Neutral Citation: 1992_ONICDRG 27

File No. A-000790

ONTARIO INSURANCE COMMISSION

BETWEEN:

ELAINE BOONE

Applicant

and

STATE FARM INSURANCE COMPANIES

Insurer

DECISION

Issues:

The Applicant, Elaine Adele Boone, was injured in a motor vehicle accident on October 27, 1990. She was insured under an automobile owner's standard policy issued by the Insurer. Every motor vehicle liability policy provides the no-fault benefits, payable under Part IV of Ontario Regulation 273/90 ("the Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8 ("the Act").

The Applicant applied for weekly income benefits following the motor vehicle accident. At the time of the accident, the Applicant was 23 years of age, and was enrolled as a full-time Master of Arts candidate at Laurentian University, Sudbury, Ontario. Concurrently with her M.A. studies, she performed duties as a teaching assistant at the university in the History Department.

The Applicant claimed weekly income benefits under section 13 of the Schedule for injured persons who do not meet the employment criteria of section 12. She claimed that from October 27, 1990 and until April 30, 1992 she was suffering "substantial inability to perform the essential tasks in which she would normally engage". Mediation failed to resolve this issue and the Applicant applied for the appointment of an arbitrator. The parties agreed that there was an issue between them as to whether the Applicant should properly claim under section 12 or section 13 of the Schedule.

The issues to be determined in this arbitration are:

1. Is the Applicant entitled to benefits under s. 12 or s. 13 of the Schedule?

2. Is the Applicant entitled to weekly income benefits from Oct. 27, 1990 to April 30, 1992?

The Applicant also claimed her expenses of the arbitration.

Result:

The decision is:

1. The Applicant is awarded the following benefits:

Dates

Weeks

Rate

Total

Nov. 3, 1990 - Apr. 26, 1991

25

$57.80

$1,445.00

Apr. 27, 1991 - Aug. 31, 1991

18

74.49

1,340.82

Sept. 1, 1991 - Dec. 29, 1991

17

57.80

982.60

$3,768.42

2. The Applicant is entitled to interest on these amounts as set out in s. 24 of the Schedule.

3. The Applicant is entitled to her expenses incurred in respect of the arbitration under Section 282(11) of the Insurance Act and Regulation 275/90.

Hearing:

An arbitration hearing was held at Orillia, Ontario, on April 30, 1992, and resumed on June 19, 1992 at London, Ontario, before me, K. Julaine Palmer, arbitrator.

Present at the hearing were:

Applicant:

Elaine Adele Boone

Insurer's

Harry Brown

Representatives:

Barrister & Solicitor

Jim Smith

Geri Buckley

Legislation:

Pertinent portions of the No-Fault Benefits Schedule and the Insurance Act are set out in Appendix 1 of this decision.

Evidence:

Elaine Adele Boone, the Applicant, testified that in September 1990, she commenced her Master of Arts studies at Laurentian University in the Department of History. She intended to pursue a degree of Master of Arts in Canadian history, focusing on local social history. At the time she commenced her master's studies, she intended to complete her entire degree, including her thesis and course work, within a twelve-month period. To obtain her master's degree, the Applicant was required to prepare a thesis and complete three courses, each involving three hours of class attendance per week. The subject of the Applicant's thesis was the development of tourism in the Muskokas from 1860 to 1930.

Prior to attending Laurentian University, the Applicant had graduated with an Honours Bachelor of Arts degree in History from the University of Waterloo. In the final year of her Honours Bachelor of Arts, her marks were as follows:

HIST 403A

Canadian History

A-

HIST 491

Independent Study

A-

HIST 401A

Research Seminar; European History

A-

HIST 403B

Research Seminar; Canadian History

A-

(Exhibit 4)

The Applicant testified that the type of courses she completed in the final year of her Bachelor of Arts degree were similar to the courses which she pursued at the master's level. The final marks were derived from a combination of examinations, essays, seminar preparation, and class participation. The Applicant gave evidence that she applied for graduate study at four Ontario universities and was accepted at all of them. She chose Laurentian University because of its excellence in Northern Ontario social history.

The Applicant testified that because of her high standing she received an Ontario Graduate scholarship valued at $12,000, which was paid in three instalments over the 1990/91 academic year. A graduate student may receive such a scholarship more than once. The Applicant testified that subsequent to the accident she was refused an Ontario Graduate scholarship for the 1991/92 year. She attributed this refusal to her poorer academic performance in her master's courses, as a result of the injuries she received in the accident.

Following the motor vehicle accident of October 27, 1990, the Applicant received hospital care and was unable to carry on any of her normal activities for two weeks. At the time of the accident, the Applicant had been stopped on Highway 17 East in Sudbury to make a left-hand turn into the Humane Society. The car behind her slowed, but the next car behind pulled out and passed on the left and hit the rear driver's side of her vehicle. The Applicant's vehicle spun one and a half times and came to rest in a steep ditch on the opposite side of the road. In the accident, Elaine Boone sustained injuries to her back, neck, left shoulder, left jaw and cheek.

Role of Teaching Assistant:

The Applicant testified that it was customary for all full-time master's candidates at Laurentian University to act as teaching assistants in the department in which they were enrolled. The Applicant testified that teaching assistants were paid a total salary of $5,507.60 for an eight month contract. The salary was paid monthly in arrears on the 25th day of each month. The Applicant stated that in accepting a teaching assistantship a master's candidate was required to refrain from taking any additional employment. The "job description" of each university department for its teaching assistants varied, but not more than ten hours work per week was to be required from a teaching assistant.

The Applicant testified that in the 1990/91 year in the history department at Laurentian University five teaching assistants were assigned to professors to assist in various duties. The Applicant's principal duty in 1990/91 was to assist first-year undergraduate students with a program known as "Writing Across the Curriculum". She gave them advice and read and edited their essays. The Applicant was also expected to assist professors by giving seminars, occasional lecturing and supervising tests and examinations.

The Applicant testified that following the accident her academic advisors were very lenient with her and expected her to do very little as a teaching assistant. Occasionally she would supervise an examination, but she in no way carried out the amount of work that she had previously done for the department.

In the 1991/92 academic year, the Applicant also received a teaching assistantship in the History Department at Laurentian University, at the same rate of pay. The Applicant testified that during the period September 1991 to April 1992 she worked as a "floater" because there were only two teaching assistants in the department that year. The Applicant estimated that she performed not more than 30 hours work as a teaching assistant throughout the whole of the eight months.

During the 1991/92 academic year, the Applicant represented her department on the Graduate Student Association and sat on a university committee drafting a policy on sexual and personal harassment. The total time spent at these meetings was six to eight hours per month.

The Applicant described her disabilities following the accident and the amount of time which she spent in rehabilitation activity. She found that she was unable to sit very long, that she was easily exhausted, and she suffered from constant back pain. She described herself as "weak, hurt and unhappy". The Applicant testified she would have lost her Ontario Graduate scholarship if she had withdrawn from university in the 1990/91 year.

After the accident, the Applicant testified she continued her course work toward her master's degree through sheer force of will and a desire to succeed; however, she found she could not put in the hours required, nor work at the level which she had previously achieved. As a result, it was her uncontroverted testimony that her marks in her course work were much lower than she might have otherwise expected, had the motor vehicle accident of October 27, 1990 not occurred.

The Applicant received the following marks in her courses:

Course No.

Grade

Mark

Credit

B

78

6.0

B

78

6.0

B

77

6.0

(Exhibit 3)

At first glance, these marks would appear to be more than satisfactory; however, the Applicant is a bright, ambitious young woman who was striving to enter a Ph.D. program at a Canadian university and was working towards the goal of obtaining employment as a professor at a Canadian university. In the end, she was refused admission to the two Ph.D. programs to which she applied. The Applicant testified that she was told by the graduate secretary, her academic advisor, that he felt she had the aptitude to pursue a doctorate, but that she was performing at a substandard level.

The Applicant submitted a letter (Exhibit 2) written by this advisor. The letter, dated July 17, 1991, was sent to the Insurer:

Ms. Elaine Boone has asked me to write you on her academic program here at Laurentian and her unfortunate accident of 27 October 1990. I write in my capacity as Graduate Secretary of the Department of History and research adviser.

As a graduate student Ms. Boone is required to attend her classes, undertake research and study. This normally takes up about three-quarters of her time. The remainder is spent with students, either in class or in her office.

As a direct result of the accident Ms. Boone missed two full weeks of formal classes, and on her return was noticeably uncomfortable, performing well below her normal capacity. She was unable to sit without discomfort, which meant that in all of her responsibilities to us she was at a disadvantage. That she was able to complete her year without failures, considering her physical and emotional stress, is fortunate indeed.

The Applicant described her physiotherapy at the Canadian Back Institute, from April 1991 to January 1992, usually involving four to five treatments each week. In January 1992, the physiotherapist told her they had done for her what they could, and that she should continue with her home exercises. The Applicant testified that the physiotherapists told her, in all likelihood, she would always have some pain, but that the more healthy and active she stayed, the less it would be.

During the summer semester of 1991, the Applicant received the third instalment of her Ontario Graduate scholarship and, in addition, a summer bursary of $2,500 from Laurentian University to help her with her research and living expenses while completing her thesis. The bursary was awarded based upon income and financial need. The Applicant travelled between Muskoka and Sudbury working in libraries, museums, and visiting resort sites. Some days she was required to take off because she could not cope with her back pain. Even on "good days", the Applicant testified she could spend only one or two hours in a library, when previously she would have spent 5 to 8 hours there. She also had to make additional trips and photocopy documents so that she could work on them as she felt able, in Sudbury or at her parents' home. The Applicant continued with almost daily physiotherapy and home exercise. She attempted to engage in a swimming program, but found the flutter kick too painful. (In the past, the Applicant had worked as a lifeguard and was an excellent swimmer.)

The Applicant described her present disabilities. When she carries groceries, she must make sure that she has the load balanced on each side. She is unable to carry a laundry basket without pain. She cannot scrub the bathtub. The Applicant testified that she is no longer able to ski downhill or cross-country, nor canoe for more than one half hour. She has difficulty lifting and carrying small children, and this makes her apprehensive about her future aspirations as a mother. When she drives, the Applicant uses an Obus Forme back cushion; she also has a special chair and cushion to help ease back strain leaning forward to write at a desk.

The Applicant described her activity in March 1992 in moving from her apartment. She testified she felt she had set her recovery back by several months by lifting and carrying the many objects involved in such a move. The Applicant described herself as a person who likes to be busy and hates to be unable to do activities in which she would normally participate.

The Insurer called no evidence. I requested the Insurer to provide copies of medical reports which it had obtained, pursuant to authorizations given by Ms. Boone. I reviewed four reports from the Canadian Back Institute with respect to Ms. Boone's progress and a Form 4 report of Dr. Shehnaz Pabani, family physician. The most recent report of the C.B.I. refers to a diagnosis by Dr. Dhiman of spondylolisthesis.

Submissions:

The Insurer's counsel submitted that this was a case where it was necessary to decide two questions about the Applicant: (1) What is she entitled to? and (2) Where does she fall (s. 12 or s.13 of the Schedule) ? He submitted that the Applicant said it best herself: her evidence was that graduate education was more than going to school -- "it's an occupation or career path", she said. The Insurer's counsel submitted that if the Applicant's original application had been for s. 12 benefits, she would be disentitled, because her employer continued to pay her; if she had not been paid, then she would have been entitled to weekly income benefits under s. 12. Her proper category is s. 12.

Section 13(7) of the Schedule makes it clear an Applicant cannot receive both s. 12 and s. 13 benefits at the same time. If the arbitrator finds the Applicant qualifies as a s. 13 applicant, she cannot receive benefits because of the provisions of s. 16(3) [receiving benefit while attending school].

The Insurer's counsel reminded the arbitrator that the benefits provided under the Schedule do not include general damages, or damages for pain and suffering. He submitted that the Applicant suffered only a modest decline in her academic achievement; she was not accepted at the two universities she applied to for a doctoral program. Some master's candidates take two years to complete their degree; it seems a considerable enterprise and a lot to attempt in one year. This applicant did not suffer "substantial disability".

State Farm paid tuition and residence for the Applicant for the 1991-92 year, under s. 6(1) (f) of the Schedule. The Insurer's counsel submitted that its obligation to pay this was questionable but the Insurer had paid it because "this insured is decent and honest and it wanted to be as fair as possible".

The Insurer's solicitor submitted that the Applicant was performing the essential tasks of her occupation or employment; she did take time out for physiotherapy, but she did perform. The arbitrator must look at her occupation or employment as a teaching assistant; even in the summer of 1991, it is the question of her ability to work as a teaching assistant which is the question to be addressed. He submitted that the Applicant would have been able to do this work in the summer of 1991 had she been called upon to do it.

In the summer of 1991, the Applicant received a bursary which may be deductible; either under s. 12(4)(b) of the Schedule it would be entirely deducted, or under s. 15, 80% of it would be deductible.

Applicant's Submissions:

The Applicant submitted that she had suffered academically, professionally, and personally as a result of the motor vehicle accident. It delayed her entry into the job market or a university doctoral program; it dropped her level of academic achievement from an A level to a B level; she did not re-qualify for a scholarship for academic excellence; she carried on through force of will and a desire to succeed. She has gone from being a healthy, active individual to having to constantly take care and be careful. She even needs help with laundry and to carry groceries. It is still difficult to sit or stand for very long and the injuries from the accident still sap her energy; her back hurts. She should be paid $185.60 per week from October 27, 1990 to April 30, 1992.

In the summer of 1991, she only was able to research one to two hours per day in the library, whereas this was supposed to be a full-time pursuit. Some days she could not work at all; she should have been able to sit five to eight hours or however long the library was open. The bursary was not income from employment -- it was a supplement to a person in financial need; she needed to qualify because of no income from other sources; it was not just handed to her.

Findings:

In this case, there has been considerable controversy and confusion with respect to the status, following an accident, of a full-time university student who also has some employment. Should this insured person who sustained injury as a result of an accident be compensated under the provisions of section 13 of Schedule or under the provisions of section 12?

The confusion becomes even greater when such a student carries on part of her course load and is able to maintain employment as well. The system in Ontario universities of employing graduate students as teaching assistants in a curious mixture of employment and financial aid adds to the confusion.

In general, I find that this insurer has attempted to meet its obligations under the Schedule. Following two pre-hearing discussions, chaired by another arbitrator, the Insurer agreed to pay the sum of $1,743.20, which represented the cost of the Applicant's tuition and accommodation in the mature student residence for the period September 1991 to April 1992. The Insurer has been anxious not to confer any benefit upon the Applicant which is not required. I have also listened to the Applicant, whom counsel for the Insurer described, aptly, as "decent and honest" and who attempted to carry on following the serious injuries she received in the accident, to the best of her ability.

The Applicant returned to university after the accident, but was unable to carry out her ambitious plans to complete her master's degree in one calendar year. She was able to complete her course work by April 1991, but in the words of Carl M. Wallace, Graduate Secretary, she was "noticeably uncomfortable, performing well below her normal capacity" (Exhibit 2).

Under section 12 of the Schedule, an insurer is required to pay weekly income benefits to an insured person who sustains physical, psychological or mental injury as the result of an accident during the time period in which that insured person "suffers substantial inability to perform the essential tasks of his or her occupation or employment".

At the time of the accident, the Applicant was employed. She was employed as a teaching assistant by the Department of History, Laurentian University. She received a salary of $5,507.60 for eight months. She was required to undertake to the Department of History that she would accept no additional employment in order to maintain her status as a teaching assistant. Thus section 12 of the Schedule is applicable to this case.

However, the responsibilities and demands upon a teaching assistant were very flexible in the Department of History of Laurentian University. Although the Applicant was able to give individual assistance to students, she was not able to lecture or carry out more strenuous activity. In fact, her employers were most generous and did not require her to carry out her original duties. The Applicant's evidence was that in consultation with Dr. Robert Bray, she gave two or three seminars over the remainder of the academic year. The Applicant testified: "I hate to say it, but I got paid for doing virtually nothing".

By April 1991, the Applicant was also attending regularly at the Canadian Back Institute, approximately 40 minutes per day, and doing regular walking and swimming activity.

What was the occupation or employment of the Applicant in October 1990? An "occupation" has been defined by the Oxford Dictionary as "a calling, or employment, or pursuit". In my view, the occupation of Elaine Boone at the time of the accident was master's candidate student. This occupation was comprised of three essential tasks: (1) course work; (2) research and thesis writing; (3) employment as a teaching assistant.

Did Elaine Boone suffer substantial inability to carry out the essential tasks of her occupation or employment following the accident? On the evidence before me, I find that in the months following the accident, the Applicant did suffer a substantial inability to perform the essential tasks of her occupation as master's candidate student.

During the summer semester of 1991, the Applicant received the third instalment of her Ontario Graduate scholarship and, in addition, a summer bursary of $2,500 from Laurentian University to help her with her research and living expenses while completing her thesis. The bursary was awarded based upon income and financial need. The Applicant travelled between Muskoka and Sudbury working in libraries, museums, and visiting resort sites. Some days she was required to take off because she could not cope with her back pain. Even on "good days", the Applicant testified she could spend only one or two hours in a library, when previously she would have spent 5 to 8 hours there. She also had to make additional trips and photocopy documents so that she could work on them as she felt able, in Sudbury or at her parents' home. The Applicant continued with almost daily physiotherapy and home exercise. She attempted to engage in a swimming program, but found the flutter kick too painful.

Although the Applicant was able to carry on with her three university classes from mid-November 1990, she was, in fact, substantially disabled from performing the essential tasks of her occupation or employment. Of the three essential component parts of her occupation as a master's candidate student, the Applicant was able to substantially carry out only one, the course work, and even there her performance was substantially weakened. On the evidence before me, she was substantially disabled from carrying out her regular teaching assistant job description and she was not able to research or write her thesis at all. The fact that the university continued to pay her regular teaching assistant salary is not, in my view, evidence that she was able to perform her work - indeed, the letter filed written by the Graduate Secretary indicates quite the contrary as does the Applicant's own uncontroverted evidence. Even in the summer of 1991, when she researched her thesis, the Applicant continued to suffer substantial inability to perform her essential tasks of her occupation or employment, as I have detailed above.

Accordingly, then, the Insurer will pay weekly income benefit to the Applicant from November 3, 1990. The date of termination of the Applicant's substantial disability is somewhat difficult to discern given the medical information before me. I do not accept the Applicant's submission that she remained substantially disabled until April 30, 1992. The reports of the Canadian Back Institute and the Applicant's own testimony appear to agree that by January 1992 the Applicant's condition had improved and regular exercise would be the only therapy necessary. By that time, also, the Applicant's complaints diminished significantly, to a point where, in my view, they fall below the "substantially disabled" criterion.

The insurer is entitled by the provisions of s. 15 of the Schedule to deduct from any benefit payable under Part IV, 80% of any income received or available from any occupation or employment, subsequent to the accident. By s. 12(7), the Applicant's minimum gross weekly income when calculated is deemed to be $232. The Applicant received a salary of $5,507.60 for eight months as a teaching assistant. By my calculations, this equals to $159.00 pere week. The insurer is entitled to credit for 80% of this amount or $127.20; thus the weekly benefit amount payable from November 3, 1990 to the last week of April, 1991 is ($185.60 - $127.20=) $57.80 per week (25 weeks x $57.80 =) totalling $1,445.00.

During the summer of 1991, the Applicant continued to be substantially disabled. She did receive income from her "occupation or employment" because she was awarded a bursary. The bursary was awarded to the Applicant because of her financial need and lack of income to assist in her research. In my view, these funds must be deducted from weekly income benefits. I make no deduction for the amounts awarded to the Applicant in the form of an Ontario Graduate scholarship. This scholarship was awarded to the Applicant based upon her excellence in academic achievement and had no connection with her income or financial need. Thus, the Insurer is obligated to the Applicant for the 18 weeks from May through August 1991 in the sum of $185.60 per week, less 80% of the bursary of $2,500 (or $111.11 per week) or $74.49 per week. This totals $1,340.82 over the 18 weeks.

From September to December 1991, the calculation returns to that of the second last paragraph, at a rate of $57.80/week (17 weeks x $57.80 = $982.60).

The Applicant is also entitled to interest on these amounts, as set out in s. 24 of the Schedule.

In summary, then, the Applicant is not entitled to benefits under s. 13 of the Schedule by virtue of her employment as a teaching assistant at the time of the accident. Section 16(3) disqualifies the Applicant from receiving a benefit under s. 13 for any week in which she attended school. However, by virtue of her employment at the time of the accident and her substantial inability to perform the essential tasks of her occupation or employment, the Applicant qualifies for weekly income benefits as set out above.

Order:

1. The Applicant is awarded the following benefits:

Dates

Weeks

Rate

Total

Nov. 3, 1990 - Apr. 26, 1991

25

$57.80

$1,445.00

Apr. 27, 1991 - Aug. 31, 1991

18

74.49

1,340.82

Sept. 1, 1991 - Dec. 29, 1991

17

57.80

982.60

$3,768.42

2. The Applicant is entitled to interest on these amounts as set out in s. 24 of the Schedule.

3. The Applicant is entitled to her expenses of the arbitration.

July 17, 1992

K. Julaine Palmer Arbitrator

Date

APPENDIX 1

Weekly income benefits are paid under Section 12 of No-Fault Benefits Schedule (Ontario Regulation 273/90). Weekly income benefits are also paid under Section 13 of the schedule.

PART IV

WEEKLY BENEFITS

INCOME BENEFITS

Section 12.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

(3) A person who was unemployed and who was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident.

(4) Subject to subsection (5), the weekly benefit under subsection (1) will be the lesser of,

(a) $600 plus, if Optional Benefit 2 has been purchased, the amount of the benefit chosen; and

(b) 80 per cent of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income, except Unemployment Insurance benefits,

(i) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan, or

(ii) received under any sick leave plan.

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(a) for the first week of the disability;

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

(6) The insurer is not required to pay a weekly benefit under subsection (1) to a person described in subparagraph iii of paragraph 1 of subsection (2) until the day the person would have been entitled under the contract to begin employment unless before that day the person is qualified for a benefit under another paragraph of that subsection.

(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

2. When a person becomes qualified to receive an income benefit under subparagraph iii of paragraph 1 of subsection (2), the person's gross weekly income shall be deemed to be the greatest of,

i. if the person was qualified under either subparagraph i or ii of paragraph 1 of subsection (2), his or her gross weekly income as determined under paragraph 1,

ii. the gross weekly income payable under the contract of employment,

iii. $232.

3. Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income.

Section 13

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

(2) The following qualifications apply to an insured person who claims weekly benefits under subsection (1):

1. He or she as a result of an with in two years of the accident must have suffered a substantial inability to perform the essential tasks in which he or she would normally engage.

2. He or she must not be entitled to receive a benefit under section 12 at the time of the payment of a benefit under this section or, if entitled to a benefit under that section, he or she must be a primary care-giver as described in subsection (4) and have only income from self-employment from work in his or her home.

3. He or she must attain the age of sixteen years before being eligible to receive the weekly benefit.

(3) The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment Insurance benefits.

(a) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan; or

(b) received under any sick leave plan.

(7) A person cannot receive benefits under this section and section 12 at the same time.

Section 16 of the Schedule is captioned TEMPORARY RETURN TO SCHOOL OR WORK":

Section 16

(1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.

(2) Subject to section 15 and subsection (3), after the two-year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.

(3) The insurer is not required to pay weekly benefits under section 13 for any week in which the insured person attends school.