and every conceivable job. The insured has the onus of making a prima facie case that he is within the policy. The onus is then on the insurer to submit evidence of a job which is suited to the insured and is within his capability. (at p. 74)
28 I am satisfied that the law in British Columbia regarding Part VII benefits is not as set out by Taylor J.A. in Rose, supra, but is as set out by Esson, J.A. in Halbauer, supra. That law can be summarized as follows:
(a) the initial onus is on the plaintiff to show that he or she is disabled;
(b) a plaintiff can make out a prima facie case that payments should be continued by establishing that benefits have been paid and that he or she continues to be disabled from his or her pre-accident employment and occupation;
(c) if that can be shown, the onus then switches to I.C.B.C. to prove on a balance of probabilities that there is employment or an occupation reasonably suited to the plaintiff by education, training or experience.
29 In the case at bar, I am satisfied that Ms. Sheflo has made out a prima facie case that she continues to be disabled from her pre-accident employment and occupation as a fruit packer. The question which then arises is whether I.C.B.C. has met the onus of establishing that there are employment or occupations which are suited to Ms. Sheflo.
30 There has been considerable attention paid to the phrase “employment or an occupation for which the insured is reasonably suited by education, training or experience” as used in Regulation 80(1) and as incorporated under Regulation 86(1). Prior to 1984, the test for benefits in the first two years was different from and less onerous than the test which had to be met after two years. However, as is noted in Halbauer, supra, that is no longer the case. The test is now the same. Before and after 104 weeks, the question is whether there is “employment or an occupation” for which the insured is reasonably suited. However, the interpretation of this phrase has caused some difficulty.
31 In Halbauer, supra, Esson, J.A. noted:
… it may be significant that over the 17 year period during which the word “an” has been in s. 80, the section has continued to be interpreted as if the word was “any”. (at para. 32)
32 After noting that this interpretation had been given in the decisions in Kenni v. I.C.B.C. (1993), 14 C.C.L.I. (2d) 62 (B.C.S.C.) and in Brewer v. Insurance Corp. of British Columbia (1999), 71 B.C.L.R. (3d) 248 (B.C.S.C.), Esson, J.A. concluded that to qualify for benefits, a claimant must show not only that he or she is totally disabled from engaging in his or her previous employment but also is totally disabled from engaging in employment for which he or she is reasonably suited by education, training or experience.
33 In preferring that interpretation over the “plain meaning” of the phrase, Esson, J.A. stated:
The more weighty objection to giving effect to the asserted plain meaning is that it could lead to consequences which cannot likely have been intended. For instance, an insured who, at the time of his injury was employed as a labourer and was permanently disabled from that line of work, might go on to qualify himself as a tax lawyer or a captain of industry earning many times what he earned before being disabled, and yet would be entitled to benefits for the rest of his life. Even more unlikely possibilities can be visualized. If the insured need establish only that the injury has totally disabled him from engaging in an occupation for which he is reasonably suited, he might become entitled to benefits by simply proving that he has been disabled from some employment for which he is reasonably suited, even if he had never engaged in that occupation and did not intend to do so. (at para. 39)
34 The question which then arises is whether I.C.B.C. has shown on a balance of probabilities that there is any occupation for which Ms. Sheflo is “reasonably suited by education, training or experience”.
35 In Campbell v. Canada Life Assurance Co. (1990), 65 Man. R (2d) 95 (Man. C.A.), Helper, J.A. stated on behalf of the Court:
The test is a subjective one related to the background and condition of the insured person in question. If he is healthy enough to take up an occupation for which his background reasonably suits him, he is deemed not to be disabled. (at p. 98)
36 After reviewing all of the evidence before me, I am satisfied that I.C.B.C. has not met the onus of showing on a balance of probabilities that there are occupations reasonably suited to the plaintiff by education, training or experience. The only evidence which is before the Court relates to the two former occupations of Ms. Sheflo, as a waitress and as a fruit packing worker. There is no evidence regarding other employment which might be suitable for Ms. Sheflo. I.C.B.C. has chosen to concentrate on her two former occupations rather than attempting to show that there are some other occupations for which she would be reasonably suited by virtue of her education, training or experience. In particular, they introduced no evidence like the two Work Capacity Evaluations which were prepared at the request of counsel for Ms. Sheflo.
37 The evidence relating to the possibility of her returning to be a waitress indicates that this would not be available to her in view of the disability she continues to suffer relating to her shoulder.
38 The evidence relating to her ability to return as a fruit packing worker is unsatisfactory. First, the evidence from the Work Capacity Evaluator is to the contrary. Second, the January 2, 2001 Evaluation was not before Dr. O’Farrell when he reached his conclusion that Ms. Sheflo could return to her former occupation. Because that is the case and because I.C.B.C. refused to refer that Evaluation to Dr. O’Farrell, I cannot be satisfied that the opinion of Dr. O’Farrell would remain the same if he had seen the January 3, 2001 Evaluation.
39 Third, there are serious flaws in the review undertaken by Dr. O’Farrell. He was not asked whether Ms. Sheflo could undertake the job duties shown on the video. He was only asked whether Ms. Sheflo could “do most of the job duties shown”. He was also advised that there was “some flexibility on the part of the employer” even though what was available from the independent adjuster cast doubts on whether that was the case. In the regard, it is clear that the claims examiner of I.C.B.C. was prepared to rely on double and triple hearsay in making the statement that there was “some flexibility”. It should also be noted that Dr. O’Farrell came to the conclusion that Ms. Sheflo was “capable of essentially most of the job duties in the video” although one part of those duties “might be a problem for her”. I find that this is not a statement which would allow me to conclude that I.C.B.C. has shown on a balance of probabilities that the former occupation of Ms. Sheflo as a fruit packer remains available to her.
40 As there are too many “caveats” on what Dr. O’Farrell was and was not asked to review, what he did review and what he did provide an opinion on, I am unable to come to a conclusion that I.C.B.C. has shown that her former occupation was still an occupation that she was reasonably suited to undertake based on the subjective evaluation of her background and condition.
41 In reviewing the evidence presented in support of the position taken by I.C.B.C., I have ignored the fact that most of the evidence does not comply with Rules 51(10) and 18A as much of what is said about the issues is hearsay which is inadmissible. Whether on a summary trial under Rule 18(A) or at a Trial, it is inappropriate that I.C.B.C. attempt to justify the discontinuance of total disability benefits by relying on hearsay. However, I have proceeded on the assumption that all evidence before me was admissible and still find that I.C.B.C. has not met the onus which is on it.
42 I grant the relief sought by Ms. Sheflo and declare that she is entitled to disability benefits from February 15, 2001 until such time as she is no longer totally disabled. Ms. Sheflo will be entitled to her costs on a Party and Party (Scale 3) basis.