Neutral Citation: 1993 ONICDRG 56

File No. A-002777

ONTARIO INSURANCE COMMISSION

BETWEEN:

CHUONG VO

Applicant

and

MAPLEX GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Chuong Vo, was injured in a motor vehicle accident on June 5, 1992. He applied to his insurer, the Maplex General Insurance Company, for benefits under the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c.I.8). Maplex Insurance initially refused to pay weekly income benefits on the basis that Mr. Vo was capable of working, as evidenced by the fact that he was receiving regular Unemployment Insurance benefits.

During the mediation process, Maplex Insurance agreed to pay weekly income benefits of $185.60 under section 12 of the No-Fault Benefits Schedule, retroactive to one week after the accident. Mr. Vo continued to receive weekly income benefits until December 31, 1992, when Maplex Insurance terminated his benefits on the basis that he was capable of performing the essential tasks of his pre-accident employment. Mr. Vo claims that he is entitled to weekly income benefits of $600 until March 25, 1993.

The issues to be determined are:

1. For what period is Mr. Vo entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule?

2. What is the proper amount of Mr. Vo's weekly income benefits under section 12 of the No-Fault Benefits Schedule?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Vo is entitled to receive weekly income benefits of $455.58 for the period from one week following the accident until November 4, 1992. The amount that he is to be paid, however, is to be reduced by the $185.60 that he has already received for the period from June 12, 1992 to December 31, 1992.

2. Mr. Vo is entitled to interest on the outstanding amounts, calculated according to section 24 of the No-Fault Benefits Schedule.

3. Mr. Vo is entitled to his expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on June 21 and 22, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Chuong Vo

Applicant's Representative:

Michael Gillen Barrister and Solicitor

Insurer's Agent:

Valerie McConnachie

Insurer's Representative:

Brian Atherton Barrister and Solicitor

Witnesses:

1. Cathy Lees, Employment and Immigration Canada

2. David Mercer, Cigna Life Insurance

3. Robert Drennan, McDonnell Douglas

4. Chuong Vo, applicant

5. Dr. R. (Sonny) Talangbayan

Exhibits:

Twenty-five exhibits were filed and are listed in Appendix A. In addition, the parties referred to a number of cases which are listed in Appendix B.

Reasons for Decision:

1. Background

Mr. Vo was born in Vietnam and is 34 years old. While he was still in Vietnam, he completed high school in approximately 1977. He then completed a two-year program at a technical school and received a certificate in diesel auto mechanics. Mr. Vo worked as an auto mechanic for a number of years.

In June of 1985, Mr. Vo left Vietnam by boat. He spent a number of months in a refugee camp. Because he had some English skills, Mr. Vo was able to assist other refugees by drafting letters to the United Nations High Commission on Refugees.

Mr. Vo arrived in Canada in 1986 and initially lived in Saskatchewan. After approximately two months in Canada, he found a job as a draftsperson with a civil engineering company, where he had been doing volunteer work. He earned $7 an hour and worked 40 hours a week.

In November 1987, Mr. Vo moved to Toronto to be closer to friends and relatives. After one week in Toronto, he was able to find a job as an assembler at Associated Tube Industries Ltd. He was paid $9.50 an hour and worked 372 hours a week. Approximately two months later, the company sent him on a seven-day training course and promoted him to the position of eddy current operator. As I understand it, this position involved using a hoist to lift stainless steel tubes into a machine to test for flaws in the tube. Mr. Vo's pay was increased to $14 an hour.

Mr. Vo continued at Associated Tube for approximately two and a half years until he found a position at McDonnell Douglas. He felt this was a better job because the pay was higher, it was closer to his home, and he could use his skills with power tools. Mr. Vo started work at McDonnell Douglas on August 13, 1990 as a "bench, structural and airframe assembler" (Exhibits 14 and 20).

In a letter dated December 3, 1991, Mr. Vo was advised that he would be "on indefinite lay-off” effective at the end of his shift on January 17, 1992 (Exhibit 11). Mr. Vo's last day at McDonnell Douglas was January 17, 1992, approximately seventeen months after he had started there. He has not been called back. According to Mr. Drennan, the manager of employee services for McDonnell Douglas, the company has continued to reduce its workforce.

Mr. Vo applied for Unemployment Insurance benefits on January 17, 1992. He was found eligible and his benefits started on February 16, 1992, following the waiting period. Mr. Vo's Unemployment Insurance benefits were $403 a week (gross), paid every two weeks. Mr. Vo also received supplementary unemployment benefits through the collective agreement at McDonnell Douglas. It appears that these supplementary benefits covered the waiting period and continued for approximately three months as a "top-up" to his Unemployment Insurance benefits. As a recipient of regular Unemployment Insurance benefits, Mr. Vo was expected to be actively looking for work, and had to complete cards stating that he was willing, ready and capable of working.

On June 5, 1992, almost five months after he was laid-off, Mr. Vo was involved in an automobile accident. At the time of the accident, his family doctor was Dr. Buy. Mr. Vo testified that following the accident, he did not see Dr. Buy because a friend suggested that he see another general practitioner, Dr. Talangbayan.

On June 9, 1992, four days after the accident, Dr. Talangbayan examined Mr. Vo and filled out a "General Assessment Form" (Exhibit 1). On the same day, Mr. Vo applied to his insurer, Maplex Insurance, for no-fault benefits (Exhibit 12). His application indicates that he was represented by a lawyer, Mr. Schwarz, and that his treating physician was Dr. Talangbayan. It also states that he was on a temporary lay-off from McDonnell Douglas and was not insured under any other income continuation benefit plan.

Mr. Vo's application for no-fault benefits was supported by a medical form completed by Dr. Talangbayan on June 16, 1992. In this report, Dr. Talangbayan indicated that he expected that Mr. Vo would be able to return to work or his normal activities in a "few months, to be reviewed".

On June 18, 1992, Mr. Vo met with Mr. Giffen from Maplex Insurance. Mr. Giffen drafted a statement which Mr. Vo signed (Exhibit 24). The statement includes the following:

Currently during the day, I have headaches at the front and side of my head and I have pain in my neck and right shoulder. The medication temporarily helps with the pain. I can still do light work and take care of myself but I can't do any heavy lifting with my right arm. I have a rental car and can drive and get around alright. I am still out looking for work but I haven't had any interviews since the accident. There just aren't that many jobs out there.

Mr. Vo acknowledged signing the statement, but testified that Mr. Giffen did not include everything that he said. He stated that he was looking for work, but did not feel that he would be able to start right away.

As part of the application process, an administrative assistant at McDonnell Douglas completed an "Employer's Confirmation of Income" form, dated June 23, 1992. The form states that in the fifty-two weeks preceding the accident, Mr. Vo worked thirty-three weeks and earned $29,613.21. It also indicates that Mr. Vo is entitled to receive benefits from "OHIP, Cigna, Greenshield", including sickness benefits of $426 per week for a maximum of fifty-two weeks. Mr. Vo did not apply to Cigna Insurance following his accident.

Following the accident, Mr. Vo continued to receive regular Unemployment Insurance benefits, certifying that he was "ready, willing and capable" of working. Maplex Insurance denied his claim for weekly income benefits, apparently on the basis that he was looking for work and receiving Unemployment Insurance benefits.

In August 1992, Mr. Vo asked that his Unemployment Insurance benefits be changed from regular benefits to sickness benefits, effective from the date of the accident. He completed an application for Unemployment Insurance sickness benefits on August 18, 1992, which he took into the Unemployment Insurance office on August 21, 1992 (Exhibit 15). His application was supported by a form from Dr. Talangbayan, dated August 20, 1992. My understanding is that his regular Unemployment Insurance benefits were terminated, pending the decision on his sickness benefits.

While he was awaiting a decision from the Unemployment Insurance Commission, Mr. Vo applied for mediation under the Insurance Act to deal with Maplex Insurance's refusal of his claim for weekly income benefits. During the mediation, which started on September 15, 1992, Maplex Insurance agreed to pay weekly income benefits of $185.60 under section 12 of the No-Fault Benefits Schedule, retroactive to June 12, 1992. I accept the submission made on behalf of Maplex Insurance that its payments should not be treated as an admission that Mr. Vo was eligible.

In a letter dated October 27, 1992, Mr. Vo was notified that he had been found to be eligible for fifteen weeks of Unemployment Insurance sickness benefits (Exhibit 16). Ms. Lees explained that Mr. Vo's fifteen weeks of eligibility for sickness benefits was incorrectly applied retroactively to May 31, 1992, instead of June 6, 1992. His eligibility for sickness benefits, therefore, extends until September 21, 1992. Mr. Vo did not re-apply for regular Unemployment Insurance benefits for any period after September 21, 1992.

As part of the agreement reached during mediation, Maplex Insurance referred Mr. Vo to Dr. Brown at Healthserv for an "integrated work capacity evaluation". Relying on Dr. Brown's report, dated November 6, 1992 (Exhibit 8), Maplex Insurance claims that even if Mr. Vo was initially eligible for weekly income benefits, he was no longer eligible for weekly income benefits by November 6, 1992.

Also, as a result of discussions that took place during mediation, Mr. Vo applied through McDonnell Douglas for benefits from Cigna Insurance. It appears that Mr. Vo made his application on or about November 10, 1992, but it was not received by Cigna until December 11, 1992. According to Mr. Mercer, a benefit analyst at Cigna Insurance, disability claims are to be made within thirty days of the disability. Mr. Vo's application, therefore, was late, but it was not rejected for that reason.

Mr. Mercer explained that in order to be eligible for short-term disability benefits under the Cigna policy, the person must be unable to perform the regular duties of any job within the bargaining unit at McDonnell Douglas. The bargaining unit includes very light modified work, such as sorting bolts and nails.

Cigna Insurance did not feel that the medical information provided with Mr. Vo's application was sufficient and, therefore, Dr. Talangbayan was asked to provide additional information. While Cigna Insurance was still considering Mr. Vo's application for short-term disability benefits, Maplex Insurance terminated his no-fault benefits, effective December 31, 1992.

Dr. Talangbayan prepared a report, dated January 31, 1993 (Exhibit 6). The matter was then referred to Cigna's medical consultant, Dr. Butt. In Dr. Butt's opinion, the medical findings were "quite sparse" and, therefore, he suggested a referral to Dr. Hall (Exhibit 22). After receiving Dr. Hall's report, dated March 5, 1993 (Exhibit 10), Cigna denied Mr. Vo's claim for disability benefits. Mr. Vo did not appeal this decision.

I find that Mr. Vo has been paid the following weekly benefits since his accident on June 5, 1992:

June 5 - June 12, 1992

$ 403.00 U.I. sickness benefits

June 13 - Sept. 21, 1992

$ 403.00 U.I. sickness benefits

+185.60 Weekly income benefits

$ 588.60

Sept. 21 - Dec. 31, 1992

$ 185.60 Weekly income benefits

From Dec. 31, 1992

Nil

In April 1993, Mr. Vo returned to work at Associated Tube, where he had worked before McDonnell Douglas.

2. Period of Eligibility

At the time of his accident, Mr. Vo was not working. Because he had worked for more than 180 days in the year before the accident, however, he is eligible to be considered for weekly income benefits under section 12(3) of the No-Fault Benefits Schedule. His eligibility depends on whether, as a result of the accident, he "suffered a substantial inability to perform the essential tasks of the occupation or employment in which he spent the most time during the twelve-month period before the accident".

a) What are Mr. Vo's essential tasks?

In order to determine Mr. Vo's eligibility, therefore, the "essential tasks" of his employment at McDonnell Douglas must be determined. According to section 12(3), his employment at McDonnell Douglas is the referent, even though at the time of the accident, he was laid off and was unlikely to be recalled.

The McDonnell Douglas plant where Mr. Vo worked built aircraft wings. Mr. Vo worked as a "bench, structural and airframe assembler". The job description in the collective agreement was: Group 5 552-4A

BENCH, STRUCTURAL AND AIRFRAME ASSEMBLER (552, 503)

Required to complete, fit and/or assemble parts, assemblies or components to jigs, drawings or aircraft. Perform re-work not beyond the level of difficulty normally required in this classification. Employees who are required to perform the work of a higher level of difficulty will be paid the top of the rate which is appropriate to the level of difficulty while so engaged. May be required to operate a Dimpling Machine or Erco Rivetter.

Will not be required to plan, lay-out or develop complex parts or assemblies, or do re-work normally performed by Sheet Metal Mechanics, Bench Fitter Mechanics or Airframe Mechanics.

Layout means other than that accomplished by use of a scale or tape and pencil or scriber.

Mr. Drennan, the manager of employee services at McDonnell Douglas, explained that the job description in the collective agreement attempts to include everything that the job might include and, therefore, is very broad. The bench, structural and airframe assembler position was the main assembly job in the plant and included a wide variety of tasks.

When Mr. Vo worked at the plant, two types of wings were being built, one significantly larger than the other. The wings were built on end in a "jig". There were a number of "line positions" where assemblers attached pieces to the wing. The pieces varied in size and weight, and required the use of different tools. Depending on their line position, assemblers had different tasks, involving significantly different physical demands.

Mr. Drennan testified that assemblers, particularly the more junior assemblers, were often moved among the various line positions. I accept Mr. Vo's evidence, however, that during his approximately seventeen months at McDonnell Douglas, he consistently worked with one crew on "stage two".

I find that Mr. Vo's work as an assembler on the "stage two" crew was quite physically demanding. He worked eight hour shifts, with two ten-minute breaks and half an hour for lunch. His job was to attach parts of varying sizes to both types of wing. He regularly used power tools, including drills and riveters. One of the tools, the spacematic drill, was particularly heavy, weighing approximately twenty kilograms.

Mr. Vo's job required speed and accuracy. In order to install parts at various points along the wing, assemblers on "stage two" had to climb up and down the jig. They also had to lift the parts and hold them in place while they were being attached.

Mr. Vo's position is that his eligibility for weekly income benefits should depend upon his ability to do the particular job that he had been doing at McDonnell Douglas as a bench, structural and airframe assembler on "stage two". It was submitted on behalf of Maplex Insurance that in order to be eligible, he must establish that he was substantially unable to perform the tasks of any of the jobs done by bench, structural and airframe assemblers at McDonnell Douglas.

I conclude that in the situation presented in this case, Mr. Vo's essential tasks at McDonnell Douglas had become sufficiently established that his eligibility for weekly income benefits should be based on the job that he was actually doing. Although the current availability of the person's pre-accident job is not a consideration in determining eligibility, I am not convinced that it would be appropriate to base Mr. Vo's eligibility on job tasks that he never performed, on the basis that alternative positions might have been available to him if his pre-accident job still existed.

b) For what period was Mr. Vo unable to perform his essential tasks?

All of the medical evidence submitted on behalf of Mr. Vo came from Dr. Talangbayan. The observations and opinions of a person's family doctor are often especially significant because of the close relationship between the doctor and his or her patient. For the following reasons, however, I do not feel that this is the case with Dr. Talangbayan's evidence.

Although Dr. Talangbayan had seen Mr. Vo approximately twenty times by the time of the hearing, it did not appear to me that he was particularly familiar with Mr. Vo's situation. Dr. Talangbayan saw Mr. Vo for the first time on June 9, 1992, four days after the accident. The background information that he recorded is quite limited and, surprisingly, there is no indication that he contacted Dr. Buy, Mr. Vo's previous family doctor (Exhibit 1). According to Mr. Vo, his follow-up visits with Dr. Talangbayan were short, generally lasting approximately ten minutes. At the hearing, Dr. Talangbayan relied heavily on his notes and did not appear to have much independent recollection of Mr. Vo's treatment.

I am also concerned that Dr. Talangbayan did not have information from other health professionals. As stated above, he does not appear to have had any contact with Mr. Vo's previous family doctor. Although Mr. Vo participated in massage therapy and physiotherapy, and saw a chiropractor, there is no indication in Dr. Talangbayan's clinical notes and records that he received any written or verbal reports from these other health professionals.

In his report, dated June 16, 1992, Dr. Talangbayan indicated that he expected Mr. Vo to be able to return to his work or normal activities in a few months (Exhibit 2). He also indicated that he would refer Mr. Vo to a specialist, "if necessary". Despite Dr. Talangbayan's evidence that Mr. Vo did not recover as expected, he did not make a referral to a specialist. In his report, dated October 27, 1992, Dr. Talangbayan again stated his intention to refer Mr. Vo to a specialist (Exhibit 4). No such referral was made, however, until February 5, 1993, when he referred Mr. Vo to Dr. Wong, an industrial medicine specialist. Dr. Talangbayan was unable to provide any further evidence about the referral and could not explain why he did not have a report from Dr. Wong. He also testified that on February 26, 1993, he ordered an EEG, but did not have the results.

Further, Dr. Talangbayan's reports provide little explanation for his opinions. Moreover, they are difficult to reconcile with each other and with the other evidence. In his initial report to Maplex Insurance, dated June 16, 1992, Dr. Talangbayan stated his opinion that Mr. Vo might be able to return to his pre-accident activities in a few months (Exhibit 3). He testified that because Mr. Vo was not working at the time of his accident, he thought that the test was whether he could perform his daily activities.

Dr. Talangbayan applied the wrong test, but what is of more concern is that I find his opinion inconsistent with Mr. Vo's evidence about his own condition. Dr. Talangbayan testified that he found Mr. Vo "totally disabled". Mr. Vo did not suggest that he ever needed help caring for himself. His difficulties were more with sustained physical activity. He acknowledged that following the accident, he continued to drive and look for work, although he testified that he did not feel that he would be able to start work right away.

Dr. Talangbayan's next report, dated August 20, 1992, was in support of Mr. Vo's application for Unemployment Insurance sickness benefits (Exhibit 4). This report is incomplete and does not clearly indicate the period of Mr. Vo's disability.

Dr. Talangbayan then completed another report for Maplex Insurance, dated October 13, 1992 (Exhibit 3). He stated his opinion that Mr. Vo would be able to return to his normal activities in two to three months. According to his oral evidence, Dr. Talangbayan was still evaluating Mr. Vo's ability to perform his normal non-work activities. Two weeks later, however, Dr. Talangbayan completed a form for Cigna Insurance in which he estimated that Mr. Vo would be able to return to work in a "few additional weeks" (Exhibit 5). I find it extremely difficult to reconcile these two reports.

Dr. Talangbayan also provided a handwritten note, dated March 25, 1993, in which he stated that Mr. Vo "may try light duties in a few weeks". In his oral evidence, however, he testified that he felt that Mr. Vo could have tried to return to work after he was seen by Dr. Wong, which appears to have been on March 9, 1993.

Finally, and most disturbing, was the cultural stereotype that apparently informed Dr. Talangbayan's opinions about Mr. Vo. He agreed that it might have been beneficial to encourage Mr. Vo to return to work at an earlier date, but explained that he did not do so because Mr. Vo is Vietnamese. He expressed his view that Vietnamese people hold superstitious beliefs and react more strongly to injuries than do educated North Americans. This is an extraordinary stereotype that was not supported by anything other than Dr. Talangbayan's opinion.

Mr. Vo certainly deserves to be treated as an individual. He impressed me as an intelligent man with significant skills. Since his arrival in Canada in 1986, he has improved his English skills to the point that he was able to participate in the hearing without an interpreter. Until the downsizing at McDonnell Douglas, he had been steadily employed in jobs requiring technical skills.

For all of these reasons, I am not prepared to rely on Dr. Talangbayan's opinion about the extent of Mr. Vo's disability. In contrast, I find the reports from Healthserv by Dr. Brown, a specialist in occupational medicine, and Mr. Coupland, a vocational rehabilitation consultant, to be complete and carefully directed toward evaluating Mr. Vo's physical ability to perform job-related tasks. In his report, dated November 6, 1992, Dr. Brown concludes:

As a result of the accident on June 5, 1992, Mr. Chuong Hong Vo did sustain musculoligamentous injuries to his neck and right shoulder.

His chief difficulties seem to be related to his difficulty sleeping which occurs only 30% of the time. In regards to anxiety symptoms during the day, I believe that these are probably more related to his current lack of employment than to any direct result of the accident.

There is little doubt that he still does suffer some discomfort in the right shoulder and neck but I believe that his perceived difficulty is greater than that demonstrated during the physical testing.

It would appear that his range of movement has returned to normal from that rather limited level that was described immediately after the injury. It is my opinion that Mr. Chuong Hong Vo has taken all appropriate steps to aid his recovery which I consider to be fairly complete. I expect that he will have some ongoing discomfort with the right shoulder for an undetermined period of time but that this should not severely limit his capabilities.

I believe that an early return to work would be most beneficial for all aspects of the gentleman's health both physical and mental. Throughout the examination, other than difficulties remembering his previous jobs, I could find no deficit in his thought processes or memory. He was able to retain all instructions and showed no difficulty whatsoever with comprehension. [Exhibit 8]

Mr. Coupland, the vocational rehabilitation consultant, assessed Mr. Vo on November 3, 1992. He found Mr. Vo's general learning ability to be in the moderately depressed range, probably due to his limited verbal skills. Mr. Coupland concluded, however, that Mr. Vo has transferable skills that could be used to pursue semi-skilled assembly, production or fabrication work.

As a result of his application to Cigna Insurance for short-term disability benefits, Mr. Vo was examined by Dr. Hall on March 5, 1993. Dr. Hall concluded that, although Mr. Vo continued to have some residual soreness in his neck and upper back, he was able to care for himself and to return to his pre-accident employment, or similar employment.

I find that as a result of his accident on June 5, 1992, Mr. Vo suffered strains to his neck, right shoulder and lower back. Given the relatively demanding nature of his employment at McDonnell Douglas, I conclude that he was unable to perform the essential tasks of that employment for some period after the accident.

It is understandable that Maplex Insurance was concerned about the fact that Mr. Vo continued to receive regular Unemployment Insurance benefits after the accident. However, I accept his explanation that he was uncertain about the nature of the various benefits and, as a result, I am not prepared to treat his dealings with Unemployment Insurance as proof that he was capable of performing the essential tasks of his pre-accident job at McDonnell Douglas.

I am also not prepared to rely too heavily on Mr. Vo's statement (Exhibit 24). Mr. Vo testified that although he looked for work after his accident, he did not think that he was ready to return to work. He testified that he explained this to Mr. Giffen, but Mr. Giffen did not include everything in the statement. I found Mr. Vo's evidence plausible and am not prepared to dismiss it in the absence of contrary evidence from Mr. Giffen.

Although I conclude that Mr. Vo was initially eligible for weekly income benefits, I conclude that by November 5, 1992, he was no longer unable to perform the essential tasks of his pre-accident employment at McDonnell Douglas. Therefore, Mr. Vo is entitled to weekly income benefits under# section 12 of the No-Fault Benefits Schedule for the period from one week after the accident until November 4, 1992.

3. Amount of Weekly Income Benefits

The amount of Mr. Vo's weekly income benefits is determined under the following provisions in section 12 of the No-Fault Benefits Schedule:

12(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 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.

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

1. The 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.

The parties agree that in the fifty-two weeks preceding the accident, Mr. Vo worked at McDonnell Douglas for the first thirty-three weeks of this period and earned $29,613.21 (Exhibit 14). He then received Unemployment Insurance benefits from February 16, 1992 to September 12, 1992.

a) How should Mr. Vo's income be averaged?

The parties disagree on how Mr. Vo's income should be averaged under section 12(7)1. It is submitted on behalf of Mr. Vo that his gross weekly income from McDonnell Douglas should be averaged over only the thirty-three weeks that he worked: $29,613.21 / 33 = $897.37. According to section 12(4), his weekly income benefit is the lesser of $600 and 80 per cent of the gross weekly income. Eighty per cent of $897.37 is $717.90. Mr. Vo's position, therefore, is that he is entitled to weekly income benefits of $600.

Maplex Insurance submitted that Mr. Vo's income must be averaged over the full fifty-two weeks: $29,613.21 / 52 = $569.48. Eighty per cent of this amount is $455.58. Using this approach, Mr. Vo's weekly income benefit, therefore, would be $455.58. In the alternative, it was submitted that Mr. Vo's income from Unemployment Insurance could be included as income from employment in the fifty-two weeks preceding the accident.

The parties have raised a fundamental issue about the calculation of weekly income benefits. This issue was considered by Senior Arbitrator Naylor in Ralph McCormick and Economical Mutual Insurance Company, OIC File No. A-000139 (October 2, 1991). Mr. McCormick had stopped working approximately three months before his automobile accident due to a work-related injury. During the period that he was not working, he collected Unemployment Insurance benefits, which were later replaced by workers' compensation benefits.

One of the issues at the arbitration hearing, was whether Mr. McCormick's weekly income benefits should be calculated by dividing his income for the fifty-two weeks prior to the accident by the number of weeks that he actually worked, or by fifty-two. Senior Arbitrator Naylor found that section 12(7)1 was capable of being read in two different ways:

1. gross weekly income from an applicant's occupation or employment averaged over the four weeks or the fifty-two weeks preceding the automobile accident,

2. the average or the gross weekly income from an applicant's occupation or employment within the four weeks or the fifty-two weeks preceding the automobile accident.

Senior Arbitrator Naylor concluded that Mr. McCormick's income should be averaged over the period that he actually worked because this approach provided a more accurate reflection of his employment income.

Senior Arbitrator Naylor was again faced with this issue in Vincent Scavuzzo and Canadian Home Assurance Company, OIC File No. A-000626 (March 18, 1992). Mr. Scavuzzo's employment history in the year preceding his accident was:

June 27/90 - Sept. 12/90Employed for 11 weeks by a paving company, for which he was paid $9,260.85.

Sept. 12/90 - Dec. 18/90Employed for 14 weeks by an excavating company, for which he was paid $10,153.37.

Dec. 13/90 - June 23/90Unemployed and receiving Unemployment Insurance benefits.

June 25/90 - June 26/90Employed at a meat store for two days, for which he was paid $380.

June 27/90Automobile accident.

Senior Arbitrator Naylor followed her decision in McCormick and concluded that Mr. Scavuzzo's gross weekly income should be calculated based on the weeks that he worked during the four and fifty-two weeks preceding the accident. This meant that his gross weekly income for the four weeks preceding the accident was calculated by dividing $380 by one week. His gross weekly income for the fifty-two week period preceding the accident was $19,794 ($9,260.85 + $10,153.37 + $380) divided by twenty-six weeks.

The Insurer appealed the Scavuzzo decision. The appeal was heard by the Director's Delegate, Ms. Michele Smith. In her decision, dated June 19, 1992, the Director's Delegate affirmed the arbitration decision of Senior Arbitrator Naylor (OIC File No. P-000626 (June 19, 1992)). She agreed that section 12(7)1 was ambiguous and capable of two interpretations. In looking at the context of the section, and the scheme and intent of the legislation, she noted:

The legislation restricted an insured's right to sue for damages. The No-Fault Benefits Schedule in turn provides a more generous scheme of weekly income benefits than was provided under prior legislation, regardless of fault. The legislation provides an insured with a weekly benefit to replace, up to a certain amount and in accordance with the specific provisions of the statute, the employment income that he or she would likely have earned but for the accident.

The Director's Delegate concluded: "Taken in the context of the legislation, I am of the opinion that the natural and ordinary meaning of the words of s.12(7)1. is that the average gross weekly income from employment should include only those weeks during the 4 or 52 weeks that he was employed...".

The reasoning in the McCormick and Scavuzzo decisions clearly supports Mr. Vo's position. It was submitted on behalf of Mr. Vo that as an arbitrator, I am bound to follow the appeal decision in Scavuzzo. The following cases were cited in support of this proposition:

Sellars v. The Queen (1980), 1980 CanLII 166 (SCC), 110 D.L.R. (3d) 629 (S.C.C.).

Re Horne and Evans (1986), 1986 CanLII 2786 (ON HCJ), 54 O.R. (2d) 510 (H.C.J.).

Brown v. Bouwkamp (1976), 1976 CanLII 740 (ON CA), 12 O.R. (2d) 33 (C.A.).

All of these cases involve the role of precedent in the court context. Administrative decision-makers, including arbitrators under the Insurance Act, however, are not bound by precedent. While consistency of interpretation is clearly desirable, administrative decision-making is expected to be flexible in order to respond to different situations over time.

The Supreme Court of Canada has recently suggested that administrative tribunals should develop consistency over time, rather than through strict adherence to precedent. In Quebec (Commission des affaires sociales) c. Tremblay (1992), 1992 CanLII 1135 (SCC), 3 Admin. L.R. (2d) 173, Mr. Justice Gonthier stated:

Ordinarily, precedent is developed by the actual decision-makers over a series of decisions. The tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges. This of course is a longer process; but there is no indication that the legislature intended it to be otherwise... [p.217]

In my opinion, the interpretation of section 12(7)1. cannot yet be regarded as settled. It has only been considered by one arbitrator and by a delegate of the Director. In addition, Mr. Vo's situation is different from those considered in the McCormick and Scavuzzo arbitrations. At the time of his accident, Mr. Vo was physically able to work, but had been unemployed for approximately four and a half months. He testified that although he had been looking for work, he had not had any interviews. Unlike the Scavuzzo case, therefore, it would be difficult to predict "the employment income that he or she would likely have earned but for the accident."

It is my responsibility to apply the legislation to Mr. Vo's situation. I have carefully considered the decisions in McCormick and Scavuzzo, together with the submissions of counsel, and conclude, for the following reasons, that Mr. Vo's income from McDonnell Douglas must be averaged over the full fifty-two weeks preceding the accident.

Ontario's no-fault system uses the No-Fault Benefits Schedule in place of the individualized determination of damages that is required in a tort-based system. Benefits are to be paid according to the Schedule, whether or not the injured person was at fault. It appears that the intention was to encourage the prompt payment of benefits by providing relatively clear rules about entitlement. The cost of this approach is that it necessarily includes an element of arbitrariness, which may work to the applicant's advantage or disadvantage.

According to section 12(4) of the No-Fault Benefits Schedule, weekly income benefits are based on 80 per cent of the applicant's gross weekly income from his or her occupation or employment. Section 12(7)1 sets out the rules for calculating the applicant's gross weekly income. The section does not suggest that the applicant's gross weekly income is to be the most accurate reflection of his or her pre-accident income or anticipated income. Rather, gross weekly income is 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.

In my opinion, the ordinary meaning of section 12(7)1 is that the applicant's average gross weekly income is to be calculated for two periods: four weeks and fifty-two weeks. A weekly average is to be calculated for those two periods, even if the applicant had no gross weekly income from his or her occupation or employment during some of the weeks. Although it might be possible to read the section to mean that the four and fifty-two week periods can be further divided into weeks that the person worked, I am not convinced that this is the plain or ordinary meaning.

It is also my view that when sections 12 and 13 of the No-Fault Benefits Schedule are read together, there is a strong suggestion that periods of unemployment are to be considered, not ignored. In this case, Mr. Vo had been unemployed for the nineteen weeks preceding the accident. If his unemployment had started approximately seven weeks earlier, he would have only been entitled to receive $185 a week under section 13, even if he had been actively looking for work at the time of the accident.

Mr. Vo was able to claim weekly income benefits under section 12(3), however, because he had been employed for more than 180 days in the twelve-month period preceding the accident. It is not at all clear to me that he is entitled to receive the same level of weekly income benefits that he would have received if his job had continued until the date of the accident. It seems more consistent with the scheme of the No-Fault Benefits Schedule that he be allowed to increase his weekly income benefits above the minimum amount of $185.60, but only to the extent that 80 per cent of his employment income, averaged over the fifty-two weeks preceding the accident, exceeds it.

In the fifty-two weeks preceding the accident, Mr. Vo had employment income in thirty-three of the weeks and no employment income in nineteen of the weeks. His total income in the fifty-two weeks preceding the accident was $29,613.21. When this is averaged "for the fifty-two weeks preceding the accident", Mr. Vo's gross weekly income is $569.48. Because weekly income benefits are 80 per cent of gross weekly income, I conclude that Mr. Vo is entitled to weekly income benefits of $455.58.

It was suggested that Mr. Vo's Unemployment Insurance benefits might be included in the calculation of his gross weekly income. In my opinion, Unemployment Insurance is not "income from his or her occupation". In addition, section 12(4)(b) makes a distinction between "income from his or her occupation or employment" and "payments for loss of income". Although Unemployment Insurance benefits are treated differently than other payments for loss of income, the section suggests that they are payments for loss of income, rather than income from employment.

b) Should the short-term disability plan with Cigna Insurance be considered?

According to section 12(4) of the No-Fault Benefits Schedule, set out above, Mr. Vo's weekly income benefits are to be reduced by certain types of payments for loss of income. As a result of his employment at McDonnell Douglas, Mr. Vo was covered by a short-term disability plan provided by Cigna Insurance. Mr. Mercer of Cigna Insurance testified that if Mr. Vo had been able to establish that he was disabled, according to the definition in the policy, he would have been paid $447 a week.

It was submitted on behalf of Maplex Insurance that although Mr. Vo never received any benefits from Cigna Insurance, benefits were available to him and, therefore, should be deducted according to section 12(4)(b)(i). Mr. Vo's lawyer responded that the Cigna Insurance plan is a "sick leave plan" under section 12(4) (b) (ii) and, therefore, no deduction is allowed because Mr. Vo did not receive any benefits.

Principles of interpretation suggest that exceptions to eligibility should be narrowly construed. However, section 268 of the Insurance Act indicates that no-fault benefits are to be paid after other sources of compensation:

268(1) Every contract evidenced by a motor vehicle policy shall provide for the no-fault benefits set out in the No-Fault Benefits Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule....

(7) The insurance mentioned in subsection (1) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses.

(8) The insurance mentioned in subsection (1) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses.

"Sick leave plan" is not defined. In my opinion, however, the type of short-term disability plan provided by Cigna fits more comfortably within the common meaning of "income continuation benefit plan". Mr. Vo was covered by the plan as a result of his employment, and it provided income during periods when he was unable to perform any jobs within the bargaining unit. "Sick leave plan", in my view, is a narrower term that is closer to "sick days". Some employees are entitled to receive payment for sick leave credits which, if paid, would be deducted from weekly income benefits under section 12(4)(b)(ii).

The issue, therefore, is whether Mr. Vo's weekly income benefits should be reduced by $447 a week, according to section 12(4) (b) (i), because benefits were available to him from Cigna Insurance.

Mr. Vo did not apply for benefits from Cigna Insurance until October 27, 1992, over four months after his accident. It was suggested that Mr. Vo should have known from an earlier date that he should apply. Mr. Vo's written statement, dated June 18, 1992, indicates that he was aware that he had coverage through a plan with Greenshield, but only until April 1992. The Cigna plan is not mentioned.

The Employer's Confirmation of Income form, dated June 23, 1992, indicates that Mr. Vo was covered by a plan with Cigna Insurance and notes, more specifically, that he was eligible for sickness benefits of $426 a week, for a maximum of fifty-two weeks. Unfortunately, no one seems to have acted on this information. McDonnell Douglas did not contact Mr. Vo and, apparently, neither Mr. Vo nor his lawyer contacted McDonnell Douglas or Cigna Insurance about disability benefits.

Mr. Vo could not recall when he was told about Cigna Insurance, but remembered that it was Ms. McConnachie who told him. I accept his testimony that he did not meet Ms. McConnachie until the mediation, which started on September 15, 1992. The letter from the Unemployment Insurance Commission also suggested that he contact his employer about benefit plans, but that letter is dated October 27, 1992, the same day that he signed his application to Cigna Insurance. I find, therefore, that Mr. Vo was not aware that he could apply to Cigna Insurance until sometime after September 15, 1992.

Mr. Vo received a letter, dated March 12, 1993, stating:

We have received the report of your Independent Medical Examination that was conducted on March 5, 1993. We have since had your file reviewed and now find it necessary to communicate with you.

As you are aware, your contract provisions allow for disability benefit for a maximum period of 52 weeks provided the medical evidence supports and continues to support your total disability from any occupation within your bargaining unit.

In brief, the medical evidence does not support your total disability from any occupation within your bargaining unit. Consequently, no benefits are payable and your file is now closed.

If you wish to appeal our decision YOU will have to submit to us a detailed objective medical evidence to support your claim. This report MUST include your signs and symptoms as well as the frequency and their severity. Note, any expenses you could incur would be your responsibility and not that of CIGNA Life. (Exhibit 19)

Mr. Vo did not appeal the Cigna decision. Within approximately one month of receiving this letter, he returned to work.

The effect of finding that payments for loss of income are available is to reduce the person's weekly income benefits, even though he or she has not actually received the payments. In my view, therefore, the evidence must clearly establish that the payments are, in fact, available.

In this case, I am not convinced that the Cigna Insurance benefits were available to Mr. Vo. The test of eligibility for short-term disability benefits is different than that for weekly income benefits under section 12 of the No-Fault Benefits Schedule. The letter from Cigna Insurance states that the test is "total disability from any occupation within your bargaining". In his testimony, Mr. Mercer indicated that the test is actually more like a substantial inability to perform any job within the bargaining unit. This is a stricter test than the one described above for eligibility for weekly income benefits. It does not follow, therefore, that if Mr. Vo was eligible for weekly income benefits, then he was also eligible for short-term disability benefits.

It is possible that Mr. Vo's chances of being found eligible for disability benefits from Cigna Insurance were negatively affected by the delay in applying. By October 27, 1992, his condition had improved significantly. I have concluded that by November 5, 1992, he was no longer eligible for weekly income benefits. I am not convinced that it follows that he should have his weekly income benefits reduced. I am influenced by the fact that there is no indication that Mr. Vo made a tactical decision not to apply for benefits from Cigna Insurance. Rather, it appears that he simply was unaware that he might be eligible.

I conclude, therefore, that benefits from Cigna Insurance were not available to Mr. Vo and, therefore, should not be deducted from his weekly income benefits.

4. Interest

Although I have considerable sympathy for Maplex Insurance's initial decision to refuse benefits to someone who was receiving regular Unemployment Insurance benefits, interest appears to follow a finding that benefits are owing. I conclude, therefore, that Mr. Vo is entitled to interest on the outstanding amounts, calculated according to section 24 of the No-Fault Benefits Schedule.

5. Expenses

Mr. Vo claims the expenses that he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

I conclude that I should exercise my discretion to award Mr. Vo his expenses. The issues raised in this arbitration were legitimate and there was no suggestion of improper conduct in the hearing process. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Vo is entitled to receive weekly income benefits of $455.58 for the period from one week following the accident until November 4, 1992. The amount that he is to be paid, however, is to be reduced by the $185.60 that he has already received for the period from June 12, 1992 to December 31, 1992.

2. Mr. Vo is entitled to interest on the outstanding amounts, calculated according to section 24 of the No-Fault Benefits Schedule.

3. Mr. Vo is entitled to his expenses of this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

October 4, 1993

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1

Photocopies of the clinical notes and records of Dr. Talangbayan from June 9, 1992 to March 25, 1993.

Exhibit 2

A photocopy of an Ontario Automobile Insurance Medical or Psychological Report, completed by Dr. Talangbayan on June 16, 1992.

Exhibit 3

A photocopy of an Ontario Automobile Insurance Medical or Psychological Report, completed by Dr. Talangbayan on October 13, 1992.

Exhibit 4

A photocopy of a Disability or Maternity Certificate for the Unemployment Insurance Program, completed by Dr. Talangbayan on August 20, 1992.

Exhibit 5

A photocopy of a McDonnell Douglas Canada Ltd. "Claim Form & Statement of Disability for Accident & Sickness Benefits, signed by Mr. Vo on October 27, 1992, and completed by Dr. Talangbayan on the same date.

Exhibit 6

A photocopy of a report, dated January 31, 1993, form Dr. Talangbayan to the Cigna Life Insurance Company of Canada.

Exhibit 7

A photocopy of a handwritten note from Dr. Talangbayan, dated March 25, 1993.

Exhibit 8

A photocopy of a report of Dr. David Brown, dated November 6, 1992.

Exhibit 9

A photocopy of a report of Mr. Michael Coupland, Vocational Rehabilitation Consultant, dated March 12, 1993.

Exhibit 10

A photocopy of a report from Dr. Michael C. Hall, dated March 5, 1993.

Exhibit 11

A photocopy of a letter, dated December 3, 1991, to Mr. Vo from McDonnell Douglas.

Exhibit 12

A photocopy of Mr. Vo's application for no-fault benefits, dated June 9, 1992.

Exhibit 13

A photocopy of Mr. Vo's application for additional accident benefits, dated June 3, 1992.

Exhibit 14

A photocopy of an Ontario Automobile Insurance Employer's Confirmation of Income form, completed by Mr. D. Creaser of McDonnell Douglas Canada on June 23, 1992.

Exhibit 15

A photocopy of Mr. Vo's application for sickness benefits from the Unemployment Insurance Commission, dated August 18, 1992.

Exhibit 16

A photocopy of a letter, dated October 27, 1992, from the Canada Employment Centre to Mr. Vo.

Exhibit 17

A photocopy of a McDonnell Douglas Canada Ltd. "Claim Form & Statement of Disability for Accident & Sickness Benefits, signed by Mr. Vo on October 27, 1992 (note: a similar photocopy was marked as Exhibit 5).

Exhibit 18

A photocopy of a letter, dated November 23, 1992 from the Canada Employment Centre to Mr. Vo.

Exhibit 19

A photocopy of a letter, dated March 12, 1993, from Mr. Pleau of Cigna Life Insurance to Mr. Vo.

Exhibit 20

A photocopy of a Record of Employment, dated January 23, 1992.

Exhibit 21

A photocopy of a report card from the Unemployment Insurance Commission.

Exhibit 22

A photocopy of the handwritten medical report of Dr. Butt, dated October 10, 1992.

Exhibit 23

A photocopy of a Statement of Supplemental Unemployment Benefit and Deductions, dated April 9, 1992.

Exhibit 24

The photocopy of the handwritten statement of Mr. Vo taken by Mr. Giffen and signed by Mr. Vo on June 18, 1992. A typewritten version of the statement is included with the exhibit.

Exhibit 25

A photocopy of the curriculum vitae of Dr. Brown.

In addition to the exhibits, the following documents were before the arbitrator:

• Report of Mediator, dated October 16, 1992

• Application for Appointment of an Arbitrator, dated January 20, 1993.

• Response by Insurer, dated February 12, 1993.

• Letter, dated May 13, 1993, confirming the pre-hearing discussion that took place on April 29, 1993.

APPENDIX B

From the Applicant:

1. R. v. McKibbon (1981), 1981 CanLII 1722 (ON HCJ), 34 O.R. (2d) 185 (H.C.J.)

2. Sellars v. The Queen (1980), 1980 CanLII 166 (SCC), 110 D.L.R. (3d) 629 (S.C.C.)

3. Re Horne and Evans (1986), 1986 CanLII 2786 (ON HCJ), 54 O.R. (2d) 510 (H.C.J.)

4. Brown v. Bouwkamp (1976), 1976 CanLII 740 (ON CA), 12 O.R. (2d) 33 (C.A.)

5. Elaine Boone and State Farm Insurance, OIC File No A-00790 (July 17, 1992)

6. Robert G. Knapp and Metropolitan Insurance Company, OIC File No. A-000193 (June 3, 1992)

7. Donna Flemming and Wawanesa Mutual Insurance, OIC File No. A-000406 (April 28, 1992)

From the Insurer:

1. Paul Revere Life Insurance Company v. Sucharov (1983), 1983 CanLII 168 (SCC), 3 C.C.L.I. 114 (S.C.C.)

2. Vincenzo Scavuzzo and Canadian Home Assurance Company, OIC File No. A-000626 (March 8, 1992), upheld on appeal, OIC File No. P-000626 (June 19, 1992)