Neutral Citation: 1993 ONICDRG 64
File No. A-002187
Ontario Insurance Commission
Between:
Peter Jolin
Applicant
and
Jevco Insurance Company
Insurer
Decision
Issues:
The Applicant, Peter Jolin, was injured in a motorcycle accident on August 20, 1991. He received care benefits and weekly income benefits from the Insurer, payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
The Applicant and the Insurer disagree about the care benefits to which the Applicant is entitled, and about the amount of weekly income benefits payable to the Applicant under section 12 of the No-Fault Benefits Schedule.
The Applicant also claimed certain supplementary medical and rehabilitation items. At the hearing, the Insurer agreed to provide the Applicant with a suitable orthopaedic bed and a computer, and to fund an appropriate rehabilitation plan. Accordingly, these issues are no longer in dispute.
The issues in this hearing are:
Is the Insurer obliged to pay care benefits under section 7 of the No-Fault Benefits Schedule, to replace income lost by the Applicant's spouse as a result of the accident, in caring for him?
How should the Applicant's benefits under section 12 be calculated? Can benefit payments such as workers' compensation and no-fault insurance benefits be considered "income from occupation or employment" for the purpose of calculating the Applicant's weekly no-fault benefits?
Is the Insurer entitled to repayment of an alleged overpayment?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Insurer is obliged to pay to care benefits of $205 weekly for the period March 22 to May 21, 1992.
The Applicant's weekly income benefits must be calculated based on his deemed earnings of $232 weekly.
I remain seized of the issue of the repayment of the overpayment, pending a decision of the Supreme Court of Ontario (Divisional Court).
Hearing:
The hearing was held in St. Catharines, Ontario, on March 31, 1993 and April 1, 1993, and resumed in Toronto on June 7, 1993, before me, Frederika M. Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant: Peter Jolin
Applicant's Representative: Martin E. Tiidus, Barrister and Solicitor
Insurer's Representative: Barney W. Brucker, Barrister and Solicitor
Witnesses:
- Peter Jolin, the applicant
- Jill Jolin, the applicant's spouse
- Mike Matijow, comptroller-in-chief, E. S. Fox Limited
- Heather Foley, registered nurse & rehabilitation consultant
- W. (Bill) Hunter, insurance adjuster, Lindsey-Morden
- William John Urquhart, private investigator
Documents before the Arbitrator:
Application for Appointment of an Arbitrator, filed September 2, 1992
Response by Insurer (undated)
Report of Mediator, dated July 30, 1992
Exhibits:
The exhibits are noted at Appendix 1.
Cases referred to:
Case authorities are listed at Appendix 2.
Evidence and Findings:
1. Background information:
The Applicant, Peter Jolin, is the unfortunate victim of three recent and disabling accidents. He had been employed at Welland Forge, a steel foundry, and was working as an operator of a 2,500 ton press when he was injured on June 7, 1989 in an accident at work. A heavy metal die fell on his left foot. As a result of this accident, he was unable to work and received total temporary disability benefits from the Workers' Compensation Board. He eventually underwent two surgeries for his ankle. He still suffers some residual difficulties with the ankle, as the fusion surgery which was performed left him with limited movement of his foot.
About three weeks after the accident at work, on June 30, 1989, Mr. Jolin was involved in a motor vehicle accident. He suffered severe neck sprain and injured his elbow -- affecting his left ulnar nerve and resulting in a "clawing" syndrome of his left hand, and a loss of grip strength. Mr. Jolin received no-fault benefits of $126 a week from his motor vehicle insurer, pursuant to the provisions in effect at that time under the Insurance Act.
Mr. Jolin started participating in a rehabilitation and retraining program organized by the Workers' Compensation Board. His doctors considered that, by itself, his left ankle injury totally disabled Mr. Jolin from performing his previous job at Welland Forge. As well, his injuries from the automobile accident were also sufficient to totally disable him from doing his job. The Applicant was being retrained at the Workers' Compensation facility for lighter job duties, which were less physically demanding than his old job, and was enrolled in a work-hardening program which was interrupted by the third accident.
The third accident, which is the subject of the present dispute, occurred on August 20, 1991. The Applicant was thrown off his 1985 Harley Davidson motorcycle when a car hit the rear of the bike. He suffered multiple injuries, including a head injury, a compound fracture of the left arm, and compression fractures of the thoracic spine.
Mr. Jolin was immediately hospitalized. His left arm was operated on and surgically stabilized. His back injuries were investigated, but not operated on at the time, as the fractures appeared stable. Bed rest and controlled mobilization were prescribed for his back injuries. Mr. Jolin was discharged from hospital on September 4, 1991, with home care and physiotherapy support.
Mr. Jolin testified that he remained very debilitated for approximately six months after the accident. His arm fracture healed appropriately, although he lost some further range of movement in his left elbow. However, his back remained very painful, especially in the T-3 and T-4 area. In March 1992, a fusion operation was performed on the T-3, T-4 level of his spine. He was hospitalized for ten days for this surgery, and he stated he was bedridden for about three months after the operation.
After recovering from the spinal surgery, Mr. Jolin was left with certain residual complaints which, apparently, have not resolved or improved. These complaints are: neck pain, migraine headaches, dizziness (benign positional vertigo), memory lapses and disorientation, limited ability to walk, shortness of breath with stress, limited range of arm movement, and general body weakness.
Mr. Jolin claims that, primarily because of his dizzy spells, but also because of his ongoing pain and general body weakness, he requires continuous, around-the-clock care and supervision, provided by his wife. He has requested that the Insurer pay care benefits under section 7 of the No-Fault Benefits Schedule, which would compensate Mrs. Jolin for her income lost as a result of the accident in caring for him.
Section 7 claim
Mr. and Mrs. Jolin have been together in a conjugal relationship for more than 15 years, although they were formally married in May 1989. Mrs. Jolin was working full-time as a word processing operator at E.S. Fox Limited when Mr. Jolin had his two accidents in June 1989. At that time, she was pregnant with their first child, Thomas, who was born on November 12, 1989.
Mrs. Jolin took maternity leave on August 31, 1989, prior to Thomas' birth. She claims she did not take an extended leave from work before the birth as a result of her husband's accidents, although she did take the odd day off to drive him to doctors' appointments, and the like.
Mrs. Jolin returned to work in March 1990 on a part-time basis. She worked mornings, while Mr. Jolin cared for Thomas. She would remain home in the afternoons, when Mr. Jolin went out for his therapy program.
She testified that it was her choice to work part-time, rather than place Thomas in a full-time day care program. A full-time job was available with her employer, and she could have returned to that job had she chosen to do so. However, she preferred that Thomas be cared for at home, and Mr. Jolin was available and capable of looking after the baby during the mornings.
Mrs. Jolin continued to work part-time until the start of her second maternity leave, on May 31, 1991. She gave birth to Adam by Caesarean section on June 13, 1991.
Mrs. Jolin testified that after Adam's birth she was ill for two months. During that time, Mr. Jolin was responsible for the care of the two babies, and for all the housework, including cooking, groceries and laundry. Mrs. Jolin was due to return to work on October 13, 1991.
However, Mr. Jolin had his motorcycle accident on August 20, 1991. Mrs. Jolin testified that after he was discharged from hospital in September 1991, Mr. Jolin was incapable of doing anything for himself. Mrs. Jolin had to prepare the meals and help Mr. Jolin to eat, she had to bathe and wash him, comb his hair, empty his bed pan, and dress and undress him when necessary. As well, she had two very young children to care for.
Over time, Mr. Jolin's condition gradually improved. He moved from being bedridden to being able to sit in his recliner chair. However, Mrs. Jolin felt that she was not able to return to work in October 1991 as planned. In the circumstances, she extended her leave to January 20, 1992.
Mrs. Jolin testified that, prior to her return to work, she was solely responsible for all the housework and child care duties, as well as for the care of Mr. Jolin. She planned to return to work on a part-time basis, as she had done after her first maternity leave. She felt she could not return to work full-time because of her increased duties at home. She arranged to have Mr. Jolin's 62 year old mother come in for the mornings.
Mrs. Jolin worked for only three weeks, from January 20 to February 7, 1992. She was then laid off by her employer. She suggested that she was laid off because of poor attendance -- she had extended her maternity leave, and had to be absent a couple of days, to drive her husband to the doctor.
However, Mike Matijow, comptroller-in-chief for her employer, E. S. Fox Limited, testified from the employer's records, and stated that Mrs. Jolin was laid off due to a shortage of work. At the time of Mrs. Jolin's lay-off, the company was experiencing a down-turn in its business. The records show no problem with Mrs. Jolin's attendance. If Mrs. Jolin had returned to work on a full-time basis, she might have been kept on for a few weeks longer -- but probably only until the next round of lay-offs in May 1992.
I accept Mr. Matijow's evidence and find that Mrs. Jolin was laid off due to a shortage of work, and not because her responsibilities in caring for Mr. Jolin interfered with her ability to work.
Mrs. Jolin has not returned to work since February 1992. The Jolins claim that she has not been able to return to work because Mr. Jolin required and continues to require constant, around-the-clock care and supervision. Mrs. Jolin claims that she would have looked for employment, and hired a babysitter to care for her children, if not for Mr. Jolin's injuries.
The Insurer paid care benefits under section 7 of the No-Fault Benefits Schedule to Mrs. Jolin until January 20, 1992 (the date she returned to work) at the rate of $205 per week. This is the amount of Mrs. Jolin's gross part-time income from her employment. Section 7 provides:
(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person.
(a) the reasonable cost of a professional care-giver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and
(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.
Since October 1992, the Insurer has provided Mrs. Jolin with assistance from homecare workers who attend at her home two mornings a week. This gives Mrs. Jolin a break from her household duties, and allows her some "time off" to do shopping, errands, and attend to her own personal needs.
However, the Jolins claim that this part-time relief is not sufficient, and claim ongoing care benefits of $205 weekly, to replace Mrs. Jolin's salary, from January 20, 1992 onwards.
Does Mr. Jolin require continuous and ongoing care and supervision as a result of the accident, from January 20, 1992 onwards? I am satisfied that the Jolins were not entitled to receive care benefits from January 20 to February 7, 1992, the period that Mrs. Jolin was working part-time. Mrs. Jolin testified that her decision to work part-time was based on the day care requirements of her children. She did not lose any time from work because of Mr. Jolin's care requirements during this period.
Mr. Jolin's mother took over the general household tasks while Mrs. Jolin was working.
However, it is clear that Mrs. Jolin's role in caring for Mr. Jolin became more onerous in March 1992, after Mr. Jolin had his thoracic surgery. Mrs. Jolin testified that Mr. Jolin was bedridden and almost totally dependent on her for everything, for about two months following the spinal fusion surgery of March 22, 1992.
The Insurer did not dispute this testimony. I therefore conclude that the Insurer should pay care benefits to replace Mrs. Jolin's income for the period March 22 to May 21, 1992, when Mr. Jolin was recuperating from the spinal fusion surgery.
I propose to deal with the issue of Mr. Jolin's care requirements for the remainder of the period in dispute -- that is, from February 8 to March 21, 1992, and from May 22, 1992 onwards -- together. The evidence indicates that Mr. Jolin's situation was essentially similar prior to his back surgery, and after he had recuperated from it.
Dr. Bednar, Mr. Jolin's orthopaedic specialist, reported to the Applicant's solicitor on January 28, 1992, after having seen the Applicant on January 7, 1992. Dr. Bednar reported that Mr. Jolin's "arm and elbow have recovered well to the point where he seems happy and not incapacitated by those injuries".
However, Mr. Jolin was complaining of upper back pain around the level of his thoracic spine fractures, and reported that he was unable to stand or sit comfortably. Dr. Bednar acknowledged that this pain represented a disability for Mr. Jolin, but did not indicate that he required around-the-clock attendance and supervision for this problem.
In March 1992, the spinal fusion operation was performed to deal with Mr. Jolin's T-3, T-4 injuries. Dr. Bednar's report of April 22, 1992 indicates that the fractured bones had collapsed and were causing some irritation of the Applicant's spinal cord. Dr. Bednar anticipated that the operation would relieve the Applicant's back pain.
However, Mr. Jolin has continued to complain of back pain since the operation, and has not regained full strength and mobility in his back.
In a report dated July 16, 1992 (Exhibit 2), Dr. Bednar confirms that:
Mr. Jolin has made good functional recovery from his arm injury, but still continues to be plagued by back and shoulder girdle weakness and pain as he recovers from his spinal fracture and fusion operation, to the point where he is really quite sedentary in his activity tolerance and cannot do a great deal around the house or in the care of his children. He can independently look after himself on a day-to-day basis, but he cannot do very much for others or about the house.
Mr. Jolin is clearly disabled from resuming many of his pre-accident activities. However, Dr. Bednar's evidence is that Mr. Jolin was capable of looking after himself, and that his orthopaedic injuries were not such that he required constant care and supervision.
Mr. and Mrs. Jolin do not agree. Mr. Jolin testified that his wife provides him with personal service and assistance, such as occasionally helping him out of bed or out of his chair. He now has hand-rails in the shower, but his wife is available if he requires help. His wife trims his beard, cuts his toenails, and helps him put on his socks. His wife prepares all the family meals.
Mr. Jolin testified that his wife only leaves him alone for "a few minutes" if no other adult is available to look after him. He stated that he will be left alone only if his close neighbours are at home.
Mrs. Jolin confirmed her husband's evidence. She testified that since the motorcycle accident, she has been solely responsible for all the child care, shopping, meal preparation and general housework, cleaning and laundry. She attends to her husband's personal needs, including getting his meals and drinks, driving him to doctors' appointments, and providing minor assistance with dressing and grooming, as described by Mr. Jolin.
Mr. Jolin's evidence at the hearing was that, although he continues to suffer from back pain and weakness, his major problems now are dizzy spells and disorientation. Mr. Jolin feels that he cannot be left alone.
He currently weighs 230 pounds. He testified that if he falls, as the result of a dizzy spell, he would not be able to get up without assistance, because of his bodily weakness and back pain.
Mrs. Jolin also felt she had to be available in case her husband passed out or fell. However, she confirmed that she has left her husband alone at home at times, for up to three and a half hours, with the downstairs neighbour available in case of emergency. She indicated that one such occasion had occurred on March 18, 1993, and was depicted on the surveillance videotape (Exhibit 23). The medical evidence confirms that Mr. Jolin suffers from vertigo. Dr. John Rutka, an otolaryngologist at the Toronto Hospital, reported on January 18, 1993 (Exhibit 4) that he examined Mr. Jolin on November 12 and December 14, 1992, and that the result of his examinations and the otoneurological tests performed support a diagnosis of right post-traumatic benign positional vertigo (BPV). BPV is described as a benign disorder which renders the balance canal (in the inner ear) very sensitive to gravity when certain head movements are made.
"This results in patients experiencing attacks of dizziness that typically last for seconds causing nausea to the point of vomiting".
Dr. Rutka testified at the hearing. He reviewed his qualifications and stated that he is deputy chief of otolaryngology at the University of Toronto and at the Toronto Hospital, and a specialist in the field of dizziness. He testified that he has dealt with thousands of cases of dizziness and vertigo -- he sees 4,000 to 5,000 such cases a year.
He confirmed that Mr. Jolin suffers from true vertigo, which is defined as a severe hallucination of movement. He explained that the vertigo is precipitated by certain head movements, and observed that most patients learn to limit the head movements that bring on these attacks.
Dr. Rutka commented that in about 98 per cent of cases, the condition eventually goes away spontaneously. Dr. Rutka indicated that in Mr. Jolin's case no useful medical or surgical treatment exists. He explained that surgery is possible but risky (as the patient might suffer a hearing loss and further impairment of the sense of balance) and therefore generally reserved for patients with "incapacitating" vertigo. Dr. Rutka did not classify Mr. Jolin in that category. He stated that patients with an inner-ear problem can generally look after themselves and know what movements to avoid.
Dr. Rutka's advice to Mr. Jolin was to avoid the head movements that lead to his attacks. He testified that in no case that he was aware of was a patient so incapacitated by vertigo as to require constant supervision 24 hours a day.
The Insurer has retained various rehabilitation consultants to provide advice about assistance and services to be provided to Mr. Jolin and his family. A number of rehabilitation reports were filed as exhibits to the hearing, all of which I have carefully reviewed. As well, I heard evidence from one of the consultants retained by the Insurer.
The rehabilitation reports generally deal with Mr. Jolin's employability and capacity for rehabilitation, in light of his multiple injuries, and his employment and educational history. The reports also discuss Mr. Jolin's capacity to function on an everyday level.
I note that Exhibit 1-27 (a report by occupational therapist Russell McNeil, dated August 29, 1992) indicates that Mr. Jolin was having difficulty with tub, bed and toilet transfers. That report indicates that Mrs. Jolin assisted Mr. Jolin with washing his hair, and dressing his lower extremities (e.g. pants, socks, shoes). Mrs. Jolin also prepared Mr. Jolin's meals.
However, Exhibit 1-27 does not suggest that Mr. Jolin required constant care and supervision, although it does acknowledge that he required some assistance with activities of daily living, in the areas of personal hygiene and meal preparation.
The report recommended that some regular outside assistance be provided to Mrs. Jolin, as relief for her as care provider for Mr. Jolin and the children. The report also recommended that grab bars and other assistive devices be installed in the bedroom and bathroom. As a result of this and subsequent reports, the assistive devices were provided and the Insurer also provided household help for Mrs. Jolin twice weekly, as I have noted above.
Heather Foley, a registered nurse and rehabilitation consultant, currently working for Lindsey-Morden Claims Services Limited, gave evidence at the hearing. She testified that it is her job to assess the condition of injured individuals and make recommendations regarding their rehabilitation.
She initially contacted Mr. and Mrs. Jolin on June 30, 1992, and on that occasion she spent one and a half or two hours with them. On the basis of this initial contact, she prepared her report dated July 6, 1992 (Exhibit 1-25). That report recommends that a caregiver be retained to provide relief for Mrs. Jolin, twice a week, for three or four hours a day.
On page 2 of her report, Ms. Foley described Mr. Jolin's activities and functioning as follows:
Mr. Jolin can perform his own personal care and Mrs. Jolin stays in close attendance. Since the MVA of August 20, 1991, Mr. Jolin stated that he experiences dizzy spells. These spells occur if he walks too fast, if he bends over to pick up an item of any weight, if he becomes too exhausted, and if he rolls over in bed too quickly. Mrs. Jolin stated that her husband cannot be left alone because of these dizzy spells and possible injury.
At page 3, she noted:
She [Mrs. Jolin] stated that she felt Mr. Jolin required twenty-four hour companionship because of his dizzy spells and possible "blackouts". Mrs. Jolin expressed the need for a child care provider to enable her to do the grocery shopping, pay bills, and do the banking. She perceived this need to be approximately twice weekly for three to four hours each time.
In her testimony, Ms. Foley stated that, in her opinion, Mrs. Jolin needed some private time away from the home and her ongoing responsibilities. She did not consider that Mr. Jolin required supervision on a constant basis -- she felt he could be taught preventative measures to cope with his vertigo.
In her view, Mr. Jolin was capable of independently looking after himself, although he could not work or do much for others.
In summary, none of the expert evidence supports the provision of full-time care and supervision for Mr. Jolin after he had recuperated from the effects of his thoracic surgery. I accept that Mr. and Mrs. Jolin both feel that Mr. Jolin requires such care and companionship. They are both nervous about leaving Mr. Jolin alone.
However, I find that the level of supervision and attention required by Mr. Jolin is not sufficient to warrant the provision of a full-time professional caregiver, or full-time attendant under section 7. I conclude that the Insurer is not required to provide ongoing care benefits for Mr. Jolin after May 21, 1992.
The Insurer is required to provide care benefits for the period March 22 to May 21, 1992, which was the period of Mr. Jolin's recuperation from his thoracic surgery.
Calculation of Weekly Benefits
Mr. Jolin is continuing to receive weekly income benefits under section 12 of the No-Fault Benefits Schedule. At the time of his motorcycle accident, he was not working, but receiving total temporary disability benefits of $449.46 weekly from the Workers' Compensation Board (in respect of his accident at work) and $126 per week in no-fault benefits under the previous Insurance Act from Pilot Insurance (in respect of his automobile accident). This situation had persisted since July 1989.
Mr. Jolin and the Insurer differ about how Mr. Jolin's benefits under section 12 of the No-Fault Benefits Schedule should be calculated. It was not disputed that Mr. Jolin's benefits were payable under section 12 ("income benefit") rather than section 13 ("benefit if no income") of the Schedule. Mr. Jolin testified that in August 1991 he was still an employee of Welland Forge with full employee benefits. He tendered a letter from Welland Forge, dated January 25, 1993 (Exhibit 13), confirming that he was a "seniority employee" as of that date. Mr. Jolin was subsequently terminated for "innocent absenteeism".
Section 12 sets out the method for calculating the weekly benefits payable to an insured person. The relevant sections are reproduced, as follows:
(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (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.
(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.
(7) The following rules apply to the calculation of gross weekly income:
- 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.
- 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.
The Insurer has been paying the minimum weekly income benefits of $185.60, based on section 12(7)iii, which deems a statutory minimum weekly income of $232.
Mr. Jolin argued that his benefits should be calculated based on the income (in the form of workers' compensation benefits and no-fault benefits) that he was receiving prior to the accident. In the alternative, he argued that he should be treated as a person who had an offer of employment under section 12(2)1.iii, and his benefits should be calculated based on the income payable to him, had he returned to work.
Counsel for Mr. Jolin argued that his workers' compensation benefits and no-fault benefits from Pilot Insurance should be considered "income from ... occupation or employment" within the meaning of section 12(4)(b), for the purpose of computing the weekly income benefit. Since Mr. Jolin was receiving $449.46 from the Workers' Compensation Board and $126 per week from Pilot Insurance, it was argued that his benefits should be 80 per cent of the total of $575.46, that is, $460.36, less appropriate deductions for "payments for loss of income".
Counsel argued that these "payments for loss of income" should also be considered income from "occupation or employment". He acknowledged that Mr. Jolin had received no income from his employment at Welland Forge during the previous 12 months. This was because he was disabled. However, he submitted that the Applicant did receive income from his "occupation", as a disabled person. Counsel referred to the New Lexicon Websters Dictionary of the English Language, which defines income as: "whatever is received as gain, e.g. wages or salary, receipts from business, dividends from investments etc." That dictionary defines occupationas "an activity by which one earns one's living or fills one's time, or an instance of this".
Counsel argued that, since the Applicant was filling his time, or occupied, as a disabled person, he was accordingly receiving income (disability benefits) from his occupation as a disabled person. Further, he noted that certain disability benefits are treated as income for the purposes of the Income Tax Act, and argued that they should similarly be treated as income for the purposes of the Insurance Act.
I cannot accept this argument. I find that the term "occupation", in the context of section 12(4)(b), which refers to "gross weekly income from ... occupation or employment" means "an activity by which one earns one's living", and is not meant to include activities in which one otherwise passes time (since one does not earn income from such activities). In any case, the term "occupation" must refer to an activity in which one engages, and not to a health or employment status such as "disability".
Furthermore, section 12(4)(b) provides that the weekly benefit shall be "80% of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income..." Accepting the Applicant's argument, it would follow that workers' compensation payments, for the purposes of section 12(4)(b), must be considered both "income" and "payments for loss of income" at one and the same time.
This is not a logically consistent outcome, and I cannot accept that it was intended by the framers of the legislation. Instead, I find that section 12(4)(b) clearly distinguishes revenue which is treated as "income" from the kind of revenue which is labelled "payments for loss of income", and in respect of which amounts are deductible from the weekly income benefit.
The Applicant's alternative argument is that he should be considered a person who is entitled to start work within one year under an offer of employment, under section 12 (2)(1)(iii) and his benefits should be based on the benefits payable under the contract of employment.
The difficulty with this argument is that section 12(2)(1)(iii) refers to "a legitimate offer of employment made before the accident and evidenced in writing".
In this case, we have no "offer" evidenced in writing. Exhibit 25 is an Employer's Confirmation of Income and Benefits form dated October 11, 1991, which documents Mr. Jolin's gross hourly earnings, but indicates that he had not worked since June 7, 1989. The form also indicates that Mr. Jolin would be on lay-off if he were able to work.
Exhibit 15, a letter from Welland Forge to the Applicant's solicitor, dated February 17, 1993, indicates that had Mr. Jolin been physically able, his seniority position was such that he could have resumed work as a press operator on or about January 27, 1992.
I do not think either of these documents, or the combination of both, constitute an "offer of employment" within the meaning of section 12(2)(1)(iii). The documents rather verify that, under a collective agreement, Mr. Jolin had certain ongoing employment rights, which might be asserted under the appropriate circumstances (that is, if a job was available that Mr. Jolin was physically capable of performing).
Although he had the right to return to his old job if he was able to, it is not clear to me that Mr. Jolin would or could have resumed that employment on any specific date, were it not for the 1991 motorcycle accident. In that respect, his position is not analogous to the position of an unemployed person with a definite offer of employment, who would have commenced work on a specified date, but for the accident.
Accordingly, I cannot treat the Applicant as a person entitled to start work under an offer of employment for the purposes of his benefits calculation. My decision in this respect is supported by the judgements in Ciolfi v. Continental Insurance Co., 1988 CanLII 4763 (ON HCJ), 66 O.R. (2d), 131 and Pineda v. The Co-Operators Group Ltd., 1985 CanLII 2094 (ON HCJ), 51 O.R. (2d), 787, 21 D.L.R. (4th) 53. Both these decisions of the Ontario Supreme Court (High Court of Justice) deal with situations in which the plaintiffs were injured in automobile accidents while still recovering from (and receiving compensation for) injuries sustained at work. In both cases, it was held that the plaintiffs were employed under a contract of employment.
Mr. Jolin's case cannot be distinguished from the situations described in Ciolfi and Pineda. He must be considered employed at the time of the motorcycle accident, under his contract with Welland Forge. However, since he has received no income for this employment, his weekly income benefits must be calculated based on the deemed minimum earnings of $232 weekly, set out in the legislation.
I realize that this outcome may appear harsh or inequitable. Mr. Jolin is a skilled individual who was earning approximately $20 an hour prior to being disabled by a series of accidents. After the 1989 accidents, his income loss was fairly well compensated by the combination of workers' compensation benefits and no-fault insurance benefits. However, since the 1991 accident, he and his family have suffered a drastic decline in income. Nevertheless, my understanding of the legislation is that an employed individual in Mr. Jolin's situation (one who has not worked for over a year) must have his weekly income benefits calculated based on the deemed minimum income.
Repayment of Overpayment
The Insurer has claimed that it is entitled to be repaid the overpayment which it claims has arisen in this case.
The legislation specifies, at section 12(4)(b), that any payments for loss of income must be deducted from the weekly income benefit. Since Mr. Jolin has been receiving, during most of the relevant period, benefits which can be described as payments for loss of income (i.e. certain workers' compensation benefits, no-fault insurance benefits, and since January 1992 CPP benefits), the Insurer claims that it has overpaid Mr. Jolin, as no amount has been deducted from the weekly income benefits in respect of payments for loss of income.
I remain seized of the issue of the alleged overpayment. I am declining to rule on this question at present, since I am aware that an application for judicial review has been recently made in the Supreme Court of Ontario (Divisional Court), with respect to the very issue of the deductibilty of so-called "collateral benefits". Accordingly, I await the ruling of the Divisional Court in Michael Morin v. Personal Insurance (which is expected in or about November 1993) before disposing of this final issue.
Expenses:
The Applicant seeks an award of the expenses he incurred in the arbitration hearing. I have a discretion to award such expenses, which are normally granted, following the criteria outlined by Senior Arbitrator Naylor in the decision of McCormick and Economical Mutual, which I endorse.
In this case, neither counsel suggested that these criteria are inappropriate, or that an award of expenses should not be made. The Applicant is therefore entitled to his expenses incurred in respect of the arbitration proceeding.
Order:
The Insurer is obliged to pay care benefits of $205 weekly for the period March 22 to May 21, 1992.
The Applicant's weekly income benefits are $185.60, based on his deemed earnings of $232 weekly.
I remain seized of the issue of the repayment of the overpayment, pending a decision of the Supreme Court of Ontario (Divisional Court).
The Applicant is entitled to his expenses incurred in the arbitration proceeding, pursuant to Ontario Regulation 664, R.R.O. 1990, "Dispute Resolution Expenses".
October 27, 1993
Frederika M. Rotter
Senior Arbitrator
Date
APPENDIX 1
Exhibits:
Exhibit 1
Medical Brief containing 40 individual reports and documents
Exhibit 2
Report of Dr. Bednar, dated July 16, 1992
Exhibit 3
The Medical Rehabilitation Service Report, dated March 17, 1993
Exhibit 4
Report of Dr. Rutka, dated January 18, 1993
Exhibit 5
Pay Stub from Workers' Compensation Board - $898.
Exhibit 6
Letter from Workers' Compensation Board, dated November 22, 1991
Exhibit 7
Pay Stub from Pilot Insurance Company - $252. for two weeks
Exhibit 8
Pay Stub from Workers' Compensation Board (showing reduction)
Exhibit 9
Letter from Workers' Compensation Board, dated December 14, 1992
Exhibit 10
Last Pay Stubs for Pension from Workers' Compensation Board
Exhibit 11
Letter from Workers' Compensation Board, dated March 15, 1993
Exhibit 12
Three documents for CPP: 12A - Feb.15/9312B & 12C - March 1, 1993
Exhibit 13
Letter from Welland Forge, dated January 25, 1993
Exhibit 14
Letter from Welland Forge, dated November 25, 1991
Exhibit 15
Letter from Welland Forge, dated February 17, 1993
Exhibit 16
Letter from E.S. Fox Limited, dated December 10, 1991
Exhibit 17
Memos from E.S. Fox Limited
Exhibit 18
Handwritten note re Jill Jolin's employment from E.S. Fox Ltd.
Exhibit 19
Curriculum Vitae of Heather Foley
Exhibit 20
Letter from Heather Foley, dated June 28, 1992
Exhibit 21
Letter to Dr. Bednar with his notes, dated July 30, 1992
Exhibit 22
Dispatch Sheet - home care
Exhibit 23
Surveillance Videotape
Exhibit 24
Notes of Dr. Wells
Exhibit 25
Employer's Confirmation of Income & Benefits
Exhibit 26
Letter from Welland Forge, dated February 11, 1993
Exhibit 27
Release, dated March 5, 1993
APPENDIX 2
Cases referred to:
Ciolfi v. Continental Insurance Co., 1988 CanLII 4763 (ON HCJ), 66 O.R. (2d), 131
Surbir Singh Gaba and Allstate Insurance Company, O.I.C. File No. A-000624, August 21, 1992
Branden K. Hui and Security National Insurance Co., O.I.C. File No. A-000055, November 15, 1991
Levata v. Simcoe and Erie General Insurance Co., Ontario Court (General Division), August 25, 1992
Ralph McCormick and Economical Mutual Insurance Co., O.I.C. File No. A-000139, October 2, 1991
Michael Morin and The Personal Insurance Co. of Canada, O.I.C. File No. A-000468, June 16, 1992
Antonio Pallotta and Alpina Insurance Co. Ltd. (Zurich), O.I.C. File No. A-000808, April 22, 1992
Paese v. United States Fidelity & Guaranty Company, 1986 [I.L.R.] 1-2017, Ontario District Court
Peacock v. Gore Mutual Insurance Co., 1983 CanLII 1841 (ON HCJ), 42 O.R. (2d) 359, 148 D.L.R. (3d) 665
Pineda v. The Co-Operators Group Ltd., 1985 CanLII 2094 (ON HCJ), 51 O.R. (2d), 787, 21 D.L.R. (4th) 531
Marcel Richardson and Royal Insurance Co. of Canada, O.I.C. File No. A-001141, November 3, 1992
Vincenzo Scavuzzo and Canadian Home Assurance Company, O.I.C. File No. A-000626, March 18, 1992, O.I.C. File No. P-000626, June 19, 1992,
Lily Steele and Zurich Insurance Company, O.I.C. File No. A-001024, December 3, 1992
Thompson et al. v. Zurich Insurance Co., 1984 CanLII 1843 (ON HCJ), 45 O.R. (2d) 744, 7 D.L.R. (4th) 664
Vasquez v. Co-Operator General Insurance Co., 1985 CanLII 6522 (ON HCJ), 11 C.C.L.I. 73