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May 2013

When Does 'Complete' mean 'Less than Everything'?
A FSCO Fait Accompli?

In the recent FSCO arbitration decision Hensworth v. State Farm (March 18, 2013) Arbitrator Joyce Miller awards post-104 week IRBs to a woman who returned to work and earned post-accident income comparable with her pre-accident income.


Lucrecia Hensworth was injured in a motor vehicle accident on July 29, 2007. She was thrown off her motorcycle and sustained multiple fractures to her left forearm, pelvis and right hip and required immediate surgery. As a result of her injuries she continued to have physical pain, depression and chronic fatigue.

At the time of the accident she was working two jobs. She was working full time as a driver for Wheel-Trans for the Toronto Transit Commission (TTC) averaging more than 40 hours per week. She was also working as a part time porter for the Humber River Regional Hospital, averaging almost 25 hours per week.

She had a high school diploma and completed a college program in aircraft maintenance and engineering at Centennial College. She did not complete the required apprenticeship program to work as an aircraft mechanic. She also completed a large vehicle maintenance program through Centennial College. As a result of a previous motor vehicle accident, she could not work as a big truck mechanic due to injuries and the physical demands of the job. Her previous work history primarily included jobs as a groundskeeper, cleaner and porter.

In September 2010 the applicant returned to work at the TTC as a fare collector which is a sedentary position. The applicant testified that the position of fare collector at the TTC is for people with medical issues, who are close to retiring, or for workers who are problematic. The role of a fare collector is demoralizing. Ms. Hensworth did not enjoy her job as a fare collector but felt it was the only job she could get. TTC is planning on modernizing and automating the system and will soon eliminate her job. She was working 60 hours per week.

IRBs were terminated on November 10, 2009 based on the fact that the applicant was working and her salary was comparable to her pre-accident earnings.


Ms. Hensworth meets the post-104 week test and is entitled to receive IRBs, less amounts earned.

The Arbitrator found Ms. Hensworth to be a very credible witness. Over her life she had displayed a strong work ethic. This was demonstrated again when she sought out the fare collector job.

The post-104 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 fact that her post-accident earnings were competitive with her pre-accident earnings was not determinative. The fare collector job does not reasonably reflect Ms. Hensworth's education, training or experience. The fare collector job is not reasonably comparable in nature and status of her pre-accident employment and experience.


Counsel for State Farm has advised that this decision is being appealed.


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