Neutral Citation: 1995 ONICDRG 105
ONTARIO INSURANCE COMMISSION
BETWEEN:
PHILLIP RALSTON
Applicant
and
PROGRESSIVE CASUALTY INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY MATTER
Issues:
The Applicant, Phillip Ralston, was injured in a motor vehicle accident on August 31, 1990. He applied for and received statutory accident benefits from Progressive Casualty Insurance Company ("Progressive"), payable under Ontario Regulation 6721. Weekly income benefits were terminated by Progressive on September 22, 1992 when the Applicant returned to work full-time. Progressive's position is that, pursuant to section 16(2) of the Schedule, Mr. Ralston 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 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.S, as amended.
The issue in this hearing is:
- Does the operation of section 16(2) preclude Mr. Ralston's claim for further weekly income benefits from January 14, 1993 and ongoing?
Result:
- The operation of section 16(2) does not preclude Mr. Ralston's claim for weekly income benefits.
The preliminary hearing was held in Hamilton, Ontario, on July 27, 1995, before me, Joyce Miller, Arbitrator.
Present at the Hearing:
Applicant:
Phillip Ralston
Applicant's Representative:
Thomas N. Basciano Barrister and Solicitor
Insurer's Representative:
Patrick Mazurek Barrister and Solicitor
Mr. Mazurek filed a case brief.
Evidence and Finding:
The parties agreed on the following facts:
Mr. Ralston was involved in a motor vehicle accident on August 31, 1990.
At the time of the accident, Mr. Ralston was employed full-time with Inter-City Truck Lines.
As a result of his injuries, Mr. Ralston received weekly income benefits from time to time between August 31, 1990 and September 22, 1992.
After the second anniversary of the accident, namely August 31, 1992, Mr. Ralston worked as a regular, full-time employee on a continuous basis, during the 113-day period commencing September 23, 1992 and ending on January 13, 1993.
During the above-mentioned period of 113 days, there were 38 days comprised of Saturdays, Sundays, and holidays during which Mr. Ralston was not scheduled to work, and there were 75 days during which Mr. Ralston was scheduled to work.
The issue in this case is whether Mr. Ralston is precluded from claiming weekly income benefits because of section 16(2) of the Schedule. Section 16(2) reads as follows:
(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.
Counsel for the parties agreed that section 16(2) raises two issues. The first issue is whether Mr. Ralston did in fact work for a continuous period of up to 90 days. The second issue is, if Mr. Ralston did work for a continuous period of 90 days, does the effect of section 16(2) preclude him from claiming further benefits.
1. Did Mr. Ralston Work for a Continuous Period of up to 90 Days?
Mr. Basciano, counsel for Mr. Ralston, submitted that only the 75 days that Mr. Ralston actually worked should be included in the calculation for the purposes of section 16(2). Weekends and holidays should be omitted. In coming to this conclusion, Mr. Basciano stated that he was relying on the Guzman2 decision, in which Arbitrator Seife states that "... In calculating the number of days in a continuous period of work, days not worked by the insured person because they are not in the person's normal work schedule must not be included." [emphasis added] Mr. Basciano submitted that weekends and holidays are not part of a person's normal work schedule.
I disagree with Mr. Basciano' submission. In my view, to say that weekends or regular days off during the week do not constitute a normal work schedule flies in the face of common sense. In our society, a normal work schedule allows for regular days off.
The agreed statement of facts notes that Mr. Ralston worked "as a regular full-time employee on a continuous basis" from September 23, 1992 to January 13, 1993. No evidence was presented to show that Mr. Ralston was not working a normal work schedule, which includes weekends off and holidays. I, therefore, find that for the purposes of section 16(2), Mr. Ralston has worked on a continuous basis for a period of 90 days.
2. Does the Effect of Section 16(2) Preclude Mr. Ralston from Claiming Further Benefits?
Mr. Basciano submitted that he relied on the Lafleur3 case in support of his position that section 16(2) did not preclude Mr. Ralston from claiming further benefits. The Lafleur case, a decision by Senior Arbitrator Rotter, states that section 16(2) does not automatically prevent a person from claiming further benefits because they worked on a continuous basis for a period of 90 days. Arbitrator Rotter found that section 16(2) raises an inference that an insured person's eligibility is affected. Where a person has worked for a continuous period of 90 days, the onus shifts to the person to re-establish the causal link between the accident and the injury he or she claims to be suffering from.
I agree with the analysis and the decision in Lafleur. It is an in-depth and thoughtful interpretation of section 16(2). I did not find anything in the submissions on the part of Progressive that would lead me to depart from the Lafleur decision.
I, therefore, find that Mr. Ralston may be eligible for weekly income benefits under the Schedule if he can re-establish his claim that, as a result of the accident, he is substantially disabled from doing his essential pre-accident tasks.
Order:
- The operation of section 16(2) does not preclude Mr. Ralston's claim for weekly income benefits.
August 8. 1995
Joyce Miller 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.
- Carlota Guzman and Dominion of Canada General Insurance Company, April 24, 1995 (Under Appeal), OIC File No. A-007209.
- Rene G. Lafleur and Zurich Insurance Company, May 11, 1995, OIC File No. A-004141.