Neutral Citation: 1994 ONICDRG 125
File No. A-001515
ONTARIO INSURANCE COMMISSION
BETWEEN:
DARSHAN SAINI Applicant
and
WELLINGTON INSURANCE COMPANY Insurer
DECISION
Issues:
The Applicant, Darshan Saini, was injured in a motor vehicle accident on November 26, 1990. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on January 3, 1991.
The parties disagreed about both the duration and the amount of benefits paid. They were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act.
The issues in this hearing are:
Can the Applicant be compensated under the Schedule for his expenses incurred in hiring others to work in his business?
Is the Applicant entitled to weekly income benefits for any period after January 3, 1991? What is the correct amount of those benefits?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant cannot be compensated under the Schedule for his expenses incurred in hiring others to work in his business.
The Applicant is entitled to weekly income benefits of $211.98, payable until February 1, 1991, and interest on any outstanding amounts at the rate of two per cent per month.
Hearing:
The hearing was held in Toronto, Ontario, on June 23, 1993, before me, Frederika M. Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant: Darshan Saini Applicant's Representative: Peter Carlisi, Barrister and Solicitor Insurer's Representative: Grant Dow, Barrister and Solicitor
The proceedings were interpreted by Suraj Bartra, Punjabi interpreter of Global Translations & Interpreters Services Inc.
Witnesses:
Darshan Saini, applicant Ranjit Kaur Saini, spouse of applicant
Documents Before the Arbitrator:
The exhibits filed and other documents before the Arbitrator are listed at Appendix A.
Reasons for Decision:
1. Duration of Disability
Mr. Saini is the self-employed proprietor of a full-service gas station. He was injured in an accident on November 26, 1990, and claimed statutory accident benefits under the Schedule after that date.
Mr. Saini received weekly income benefits at the rate of $185.00 per week for approximately six weeks, until January 3, 1991, when his benefits were terminated. Mr. Saini claims his benefits were wrongly terminated at that time, and feels he is entitled to additional compensation.
Specifically, Mr. Saini seeks reimbursement from the Insurer for his expenses incurred in hiring others to work at the gas station for him after the accident, when he was disabled due to his injuries.
Mr. Saini is 45 years old. He lives with his wife and two children in Peterborough, in a building that was formerly a business property. In front of the building is a gas station, with four gas pumps (with two nozzles per pump) and an attendant's booth or kiosk.
Mr. Saini has owned the property since early 1989. He and his family took up residence on the property in approximately June 1989. He has operated his gas station on the property since February 1989.
Mr. Saini testified that when he started in the business he had three employees. However, he soon found that the business was not earning enough to support paying any employees and, by June 1989, he was essentially running it alone.
Mr. Saini described his business as a full-service gas station -- meaning that an attendant fills customers' gas tanks, using a manually operated pump. The pump must be shut off by the attendant when the exact amount of gas wanted is obtained -- it stops automatically only when the car's gas tank is full. The attendant also checks the oil and other fluids in customers' vehicles, and washes windows for customers. No vehicle repairs are done.
In addition to servicing vehicles, Mr. Saini described his duties as taking payments, including credit card payments, maintaining and cleaning the premises and, in winter, doing snow removal. He also had to be aware of prices charged for gas by other stations in the neighbourhood, in order to ensure that his business remained competitive. He had to change the price of gas from time to time.
In the mornings, Mr. Saini would open the station, turn on the pumps, and take readings to start the day. He later entered the readings into his computer. Mr. Saini testified that he kept all his business records himself, on his computer, and did all his own paperwork, in the evenings.
Mr. Saini testified that prior to the accident, he worked approximately 16 hours a day, six days a week, and about 10 or 11 hours a day on Sundays. The normal operating hours for the business were 6:30 or 7:00 a.m. to 10:00 p.m., six days a week. On Sundays, the business was generally open from 9:00 a.m. to 8:00 p.m.
Mr. Saini testified that prior to the accident, he had occasional casual help from family members, but could not afford to pay for regular help.
Mr. Saini testified that in order to run the operation alone, he needed to be active and healthy. He had to provide prompt and attentive service, since customers become annoyed if they are kept waiting. Mr. Saini testified that attending to one customer at a time was not a problem -- but things became complicated if more than one customer was being served, if a complete fill-up was not required, or if a credit-card payment was being taken.
Mr. Saini testified that after the accident of November 26, 1990, he was in severe pain and could not work efficiently. He had previously been injured in an accident in January 1990 and had been coping with the residual effects of that injury. After November 26, 1990, his back pain was aggravated, he had additional pain in his neck, and he was suffering from headaches and dizziness.
Mr. Saini testified that he was not able to work after the accident and so family members helped out. His brother, Baltej, worked at the gas station in December 1990, and his older daughter and her friends also helped out. Mr. Saini also engaged a former employee, Rick Porter, who worked for him from November 27, 1990 to February 1, 1991.
Mr. Saini testified that he paid Mr. Porter $7.00 an hour, and that Mr. Porter worked an average of 40 hours per week during the time he was employed.
Mr. Saini testified that his wife, Mrs. Ranjit Saini, started to work at the gas station after January 1, 1991. He testified that she generally helped out four to five hours a day. Because Mrs. Saini was also suffering from the effects of a previous automobile accident, which occurred in January 1990, she was not capable of working prolonged hours. Both Mr. and Mrs. Saini testified that she generally worked less than six hours a day, in split shifts of one and a half to two hours at a time. She was not capable of working for more than two hours at a stretch.
Mr. Saini testified that his wife continued to help him at work after Mr. Porter left in February 1991. He testified that after Mr. Porter left, he was also obliged to accept help from other family members, including his older daughter, who was then in grade seven. She used to work at the gas station every afternoon, after school, and sometimes her friends came over to help. Other family members also assisted, usually on weekends: Mr. Saini's father, his brother Baltej, and his two nephews.
Mr. Saini testified that most of the help he received was unpaid, but he paid Mr. Porter, his wife, and his brother Baltej. He produced cheques and other records documenting his payments to these individuals (Exhibits 5 and 7). He feels he should be reimbursed, by way of accident benefits, for his expenses incurred in paying Mr. Porter, his wife Ranjit Kaur Saini, and his brother Baltej Singh Saini.
Mr. Saini testified that through the winter and spring of 1991, he did what he could, and tried to work as much as possible, even when others were helping. He testified that he was "restless" and would come out to the kiosk if he saw that a customer was waiting or something needed to be done.
Mr. Saini testified that he saw Dr. Peggy Wilkins, his family doctor, on March 12, 1991. He testified that he told Dr. Wilkins that he could not do any prolonged activities at work for more than half an hour at a time.
As summer approached, he began to feel better and, he testified, by June 1991 he was able to fully return to his duties, albeit with some continuing residual pain.
Dr. Wilkins prepared a medico-legal report dated April 9, 1991. In her report, she confirms that Mr. Saini has suffered musculoligamentous injuries to his neck, back, chest wall and left arm as a result of the accident of November 1990. His recovery was complicated and slowed because of previous musculoligamentous injuries (caused by previous accidents) to these same regions in the past 10 years. Dr. Wilkins did not feel that Mr. Saini had suffered "permanent serious impairment". She anticipated that Mr. Saini would make a complete recovery from his injuries within 6 to 12 months.
Dr. Wilkins did not offer an opinion about Mr. Saini's ability to perform his essential tasks at the time she examined him (March 12, 1991). No other evidence -- medical or otherwise -- was provided about Mr. Saini's ability to perform his essential tasks at the gas station.
Based on the scanty evidence before me, I conclude that Mr. Saini was substantially disabled from performing his essential tasks up to February 1, 1991, that is, throughout the period when he employed Mr. Porter. I conclude that Mr. Saini's injuries prevented him from substantially discharging his duties at the gas station during this time and, therefore, in order to keep the business going, he was obliged to pay for replacement help.
Mr. Saini's evidence, corroborated by Mrs. Saini, is that after February 1, he operated the gas station himself, with regular part-time assistance from his wife and his daughter, and occasional weekend assistance from other family members.
Mrs. Saini, due to her own health problems, was only able to work about five hours a day (in split shifts) and Miss Saini (then about 13 years old) could also only help regularly a few hours daily, after school.
I conclude from the evidence, therefore, that although Mr. Saini continued to experience pain and difficulty in performing his essential tasks after February 1, 1991, he was not suffering from a substantial disability to perform those tasks after that date. The evidence suggests that Mr. Saini was performing his essential job tasks -- in pain and with some assistance from his family members. However in his own testimony, Mr. Saini indicated that after February 1, 1991, he was basically on the job again, although his wife and daughter provided him with relief periods for breaks and rest.
Therefore, I find that Mr. Saini is entitled to be paid weekly income benefits until February 1, 1991.
2. Amount of Benefits:
What is the amount of these benefits? On behalf of Mr. Saini, it was argued that the weekly income benefit should reflect the amount Mr. Saini was required to expend on additional help, while he was unable to run his own business. Counsel for the Applicant argued that the section 12 weekly income benefit was designed to compensate individuals for the financial effects of a motor vehicle accident. Accordingly, the legislation must be interpreted as broadly as possible, to reimburse individuals for their expenses incurred in protecting their source of income. Counsel argued that section 12(4) of the legislation could be interpreted to allow for payments to others within the benefit period.
I cannot accept this argument. The relevant portions of the legislation provide:
12 (4) Subject to subsection (5), the weekly benefits under subsection (1) will be the lesser of,
(a) $600 plus, if Optional Benefit 2 has bee 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.
- Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income. O. Reg. 273/90, s. 12.
I find that the legislation provides no mechanism for reimbursing or compensating an injured individual for additional labour expenses incurred in connection with a business, as a result of his or her injury.
In the absence of such mechanism, I must concur with the statement of Senior Arbitrator Naylor in David and Erica Bress and State Farm Insurance Companies, Commission File Nos. A-000191 and A-000192 (March 23, 1992), at p. 16:
...the statutory scheme compensates for loss of income from employment and self-employment but compensates such loss in specific terms: benefits are based on an applicant's prior earnings record before the accident, subject to a minimum amount.
As an arbitrator exercising statutory powers, I have no jurisdiction to award benefits or compensation for losses that do not fall within the existing statutory no-fault benefits scheme. I have no jurisdiction to award income replacement benefits on any other basis, regardless of whether the legislation works unfairly in individual cases, or whether it fails to compensate an applicant to the full extent of his or her loss.
Therefore, Mr. Saini's weekly income benefit must be based on 80 per cent of his average weekly earnings in the 12 months prior to the accident, or in the four weeks prior to the accident, as provided in section 12 of the Schedule.
I received little evidence about Mr. Saini's earnings, and no specific evidence about his earnings in the four weeks prior to the accident. Counsel for the Insurer submitted that according to Mr. Saini's tax return (Exhibit 8, filed) he earned approximately $12,000.00 in the year prior to the accident, and would be entitled to a weekly benefit of $211.98 for the period of his disability. I accept this submission, in the absence of any other evidence or argument to the contrary by the Applicant.
Counsel for the Applicant submitted that if the Applicant could not be reimbursed for his expenses in hiring others as replacement labour under section 12, he could be reimbursed under section 6(1) (f) of the Schedule, which provides:
6.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
Counsel submitted that replacement labour could be considered a reasonable rehabilitation expense under section 6(1) (f), which is a catch-all section and not limited to goods and services of a medical or rehabilitative character.
My colleague, Arbitrator Makepeace, has dealt with this issue at length in her decision Kevin Zehr and The Guarantee Company of North America, Commission File No. A-001963 (July 30, 1993). In that case, Mr. Zehr, a farmer, was seeking compensation for his expenses incurred in hiring replacement farm labour during the period when he was too disabled, as result of a motor vehicle accident, to perform his essential farm tasks. Arbitrator Makepeace held that for expenses to be payable under section 6(1) (f), an applicant must establish that the expense in question fits into a treatment or rehabilitation nexus. Arbitrator Makepeace in the Zehr case, found that Mr. Zehr hired replacement farm workers in order to keep the farm operating during the period of his disability. She found that the cost of the replacement labour was a business expense, and not an expense which facilitated or contributed to Mr. Zehr's rehabilitation. Therefore, this expense could not be claimed under section 6(1)(f).
I concur with this analysis and find that, in this case as well, Mr. Saini cannot receive compensation under section 6(f) for his expenses in hiring replacement labour. I conclude that these expenses are business expenses, and not expenses in the nature of goods and services which promote Mr. Saini's rehabilitation.
I conclude that Mr. Saini is entitled to be paid weekly income benefits in the amount of $211.98 until February 1, 1991, and interest on any outstanding amounts at the rate of two per cent per month as provided in section 24(4) of the Schedule.
I exercise my discretion in this case to award Mr. Saini his expenses incurred in respect of the arbitration hearing.
Order:
The Applicant is entitled to weekly income benefits of $211.98, payable until February 1, 1991.
The Applicant is entitled to interest at the rate of 2 per cent per month on any outstanding amounts.
The Applicant is entitled to his expenses incurred in respect of the arbitration.
Frederika Rotter Senior Arbitrator
Date
SCHEDULE A
Exhibits
Photocopy of a medico-legal report from Dr. Peggy Wilkins dated April 9, 1991.
Photocopy of the motor vehicle accident report from Peterborough Police Officer B. Brunsch dated November 26, 1990.
Photocopy of a letter dated July 22, 1991, from Peter S. Carlisi, Kapelos & Carlisi, Barrister and Solicitor to Felicia Yeoh, Claims Adjuster, Wellington Insurance Company.
Photocopy of the Record of Employment for Mr. Rick Porter dated February 5, 1991, and signed by Darshan Singh Saini.
Photocopy of a cheque dated June 12, 1992, from KHNDA Investments payable to Baltej Singh Saini in the amount of $1,400.00.
Photocopy of a Record of Employment for Ranjit Kaur Saini dated June 6, 1991, and signed by Darshan S. Saini.
Photocopies of pay cheques and cheque receipt book entries.
Photocopy of Darshan S. Saini's 1991 T1 General Income Tax Return.
Photocopy a letter dated May 26, 1993, from Dr. Peggy Wilkins to Kapelos & Carlisi, Barristers and Solicitors, enclosing copies of Mr. Saini's medical records for the period November 26, 1990 through June 1, 1991.
Other Documents
Application for Appointment of an Arbitrator dated November 3, 1992.
Response by Insurer dated December 22, 1992.
Report of Mediator dated June 16, 1992.