Neutral Citation: 1993 ONICDRG 78
File No. A-005417
ONTARIO INSURANCE COMMISSION
BETWEEN:
EARL JOSEPH RUSSELL
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Earl Joseph Russell, was injured in a motor vehicle accident on November 5, 1990. He applied for and received accident benefits from Co-operators General Insurance Company, payable under the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8.)
Co-operators denied Mr. Russell weekly income benefits for the period from April 9 to April 20, 1993, relying on section 16(2) of the No-Fault Benefits Schedule. Its position is that Mr. Russell is ineligible for weekly income benefits because he worked for a period of more than 90 days following the two-year anniversary of his accident.
The dispute was not resolved through mediation and Mr. Russell applied for arbitration. The issue in this hearing is:
Is Mr. Russell eligible for weekly income benefits under the No-Fault Benefits Schedule for the period from April 9 to April 20, 1993?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Russell is not eligible for weekly income benefits under the No-Fault Benefits Schedule for the period from April 9 to April 20, 1993.
Co-operators shall pay Mr. Russell's expenses, which are limited to his fee for filing his Application for Appointment of an Arbitrator.
Hearing:
The parties agreed on the relevant facts and each provided written submissions. Oral submissions were made to me, David R. Draper, arbitrator, by telephone conference call on November 22, 1993.
Participating in the telephone conference call:
Applicant: Earl Joseph Russell
Insurer's Representative: Stephen Malach Barrister and Solicitor
Reasons for Decision:
The parties agreed on the following facts:
On November 5, 1990, Mr. Russell was injured in a motor vehicle accident.
He was paid weekly income benefits under section 12 of the No-Fault Benefits Schedule at the rate of $518.74 a week for the period from November 12, 1990 to June 24, 1991.
He returned to work from June 25, 1991 to July 30, 1991 and, as a result, did not receive weekly income benefits for that period.
Mr. Russell was unable to work from July 31, 1991 through March 15, 1992. His weekly income benefits were reinstated for that period.
He was able to return to work from March 16, 1992 through April 8, 1993 and, as a result, did not receive weekly income benefits for that period.
Mr. Russell had to miss work from April 9, 1993 to April 20, 1993. As a result of the accident, he suffered a substantial inability to perform the essential tasks of his employment during this period. Co-operators refused to pay weekly income benefits, relying on section 16(2) of the No-Fault Benefits Schedule.
Mr. Russell was able to return to work on April 20, 1993.
Section 16 of the No-Fault Benefits Schedule provides:
16 (1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.
(2) Subject to section 15 and subsection (3), after the two-year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.
According to section 12 of the No-Fault Benefits Schedule, weekly income benefits are to be paid "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment". The purpose of section 16 is to encourage people receiving weekly benefits to attempt to return to work. Without section 16, it could be argued that eligibility is lost as soon as the person is able to return to his or her pre-accident occupation or employment. The effect of section 16, therefore, is to extend eligibility during certain periods of work.
After receiving weekly income benefits for over six months, Mr. Russell returned to work from June 25, 1991 to July 30, 1991. This was within the two years following the accident and, therefore, section 16(1) applied. Mr. Russell satisfied Co-operators that he was substantially unable to continue to perform the essential tasks of his employment as a result of the accident, and his benefits were reinstated.
Mr. Russell received weekly income benefits until March 16, 1992, when he was able to return to work. He worked for a period of almost thirteen months, 154 days of which were after November 5, 1992, the two-year anniversary of the accident. Co-operators takes the position that Mr. Russell lost his eligibility for weekly income benefits because he worked for a period of more than ninety days following the two-year anniversary of the accident.
In his written submission, Mr. Russell summarized his argument, as follows:
Section 2.39.2 of the Ontario Automobile Policy O.P.F-1 [s.16(2) of the No-Fault Benefits Schedule! provides that after the first two years following an accident, (which would be Nov. 05/90 to Nov. 05/92) a person receiving weekly benefits, (I was not receiving weekly benefits on Nov. 05/92 because I was back to work) may return to employment, (I didn't have to because I was already working) for periods of up to ninety days without affecting his benefits, (there was no benefits to be affected because I was working) if he, as a result of an injury, is unable to continue his employment, (I was able to continue my employment, and did so until April 09/93.
Mr. Russell's submission is that section 16(1) applies to him because he returned to work before the two-year anniversary of the accident and, therefore, he is able to continue working "for any period of time without affecting his or her benefits under this Part". Further, he submits that section 16(2) does not apply to him, and therefore does not limit his eligibility, because he did not receive a benefit or return to work after the two-year anniversary.
In my opinion, Mr. Russell's interpretation is a possible reading of words of the section. I conclude, however, that reading section 16(1) and (2) together, and within the context of the No-Fault Benefits Schedule, the better interpretation is that the protection of section 16 is lost if the person is able to work for more than ninety days after the two-year anniversary. Section 16(1) extends eligibility during any period worked up to the two-year anniversary of the accident. Section 16(2) extends eligibility "after the two-year period referred to in subsection (1)", but only for periods of up to ninety days.
To put it simply, before the two-year anniversary passed, Mr. Russell could work for any period of time without losing his eligibility for weekly income benefits if he was unable to continue. After the two-year anniversary, however, he lost his eligibility because he was able to work in his pre-accident employment for a period of more than ninety days.
The use of the term, "person receiving a benefit", in section 16(2) is awkward, but I believe that it applies to Mr. Russell. In order to qualify for weekly income benefits at all, the person must show that as a result of an accident, he or she was substantially unable to perform the essential tasks of his or her occupation or employment within two years of the accident. If the disability does not occur for more than two years, there is no eligibility for weekly income benefits.
Mr. Russell established his eligibility for weekly income benefits within the first two years following his accident. When he returned to work on March 16, 1992, his eligibility was extended according to section 16(1). His weekly income benefits, however, were reduced to zero as a result of his income. At the two-year anniversary, therefore, Mr. Russell had not lost his eligibility for weekly income benefits. In my view, section 16(2) then applied. Because Mr. Russell was able to work in his pre-accident employment for more than ninety days, I conclude that he was no longer eligible for weekly income benefits under the No-Fault Benefits Schedule.
Expenses
Under section 282(11) of the Insurance Act, an insured person may be awarded expenses incurred in respect of an arbitration proceeding. Mr. Russell stated that his only expense related to this arbitration was his filing fee of $50.
In my opinion, Mr. Russell should be reimbursed for this expense even though he was unsuccessful. He raised a significant issue of interpretation that had not been considered in previous arbitration decisions. He also expedited the process by agreeing to proceed by an agreed statement of facts, written submissions, and brief oral submissions by conference call.
Order:
Mr. Russell is not eligible for weekly income benefits under the No-Fault Benefits Schedule for the period from April 9 to April 20, 1993.
Co-operators shall pay Mr. Russell's expenses, which are limited to his fee for filing his Application for Appointment of an Arbitrator.
December 20, 1993
David R. Draper Arbitrator
Date