Rajbir Singh v. Wellington Insurance Company, 1994 ONICDRG 56

Neutral Citation: 1994 ONICDRG 56

File No. A-004139

BETWEEN:

RAJBIR SINGH Applicant

and

WELLINGTON INSURANCE COMPANY Insurer

Issues:

The Applicant, Rajbir Singh, was injured in a motor vehicle accident on March 16, 1991. He applied for and received statutory accident benefits from the Insurer, Wellington Insurance Company ("Wellington"), payable under Ontario Regulation 672.¹ Weekly income benefits of $483.28 per week were paid between March 23, 1991 and December 25, 1992, when they were terminated by the Insurer. The Applicant seeks ongoing weekly income benefits after December 25, 1992. The Applicant also contends that he is entitled to a higher rate of benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8.

The issues in this hearing are:

Is the Applicant entitled to weekly income benefits after December 25, 1992?
What is the proper amount of weekly income benefits to which the Applicant is entitled?

In deciding this issue, I must consider:

whether the Applicant's farm losses are to be considered in determining his gross weekly income; and
whether the Applicant's income from employment in the 52 weeks before the accident is to be averaged over the entire 52 weeks, or the 47 weeks he actually worked.

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

Result:

Mr. Singh is entitled to weekly income benefits after December 25, 1992. I was not asked to determine whether he is entitled to benefits after 156 weeks (from March, 1994).
Weekly benefits are payable at the rate of $519.08 per week, less weekly benefits already paid. The Insurer is also entitled to deduct 80 per cent of any post-accident income.

In reaching this conclusion, I find that:

the farm losses are not to be considered in determining the Applicant's gross weekly income before the accident; and
Mr. Singh's income from employment in the 52 weeks before the accident is to be averaged over 52 weeks.

The Applicant is entitled to interest on amounts owing, and his expenses in the proceeding.

Hearing:

The hearing was held in North York, Ontario, on December 6 and 7, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Applicant: Rajbir Singh

Applicant's Representative: Michael Gillen, Barrister and Solicitor

Insurer's Representative: Chris Blom, Barrister and Solicitor

Insurer's Officer: Patrick Johnson, Claims Consultant

Witnesses:

Rajbir Singh, the Applicant

Dr. Surje S. Sira, the Applicant's family doctor

Cynthia Cole, Regional Manager, Canadian Back Institute

Exhibits:

Exhibit 1 Applicant's Document Brief, December 2, 1993

Exhibit 2 CT scan report, November 3, 1993

Exhibit 3 Kipling Kab run sheets, December 2, 1993

Exhibit 4 Kipling Kab run sheets, December 3, 1993

Exhibit 5 Kipling Kab run sheets, December 4, 1993

Exhibit 6 Dr. Langer's curriculum vitae

Exhibit 7 1991 Income Tax Return (admitted post-hearing on consent)

Background Facts:

The Applicant, Rajbir Singh, is 40 years old. He has worked as a cab-driver since May or June of 1987. At the time of the motor vehicle accident, he owned and drove a cab under agreement with Kipling Kab. He had worked with Kipling since March 1988, except for a period of about nine months in 1990 when he worked with another cab company. He returned to Kipling in the fall of 1990. He and his brother each owned a 50 per cent share in the cab, and each drove the cab for a 12-hour shift. Mr. Singh was also part-owner of a farm, along with six other people. The farm produced wheat and maize.

After the accident, he sold his share of the cab within one or two weeks. The farm was sold in 1991, shortly after the accident.

Mr. Singh received weekly income benefits of $483.28 between March 23, 1991 and December 25, 1992. The Insurer terminated benefits on the basis of the October 8, 1992 report of the Canadian Back Institute ("CBI"). The Applicant contends that he remains substantially disabled from his pre-accident work as a cab-driver because his low back and neck pain precludes prolonged sitting and heavy lifting and carrying.

Mr. Singh returned to work for two days in October 1992 and two-and-a-half days in August 1993, but he contends that he was unable to continue because of his disability. In November 1993, he returned to work on a two-days-on, three-days-off basis, and this continued at the time of the hearing. The Applicant concedes that the Insurer is entitled to deduct 80 per cent of his post-accident income from his ongoing weekly benefits. The Insurer contends that the Applicant could have returned to work on the same part-time basis as early as 1991 or 1992.

Mr. Singh did not work for five weeks in January 1991, when he took a vacation in order to spend time with his parents, who were visiting. He contends that his income for the 52 weeks before the accident should be extrapolated from his income over the 47 weeks he worked, following the reasoning in Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, Appeal decision, June 19, 1992, OIC File No. P-000626. The Insurer submits that Mr. Singh's income for the 52 weeks before the accident should be averaged over 52 weeks, regardless of the number of weeks worked, in accordance with the reasoning in Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777, (under appeal).

Because Mr. Singh sold his share of the cab after the accident, the parties agreed that there is no need to consider "ceasing expenses" in calculating the Applicant's gross weekly income. Both parties based their calculations on the Applicant's net income as reported on his income tax returns.

The Insurer submits that the Applicant's pre-accident income should be reduced by the farm's business losses. Mr. Singh contends that the farm was an investment, not an occupation, and therefore its business losses should not be considered when determining his entitlement to weekly income benefits.

Entitlement to weekly income benefits:

(a) The test

Entitlement to weekly income benefits is provided under subsection 12(1) of the Schedule, as follows:

12.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

In order to determine whether Mr. Singh is entitled to receive weekly income benefits after December 25, 1992, I must determine whether he has continued to be substantially disabled from the essential tasks of his occupation as a cab-driver after that date. Under subsection 12(5) of the Schedule, the test for entitlement changes after 156 weeks. In Mr. Singh's case, this would apply after March 1994. However, the hearing was held in December 1993, and I was not asked to determine Mr. Singh's entitlement to benefits after 156 weeks.

(b) Essential tasks

Mr. Singh testified about his tasks as a cab-driver. Before the accident, he worked 12-hour shifts, seven days a week. He found passengers by "cruising", waiting outside subway stations or at taxi stands, and from dispatch.

Mr. Singh admitted that he could get out of the car to stretch while waiting at a subway exit or taxi stand, or while taking breaks throughout the day. However, he testified that he would not want to leave the car in bad weather, and in any case he would have to stay within listening range of the radio, in order to solicit fares. He would generally eat in the cab, rather than taking a break for lunch. According to Mr. Singh, it would not be possible to make money if he took too many breaks or worked a shorter shift because he paid a plate rental fee of $600-650 per month.

In addition to sitting and driving, Mr. Singh's duties involved lifting and carrying passengers' groceries, luggage, and other packages, including wheelchairs. He estimated that about half his passengers would have packages. As he worked in the Etobicoke and downtown area, he would take three or four passengers a day to the airport, though some days there would be none. Passengers on international flights are allowed up to 72 lbs. of luggage.

Finally, Mr. Singh testified that he sometimes assisted elderly and infirm passengers to get in and out of the cab. Mr. Singh testified that he had to assist passengers in order to get tips.

(c) The accident and its aftermath

Mr. Singh testified that on March 16, 1991, he was stopped at a red light when his vehicle was struck head-on by a vehicle passing through the intersection on a green light. He hit his head on the steering wheel and fainted for a short time. The police and an ambulance were called. He made a statement to the police, and drove his own vehicle home. The vehicle was later repaired for about $600.

Mr. Singh began to experience lower back, neck and shoulder pain about an hour after the accident when he got home. He felt bad the next day, and saw Dr. Surje Sira, his family doctor, on the following day, a Monday. Dr. Sira's reports of May 7, 1992; June 12, 1992; April 8, 1993; and his clinical notes, were entered into evidence (Tabs 4, 5, 6 and 7, Exhibit 1). Dr. Sira testified at the hearing.

On initial examination, Dr. Sira found muscle spasm, tenderness and reduced range of movement in Mr. Singh's neck and lumbar spine. There was no evidence of bony or neurological deficit. Dr. Sira diagnosed "...an acute flexion-extension type of injury to his [the Applicant's] cervical and lower lumbo-sacral spines as well as direct trauma to his person...". He prescribed a cervical collar, analgesics, muscle relaxants, tranquilizers and graded physiotherapy. Mr. Singh wore the collar every day for some two months. He received passive physiotherapy at Humberview Physiotherapy between April and December 1991.

Between March 18, 1991, and the date of the hearing, Dr. Sira saw Mr. Singh twice and sometimes three times a month. Mr. Singh reported no significant improvement in his condition.

In September 1991, Dr. Sira referred Mr. Singh to Dr. Gordon Dale, an orthopaedic specialist. Dr. Dale's consultation notes of September 3, 1991 and November 17, 1993 were entered into evidence (Tabs 8 and 9, Exhibit 1). On physical examination, Dr. Dale's findings were consistent with those of Dr. Sira. Dr. Dale recommended that Mr. Singh become much more active, walking and driving for gradually longer periods of time, several times a day. Mr. Singh testified that he began driving his car to buy groceries, go to the bank, or attend therapy. He also began walking.

At the Insurer's request, Mr. Singh saw Dr. Fred Langer, an orthopaedic specialist, on December 20, 1991. In his January 7, 1992 report (Tab 10, Exhibit 1), Dr. Langer stated that on physical examination, he found "some restriction" of lumbar movement, with lumbar flexion reduced to about 70 per cent of normal. There was no tenderness or muscle spasm. Examination of the neck and shoulders was negative. There were no abnormal neurological findings. X-rays revealed "degenerative changes at the lower lumbar spine with some narrowing of the disc at L4-5 and the disc at L5-S1". Dr. Langer told Mr. Singh to stop physiotherapy immediately and do home exercises instead. He was optimistic that Mr. Singh would recover fully and be able to return to his regular job in six or seven weeks.

Mr. Singh stopped going to physiotherapy, on Dr. Langer's advice, but began to feel worse. At the Insurer's request, he saw Dr. Langer again on February 10, 1992. Dr. Langer's findings were the same. He recorded Mr. Singh's complaint that, if anything, he was worse. He recommended a further six week course of physiotherapy, and expected that Mr. Singh would then be able to return to his regular job.

Dr. Langer examined Mr. Singh again on August 5, 1992. Mr. Singh was now complaining of intermittent right leg pain. Dr. Langer made the same findings on physical examination, and repeated x-rays were unchanged from those done earlier. In his conclusion, Dr. Langer stated "Mr. Rajbir Singh is still disabled." He went on to say that he agreed with Dr. Sira's May 7, 1992 report. In that report, Dr. Sira had opined that Mr. Singh was disabled from driving a cab. Dr. Langer recommended that Mr. Singh continue with physiotherapy and obtain a lumbar corset. He concluded, "hopefully, with this his symptoms will improve enough he will be able to return to his regular job in the short-term." He expected another four weeks of disability.

On August 26, 1992, at the Insurer's request, Mr. Singh was assessed at the Canadian Back Institute ("CBI"). In her Comprehensive Rehabilitation Assessment Report of that date, Cynthia Cole, a physiotherapist who is Regional Manager of the North York Clinic, reported that Mr. Singh did not demonstrate physical capabilities sufficient to meet the demands of a cab-driver. She found stiffness, pain and reduced range of movement in Mr. Singh's cervical and lumbar spine. She reported that Mr. Singh could sit for approximately one hour. It was noted that Mr. Singh co-operated with the testing, but became increasingly focused on his low back pain as the testing proceeded. In Ms. Cole's opinion, Mr. Singh showed "significant signs of symptom magnification". She expressed the view that Mr. Singh had chronic pain syndrome.

Between August 26 and October 8, 1992, Mr. Singh completed a six-week CBI program of education, stretching, strengthening and work simulation. In her Discharge Report, dated October 8, 1992 (Tab 18, Exhibit 1), Ms. Cole stated as follows:

SUBJECTIVE RESULTS: Mr. Singh states that he is able to do more activities with his pain but that his pain remains unchanged.

OBJECTIVE RESULTS: Mr. Singh is able to complete a three hour exercise program consisting of aerobic work, general strengthening, stretching, and work conditioning. Specifically Mr. Singh is able to walk for a period of 30 minutes without undue pain and sit for a period of one hour with breaks. He is also able to lift 32.5 pounds from the floor to waist with pain being his only limiting factor.

RECOMMENDATIONS: It is recommended that Mr. Singh return to work full-time with full duties. His physical capabilities will only be improved by his return to work. No further active physiotherapy treatment is recommended for Mr. Singh as it would only serve purpose [sic] to reinforce this man's belief in his disability.

Ms. Cole testified at the hearing. On cross-examination, she agreed that Mr. Singh was noted to be cooperative (assessment report) and well-motivated (weekly progress note of September 14, 1992, Tab 17, Exhibit 1). In her opinion, Mr. Singh could have returned to full-time work as a cab-driver in October 1992. However, she admitted that she had not known he was working seven days a week. She testified that a gradual return to work would ease the process for Mr. Singh, but was not necessitated by his objective symptoms.

The CBI recommended that Mr. Singh stop wearing the corset prescribed by Dr. Langer, and he did so while attending the program. Mr. Singh testified that the CBI program helped him and at the end of the six weeks, he asked that he be permitted to continue. He was told that the program was only six weeks long and he would have to return to his regular job.

On the advice of the CBI, he returned to driving the cab, but he lasted only two days of eight-hour shifts, on October 13 and 14, 1992 (run sheets at Tab 19, Exhibit 1). He testified that he had less pain once his body "warmed up" in the morning, but he became very stiff and sore at night. It was difficult to turn over at night, and to get up in the morning. The main problem was prolonged sitting in a restricted position. He called the Insurer, and asked to be reinstated into the CBI program, but he was again told that it lasted only six weeks.

Mr. Singh stopped receiving benefits in December 1992. At first, he was not sure whether benefits had been terminated or just delayed. He testified that he called the Insurer on January 22, 1993, and spoke to "Teresa". She told him that benefits had been terminated on the basis of a report (the CBI report of October 8, 1992). Mr. Singh explained that he had tried to return to work, but had not succeeded. He asked to be sent back to Dr. Langer, but Teresa stated that the Insurer did not want to spend the money for an additional examination. After some discussion, she agreed to write to Dr. Sira requesting a further report. After Dr. Sira sent another report, the Insurer took the position that it was insufficient to justify reinstating benefits. Mr. Singh received notice of termination of benefits, and applied for mediation.

On April 8, 1993, Dr. Sira reported that Mr. Singh had ongoing neck and back pain, and restricted movement, as well as anxiety and depression. Dr. Sira opined that Mr. Singh "still has significant symptoms for him to be able to return to his former employment as a taxicab driver." He would have difficulties with sitting, lifting, and bending.

Dr. Langer examined Mr. Singh again on August 17, 1993, at the Insurer's request. Mr. Singh continued to complain of pain and stiffness, and told Dr. Langer that his legs go numb sometimes if he sits for a long time. The pain sometimes goes to his knee. In his August 17, 1993 report (Tab 14, Exhibit 1), Dr. Langer stated that physical examination revealed that Mr. Singh "was now very over-reactive. He groaned and grimaced as he moved about. There was a restriction in the range of motion of the low back which varied from one moment to the next with retesting." He found inconsistency in straight leg raising. He also stated that movements of the cervical spine were accompanied by "much groaning." He concluded that there was "no clear evidence of significant organic disease", and that Mr. Singh should try to return to work immediately. There would be no restriction on lifting, but to avoid prolonged sitting, "he should be able to get up and move around between fares".

Mr. Singh testified that he tried to go back to work in August 1993, after seeing Dr. Langer. He worked for three days - August 24, 25 and 26 - for about nine or ten hours on the first two days (run sheets at Tab 20, Exhibit 1). He had the same problems he had had in October 1992, when he tried to go back to work. He had to take a break every 30 minutes or so, and he was able to work only half of the third day. He was unable to continue.

Mr. Singh went back to Dr. Sira on August 27, 1993, complaining of back pain radiating to the legs, neck pain and headaches. Dr. Sira recommended that he return to the CBI, but the Insurer refused to fund the therapy. Dr. Sira also sent him for a CT scan, which was performed on November 3, 1993 (Exhibit 2). It showed "minimal disc bulging at L4-5" and "degenerative changes of the lumbosacral spine associated with hypertrophic changes of the facet joints". There was no nerve root compression seen.

In November 1993, Dr. Sira sent Mr. Singh to see Dr. Dale again. Dr. Dale stated "this man must get back to work", and recommended that he return to work part-time, on a "two-days-on, two-or-three-days-off" schedule and gradually increase his work time. He noted, "his job is such that he has to work twelve hours a day driving the taxi in order to make any money. To start back full-time twelve hours a day would be difficult, but the gradual method mentioned above might work for him." (report of November 17, 1993, Tab 9, Exhibit 1).

Dr. Sira agreed with Dr. Dale's recommendation. He testified at the hearing that Mr. Singh would not be able to return to driving a cab 12 hours a day, seven days a week. Dr. Sira's clinical notes record ongoing pain and reduced range of motion. Dr. Sira testified that Mr. Singh has improved slowly since the accident.

At the time of the hearing, Mr. Singh had begun to return to work on a graduated basis. He worked November 20 and 21 (run sheets at Tab 21, Exhibit 1). After the first two days, he went to see Dr. Sira, who suggested that he go back to physiotherapy. Mr. Singh resumed physiotherapy on November 24 and 25, and worked again on November 26, 27, and 28 (Tab 21, Exhibit 1). He went for therapy on November 29 and 30, and worked on December 2, 3, and 4, 1993 (run sheets at Exhibits 3, 4 and 5). He testified on the first day of the hearing that he hadn't attended physiotherapy the day before, which was a Sunday, but he would attend that evening.

Dr. Langer's final report (November 30, 1993, Tab 15, Exhibit 1) was based on his review of the reports of Dr. Sira, Dr. Dale and the Canadian Back Institute. He stated that Mr. Singh had "improved considerably" over the four occasions when Dr. Langer examined him, and that by the fall of 1992, he believed Mr. Singh could return to his regular job.

Mr. Singh testified that he has constant pain in his lower back and right leg. The pain is especially bad for the first two or three hours in the morning, and at night. He finds it difficult to turn over during the night, and to put his socks on, wash his face and brush his teeth, and bend his knees or his upper body. Although it is his back pain which prevents him from working, he also continues to have neck stiffness. The pain is worse in cold or wet weather. He has the same type of pain as he had right after the accident, but he can do more now.

Mr. Singh testified that sitting for longer than 30 minutes remains difficult. He wears the lumbar corset prescribed by Dr. Langer when he drives, and it helps, but not much. On cross-examination, he admitted that he has to get out of the cab because of back pain only once or twice per shift. He admitted that he can generally sit for about five hours, and then must take a break of about 30 minutes.

Mr. Singh maintains that he is determined to return to work full-time and is attempting to do so on the recommendations of Dr. Sira and Dr. Dale.

(d) Conclusion

I find that Mr. Singh remains substantially unable to perform his essential tasks as a cab-driver after December 1992.

The Insurer terminated benefits on the basis of the October 8, 1992 CBI report, which recommended that Mr. Singh return to regular full-time work. I find that in reaching this conclusion, the CBI relied on Mr. Singh's ability to "complete a three hour exercise program", and specifically to "sit for a period of one hour with breaks".

Ms. Cole admitted on cross-examination that she had not been aware that Mr. Singh's regular full-time job involved 12-hour shifts, seven days a week. In the arbitration decision, Donna Flemming and Wawanesa Mutual Insurance Company, April 28, 1992, OIC File No. A-000406, the issue was whether a real estate agent was substantially disabled from her occupation, although she was able to work on a limited and part-time basis. Senior Arbitrator Susan Naylor held that there must be "an individualized inquiry" into an insured person's employment circumstances. She made the following comments, with which I agree:

...the fact that the Applicant is able to perform some functions of her occupation on a part-time basis does not address the standard of disability set out in the regulations. The standard of disability under the regulation is met where it is established that an applicant suffers "substantial inability to perform the essential tasks of his or her occupation or employment". In determining an applicant's ability to perform his or her essential occupational or employment tasks, the demands of such tasks cannot be evaluated in isolation from the broader employment context.

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

I have carefully considered the oral testimony of the Applicant and I accept her evidence that her job - in order reasonably to be remunerative - requires that she be available for long hours and on week-ends in order to secure listings and sales. While the requirement of long and unpredictable hours of work is not a matter of contract, I accept that this job requirement accurately and realistically reflects the demands of her pre-injury position.

Caution must be exercised in the case of persons, such as the Applicant, who are able to define their hours of work, and the amount of work that they do. However, the fact that the Applicant is able to attend the office for two hours a day, or attend an open house on an isolated occasion, does not represent, in my view, substantial ability to perform the essential tasks of her occupation as a real estate agent.

The CBI report also indicates that Mr. Singh can "lift 32.5 pounds from the floor to waist with pain being his only limiting factor" (Tab 18, Exhibit 1). In my view, the test for entitlement under section 12 of the Schedule is not limited to whether the insured person can perform the essential tasks of his or her pre-accident occupation without sustaining further injury. Pain is not to be dismissed as a "limiting factor", even in the absence of neurological or orthopaedic findings. If severe enough or prolonged enough, pain itself may effectively prevent an injured person from performing certain tasks. And there is no question that injured persons may have real pain in the absence of neurological or orthopaedic injury. On the other hand, the Schedule does not compensate for "pain and suffering", unless the pain "substantially disables" the injured person from returning to work. In effect, the Schedule requires injured persons to return to work, despite their pain, if they are "not substantially disabled" from performing the essential tasks of their occupation.

Is Mr. Singh's pain disabling? The CBI examiners found Mr. Singh to be cooperative and well-motivated, though pain-focused, and did not suggest that his complaints are not authentic. At the end of the six-week program, Mr. Singh asked that he be allowed to continue, but was told that the program lasted only six weeks. In accordance with the CBI's recommendation, Mr. Singh returned to work on October 13 and 14. I find that he made a sincere attempt to return to work, but felt at the end of two days that he was unable to continue. He contacted the CBI and asked to be reinstated, but was refused.

Mr. Singh continued to see Dr. Sira two or three times a month. When benefits were terminated in December 1992, he asked to see Dr. Langer again, and when this was refused, he agreed to get another report from Dr. Sira. That report confirmed his ongoing disability. Dr. Dale and Dr. Langer also found that Mr. Singh continued to be disabled from working as a cab-driver at this time.

I accept Mr. Singh's testimony that he must work very long hours if his occupation as a cab-driver is to be reasonably remunerative. I also accept his testimony that he must assist passengers with packages in order to obtain tips. I am not persuaded, on the basis of a three-hour exercise program in a protected environment, that he would have been able to return to work on a reasonably remunerative basis, in December 1992. I am satisfied that in December 1992, Mr. Singh was unable to return to his regular full-time work on a reasonably remunerative basis.

Dr. Langer's last two reports, dated August 17, 1993 and November 30, 1993, differ substantially from his reports of January 7, February 10, and August 5, 1992. The reasons for Dr. Langer's about-face do not appear on the face of his reports. His findings on x-ray and physical examination were substantially the same on all four examinations. The only changes were that Mr. Singh was said to "groan" in August 1993, and an inconsistency in straight leg raising was reported on that visit. Further, Mr. Singh had initially not attended for the CT scan recommended by Dr. Langer. There is no indication of any improvement on the basis of Mr. Singh's complaints or Dr. Langer's examination.

Dr. Langer was not called to testify at the hearing. I am not persuaded that the opinions expressed in Dr. Langer's August and November 1993 reports were justified on the basis of his findings. The tone of these reports leads me to conclude that Dr. Langer was now acting in the role of insurer's advocate. I give these reports little weight.

When Dr. Langer recommended that Mr. Singh "should try to return to work immediately", he did so. He returned to work on August 24, 25 and 26, and again, felt unable to continue after that time. He saw Dr. Sira the next day, on August 27. When Dr. Sira recommended that he return to the CBI, Mr. Singh again tried to do so, but the Insurer refused funding. Also on Dr. Sira's recommendation, Mr. Singh had a CT scan and saw Dr. Dale again in November 1993. Dr. Dale recommended that Mr. Singh return to work on a part-time basis. Dr. Sira agreed, and Mr. Singh did so.

It was Dr. Dale who first suggested, in November 1993, that Mr. Singh return to work on a "two days on, two or three days off" basis. He observed that Mr. Singh "has to work twelve hours a day driving the taxi in order to make any money" (Tab 9, Exhibit 1). The Insurer submitted that Mr. Singh could have returned to work on the same part-time basis as early as 1991 or 1992. However, I was presented with no expert evidence, other than Dr. Dale's November 1993 report, about Mr. Singh's ability to work at a remunerative or productive rate. I find that Mr. Singh took reasonable steps to return to work. He cooperated with all the therapy offered, and asked for more.

I find that Mr. Singh is entitled to weekly income benefits during the period in which he is substantially unable to return to his pre-accident occupation on a reasonably remunerative basis. In Mr. Singh's case, this means that he is entitled to receive weekly income benefits until he is able to work enough hours with sufficient productivity to provide a reasonable return. I accept that Mr. Singh must work a full week, close to 12 hours a day, with few breaks, in order to make a reasonable living.

At the time of the hearing, the "two-days-on, three-days-off" pattern appeared to be working. The Applicant concedes that under section 15 of the Schedule, the Insurer is entitled to reduce his benefits by 80 per cent of any income received by or available to him after the accident.

Amount of Weekly Income Benefits:

(a) Farming income:

Aside from his income as a cab-driver, Mr. Singh received income before the accident from a farm he owned with six partners. According to Mr. Singh, he bought into the farm as an investment opportunity. He testified that he did not live on the farm or do any farming, which was done by contractors. One of the other partners managed the farm. The partners met once a year, to make decisions for the following year. In the three years he had been involved, Mr. Singh had visited the farm only a couple of times in order to show it to someone. He did not visit to check the crops. The farm was sold in April or May 1991.

On his income tax return of 1990 (Exhibit 1, Tab 22), Mr. Singh reported gross farming income of $14,159.69 and a net loss of $16,167.51 in line 141 (self-employment income, farming income). He testified that the farm statements attached to the income tax return were prepared by the managing partner. On his 1991 income tax return (Exhibit 7, Notice of Assessment found at Tab 23, Exhibit 1), Mr. Singh declared gross farming income of $15,864.16, and a net loss of $8,218.10, in line 141. Capital gains information relating to the sale of the farm was also included in the 1991 return.

Under subsection 12(7) of the Schedule, weekly income benefits are based on an insured person's "average gross weekly income from his or her occupation or employment".

On behalf of the Insurer, Mr. Blom submitted that Mr. Singh's pre-accident income should be reduced on account of his business losses from the farm. He submitted that since Mr. Singh had benefitted from reporting these losses as losses from self-employment for income tax purposes, he should not have the benefit of treating them as investment losses, for the purpose of calculating his benefits under the Schedule. Mr. Singh admitted, on cross-examination, that his intention in buying the farm was to profit through crop sales, not just on resale. The Insurer relied on the decision Claude Morin and Lumbermens Mutual Casualty Company, June 16, 1993, OIC File No. A-001311 (under appeal).

On behalf of the Applicant, Mr. Gillen relied on the decision David and Erica Bress and State Farm Insurance Companies, March 23, 1992, OIC File Nos. A-000191 and A-000192, in support of his submission that the farm income was investment income and should not be considered in calculating pre-accident income. Mr. Gillen also noted Mr. Singh's evidence that rental income was a substantial part of the reported farm income.

In Bress, the applicants, who were spouses, submitted that they had an offer of employment, under subsection 12(2)1.iii, before the accident. They had set themselves up as a partnership and were about to begin doing business from which they expected to receive an income. They claimed that their anticipated income should be considered in calculating their gross weekly income. Senior Arbitrator Susan Naylor rejected this approach, relying on the common law principle that a partner is not an employee of the partnership. She stated at page 23 that,

The term "contract of employment" generally relates to the employment relationship between employer and employee, not other business relationships. Employees, independent proprietors, partners, corporations are distinct entities well known in law.

I agree with these comments.

In Morin, the applicant operated two businesses. He was self-employed through a video machine business, and was also involved in a donut shop. He had declared losses from the donut shop as business losses, rather than investment losses, on his income tax return. Arbitrator David Draper accepted the insurer's submission that these losses should be considered in determining his gross weekly income for purposes of statutory accident benefits. He found that the applicant's involvement in the donut shop "went well beyond that of a mere investor", considering his income tax treatment of the business, and also considering that his sole partner in the business was his then common-law spouse, and that they expected to share the profits.

The Morin case can be distinguished from the case before me. In that decision, Arbitrator Draper found that the two partners "shared the duties required to operate the business" (page 16):

Ms. Patrak took care of the day-to-day operation of the business, and Mr. Morin assumed responsibility for the repairs and renovations to the premises. He purchased materials as they were needed. He did some work himself, and also hired, supervised and paid tradespeople to do work on the premises. He also provided cash to the business from time to time for various purposes, such as rent. In my view, the extent of Mr. Morin's involvement in the business strongly suggests that he was more than an investor.

Mr. Singh's involvement in the farm was much less substantial than Mr. Morin's involvement in the donut shop. He had six partners, not one. I accept his evidence that he performed none of the duties of a farmer. His activities - meeting with partners to discuss the next year's crops, and occasionally visiting the farm are more consistent with those of an investor than a self-employed farmer. His only profits from his investment came when the farm was sold after the accident. There was no suggestion that the farm was sold as a result of the accident, and Mr. Singh testified that the farm was on the market at the time of the accident. Whether his intention in buying the farm was to profit through resale, farm rent, or crop sales, I am satisfied that any profits he drew from the farm would have been those of an investor, not a self-employed farmer.

(b) Earnings period:

Mr. Singh testified that in the 52 weeks prior to the accident, he generally worked 12 hours a day, seven days a week, except for five weeks in January 1991, when he took a vacation. I heard no evidence to dispute that of the Applicant. I found this evidence plausible, and I accept it.

On Mr. Singh's behalf, Mr. Gillen submitted that the Applicant's gross income for the 52 weeks prior to the accident should be averaged over the 47 weeks he actually worked. He relied on the arbitration decision, Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, Appeal decision, June 19, 1992, OIC File No. P-000626, which was upheld on appeal to Director's Delegate Michele Smith.

In Scavuzzo, Senior Arbitrator Susan Naylor restated the view she had expressed in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, that subsection 12(7)1 is ambiguous and admits of both interpretations:

Where a statutory provision is ambiguous and capable of more than one meaning, it is necessary to have regard to the context of the wording used, and the purpose and objectives of the legislation in order to select the interpretation that best reflects the intent of the Legislature.

In McCormick, the purpose of weekly income benefits was expressed in the following terms:

Income benefits are intended to compensate for the financial effects of the automobile accident. The purpose of the legislative scheme therefore is best served by an interpretation that results in the most accurate reflection of the applicant's employment income.....this is achieved by averaging his employment income over the period of time that the applicant was in fact working, and disregarding the period of time in which he was incapacitated from work.

The No-Fault Benefits Schedule is remedial legislation and therefore must be construed in the manner that best serves the purpose of the legislation - the provision of fair, adequate and speedy compensation for loss of income from employment resulting from an automobile accident. These objectives are best served by calculating benefits based on the Applicant's average earnings over the period of time that he was in fact working, because this calculation better reflects the loss he sustained as a result of the accident.

On behalf of the Insurer, Mr. Blom submitted that the Applicant's gross weekly income should be calculated by dividing his gross income in the 52 weeks prior to the accident by 52 weeks, in accordance with the arbitration decision in Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777, under appeal.

In Vo, Arbitrator David Draper held that he was not bound to follow the appeal decision in Scavuzzo, and in his opinion the issue was not settled. He found that the facts before him were different from the facts in Scavuzzo and McCormick in that the applicant in Vo was unemployed at the time of the accident, but he was physically able to work and was looking for a job. Arbitrator Draper held that subsection 12(7)1 was intended to provide "relatively clear rules about entitlement". In his opinion, the plain language of the provision requires an applicant's gross weekly income to be averaged over four weeks or 52 weeks, even if the applicant's income was interrupted during those periods. He held (page 22), "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."

I do not agree that the plain meaning of subsection 12(7) mandates the calculation set out in Vo in all cases. I agree with Senior Arbitrator Naylor that subsection 12(7)1 is unclear and ambiguous. It would seem to apply relatively clearly to a long-time employee who has had no interruptions in service in the year before the accident. However, it does not set out rules for determining the gross weekly income of casual workers, seasonal workers, or workers who have been laid off as a result of disability or economic conditions during the year before the accident. Nothing in subsection 12(7)1 mandates any particular way of dealing with the vacation periods of self-employed workers.

In my view, the ambiguous language of subsection 12(7) must be given an interpretation consistent with the underlying legislative intent that weekly income benefits compensate the injured person for roughly 80 per cent of the income lost as a result of the accident. I do not accept that subsection 12(7) was drafted without regard to accuracy. The Schedule is remedial legislation which should be given a broad and liberal interpretation. In my view, subsection 12(7) should be given the interpretation, in each case, which provides for the most accurate assessment of the applicant's pre-accident financial circumstances. It may not be possible to set out a formula for all cases.

Mr. Singh testified that he took a vacation in early 1991 in order to spend time with his parents, who were visiting. I heard no evidence that he took any other vacation during the 52 weeks prior to the accident. A yearly vacation is an expected and regular part of the work cycle. It is accommodated in the case of employees by dividing their yearly income over the entire year, not just the weeks actually worked, in order to provide a continuous income stream over the year, including the vacation period. A self-employed person is responsible for making his or her own plans for continuing the income stream over the vacation period. In my view, Mr. Singh can be assumed to have planned for his vacation by putting aside some of his income to cover that period. In this case, I find that the subsection 12(7) requires Mr. Singh's income in the 52 weeks prior to the accident to be averaged over the entire 52 weeks, not just the 47 weeks he actually worked.

Expenses:

Mr. Singh succeeded on two of the three issues raised in this proceeding. The issue of the earnings period is difficult and unsettled. I find it appropriate to award Mr. Singh his expenses in the proceeding. I remain seized of the issue of expenses. If the parties cannot agree on the amount of expenses payable, they may bring the matter before me for assessment.

Order:

Mr. Singh is entitled to weekly income benefits after December 25, 1992. I was not asked to determine whether he is entitled to benefits after 156 weeks (March 1994).
Weekly benefits are payable at the rate of $519.08 per week, less weekly benefits already paid. The Insurer is also entitled to deduct 80 per cent of any post-accident income. In reaching this conclusion, I conclude that:

the farm losses are not to be considered in determining the Applicant's gross weekly income before the accident; and
Mr. Singh's income from employment in the 52 weeks before the accident is to be averaged over 52 weeks.

The Applicant is entitled to interest on benefits owing, and his expenses in the proceeding.

June 24, 1994

Nancy Makepeace Arbitrator

Date

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.