Neutral Citation: 1995 ONICDRG 14
File No. A-007209
ONTARIO INSURANCE COMMISSION
BETWEEN:
CARLOTA GUZMAN
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON PRELIMINARY ISSUE
Issues:
The Applicant, Carlota Guzman, was injured in a motor vehicle accident on August 30, 1990. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on March 23, 1993. 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, as amended.
A pre-hearing discussion in this case was held on December 8, 1994, before me, Asfaw Seife, arbitrator. Mrs. Guzman did not attend; however, she was represented by Mr. Gary Spector. Mr. William McClelland represented the Insurer.
At the outset of the pre-hearing discussion, Mr. Spector confirmed that the issue in dispute in the present application for arbitration is Mrs. Guzman's entitlement to weekly income benefits after the date of termination.
Mr. McClelland argued as a preliminary issue that Mrs. Guzman cannot proceed in this arbitration because she is no longer eligible for weekly income benefits, pursuant to section 16(2) of the Schedule, as she worked for a period of 90 days after the second anniversary of the accident.
Hearing:
The parties agreed that this preliminary issue be decided by way of an agreed statement of facts and written submissions. The exchange and filing of submissions was completed on January 23, 1995.
Background:
The parties have agreed on the following facts:
Mrs. Guzman was involved in a motor vehicle accident on August 30, 1990.
At the time of the accident, Mrs. Guzman was employed with AMEX Canada Inc.
Mrs. Guzman was paid weekly income benefits under section 12(1) of the Schedule until March 23, 1993, when they were terminated.
Mrs. Guzman returned to work with AMEX Canada Inc. on May 19, 1992, and last worked on March 25, 1993. For the purpose of the preliminary issue, the parties agree that Mrs. Guzman did not work for more than 90 consecutive working days after August 30, 1992, but did work a total of more than 90 days after this date.
Mrs. Guzman claims that she continues to suffer a substantial inability to perform the essential tasks of her pre-accident employment since March 24, 1993, and she is claiming weekly income benefits from that date forward.
Submissions:
Section 16 of the Schedule states:
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. [emphasis added]
The parties agreed that the outcome of this preliminary issue depends on the interpretation of section 16(2), specifically, what the phrase "for periods of up to ninety days" means.
Mr. Spector argues that "periods of up to ninety days" refers to one or more periods of 90 consecutive working days. He maintains that the Applicant continues to be eligible for weekly income benefits if she has not returned to work for any period of more than 90 consecutive working days, after the second year mark of the accident.
Mr. McClelland, on the other hand, contends that the use of the plural "periods" suggests that the Applicant is ineligible for weekly income benefits if she has returned to work for various periods which, collectively, exceed 90 days.
Mr. McLelland argues It is difficult to think of a period of year where an employee could work 90 consecutive days without that period being interrupted by a weekend, statutory holiday or vacation day. Also, if the insured's interpretation was accepted then an insured could keep himself or herself eligible for benefit indefinitely by continually working periods of only 89 days. Finally, if the legislature had intended that an insured person would lose eligibility when he or she had worked 90 consecutive days it could have easily included the word "consecutive" in the subsection.
Mr. Spector submits that the purpose of section 16(2) is to afford an individual an appropriate amount of time to determine if she or he is capable of returning to work. He states that the individual who returns to work "would still have to prove that their absence [from work] was due to injuries from the accident in order to collect further weekly income benefits and to meet the qualifications as stated in section 12." He submits that "if an individual only missed one day from work every 89 days, then they probably would not meet the test of "substantial inability' even though they would still be eligible to claim." Mr. Spector suggests that the 90 days in section 16(2) refers to ninety "business days".
Analysis and Conclusion:
The purpose of section 16 is to encourage persons receiving weekly income benefits to attempt to return to work and to protect them from automatic disqualification simply because they returned to work.
Section 16(1) allows a person to return to work for any period of time during the first two years of the accident, without affecting their eligibility for benefits. Section 16(2) extends this eligibility after the second anniversary of the accident, by permitting the person to return to work for "periods of up to ninety days". By necessary implication, the protection of section 16(2) is lost if the person is able to work for period(s) in excess of 90 days after the second anniversary of the accident.
The question of whether the period(s) of 90 days referred to in section 16(2) is one continuous period of work, or whether it can be a cumulation or aggregate of shorter periods of work interrupted by periods of disability, has not been addressed directly in any previous arbitration decision.
In Earl Joseph Russell and The Co-operators General Insurance Company, December 20, 1993, OIC File No. A-005417, and Joe Theuma Sr. and Halifax Insurance Company, April 28, 1994, OIC File No. A-006496, the applicants were found to be ineligible for weekly income benefits under section 16(2) because they had returned to work for more than 90 days after the two-year mark of the accident. While one might discern from reading the decisions that the applicants in both cases had been engaged in full-time work for more than 90 days after the two-year mark of the accident, there was, however, no specific finding by the arbitrators as to whether they were consecutive or aggregate periods.
It has been stated in a number of arbitration decisions that the words of the statute are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme, object and intent of the Act. The Schedule is remedial legislation, and as such it must be accorded a broad and liberal interpretation, without doing violence to the plain wording of the Schedule or ignoring accepted rules of statutory interpretation.
Section 16 is designed to encourage persons receiving weekly income benefits to return to work. In my view, it would be inconsistent with this purpose to limit the number of times that the person may attempt to return to work, or to attach an adverse consequence for each failed attempt.
According to section 12 of the Schedule, weekly income benefits are to be paid during the period in which the insured person suffers the requisite disability under the section. In my view, the thrust of section 16 is on the length of time that an insured person is actually able to work, rather than on the number of attempts that she or he may make at returning to work.
Therefore, having regard to the intent and scheme of the Schedule, and in particular the purpose, structure and context of section 16, I conclude that the phrase "for periods of up to ninety days" in section 16(2) means "for one or more continuous periods of up to ninety days each". Accordingly, an insured person receiving weekly income benefits is rendered ineligible for such further benefits, only if, after the second anniversary of the accident, the person has worked for a continuous period of ninety days or more. 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. Days in which the insured person did not work as a result of the injuries from the accident interrupt the continuous period of work.
In the circumstances of this case, Mrs. Guzman has not worked for a continuous period of ninety days after the two-year mark of the accident; therefore, I find that she continues to be eligible for weekly income benefits.
Order:
The Applicant is eligible for weekly income benefits.
The arbitration hearing will proceed as scheduled.
February 21, 1995
Asfaw Seife
Arbitrator
Date