July 9, 2008 by Canadian Underwriter
The Financial Services Commission of Ontario (FSCO) has ruled that an insurance company is not responsible for re-training a claimant on the basis that the learning program was more insight-oriented than vocational and rehabilitative.
FSCO additionally dismissed claims for income replacement benefits, housekeeping benefits and rehabilitation benefits on the basis that the claimant was experiencing substantial difficulty prior to the motor vehicle accident and her condition changed very little after the accident.
Parminder Rehsi was injured in a motor vehicle accident on July 12, 2004. She subsequently applied for and received statutory accident benefits from Dominion of Canada General Insurance Company.
Prior to the 2004 accident, Rehsi had been involved in two other motor vehicle accidents one on Feb. 6, 1998, and another one on Sept. 6, 1999.
She had worked as a hairdresser prior to her 1998 and 1999 accidents. After her second accident, she was unable to continue in this occupation and retrained to become an aesthetician.
Rehsi testified that prior to the 2004 accident she was experiencing chronic pain in her right hand and arm, as well as in her back. After the 2004 accident, she experienced more frequent headaches, neck pain and her right shoulder and arm hurt more when she elevated them. In addition, she felt tingling in her right fingers, numbing of the hand and constant pain in her right wrist.
Dominion argued that if the physical requirements of being a registered massage therapist are much more demanding than those of an aesthetician, and if Rehsi claimed she was completely unable to do aesthetics work, she would almost certainly be unable to do massage therapy work.
Rehsi testified she could adjust the massage table to avoid bending and that she gave massages with her left arm only.
“I do find that in her particular situation there was a distinct probability that she would not be able to use her massage therapy training in any occupational capacity,” FSCO arbitrator Robert Kominar wrote in his decision. “From this, I also infer that training as a massage therapist was not reasonable and necessary to reintegrate her into the labour market and further that there was no evidence before she started the training that would have created a reasonable expectation in her that it would become a career for her.
“I further find that I have no evidence that the massage therapy program did anything to reduce the effects of an accident related disability.”