Neutral Citation: 1994 ONICDRG 25
File No. A-004942
ONTARIO INSURANCE COMMISSION
BETWEEN:
ROBERT D. ROBLIN
Applicant
and
THE CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
AND:
File No. A-005827
ROBERT D. ROBLIN
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION ON PRELIMINARY ISSUE
Preliminary Issue:
The Zurich Insurance Company ("Zurich") claims that, according to section 20 of Ontario Regulation 6721, it is not responsible for paying accident benefits to Mr. Roblin because he is entitled to receive workers' compensation benefits. The preliminary issue is:
Is Zurich relieved of all responsibility for the payment of statutory accident benefits to Mr. Roblin, according to section 20 of the Schedule, because he is entitled to workers' compensation benefits?
Result:
I am unable to conclude as a preliminary matter that Zurich is relieved of all responsibility for providing accident benefits to Mr. Roblin.
Hearing:
The preliminary issue was presented to me, David R. Draper, arbitrator, on the basis of written submissions filed on behalf of Mr. Roblin and Zurich. The Co-operators took no position on the preliminary issue.
Applicant's
H.W. Hogle
Representative:
Barrister and Solicitor
Zurich's
Mark Sones
Representative:
Regional Manager, Claims Department
The Co-operator's
Stephen Malach
Representative
Barrister and Solicitor
Reasons for Decision:
Mr. Roblin was the manager of The Pig and Whistle Restaurant, which had locations in Napanee and Kingston, Ontario. The restaurants were operated by 645135 Ontario Limited, a company wholly owned by Dudley Gough.
On September 29, 1990, Mr. Roblin was involved in an accident, and suffered a closed head injury and a whiplash-type injury. At the time of the accident, he was in the course of his work duties. The automobile that he was driving was owned by the company, 645135 Ontario Limited, and insured by Zurich.
For the purposes of this preliminary issue, it is agreed that as a result of the accident, Mr. Roblin was substantially unable to perform the essential tasks of his pre-accident work. This means that he was eligible for weekly income benefits from Zurich, unless he was "entitled to receive benefits under any workers' compensation law or plan" (section 20 of the Schedule).
On October 12, 1990, Mr. Roblin met with an adjuster appointed by Zurich and was given the forms for applying for accident benefits under the Schedule. He submitted an Application for Accident Benefits, dated November 1, 1990. The application indicates that he was the general manager of 645135 Ontario Limited, operating the restaurant location in Kingston, although the Napanee location was closed at the time of the accident. The application also indicates that Mr. Roblin had workers' compensation coverage.
On November 20, 1990, the adjuster wrote to Mr. Roblin, as follows:
Please take note, that I have forwarded the above forms to your Insurance Company and although you would be eligible under your policy for accident benefits, you indicated in your form that you would be eligible for Workman's Compensation.
Please take note, no fault benefits are not payable with respect to any person who is entitled to receive benefits under the Workman's Compensation plan. However, there is a provision for interim benefits while a worker pursues action for personal injury or until Workman's Compensation benefits are received, if the worker makes an assignment of the benefits to the No Fault Benefit insurer and the Compensation Board approves the assignment.
Please take note, that this would be done if the Workman's Compensation rejects your claim or delays payment for any specific reason.
You indicated in our conversation that you would check out the Workman's Compensation to see if you are eligible and if this is the case, you would have to present your claim against them.
In the interim I have forwarded the forms to your insurers and have requested any further instructions they may have at this time. If you are eligible under this policy, we certainly would like to start payments to you.
Mr. Roblin then submitted an application to the Workers' Compensation Board, which the Board received on December 19, 1990. He filed an election to claim workers' compensation benefits and was paid "temporary total" benefits under section 37 of the Workers' Compensation Act:
- (1) Where injury to a worker results in temporary total disability, the worker is entitled to compensation under this Act in an amount equal to 90 per cent of the worker's net average earnings before the injury so long as temporary total disability continues or until the worker begins receiving payments under section 43.
"Temporary total" benefits are payable until the worker reaches "maximum medical recovery". If the worker has reached "maximum medical recovery", but still is disabled, the worker is then assessed for "future economic loss". Because of section 43 of the Workers' Compensation Act, the files of workers receiving "temporary total" benefits are reviewed after one year:
- (1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury.
(2) An injured worker ceases to be eligible for compensation for future loss of earnings when the worker reaches sixty-five years of age.
For reasons that are not clear, Mr. Roblin's file was not reviewed after one year and, therefore, he continued to receive "temporary total" benefits.
On May 13, 1992, Mr. Roblin was involved in a second motor vehicle accident. He applied to and received weekly benefits from The Co-operators General Insurance Company. In its Response, The Co-operators indicates that Mr. Roblin was paid the following weekly benefits:
May 20, 1992 - November 15, 1992
$185.60
November 18, 1992 - January 27, 1993
$185.00
January 28, 1993 - June 16, 1993
$185.60
In July 1992, the Workers' Compensation Board finally reviewed Mr. Roblin's file. Because he had already turned sixty-five years old on March 1, 1992, he was not eligible for compensation for future loss of earnings. Therefore, it was decided to continue to pay him "temporary total" benefits until he reached "maximum medical recovery".
On March 8, 1993, a Claims Adjudicator at the Workers' Compensation Board, wrote to Mr. Roblin, updating him on the status of his claim. The letter indicates that medical information had been submitted for a determination of whether he had reached "maximum medical recovery". According to Mr. Roblin's submission, the Board determined that he had reached "maximum medical recovery" on June 11, 1992. I am unable to determine the source of this information. It appears to me that he was determined to have reached "maximum medical recovery" on April 14, 1993, the date on which his "temporary total" benefits were terminated.
In summary, Mr. Roblin received "temporary total" benefits under the Workers' Compensation Act, as follows:
$494.00 per week to November 30, 1991
$510.50 per week to November 30, 1992
$516.08 per week to April 14, 1993 (including a final payment of $221.18)
The letter from the Claims Adjudicator also indicates that upon reaching "maximum medical recovery", Mr. Roblin would have been entitled to a non-economic loss award for any residual permanent physical impairment. It is not clear whether he applied for or received any such benefits.
After The Co-operators terminated Mr. Roblin's weekly benefits effective June 16, 1993, he applied for mediation of this issue. He also contacted Zurich, once again, for accident benefits. In a letter to Mr. Roblin, dated July 5, 1993, Zurich took the position that it was not responsible for paying him accident benefits because he was entitled to receive, and had received, workers' compensation benefits. Mr. Roblin then applied for mediation with Zurich.
Mediation did not resolve the disputes. In July 1993, Mr. Roblin applied for arbitration of his disputes with both Zurich and The Co-operators. A pre-hearing discussion took place on November 17, 1993. Zurich took the position that according to section 20 of the Schedule, it was not responsible for paying accident benefits because Mr. Roblin had received workers' compensation benefits, although those benefits had ceased. The parties agreed that this issue should be dealt with as a preliminary issue presented by way of written submissions.
In my view, this was a sensible approach. The preliminary issue presented a clear issue of interpretation: Does section 20 of the Schedule relieve the insurer of the responsibility for paying accident benefits after the applicant has exhausted his eligibility under the Workers' Compensation Act?
The situation, however, has become significantly more complicated. The Workers' Compensation Board reviewed Mr. Roblin's file as a result of information it received about his second accident, including a suggestion that he had been working while he was receiving "temporary total" benefits. In a letter dated December 9, 1993, a different Claims Adjudicator at the Workers' Compensation Board concluded that Mr. Roblin had not been eligible for any benefits under the Workers' Compensation Act because he was an "executive officer" of the company and, therefore, was not a "worker":
1. - (1) In this Act,
"worker" ... does not include ... an executive officer of a corporation...
The Board assessed an overpayment of $66,763.41 against Mr. Roblin, representing all of the "temporary total" benefits that he had received. The Board also expressed doubts about the income information which Mr. Roblin provided in his application for workers' compensation benefits. There is no indication whether Mr. Roblin has appealed this decision, or intends to do so.
2. Analysis and Conclusion
The Co-operators takes the position that if Mr. Roblin is entitled to any accident benefits, his eligibility results from the first accident, not the second accident. It maintains, therefore, that Zurich is the responsible insurer. The Co-operators also takes the position that if Mr. Roblin is entitled to accident benefits, his workers' compensation benefits should be deducted, as well as benefits that he received from the Canada Pension Plan.
Zurich maintains that according to section 20 of the Schedule, it is not responsible for paying any accident benefits to Mr. Roblin. In raising this preliminary issue, Zurich is seeking a decision that it does not face any potential liability and, therefore, need not participate in the arbitration hearing.
Sections 20 and 21 of the Schedule deal with the interaction between accident benefits and workers' compensation benefits:
The insurer will not pay benefits under this Schedule in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan.
(1) Despite section 20, the insurer will pay full benefits under this Schedule to a person described in that section until the resolution of any action brought by the person in any court to recover for personal injuries resulting from the accident under which the workers compensation claim arose or until the person receives payments under a workers' compensation law or plan if,
(a) the person makes an assignment to the insurer of any benefits under any workers' compensation law or plan to which he or she is or may become entitled as a result of the accident, and
(b) the administrator or board responsible for the administration of the workers' compensation law or plan approves the assignment.
I am inclined to agree with the interpretation of sections 20 and 21 of the Schedule presented on behalf of Zurich. Namely, that someone who is entitled to workers' compensation benefits as a result of an automobile accident must look to the Workers' Compensation Board for all of his or her statutory benefits, and not to the insurer. The only exceptions are set out in section 21.
In my opinion, however, the issue is no longer whether someone who has exhausted his eligibility for workers' compensation benefits can return to the insurer for additional benefits. The Workers' Compensation Board has now decided that Mr. Roblin was ineligible for any workers' compensation benefits as a result of his accident on September 29, 1990.
Although Zurich suggests that the Board's decision is not supported by the evidence, I cannot ignore it. The Workers' Compensation Board has exclusive jurisdiction to determine issues of eligibility, including whether the applicant is a "worker" within the meaning of the Workers' Compensation Act:
- (1) Except as provided in this Act, the Board has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority or discretion is conferred upon the Board, and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court...
I am unable to conclude, therefore, that section 20 of the Schedule relieves Zurich of its responsibility for paying accident benefits to Mr. Roblin. The situation raises many questions about the interaction between the two accidents, and between accident benefits and workers' compensation benefits. I do not believe, however, that I can resolve these issues on the basis of the written submissions.
Order:
Zurich is not relieved of its responsibility for providing accident benefits to Mr. Roblin based on section 20 of the Schedule.
The issue of expenses related to this preliminary matter is reserved to the arbitration hearing.
March 14, 1994
David R. Draper Arbitrator
Date