Neutral Citation: 1995 ONICDRG 169

File No.: A-015688

ONTARIO INSURANCE COMMISSION

BETWEEN:

JENNIFER JOYCE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Jennifer Joyce, was injured in a motor vehicle accident on March 11, 1993. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ She claims that she was employed as a nurse at the time of the accident and is entitled to weekly income benefits pursuant to section 12 of the Schedule. The Insurer, Co-operators General Insurance Company ("Co-operators"), claims she is entitled to weekly benefits pursuant to section 13 of the Schedule and made payments to Mrs. Joyce under section 13. The parties agree that Mrs. Joyce is entitled to 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., as amended.

The issue in this hearing is:

1. Are Mrs. Joyce's weekly benefits to be paid pursuant to section 12 or section 13 of the Schedule?

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

Result:

1. Mrs. Joyce's weekly benefits are to be paid pursuant to section 13 of the Schedule.

2. Mrs. Joyce is entitled to her expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in Hamilton, Ontario, on September 21, 1995, before me, Bruce Robinson, arbitrator.

Present at the Hearing:

Applicant:

Jennifer Joyce

Applicant's

George A.C. Simpson

Representative:

Barrister and Solicitor

Aaron Tanaka

Student-at-Law

Insurer's

Stephen M. Malach

Representative:

Barrister and Solicitor

Exhibits:

Exhibit 1

Agreed Statement of Facts

Exhibit 2

Joint Document Brief

Background:

Mrs. Joyce is a Registered Nurse who specializes in caring for terminal cancer patients. She worked for both Para-Med Health Services (Para) and also for Respiron Care-Plus (Care-Plus) providing nursing services on an on-call basis for several years. The number of days and hours she worked has been irregular, as it is dependent upon the number of patients that require this unique type of care. She was not on assignment on the day of the car accident.

Mrs. Joyce claims that she was employed in her occupation as a nurse at the time of the accident and is entitled to weekly income benefits pursuant to section 12 of the Schedule. The Insurer states that Mrs. Joyce was not actually working on an assignment at the time of the accident, and that she must be considered unemployed for the purposes of the Schedule. The Insurer submits that Mrs. Joyce would be entitled to weekly benefits pursuant to section 13 of the Schedule.

The parties have agreed to the following:

(A) Mrs. Joyce was injured in a car accident on March 11, 1993.

(B) Mrs. Joyce is entitled to benefits from Co-Operators under either section 12 or section 13 of the Schedule.

(C) In 1992 she earned income from Para in the amount of $2,932.42 over a period of 157 hours, as set out in Schedule A.

(D) In the 52-week period of 1992 preceding the accident, Mrs. Joyce worked 93 days with Care-Plus and earned $16,783.52, as set out in Schedule A. She last worked on January 1 and 2, 1993.

(E) In 1993, the year of the accident, she earned $733.16 from Care-Plus and $165.36 from Para for nursing services.

Letters from both employers were filed on consent. The letter from Para dated March 6, 1995 stated in part:

Jennifer has been employed with Para-Med Health Services since March 23, 1989. All Para-Med employees are hired on a casual basis with scheduling dependant on Para-Med Health Services case load and availability, skills, education of the particular employee. Jennifer is a Registered Nurse with extensive clinical experience and skills.

You made note in your letter of February 2, 1995 that her income through Para-Med is limited. This would be due to Para-Med's lack of nursing cases over that period of time, not at all related to Jennifer's lack of availability or relevant skills.

It was agreed that a similar work situation existed with Care-Plus, and a letter dated February 14, 1995 from this agency stated in part:

Jennifer Joyce has been in our employ as a Registered Nurse since 1988. Our nursing/homecare is considered on-call and such there is no guarantee of hours.

Jennifer consistently, up to the month of her accident in March 1993, called in with her availability and also called on an average of twice a week to see if any new cases had come in to the office. Unfortunately with the severe government cut backs in 91/92/93 our registered case load dropped considerably.

Jennifer was paid, while on an assignment, an hourly rate plus 4% vacation pay. The pay period was bi-weekly, and the cheques at staff request were withheld in the office for pick-up or mailed out.[Emphasis added].

Both agencies deducted income tax, Canada Pension Plan, and Unemployment Insurance contributions from each pay cheque that was issued to Mrs. Joyce. Both these agencies issued various letters, handbooks, and bulletins from time to time, and sent them to Mrs. Joyce.

Para-Med's "Ontario Orientation Manual" states at page 1:

All staff are classfied [sic] as temporary, part-time hourly employees and are employed according to their availability and the availability of work from Para-Med. Staff may choose their own hours without affecting their status as an employee. [Emphasis added].

Under "hours" at page 7 it states:

Para-Med cannot guarantee any minimum number of hours of work. Employees schedules [sic] will vary according to the client's needs.

This manual's table of contents deals with many topics, including the following: probationary periods, appraisals, disciplinary procedures, annual medical examinations, professional registration, availability for work, hours and statutory holidays, payroll information, liability insurance, WCB information, staff development, and resignation information.

The manual also contains a section entitled Standards of Conduct. The following topics are found in this section: responsibilities to the client, written communication, health care team, confidentiality, safety, personal appearance, honesty, respect, employee responsibilities, medication policy, and emergency situations in the home.

I did not receive any evidence from Para or Care-Plus concerning the availability of work in the 12 months preceding the accident, the number of persons on their roster of nurses, or the manner in which the nurses would be called upon when an assignment was available.

Analysis and Findings

Does section 12 or 13 of the Schedule apply?

The relevant portions of section 12 provide:

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).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

(3) A person who was unemployed and was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident.

Mrs. Joyce claims that she was "employed" with Para and Care-Plus at the time of the accident as required by section 12 (2) 1.i of the Schedule. Mrs. Joyce did not claim that she was self-employed and I was not presented with any evidence or argument on that point.

Arbitrators have reviewed the issue of "employed" in prior decisions. Arbitrator Mackintosh in Richard J. Madore and Co-Operators General Insurance Company, August 24, 1994, OIC File No. A-004305 (under appeal), reviewed this subject in a situation where the applicant was on a leave of absence due to illness. The following definitions were quoted from Black's Law Dictionary, fifth edition, West Publishing Co., St. Paul Minn., 1979:

employed:

Term signifies both the act of doing a thing and the being under contract or orders to do it. To give employment to; to have employment.

employee:

One who works for an employer; a person working for salary or wages.

employer:

One for whom employees work and who pays their wages or salaries.

Arbitrator Mackintosh stated that on the particular facts of Mr. Madore’s case, she did not find that his employment was limited 'to those periods when work is done and wages are received." She further set forward her reasons as follows:

In my view, individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence. I consider that the state of being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work." [Emphasis added]

I find that the Madore decision is distinguishable from Mrs. Joyce’s situation. Mrs. Joyce had never been a full-time employee, she was not off work at the time of the accident because of a lay-off or illness, nor was she receiving benefits from Workers Compensation² or Unemployment Insurance. She had chosen to work on a part-time basis with no guarantee of any work. The intentions of Mrs. Joyce and the two agencies are of limited assistance as there was in fact no promise of any work on the part of the two agencies, and the agreed facts set out the nominal work period in the 12 months before the accident.

I find further support for this view in Arbitrator Palmer’s decision of Rajinder Sharma and Co-Operators General Insurance Company, February 7, 1994, OIC File No. A-003840 (under appeal), where she states:

The actions of the parties with respect to their employer/employee relationship up to the date of the accident are important. However, I do not believe that the intention of the parties should govern the question of temporality of the lay-off; an objective, reasoned interpretation of the individual circumstances is called for.

These cases indicate that the determination of an employer/employee relationship requires an objective approach which includes, to some extent, considering the intentions of the parties in special circumstances such as lay-offs or illness.

The various generic letters and memos which were sent automatically to all persons listed on the roster of Para and Care-Plus concerning such matters as updated information on health care cutbacks and job security are not of assistance in evaluating the issue of Mrs. Joyce's employment at the time of the accident, and I assign little significance to this material.

If an applicant is considered to have "employment" or an "occupation"within the meaning of section 12 (1), it is necessary for him or her to "be engaged in work for income, i.e. salary, wages, profit, remuneration, or return capable of being estimated in monetary terms, at the time of the accident”³. [Emphasis added]. In the LaPlante case, Arbitrator Manji considered whether the Applicant could be found to be employed within the meaning of the Schedule. As the terms "employment" and "occupation" were not defined in the Schedule, she looked to the context of section 12 for guidance. This section deals with income and she found that the only source of income was Ms. LaPlante’s work at the time of the accident as a vocal teacher. Therefore the issue of Ms. LaPlante’s employment status was determined by the nature of her remunerative work at the time of the accident. I make the same finding in the case of Mrs. Joyce.

Mrs. Joyce's services with both agencies were described as "temporary" and "part-time." She, herself, chose to limit her nursing work to a very minimum level. I find that in this case employment would exist only when (1) a patient was in need of the services of Para or Care-Plus; (2) Mrs. Joyce learned of the patient; (3) Mrs. Joyce was in fact available to work; and (4) she chose to accept the assignment. She would then be paid for that particular assignment only. Mrs. Joyce had the final decision, and therefore the final control in this relationship with the agencies.

Mrs. Joyce had last worked on January 2, 1993 and I heard no evidence about any further assignments that might have been offered to her in the future. She was not on an assignment at the time of the accident. At the time of the accident, Mrs. Joyce was neither in a position to estimate her potential future income, nor to know if she would have any future assignments. I find that simply being on a list of nurses, with only a potential of being assigned to a patient, is insufficient to be considered "employed" as required by section 12.

Mrs. Joyce was not under the control or direction of either agency on March 11, 1993. She was not receiving any salary and she had no firm future assignments. I find that on the basis of the documentary evidence, Mrs. Joyce was only one of many temporary, part-time hourly employees. I further find that she was not employed at the time of the accident as required by section 12(2)1.i of the Schedule.

It is not necessary to work 40 hours a week to be employed. However section 12(3) of the Schedule specifically sets out a minimum period of employment of 180 days in the 12 months before an accident. This section sets out a threshold for those people who (are) "unemployed and not self-employed." I find that Mrs. Joyce falls into the category of those who are unemployed and not self-employed. However, I find that she has not worked the required number of days in the 12 months before the accident to qualify for benefits under this section. The evidence shows that she worked only 93 days with Care-Plus. It also shows that she worked 157 hours with Para. No evidence was offered as to the number of days that these hours represent. I will assume a working day would be not less than a minimum of five hours, which produces a further 31 days. The total days worked by Mrs. Joyce would be only 124. This falls far short of the required 180 days.

As I have found that Mrs. Joyce was not employed at the time of the accident, it is necessary to look to section 13. This section provides weekly benefits where there is no employment. The parties agreed that if Mrs. Joyce did not qualify under section 12, she would be entitled to receive benefits payable under section 13. I find on the evidence that Mrs. Joyce shall be paid weekly benefits pursuant to section 13 of the Schedule.

Expenses:

The Applicant seeks an award of her expenses in this hearing pursuant to section 282(11) of the Insurance Act The prescribed expenses are set forth in Schedule 1 of the Dispute Resolution Practice Code and Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses. In accordance with the principles set forth in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, I award Mrs. Joyce her expenses of this arbitration. If the parties cannot reach an agreement as to the amount of the expenses, either party may apply for an assessment of her expenses.

Order:

1. Co-Operators General Insurance Company will pay weekly benefits to Mrs. Joyce pursuant to section 13 of the Schedule.

2. Co-Operators General Insurance Company will pay Mrs. Joyce’s expenses of this arbitration.

November 23, 1995

Bruce Robinson

Arbitrator

Date

SCHEDULE A

1992 Income:

Income from Para in the amount of $2,932.42 earned over the following period of 157 hours:

(a) 48 hours in the pay period ending January 5, 1992 (including some unidentified time in 1991)

(b) 12 hours in the pay period ending January 19, 1992

(c) 32 hours in the pay period ending February 2, 1992

(d) 22 hours in the pay period ending April 12, 1992

(e) 24 hours in the pay period ending April 26, 1992

(f) 8 hours in the pay period June 7, 1992

(g) 11 hours in the pay period June 21, 1992.

Income from Care-Plus in the amount of $16,783.52 earned over the following 93 days, being the 52-week period of 1992 preceding the accident:

1992:

March

31

April

2, 7

June

10, 11, 12, 13, 14, 17, 18, 19, 20, 23, 24, 30

July

1, 2, 3, 7, 8, 9, 17, 18, 19, 23, 24, 27, 28

August

16, 19, 20, 25, 26, 29, 30

Sept.

2, 3, 6, 7, 10, 11, 14, 15, 18, 19, 22, 23, 26, 27, 30

Oct.

1, 4, 5, 8, 9, 12, 13, 16, 17, 20, 21, 24, 25, 28, 29

Nov.

1, 2, 5, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25, 26, 29, 30

Dec.

17, 18, 19, 20, 23, 24, 26, 29, 30, 31

1993:

Jan

1, 2

Footnotes

1. 1Prior 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.
2. 2Shawn P. Lunn and State Farm Mutual Automobile Insurance Company, August 18, 1995, OIC File No. A-013860 (under appeal)
3. 3Juliette Laplante and Pilot Insurance Company, March 15, 1995, OIC File No.A-003567