Eichmuller v. Provident Life and Accident Insurance Company, 2012 ABQB 690

Court of Queen ’ s Bench of Alberta Citation: Eichmuller v. Provident Life and Accident Insurance Company, 2012 ABQB 690 Date: 20121107 Docket: 0403 12308 Registry: Edmonton Between: Robert Franz Eichmuller Plaintiff - and - Provident Life and Accident Insurance Company Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _____________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A.

Browne _______________________________________________________ [ 1 ] The Plaintiff, Robert Franz Eichmuller, was a competent and highly skilled journeyman welder throughout his working years. He began working as a journeyman B-pressure welder in 1974 and worked in that capacity until November 11, 2002 when,

following an incident, he left work and did not return. His treating chiropractor told him that continuing to work would worsen his condition. Immediately after November 11, 2002, Mr. Eichmuller applied for, and received, short-term disability payments from Blue Cross for the maximum of 17 weeks. He then applied for long-term disability benefits through his Employer’s insurance company, the defendant, Provident Life and Accident Insurance Company (later RBC Insurance Company). Provident rejected his claim based on its

interpretation of the long-term disability benefits policy, concluding that Mr. Eichmuller was not disabled from work as a B-pressure welder and was able to perform the duties of any gainful occupation for which he is reasonably fit by education, training and experience. Mr. Eichmuller sued Provident for the long-term disability benefits payable from March 2003 until August 2012 (when he turned 65). Facts [ 2 ] Mr. Eichmuller was born in Austria on [...], 1947 and spent his formative years in Germany.

He completed the equivalent of Grade 8 education in Germany, and then worked in a machine/millwright/locksmith shop in Germany for about four years. In 1968, Mr. Eichmuller fulfilled his dream to come to Canada and moved to Edmonton. Upon his arrival in Canada, he enrolled in NAIT and earned his tickets as a journeyman welder and a journeyman B-pressure welder. He has taken a number of other courses to broaden the tickets and expand his opportunities as a pressure welder.

He worked as a B-pressure welder steadily for 28 years from 1974-2002. [ 3 ] He married Heidi in 1974, and they raised three children in Sherwood Park. In April 2003 they purchased a house in British Columbia and on June 3, 2003 they sold their Sherwood Park acreage and moved to Keremeos, British Columbia. Mr. Eichmuller’s wife is employed at an optician’s office in Penticton. Mr. and Mrs. Eichmuller are caring for their 8 year old granddaughter. They have moved from Keremeos to Penticton where there are better resources available for the granddaughter. Since Mrs. Eichmuller is working, Mr.

Eichmuller runs the house. He does all the housework, cooking, and baking. He does some yard work, some bicycling for short distances on flat ground, regular exercise numerous times a day, and takes short walks around the block and is proficient on the computer. He also did volunteer work for two months until their granddaughter arrived. [ 4 ] Mr. Eichmuller’s last day of work was November 11, 2002. The Blue Cross short term benefits paid for 119 days (4 months) until March 10, 2003. He is now seeking disability benefits under the policy from March 10, 2003 until the date of his retirement.

The Policy [ 5 ] The policy defines disability as follows: You are disabled when UnumProvident determines that: - you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury ; and - you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury; and - during the elimination period, you are unable to perform any of the material and substantial duties of your regular occupation.

After 24 months of payments, you are disabled when UnumProvident determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience . (Emphasis added) [ 6 ] The policy defines regular occupation as “the occupation you are routinely performing when your disability begins” and states that “ UnumProvident will look at your occupation as it is normally performed in Canada, instead of how the work tasks are performed for a specific employer or at a specific location.” [ 7 ] The policy also defines “material and substantial duties” as the duties that:

- are normally required of the performance of your regular occupation; and - cannot be reasonably omitted or modified, except that if you are required to work on average in excess of 40 hours per week,UnumProvident will consider you able to perform that requirement if you are working or have the capacity to work 40 hours per week. [8] The policy defines gainful occupation and part time basis for the purposes of disability after the first 24 months: Gainful occupation means an occupation that is or can be expected to provide you with an income at least equal to 60% of your indexedmonthly earnings with 12 months of your return to work.

Part-time basis means the ability to work and earn 20% or more of your indexed monthly earning. [9] The policy also refers to worksite modification and rehabilitation services for the employee that modify the workplace andprovide some rehabilitation. A

summary is set out below: Once the initial review is completed, UnumProvident may elect to offer you a return-to-work program.

The return-to-work programmay include, but is not limited to, the following services: - co-ordination with your Employer to assist you to return to work; - evaluation of adaptive equipment to allow you to return to work; - vocational evaluation to determine how your disability may impact your employment options; - job placement services; - resumé preparation; - job seeking skills training; or - retraining for a new occupation. (Emphasis added) [10] The specific terms of the contract govern the applicability of the disability policy.

Claims will generally succeed or fail basedupon the application of the contractual insurance provisions of the relevant policy. The initial onus is on the Plaintiff to prove that he fitswithin the wording of the disability

section of the policy and that by not accepting his claim, the insurer is in breach of the policy.(Kenny v. Blue Cross Life Insurance Company of Canada, 2012 NSSC 10 , 2012 NSSC page 10, tab 1). Once that onus ismet, the Defendant must prove that the Plaintiff is capable of substantially performing her own occupation or any occupation dependingon the terms of the policy (Flewwelling v. Blue Cross Life Insurance Co. of Canada, 1999 ABQB 258 at para. 82).

Issue 1: March 2003 - March 2005 Disability Eligibility [11] The first issue covers the period of time from March 2003 - March 2005 and a determination of whether Mr. Eichmuller was“limited from performing the material and substantial duties of [his] regular occupation due to [his] sickness or injury...” BeforeNovember 11, 2002, Mr. Eichmuller’s regular occupation was a B-pressure welder, and his work involved working at an 8' x 15' benchin a shop with many other welders.

The foreman/supervisor would assign him jobs that involved reading blueprints, gathering supplies,and welding inside and around pressure vessels in accordance with the specifications of the trade. His former supervisor testified that hewas reliable and provided good quality pressure welding until the day he left. He was one of the senior welders in the shop and neverrefused work. The supervisor did not observe Mr. Eichmuller having any difficulties carrying out the duties of his employment. Thesupervisor has not seen Mr.

Eichmuller since he left the work site on his last day of work. [12] Up to November 10, 2002, Mr. Eichmuller was able to perform the material and substantial duties of his regular occupation.

However, Mr. Eichmuller’s self report of his last year of work is noteworthy. He says that prior to his last year of work he was no longer able to wear regular work boots as his legs would swell. He took water pills for some months and eventually wore pressure stockings which helped with muscle pain and blood circulation. Mr.

Eichmuller also found ladder work very difficult; kneeling was hard; his right ankle usually had a tensor bandage; his neck had restricted motion and interfered with his ability to weld from underneath a pipe and from flicking the welding helmet; his right hand, injured from a grinder accident that required surgery, had extreme arthritis, and he had a significantly reduced grip affecting his ability to do his work. [ 13 ] He suffered constant back pain caused by bending, crouching forward, kneeling, and standing in one place.

The pain would shoot down his leg, aggravate his right ankle, and cause sharp pain at the bottom of his spine. Sometimes he would tape an ice pack on his lower back, use ankle and knee tensor bandages, and pressure stockings. He describes his right shoulder as painful doing overhead procedures and complained of severe pain in his shoulder joint. The accumulation of these injuries affected the steadiness of his welding, as his hands would start to shake. Mr.

Eichmuller believed these symptoms were affecting the quality of his work. [ 14 ] On the last day that he worked, November 11, 2002, he had severe pain in the morning as he had slept on his left side. Halfway into the work day, he dropped a large grinder as his left hand seized. He tried to use an ice pack to decrease his pain, but was upset and was unable to weld any more that day. He saw Dr. Pfaff immediately, who took x-rays and compared them to older other x- rays that showed degeneration of his spine. He challenged Mr.

Eichmuller to make a decision about whether he would continue with his work, saying “If you keep working, your condition will continue to get worse.” [ 15 ] The Defendant argues that there was no incident of sickness or injury that caused Mr. Eichmuller to be unable to carry out his regular occupation after November 11, 2002. Rather, they argue that his ongoing back problems and other conditions were simply a continuation of the longstanding health problems that had, until November, been successfully controlled at his workplace. Further, the Defendant argues that Mr.

Eichmuller never intended to return to work and any rehabilitation programs that it might have proposed would have require his cooperation, which was not forthcoming. [ 16 ] The Court heard from, or received reports from, numerous medical professionals during the course of this trial; reports on behalf of the Mr. Eichmuller, included expert evidence from: 1. Dr. Juergen R. Pfaff, chiropractor; 2. Dr. D. Court McAuley, chiropractor; 3. Dr. Visconti, family physician; 4. Dr. M. Jeanes, family physician; 5. Joanne Appelt, occupational therapist; 6. Dr. Salim Esmail, orthopedic specialist; 7. Dr.

Maryana Apel, physiatrist; 8. Brian Philip Hawrelak, Rehabilitation Counsellor and Senior Disability Analyst; and 9. Dr. Norman Brodie, vocational psychologist. And from RBC Insurance the following medical professionals were heard from through reports or evidence: 1. Dean Cross - Physiotherapist; 2. Dr. Thomas Lesiuk - Medical doctor with specialization in physical medicine and rehabilitation; 3. Dr. Mothersill - Psychologist; 4. Mr. Wong (Physiotherapist) and Mr. Lee (Occupational Therapist) joint report.

Medical History [ 17 ] It is useful to review Mr. Eichmuller’s medical history as reported by his doctors over the years. In reviewing this medical history it should be kept in mind that Mr. Eichmuller was a steady worker for 28 years, without complaint by his employer about his attendance, his health, or his competence on the job. [ 18 ] When Mr. Eichmuller was between the ages of 14 and 18 years he was diagnosed with epilepsy and that condition has been controlled by medication without ongoing side effects or symptoms.

Mr Eichmuller was also diagnosed with cardiac-arrhythmia which is also controlled by medication. Neither of these conditions are a significant contributing factor to the disability claim. [ 19 ] Mr. Eichmuller has a long history of lower back pain. This was first medically reported in 1987 by Mr. Bjornstad (physiotherapist). Mr. Bjornstad treated Mr. Eichmuller for lumbar and left leg pain as a result of an injury. In his report, he indicates that Mr. Eichmuller continues to have left leg pain especially with prolonged flexion and standing. [ 20 ] From 1990-1992 Mr.

Eichmuller complained of lower back pain, but he was able to make accommodations himself and it did not affect his work. [ 21 ] In 1992 and 1993 Mr. Eichmuller received chiropractic treatments from Dr. McAuley, an experienced chiropractor based in Sherwood Park, Alberta. Dr. McAuley’s report, dated June 2004, indicates that he saw Mr. Eichmuller in October of 1992 and September of 1993 for lower back complaints. In October 1992, Dr. McAuley provided five treatments for lower back pain following working in his garage, which exacerbated a previous lower back injury.

In September 1993, he provided 19 treatments over five weeks, again dealing with lower back injury. His first examination revealed: ...articular or facet fixations (lack of normal range of motion) at the left superior and inferior sarco-iliac joint, the third, fourth and fifth lumbar vertebrae in left trunk rotation and the fifth lumbar vertebra in right trunk rotation. Radiological examination revealed an alordotic lumbar spine (loss of normal curvature) from L1-L4, lipping and spurring on the anterior vertebral bodies of L3 and L4 and a left lateral tilt of L5 on S1. [ 22 ] It is notable that Mr.

Eichmuller’s foreman made the original referral to the chiropractor, Dr. Pfaff, in 1998. At that time, Mr. Eichmuller complained of sciatica problems, lower back pain, and restricted neck movements. After 1998, he saw Dr. Pfaff regularly for x-rays of the spine, exercises and chiropractic treatments. Mr. Eichmuller says he did the exercises prescribed by Dr. Pfaff, at work, at home, in the morning and in the evening and that the exercises were beneficial in keeping his back pain under control. Mr. Eichmuller saw Dr. Pfaff regularly from April 20, 1998 until February 18, 2005. [ 23 ] Dr.

Pfaff is a consultant and chiropractor with significant work experience in the treatment of low back pain and in the assessment of capacity to work. His report in 2004 (based on a January 2003 assessment), states that: Due to the progressive nature of this condition and the present advanced degree of degeneration demonstrated, rehabilitation or return to work is not conceivable. Mr Eichmuller will never be able to resume work in his trade or for that matter be employable, since his condition is a liability to any employer.

With a moderate exercise program, e.g. swimming and walking, and a healthy diet and medication, he should be able to minimize his symptoms. However, any type of physical exertion or aggravation of his condition, will accelerate the degenerative process and thereby his disability. [ 24 ] Further, the same report provided to the Defendant: His work as a welder is physically very demanding; he is unable to continue this kind of work. Rehabilitation or retraining is not recommended due to his age and progressive degenerative condition.

[ 25 ] Between 1998 and 2000 Mr. Eichmuller’s supervisor, Mr. Dethlefsen made some accommodations for his physical disabilities, moving him to shop #4, where he was able to move from job to job, was not welding pressure vessels, and was supervising apprentices. He was considered a working foreman. Mr. Eichmuller was given some time off work with no time deductions for exercises. However, when the economy declined, the company closed shop #4 and Mr. Eichmuller was moved back to shop #2.

He was no longer a foreman, had no apprentices, and was required to work at his work bench on pressure vessels with little variance in work. Medical evidence considered in making Provident ’s decision [ 26 ] On November 12, 2002, Dr. Visconti signed the Blue Cross Physician Statement required for the consideration of short-term disability payments. Dr. Visconti was not actively involved in Mr. Eichmuller’s on-going treatment for his degenerative disc disease and osteoarthritis, but he was aware of those problems and aware that Mr. Eichmuller received relief from the chiropractor treatments he attended. Dr.

Visconti’s statement indicates that Mr. Eichmuller’s ability to lift and bend was severely limited and his ability to walk, stand and sit was mildly limited. He notes that Mr. Eichmuller suffered from a degenerative disc disease and osteoarthritis of the lumbo- sacral spine, and had a decreased range of motion. Dr. Visconti’s opinion was that Mr. Eichmuller required a permanent modification in his work, to limit him to sedentary and light duties. He further added that he might need retraining or a re-entry program. In Dr. Visconti’s notes he indicates that the gradual deterioration is expected.

He noted in that report: Patient has worked at current very physically demanding occupation as long as possible and cannot carry on any longer - may need retraining in sedentary occupation. [ 27 ] At the time the Defendant considered Mr. Eichmuller’s application for longterm disability the following medical opinions were available to them: Dr. Pfaff (chiropractor), Dr. Visconti (family doctor), and Dean Cross (physiotherapist). The reports and conclusions from Dr. Pfaff and Dr. Visconti are discussed above. Mr.

Eichmuller attended an appointment with Dean Cross at the request of Blue Cross. [ 28 ] Dean Cross is a physiotherapist, with a Bachelor of Science from the University of Alberta in 1990. He runs a company called ReMed, an education and exercise based clinic. He was asked to complete this report by Blue Cross, presumably to determine if the short-term disability benefits were properly payable. Mr. Cross’s report recommends a treatment program that he runs through his office at a cost of $1,800.

He asks patients who come in for their “independent assessment” to sign an agreement to join his program before he begins his evaluation. Mr. Cross saw Mr. Eichmuller on December 18, 2002 and his report was prepared on January 5, 2003. Mr. Cross’s report says that Mr. Eichmuller had been off work for approximately six months, when in fact it had only been six weeks. Mr. Cross did not review the medical reports or the X-rays, either before or after his examination, but was content to base his opinion on Mr. Eichmuller’s self-report. He did not know what medical reports he received or reviewed.

Some of the items that Mr. Cross did not address, or was not aware of, include: - neck and shoulder problems, - losing grip strength, - knee brace, although Mr. Cross confirmed that the right knee was larger than the left knee, - varicose vein problems, - support stockings, and - ankle brace. [ 29 ] Mr. Cross’ opinion of Mr. Eichmuller’s condition provided that: “... a period of 4-6 weeks of education and exercise based treatment would achieve symptom reduction and functional restoration to allow a graduated return to work plan to be implemented”. [ 30 ] I have read and re-read the report from Mr.

Cross and the reports from Dr. Visconti and Dr. Pfaff contained in the physician statements required to be completed to support the application for longterm disability. I find it difficult to reconcile Mr. Cross’s opinion with that of the two doctors. In my view, in light of his failure to consider Mr. Eichmuller’s lengthy medical history, to inquire further into obvious physical deterioration, including a swollen knee, failing grip strength, and ankle brace, and his decision not to review x-rays or other medical reports casts serious doubts on the weight Mr. Cross’s evidence should be given.

Further, the fact that his recommendation of a four to six week program of education and exercise which corresponds with the program offered through his clinic, offered at a cost of $1800.00, raises issues of conflict of interest and credibility. These questions are further heightened by the

contradictory opinion of Dr. Apel, discussed later in these reasons. [ 31 ] The Defendant’s rejection letter dated July 30, 2003 refers to the attending physician statement completed by Dr. Visconti and Dr. Pfaff’s clinical records, and then refers to Mr. Cross’s opinion of January 5, 2003. The Senior Customer Care Specialist accepted, without exception, Mr. Cross’ opinion in sharp contrast to Dr. Visconti’s reports that Mr. Eichmuller’s low back pain and his diagnosis of multi-level degenerative disc disease of the lumbar spine had been a problem for many years. Dr. Visconti’s report indicated that Mr.

Eichmuller could not “carry on with his current work load” as a result of gradual and ongoing deterioration. In regards to restrictions, Dr. Visconti said that he was only capable of sedentary and light activities and should not be bending, lifting, or exertion. The insurance company’s rejection letter does not consider the recent x-rays (November 5, 2002) taken by Dr. Pfaff just days before Mr. Eichmuller’s final day of work. These were objective indications that Mr. Eichmuller was in regular contact with the medical profession to deal with pain. Additionally, Dr.

Pfaff’s records prior to November 11, 2002 indicate that his visits became more frequent and regular due to increased pain. [ 32 ] The Defendant did not provide analysis or reasons why Mr. Cross’ evidence was accepted over the evidence of the chiropractor with experience in the area of functional capacity and with the medical doctor who had significant experience with Mr. Eichmuller. Medical Evidence after the benefits denial [ 33 ] At the trial, the inter-disciplinary team of medical professionals called by Mr. Eichmuller all indicated that Mr.

Eichmuller was disabled after November 11, 2002 from carrying out his material and substantial duties as a B-pressure welder. [ 34 ] Dr. Apel is a medical doctor with specialization in physical medicine and rehabilitation and an ongoing interest in musculoskeletal rehabilitation and chronic pain rehabilitation. Dr. Apel saw Mr. Eichmuller on May 19, 2004 and again on June 7, 2007. In her earlier report, Dr. Apel reached the following conclusions and diagnoses: 1.

Multilevel Osteoarthritis of the vertebral spine, radiologically and clinically, and left sacroiliac joint clinically, with left L5 radiculopathy versus chronic sciatica. 2. Mechanical neck pain localized clinically to degenerative changes of intervertebral discs, posterior vertebral elements, including C2-3 and C3-4 cervical facet joints. 3. Osteoarthritis of the left thumb, mostly at carpometacarpal joint, with inflammatory degenerative arthritic changes at metacarpophalangeal joints of digits III and IV, mostly affecting the left hand. 4.

Mild left carpal tunnel syndrome on a background of mild to moderate median nerve neuropathy, focally localized to the wrist on the left, and very mild on the right. 5. Mechanical left knee medial joint pain , not yet diagnosed. 6. Right ankle pain localized to the Deltoid ligament, with radiological evidence of mild ankle arthritic changes and osteochondrosis of right talus. 7. Post-phlebitic syndrome of right leg, mild.

8. History of epilepsy. 9. History of cardiac arrhythmia (unknown type). 10. History of hyperglycemia. Neither condition was of known control to the writer. 11. Osteoporosis and history of anxiety. [ 35 ] Dr. Apel responded to questions posed as follows: a. Is Mr. Robert Eichmuller now able to perform his occupation as a welder? No. In the writer’s opinion, based on the patient’s overall condition, affected by all the diagnoses above described, it would be the writer’s opinion that Mr. Eichmuller is neither able to work productively, nor safely, as a welder, despite his significant experience in this area.

Please note that the absence of appropriate safety for the patient’s employment as a welder, not only is applicable to him, but also to his coworkers. b. Is there any reasonable likelihood that Mr. Eichmuller will ever be able to regain his physical capacity to perform his occupation as a welder? In the writer’s opinion, the answer to this question is again, negative. As the patient’s condition will usually follow a progressive course expected gradually with age and getting worse, rather than better.

Appropriate treatment, conditioning, exercise management and pharmacological therapy, at best, can keep the condition stable or decrease the symptoms and signs progression - rather than reverse those sufficiently, allowing the patient to be employable as a welder again, in a competitive market or be safely employed at a medium to moderate physical capacity occupation. [ 36 ] In her latter report she also confirms the diagnosis and the medical conditions previously noted. [ 37 ] Dr. Apel was critical of Mr. Cross’ report pointing out that no medical history was undertaken regarding other complaints affecting Mr.

Eichmuller’s ability to work. The Oswestry Back Pain Disability questionnaire was only taken in relation to the patient’s low back pain, not in regards to his overall state of health, the physical examination was extremely scanty, non-specific, and was only of the lower back, and the patient was not assessed as a whole. She disagrees with Mr. Cross’ implied conclusion that a patient can recover from degenerative disc disease. [ 38 ] Dr. Apel struck me as a most professional and convincing expert.

She had access to all of the Plaintiff’s and Defendant’s medical reports and discussed in detail why she disagreed with the Defendant’s reports. She identifies subjectively and objectively all of the complaints that Mr. Eichmuller indicated. She reviews her objective confirmations. She recognizes that employability means not only that you can do the job, but you can do the job safely having regard to the employee’s safety and fellow workers’ safety. Her conclusion is clear that Mr. Eichmuller could not continue work as a B-pressure welder.

In her report she clearly is aware of the nature of the work and the danger factor. [ 39 ] Dr. Apel concluded that in a competitive employment market, Mr. Eichmuller was challenged by his age, his limited vocational experience, his medical conditions, and would likely be unable to work a full day. [ 40 ] I am satisfied based on the preponderance of evidence that Mr.

Eichmuller was limited from performing the material and substantial duties of his regular occupation due to his ongoing lower back degenerative disc problems and the proliferation of health conditions from which he suffered, even though there was no spectacular incident that led to his leaving work on November 12 that

caused injury to his back. He had increasingly sought medical advice and attention with Dr. Pfaff. Finally, the incident of dropping agrinder could easily have injured Mr. Eichmuller seriously or someone working with him. [41] I reject the Defendant’s suggestion that Mr. Eichmuller had no intention of trying to return to some sort of work, based on hisdecision to sell the Sherwood Park acreage and move to British Columbia because of his on-going health problems.

He indicated that hecould no longer continue the up-keep on the acreage and they therefore had to move. [42] He is therefore entitled to receive disability benefits from March 2003 to March 2005. Issue 2: Disability Entitlement after 24 months of payments (March 2005 until Mr. Eichmuller’s retirement date) [43] The Policy provides that after 24 months of disability from his own occupation, further benefits are payable if the insured isunable to perform the duties of any gainful occupation for which he is reasonably fitted by education, training or experience.

Againful occupation is one that provides at least 60% of his pre-disability income. [44] Courts have considered similar language in a number of cases. In McCulloch v.

Calgary (City) (1985), (AB KB), 62 AR 209 (QB), the Court noted (at para. 24): The unavailability of employment for which the person is qualified, or his inability to find such employment, is normally not a relevantfactor in determining total disability, the test being whether the person is qualified and capable of performing the duties of aparticular occupation or occupations, and not the availability of employment in such occupation or occupations.

In this case, however,it should be noted that the definition of total disability specifies that the plaintiff must be unable to perform the duties of anyemployment for which he is qualified “ and which is available on a reasonably continuous basis”. The availability of suitableemployment is therefore a relevant factor here. (Emphasis added) [45] In Thevenot v.

Manufacturers Life Insurance Co. 2006 MBQB 58, 202 Man.R. (2d) 106 (QB) the Court noted (at para. 81): The defendant is not required to show that a job was available and waiting for the plaintiff but is required to submit evidence of anoccupation for which the plaintiff is capable and reasonably qualified by education, training and experience. The plaintiff’s claimis for disability insurance and not unemployment insurance. The law is that the unavailability of employment for which the person isqualified or the inability to find such employment are normally not relevant considerations.

The test is whether a person can do a jobbased upon education, training or experience. (Emphasis added) [46] Mr. Eichmuller has not looked for work and has not been employed since November 2002. He maintained his exercise regimeand controls his back pain through exercise. He bikes and swims when seasonally appropriate. He cares for his eight-year-oldgranddaughter, and he volunteered as a driver for senior citizens in British Columbia for a short period of time before his granddaughtercame to live with them. He enjoys using the computer and reading and writing.

He did not hear from his employer after he left in 2002.He did not consider applying for jobs as an inspector or a foreman/supervisor as he did not feel he was good with paperwork and oftensupervisors are promoted through the company, rather than as a new employee. [47] It is notable that there is no evidence from his employer that it was interested in continuing Mr. Eichmuller’s employment as asupervisor or an inspector, or in a lesser capacity or modified capacity within the organization. There is no evidence of any proposedwork re-entry prepared by the insurance company.

There was also no evidence of availability of that work in Alberta or BritishColumbia. [48] After the Defendant denied Mr. Eichmuller’s disability benefits in July of 2003, there were a proliferation of medical expertreports obtained by both the Plaintiff and Defendant dealing with the secondary issue of whether Mr. Eichmuller was unable to perform

the duties of any gainful occupation for which he was reasonably fit by education, training or experience. Approximately 16 medical experts were consulted, including family doctors, occupational therapists, physiotherapists, specialist doctors, psychologists.

The Plaintiff called ten experts and the Defendant, four. [ 49 ] In assessing the contradictory evidence of experts, I conclude that the following factors are important: - the qualifications and experience of the expert; - the number of times the subject/patient was seen; - the medical history or information available and reviewed by the expert; - the patient’s self-report ; - X-rays and other objective tests; - whether there were detailed physical examinations, and - the psychological tests administered. The Plaintiff ’s experts [ 50 ] Dr.

Apel indicates in her July 3, 2007 letter that ...the patient is not totally disabled. He is able to engage in physical labour provided it is not strenuous and has a significant number of restrictions and limitations incorporated in the work duties. I will specifically refer you to page 12 of the report from May 19, 2004 where those questions were answered. To avoidance or restriction of heavy lifting, pushing, pulling from the floor to waist level, sustained crouching, kneeling - especially on the affected knee or sustained squeezing or repetitive use of vibration tools. [ 51 ] Dr.

Michael Jeanes is a medical doctor (family practitioner) who took over Mr. Eichmuller’s care after he moved to British Columbia in August 2003. His August 2005 letter confirms multi-level degenerative disc disease plus nerve entrapment of lumbo-sacral spine and opines that Mr. Eichmuller is certainly disabled from working as well as some activities of daily life. In an April 2008 letter, he confirmed that diagnosis and indicated that Mr. Eichmuller continues to be disabled from any manual work and any work that requires prolonged sitting or standing.

He confirmed degenerative disc disease, the bilateral foraminal stenosis, leg pain, carpal tunnel consistent with osteoporosis, and talks about the sciatica of the right leg and left leg worsening. [ 52 ] Dr. Salem Esmail is a specialist in orthopaedic medicine and surgery and has worked in the area since 1987. He has been a consultant for the rehabilitation of occupational injuries since 1988. Dr. Esmail saw Mr. Eichmuller in October of 2003 and June of 2007. His report of October 2, 2003 contains the following diagnosis: 1. Degenerative disc disease (cervical spine) with associated pain. 2.

Degenerative disc disease (lumbar spine), facetal arthritis and possible spinal stenosis. 3. Osteoarthritis (right ankle). 4. Venous edema secondary to vein surgery for varicose veins (right leg). 5. Osteoarthritis (base of the left thumb). 6. Ligamentous injury and osteoarthritic changes (right index finger at the distal interphalangeal joint). 7. Epilepsy. 8. Hyperglycemia.

9. Cardiac arrhythmias. 10. Rotator cuff tendonitis (right shoulder). [ 53 ] Dr. Esmail confirmed his diagnosis of spinal stenosis, facetal arthritis, degenerative arthritis and degenerative disc disease of the lumbar spine with an MRI conducted October 2003. [ 54 ] The letter from Dr. Esmail, dated December 9, 2004, reads as follows: This means that he does not have the classical spinal stenosis, but he does have foraminal stenosis. He also has fairly significant arthritis in his lumbar spine.

The degenerative changes that he has would interfere with lifting, pushing, pulling, and trunk twisting activities, especially if they are done on a regular basis. This is because the degenerative joints and surrounding tissues would flare up with repetitive heavy lifting, pushing, pulling, and trunk-twisting activities. These are the activities that prevent this man from returning to gainful employment.

I trust that this clarifies the matters. [ 55 ] In his letter of June 18, 2007, he notes: Based on the physical findings that I have discussed and clinical assessment, I do not believe this man is capable of returning to work as a welder in the competitive environment. [ 56 ] Further in a letter dated September 19, 2007, he states: This man will naturally protect himself from further exacerbating and aggravating his condition and therefore one would expect a man with this kind of arthritis to protect himself and not to exert himself maximally so as to prevent harming himself.

I do not see too many patients who have this type of arthritis and multitude of pathologies that this man has going all out to put the best effort forward to provide what they can or cannot do because generally speaking, if these patients do that, they hurt themselves even more to a greater extent and suffer because of that effort. Having examined this man, reviewed the information and x-rays and x-ray reports, in my best medical judgment, this man is not capable of returning to any meaningful employment . His non-organic physical findings are not a major issue.

Those are minor concerns and perhaps distractions with regards to looking at the overall picture of his abilities and disabilities as related to the underlying pathologies. (Emphasis added) [ 57 ] Ms. Appelt is an occupational therapist with 26 years experience and works in assessment of function and employment capacity. She was asked to carry out a functional capacity evaluation of Mr. Eichmuller and that assessment was done December 1, 2003. The report, dated January 6, 2004, focussed on Mr.

Eichmuller’s capacity to perform as a welder, but the functional problems she identifies are also relevant when considering what other gainful occupation might be available to him. Based on a review of relevant medical reports and on the findings of this functional capacity evaluation, it is the writer’s opinion that Mr. Eichmuller is no longer able to perform the customary duties of his customary occupations as a Welder.

The most significant limitations include insufficient manual handling capabilities, reduced tolerance to climbing activities, inability to sustain kneeling, crouching or bending postures, weak and painful left hand grip and pinch strength, and restricted tolerance to working with the right arm at or above chest level due to right shoulder and neck pain. He is also unable to perform safe lifts from floor level because of right ankle and lower back pain. His already reduced functional tolerances are expected to deteriorate over time as his condition progresses . (Emphasis added)

[ 58 ] She was asked to update her functional capacity valuation and a report dated June 14, 2007 confirms her previous diagnosis in the following conclusion. My opinion remains unchanged from previously, Mr. Eichmuller continues to demonstrate insufficient physical functional tolerances for employment as a Welder.

Most significant limitations include: - insufficient manual handling capabilities (lifting/carrying); - poor tolerances for bending, stooping and overhead work; - poor tolerances for sustained kneeling or crouching activities due to varicose veins as well as left knee and right ankle pain; - painful left hand grip (impacting on tool-handling and gripping abilities). As noted in my previous report and those of other health care professionals, Mr. Eichmuller’s already diminished functional tolerances are expected to deteriorate over time as his condition progresses. Defendant ’s experts [ 59 ] Dr.

Thomas Peter Lesiuk, a medical doctor specializing in physical medicine and rehabilitation, gave expert evidence on behalf of the Defendant. He saw Mr. Eichmuller in February of 2007 and provided a report dated February 12, 2007. Relevant to the issues before me, Dr.

Lesiuk provided the following diagnosis: - Musculoskeletal and cardiovascular conditioning - overweight status - probably mild mechanical low back pain - Mild left patello-femoral mechanical pain symptoms of the knee - mild osteoarthritic discomfort MCPs, and CMCs - Hyperglycemia? early Diabetes Mellitus - Epilepsy - Arrythmias [ 60 ] In response to specific questions, Dr. Lesiuk was of the opinion that Mr. Eichmuller could return to full part-time or part-time work, if he believed that he could return to full-time work. Dr. Lesiuk was provided with a number of the reports that have been filed in this matter.

He did not, however, acknowledge degenerative disc disease, stenosis and other significant and objective reconfirmed findings from other doctors. [ 61 ] Noel Wee and Gabrielle Wong prepared a joint functional capacity evaluation on behalf of the Defendant. Mr. Wong is an occupational therapist who had been working outside the field (from 2008 - 2012 as a floor installer), was extremely inexperienced and I struggle with his evidence. To do a functional capacity evaluation, he took a course that was a couple of days long and prepared a few reports since March 2012.

He focussed on increased heart rate as a sign of tolerance or intolerance of tasks requested. The problem with focussing on heart rate as a sign of tolerance, however, is that it does not reflect whether the subject is experiencing pain by doing the task; if he experiences pain, he will be less likely to exert the full force necessary to raise his heart rate, because doing so causes more

pain. Noel Wee, the co-author of the functional capacity evaluation, is a physiotherapist. They concluded that Mr. Eichmuller did not demonstrate full physical effort as he anticipated pain if he carried out some of the tests. [ 62 ] Dr. Kerry Mothersill has a PhD in psychology. His qualifications and experience are in the area of vocational assessment. His appointment with Mr. Eichmuller and report were in December 2008. He gave good thorough evidence and discussed identified possibilities of other employment that might be available and appropriate to Mr.

Eichmuller’s education, training and experience apart from welding. Dr. Mothersill suggests that Mr. Eichmuller may be capable of performing the duties of a Production Clerk, Inventory Clerk or Process Control Operator. He further indicated that Mr. Eichmuller might be able to be a Supervising Welder or an Inspector although he agreed that supervisors and inspectors are usually appointed from within an organization.

He also agreed that he had no idea how many people might be competing for those supervisory positions and that some might be younger and better able to handle the supervising and paperwork aspects of these jobs. The three occupations recommended by Dr. Mothersill are at skill levels C (lower than the skill level of a welder), and are considered intermediate occupations, requiring some experience in administrative functions. Plaintiff response to Dr. Mothersill ’s evidence [ 63 ] Brian Hawrelak is a Senior Disability Analyst and Rehabilitation Counsellor with a Bachelor of Arts in Sociology.

He has been Rehabilitation Counsellor with Hawrelak & Associates for approximately 30 years, and he is presently managing partner. The plaintiff called him as an expert. Mr. Hawrelak questioned Dr. Mothersill’s conclusion that Mr. Eichmuller could obtain employment as a supervisor. In his opinion, if Mr. Eichmuller had been a strong candidate for a supervisory role, he would have been promoted before the onset of his disability at age 55. Further, it is unlikely that a promotion to supervisor would occur from unemployment. Mr. Hawrelak suggests that Mr.

Eichmuller might be able to obtain employment at skill level B - gas bar attendant, hotel desk clerk or small store clerk - low paying jobs, often part-time. [ 64 ] Norman Brodie, a psychologist with an interest in neuropsychology attended the interview portion of the psychological assessment conducted by Dr. Mothersill on October 7, 2008. He reports, in a letter dated February 13, 2009, that during the interview Mr. Eichmuller was consistent and apparently realistic. He did not exaggerate his pain behaviours or show evidence of malingering of deficits or impairments for secondary gain.

He did have difficulties sitting for extended periods of time and frequently needed to shift position, but he remained cooperative and tried to respond to the questions to the best of his ability. This is contrary to some of Dr. Mothersill’s observations regarding sitting and standing and exercise of pain behaviours. Mr. Brodie expressed concern about Mr. Eichmuller’s ability to carry out vocational retraining and coping with new learning or retraining positions. Mr. Brodie was also concerned that Mr.

Eichmuller is at the end of his career and would be competing with individuals with recent training who are at the beginning or mid-range of their careers. He was ultimately of the opinion that Mr. Eichmuller’s potential for vocational re-integration was significantly lower than Dr. Mothersill’s conclusion. He asserts that it is far more difficult to go from a situation of unemployment to supervisory employment than to be promoted within a company. Finally, his conclusion : I would be of the opinion that Mr.

Eichmuller is presenting with a very significant combination of physical and medical problems, ongoing chronic pain limitations on physical activities, somewhat limited intellectual/educational potential and advanced age would result in severe compromise of his vocational rehabilitation , regardless of whether he is referred to an receives additional therapy in a pain management clinic program or not. (Emphasis added) Analysis [ 65 ] Most of the experts confirm that Mr. Eichmuller cannot continue his work as a B-pressure welder because of the disabilities suffered since November 2002.

Based on the evidence from Dr. Pfaff, Dr. Visconti, the physician statements, Dr. Apel, and the many experts, called by both plaintiff and the defendants, it is apparent that even if Mr. Eichmuller were retrained and reeducated provided with appropriate breaks, he likely would not be able to work a full day. He cannot stand or sit for very long. The real question is whether with all his disabilities, there is any employment that he might be able to do and any employer who might be willing to hire him.

[66] Mr. Eichmuller was an outstanding welder during his career. Few of those welding skills are transferable to the jobssuggested by Dr. Mothersill. Certainly there are limits of his availability for work in the oilfield, an area which he would know wellbecause of his welding experience. There is a suggestion that Mr. Eichmuller did not cooperate with all of the professionals charged withanalyzing his ability to work. Based on all of the evidence, on observing Mr.

Eichmuller giving evidence, and my assessment of thevarious witnesses, I am satisfied that, within his capabilities, he was generally cooperative and compliant with requests for reports. Mycalculation is that he saw 15 or 16 professionals in various capacities and his patience in performing activities for all of thoseprofessionals is significant. [67] I accept the evidence of the plaintiff’s experts generally and and find it compelling in terms of Mr. Eichmuller’s ability to gainother employment. I conclude that Mr. Eichmuller was disabled from any gainful full-time occupation from March 2005.

Mitigation: CPP Disability Benefits [68] The policy reads: Your payment may be reduced by disability earnings. [69] The Defendant argues that Mr. Eichmuller should have applied for Canada Pension Plan (CPP) Disability Benefits and, if thatapplication had been approved and received, then those payments would have been deducted from any long-term disability. In theabsence of the application the amount that could have been received should be deducted from any benefits ordered to be payable. [70] Mr.

Eichmuller argues that because he had a policy of private disability insurance, he did not want to receive governmentassistance and be a burden on the Canadian taxpayer. Therefore he did not apply for CPP Disability Benefits. [71] All employees pay into the CPP programs and disability payments are earned entitlements, not government payouts. MrEichmuller should have applied to CPP for disability benefits to mitigate his disability benefits. However, I cannot determine on behalfof CPP whether or not they would have approved Mr. Eichmuller’s application for a disability pension.

Also, I am not aware of whetherretroactive application can be made for those benefits. I therefore must take the evidence as presented. CPP is not a party to this actionand is not bound by any of the findings that I make between the Plaintiff and the Defendant. I am therefore not prepared to assess facts oreligibility requirements which may be relevant to the issue of CPP disability entitlement. See Coderre v. Lambert (1993), 14 OR (3d)289 (Ont CA); Chrappa v. Ohm (1996), (ON SC), 29 OR (3d) 222 (Ont Gen Div).

Mitigation: Part-time employment [72] After the initial denial of long term disability benefit, there seems to have been no efforts made by Mr. Eichmuller or by theinsurance company to assist with any return to work program. Instead, the parties became involved in a war of medical reports. Themove by the Plaintiff to British Columbia is significant. I have no evidence that there is any kind of work available that the Plaintiffmight have been able to do in British Columbia.

I find that he limited his ability to find part-time work by making that quick move toBritish Columbia, although there were many factors that suggest that it was appropriate for other aspects of his life. [73] Some type of part-time employment could have, and should have, been considered by Mr. Eichmuller. Therefore his damagesin the second portion of his disability claim from 2005 to 2012 should be reduced by 20% of his pre-disability income of $55,000 a year,the amount the Policy defines as meeting the part-time employment definition. Issue 3: How should the LTD benefits be calculated? Pre-disability income

[ 74 ] Mr. Eichmuller incorporated a company, R&H Welding Ltd. He and his wife, Heidi, were the shareholders of that company. Mr. Eichmuller paid the income he earned from Presson Manufacturing Inc. to R&H Welding Ltd. based on the hours of work and the agreed upon hourly wage. Once the money was paid to R&H Welding Ltd., Mr. Eichmuller and his wife split the income between them, saving a significant amount in income tax. The following table shows the income paid from 1999-2003. Presson Manufacturing Inc. to R&H Welding Ltd Taxable Income of Mr.

Eichmuller shown on his tax return 1999 - $95,817 $40,000 2000 - $89,918 $40,000 2001 - $104,972 $50,000 2002 - $86,080 $40,000 2003 - $56,388 [ 75 ] There is an Agreement signed August 29, 1997 between Presson Manufacturing Inc. and R&H Welding Ltd. that establishes R&H Welding Ltd. as an independent contractor and allows the independent contractor to join the Corporation group benefit plan and that sets out the rate of hourly pay to R&H Welding Ltd. Mr. Eichmuller signed that agreement on behalf of R&H Welding Ltd. [ 76 ] Mr.

Eichmuller took advantage of the group benefit program (life insurance, drug insurance, dental insurance and disability insurance). Each month when R&H Welding Ltd was paid for the work done, Mr. Eichmuller would in turn provide a cheque for the group benefit package to the office personnel at Presson Manufacturing Inc. His premiums for that benefit package were calculated based on an income of $55,000. That income figure of $55,000 is used repeatedly by Presson Manufacturing Inc. in various documents. There is no explanation provided for that arbitrary figure.

Presson was acting as an agent for R&H Welding Ltd. and Mr. Eichmuller. (Policy “For purposes of this policy, your employer acts on its own behalf or as your agent.) [ 77 ] This law suit is between Mr. Eichmuller and Provident Life and Accident Insurance Company. The insurer can only act upon the information they receive from Mr. Eichmuller or R&H Welding Ltd. or Presson Manufacturing Inc. The premiums and benefits paid by R&H Welding Ltd. or Mr. Eichmuller were based on an income of $55,000. Mr.

Eichmuller says that he did not have a particular interest in disability provisions and did not therefore pay close attention to the terms of the benefit package or the income amount on which his premiums or benefits would be based.

However, ultimately he and his company are responsible for the information that the insurer had in its possession. [ 78 ] The relevant information contained in the policy is as follows: UnumProvident will base your payment on your earnings as reported at the most recent March 1 st or September 1 st . “Monthly earnings” or “pre-tax monthly earnings” means your monthly income, before deductions for federal and provincial taxes, from your employer in effect just prior to your date of disability.

Changes in salary will be reported to UnumProvident by your Employer every March 1 st and September 1 st . (Emphasis added)

[ 79 ] The information provided by Presson Manufacturing Inc. to the Defendant showed Mr. Eichmuller’s income to be $55,000. Mr. Eichmuller argues that the benefits payable should be based on the income paid to the corporation (the income he actually earned). The Defendant however, has no access to that information. Mr. Eichmuller cannot have it both ways. The income tax benefits of splitting his income and the disability amount calculated on the income paid to the Corporation. Mr. Eichmuller took advantage of the income tax benefits of splitting income.

He did not address his mind to the disability premiums and benefits that would be payable as a result of that income splitting. Conclusion [ 80 ] Mr. Eichmuller is entitled to long term disability benefits from March 2003 to March 2005 as a result of his inability to carry on his job as a B-pressure welder. Those benefits are based on the financial information provided by Presson’s HR Department to RBC and the monthly payments made in that regard. [ 81 ] Thereafter Mr.

Eichmuller is entitled to ongoing longterm disability from April 2005 until the day he turned 65, reduced by 20% of his pre-disability income, the amount he could likely have earned if he had sought part-time employment. [ 82 ] Since September 2009 Mr. Eichmuller has been receiving CPP retirement benefits of $572.17 per month and those are properly deducted from the benefit payments. Heard on the 2 nd - 23 rd day of April, 2012. Dated at the City of Edmonton, Alberta this 7 th day of November, 2012 B.A. Browne J.C.Q.B.A. Appearances: Helmut Berndt for the Plaintiff James T. Neilson, Q.C. B.

Rhiannon Adams - Student at Law for the Defendant