Neutral Citation: 1995 ONICDRG 87

File No. A-006195

ONTARIO INSURANCE COMMISSION

BETWEEN:

DEBRA MACPHERSON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

The Applicant, Debra MacPherson, was injured in a motor vehicle accident on June 30, 1990. She received weekly income benefits and supplementary medical and rehabilitation benefits from the Insurer, Pilot Insurance Company, payable under Ontario Regulation 672¹. The Insurer terminated weekly income benefits on June 24, 1993. After an unsuccessful attempt at mediation, the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits after June 24, 1993?

2. Is the Applicant entitled to a special award?

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

Result:

1. The Applicant is entitled to weekly income benefits after June 24, 1993.

2. The Applicant is not entitled to a special award.

3. The Applicant is entitled to her expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in Woodstock, Ontario, on January 17, 18 and 19, 1995, before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Applicant:

Debra MacPherson

Applicant's

Barbara L. Legate

Representative:

Barrister and Solicitor

Insurer's

Rudolph Lobl

Representative:

Barrister and Solicitor

Insurer's

George Hamilton

Officer:

Witnesses:

Dr. Robert Teasell, physical and rehabilitation medicine

Debra MacPherson, the Applicant

Exhibits and other documents before the arbitrator are listed in Appendix A to this decision. Court decisions referred to by the parties are listed in Appendix B.

Background

At the time of the motor vehicle accident on June 30, 1990, the Applicant had just completed grade 13 and planned to begin her university studies the following September. Until shortly before the accident, she had worked part-time in a pet store. She was to begin a summer job as a house painter shortly after the accident.

The Applicant claims that as a result of the accident, she suffers ongoing neck pain, shoulder pain, upper and lower back pain, headaches, sleep problems and concentration problems. She began university, as planned, in September 1990, but within a short time, she reduced her course load from five (full-time) to three courses. She claims that she was unable to carry a heavier course load because of her accident-related problems. She has continued with her university studies, and at the time of the hearing, she was completing her last three courses.

At the time of the accident, the Applicant lived with her parents, and planned to commute between their home in Ingersoll and her classes at the University of Western Ontario in London. She claimed that as a result of the accident, she was unable to commute on a daily basis, and needed a place to rest near her classes during the day. She decided to live in residence. The Insurer paid her residence fees for her first two school years (1990-91 and 1991-92) but refused to pay any further residence fees. The Applicant applied for arbitration with respect to this issue, and a hearing was held before me on October 4 and November 18, 1993. In my decision dated January 31, 1994, I ruled that the Applicant was entitled to reimbursement of her residence fees for 1992-93 and 1993-94. During her final year (1994-95), she lived in an apartment near the university.

The Insurer paid weekly Income benefits of $185.60 until June 24, 1993, under section 12 of the Schedule. The parties agreed that the 156 weeks referred to in subsection 12(5)(b) expired on that date. The Applicant seeks ongoing benefits.

Insurer's request for medical examinations

In late November 1994, the Insurer requested that the Applicant attend in North York for a medical examination by Dr. Perry Rush, a physiatrist and rheumatologist, on January 26, 1995. The Insurer also requested that the Applicant attend in Toronto for a functional capacity evaluation (FCE) on January 2, 3 and 5, 1995 at the Orthopaedic and Arthritic Hospital. The Insurer requested an adjournment of the hearing, scheduled for late January 1995, in order to accommodate the examination by Dr. Rush.

The Applicant resisted the adjournment request, and refused to attend the FCE. She submitted that the proposed FCE was not a medical examination contemplated by section 23(2) of the Schedule, and further that it was not reasonable for the Applicant to be asked to leave school for three days or to attend an examination in Toronto, when an evaluation could be done in London. She also submitted that the Insurer had not given sufficient notice. Finally, she questioned the purpose of the examination.

The Commission denied the Insurer's request for an adjournment.

On behalf of the Insurer, Mr. Lobl renewed the adjournment request on the morning of the first day of hearing. He stated that he had not arranged for the proposed examinations earlier because it was only in November 1994 that the Applicant's counsel finally confirmed that the matter would proceed on the basis of section 12; counsel had previously discussed whether the Applicant should claim weekly benefits under section 13. The Insurer's counsel also noted that the Applicant was now relying on Dr. Kreeft's November 18, 1994 report, in which he opines that the Applicant is unemployable.

Counsel for the Applicant continued to oppose an adjournment, and advised that she had referred the Applicant to Woodstock General Hospital for a two-day medical examination in early January; a report was not yet available.

The Insurer knew that the Applicant was a prospective university student with part-time and summer employment well before the first hearing was held in October and November 1993. In my view, the Insurer should not have been surprised when the Applicant's counsel raised the possibility of section 13 entitlement in July 1994. In fact, counsel had discussed this issue during mediation of this matter. In any event, an insurer is entitled to require an insurer medical examination where an insured person claims section 12 or section 13 benefits. The pre-hearing in this matter was held on June 13, 1994, giving the Insurer plenty of time to obtain an insurer medical examination report in time for the hearing.

Further, there should have been no significant surprises in Dr. Kreeft's November 1994 report; the Applicant's complaints to Dr. Kreeft have not changed over the course of treatment, and Dr. Teasell had also noted the severity of her headaches and their disabling effect.

Considering the Insurer's failure to request medical examinations in a timely fashion, I refused to grant an adjournment.

Entitlement to weekly income benefits after 156 weeks

Section 12(1) of the Schedule provides for weekly income benefits while the insured person is substantially unable to perform the essential tasks of her pre-accident occupation or employment as a result of the accident.

Section 12(5)(b) states that after 156 weeks, the insured person is not entitled to benefits unless the injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

The Applicant's counsel submitted that in assessing the Applicant's entitlement to weekly income benefits, I must consider her plans and potential at the time of the accident, as well as her education, training and experience. The Applicant planned to become an elementary school teacher. She claims that she is prevented from achieving this goal or any similar goal because of her accident-related disabilities.

The Insurer's counsel submitted that subsection 12(5)(b) does not permit me to consider the effect of the accident on the Applicant's plans and potential. The Insurer's counsel also took the position that a section 12 claimant cannot rely on her essential tasks as a student, but is restricted to relying on her essential tasks of employment. According to the Insurer, the Applicant's "education, training and experience" is simply that of a grade 13 graduate with a part-time job in a pet store and an offer of a summer job as a painter. (I heard no submissions as to whether the proper basis for the claim was the pet store job or the offer of a painting job, or both.) The Insurer contends that the Applicant is capable of light part-time work, for example, as a tutor.

The Applicant's counsel asked me to make an oral preliminary ruling on this point, in order to assist the parties to narrow their evidence and submissions. I made the following oral ruling: Subsection 12(5)(b) looks backward to the Applicant's situation at the time of the accident. It does not look forward to what might have been. At the time of the accident, the Applicant was not yet a teacher. As the arbitrator and the Director stated in Dana B. Levenson and The General Accident Assurance Company of Canada, September 29, 1992, OIC File No. P-000260, the Schedule does not provide general damages for future economic loss or loss of opportunity. However, at the time of the accident, the Applicant had already been accepted into university, and she had accepted a summer job as a painter on that basis. (If she had not decided to attend university in the fall, she would probably have looked for permanent work in an area of greater interest to her.)

I ruled that I must fairly and realistically consider all the Applicant's circumstances at the time of the accident, including her employment status and her status as a prospective university student. Further reasons for my ruling follow.

The Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 does not provide a special category of benefits for students². The language of section 16(3) suggests that the drafters of the regulation expected students to claim weekly benefits under section 13. However, a student who has worked 180 days in the year prior to the accident is entitled to section 12 benefits pursuant to section 12(3)³. A student who was "entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing" is entitled to section 12 benefits pursuant to section 12(2)1.iii⁴. According to subsection 13(2)2, a person who is eligible for section 12 benefits cannot claim section 13 benefits. As a result of these provisions, a student may be entitled to claim under section 12 or section 13, depending on his or her employment situation⁵.

I find that the Schedule is ambiguous in its treatment of students. In my view, the words "occupation or employment" should be interpreted so as to accurately and fairly reflect the applicant's status at the time of the accident. To describe the Applicant in this case as simply a pet store clerk and prospective house painter is to omit the most important element of her situation in June 1990: that she would attend university in the fall.

In my view, this approach is consistent with the way arbitrators have applied section 12 in various situations. For example, Arbitrator Julaine Palmer took a similar approach in Boone, a section 12 case involving an M.A. student who held a teaching assistantship. In order to complete her degree, she was required to complete a thesis and three courses. Arbitrator Palmer commented that "the system in Ontario universities of employing graduate students as teaching assistants in a curious mixture of employment and financial aid adds to the confusion" about the status of a full-time student who has part-time employment. The arbitrator made the following findings:

What was the occupation or employment of the Applicant in October 1990? An "occupation" has been defined by the Oxford Dictionary as a "calling, or employment, or pursuit". In my view, the occupation of [the applicant] at the time of the accident was master's candidate student. This occupation was comprised of three essential tasks: (1) course work; (2) research and thesis writing; (3) employment as a teaching assistant.

In my view, this approach realistically reflected the applicant's pre-accident situation.

Similarly, in Andreacchi, Senior Arbitrator Rotter considered the applicant's plans for part-time employment during the following school year as well as her history of work at the time of the accident. Again, in Senater, Arbitrator Fred Sampliner held that the applicant, a student, was entitled to benefits calculated on the basis of his earnings from the summer job he had been offered, for only as long as the job would have lasted, after which period his benefits would revert to $185.60.

Applying this approach, I find that the Applicant's essential occupational tasks included the tasks of an undergraduate student: attending classes, completing assignments, writing examinations, studying, and participating in discussions, projects and activities as required.

The Applicant's condition since the accident

I reviewed the Applicant's condition and treatment since the accident in my first decision. Most of the medical reports filed in this second hearing were also filed in the first hearing, and I do not propose to repeat that evidence or my findings in regard to it.

At the second hearing, the Applicant testified that her symptoms have not changed since the first hearing. She has ordinary (non-migraine) headaches every day, lasting all day. They impair her concentration, but do not prevent her from going to class. She also suffers from migraine headaches, accompanied by nausea, dizziness, and blurred vision. She is unable to read or otherwise function when she has a migraine. She copes by going to bed in a darkened, quiet room, and trying to sleep. On December 30 and 31, 1992, January 1, 1993, April 6, 1993, May 5, 1993, and October 7, 1994, she attended at the emergency department at Alexandra Hospital, because of headaches. She testified that she had a migraine for about two and a half weeks in the summer of 1994, and another put her in bed for about three weeks in December 1994. She had a couple of other shorter episodes (lasting two days or so) between September 1994 and the date of the hearing. She did not report any migraines in January 1995. She admitted that she had never had to reschedule an exam because of a headache.

In addition to her headaches, the Applicant has pain on both sides of her neck, shoulders, and back, "all the way down". She uses ice and heat to relieve the pain, but she only gets about five minutes relief. Sometimes the pain is so bad that she cannot attend class. She had to leave class because of pain about five times between September 1994 and the date of the hearing.

Every couple of weeks, the Applicant loses feeling in her arms for a couple of days or weeks. She then cannot write, and her ability to grip objects is impaired.

Additional medical evidence filed in the second hearing indicates that the Applicant has not improved. Dr. Teasell continues to see the Applicant on a regular basis⁶, and he testified at the hearing. It is Dr. Teasell's opinion that the Applicant is, if anything, less functional than she was in the fall of 1993, because she is more despondent. Dr. Teasell does not expect the Applicant to have significant improvement. In his most recent report, he concluded, "[a]t this point I don't have too much to recommend."

According to Dr. Teasell, the Applicant is still unable to complete more than three courses at a time. He believes that her grades have suffered because of her pain and reduced concentration. He expects that her problems will make her less competitive in the workplace. He would restrict her activities as follows:

Limitations include no heavy lifting, no working with her arms above the level of shoulders, limited pushing or pulling, standing or sitting for a maximum of 30-60 minutes, bending or twisting at the waist and horseback riding. (Medical-legal report of September 15, 1994)

At the hearing, he added that she should avoid prolonged neck flexion. He was certain that she will not return to work full-time. In his opinion, "success" would be part-time work (20-25 hours a week) at a sedentary job allowing frequent changes of position, and providing flexible hours. He also expected that she would have difficulty handling the additional requirements of household and childcare work.

The Applicant has continued to see Dr. Kreeft about her headaches. Dr. Kreeft gave the following diagnosis in his first report (August 12, 1993):

The impression was that Debra had mixed headaches. The severe headaches were migraine without aura. The milder headaches were tension type. The headaches easily meet the International Headache Society criteria for post-traumatic headaches.

In his second report (November 18, 1994), Dr. Kreeft reported no significant improvement in the Applicant's headaches, as recorded in her headache diary (Exhibit 1, Tabs 3-1, 3-2 and 3-3). The Applicant has tried several medications for her headaches, including migraine-preventers, anti-inflammatories, and antidepressants. She reports that none of them have helped, and she has relied on Tylenol. Dr. Kreeft was concerned that the Tylenol may be causing rebound headaches, and he recommended that she discontinue it. He noted in his final report that the Applicant has tried some of the treatments "for up to 2 months", but "[u]nfortunately this is not long enough. Therefore I do not know whether her headaches will respond to preventers." Dr. Kreeft gave the following prognosis:

In view of her course over the past 3 follow up visits chances of further improvement are slim. With this degree of headache frequency and severity I do not expect Debora to be able to hold down any form of gainful employment. This would also have a profound affect on her ability to attend classes and do assignments. She might be able to do this one course at a time.

The Applicant also testified that her jaws hurt, especially when she eats, and when she talks for more than about 15 or 20 minutes. In the summer of 1994, her dentist, Dr. B. Roberts, referred her to Dr. R.I. Brooke, Dean of Dentistry at the Facial Pain Clinic of University Hospital. On examination, Dr. Brooke found "opening of the jaw to be full with stepwise deviation". He also noted that the Applicant was tender in the muscles of mastication. He diagnosed temporomandibular joint dysfunction: "there is bilateral facial pain, difficulty in opening the jaw and radiation of the pain into the head causing headaches" (Exhibit 1, v. 2, Tab 2-1). He prescribed exercises and ultrasound. When the Applicant failed to improve, he referred her to Dr. D. MacLean, a dentist, for an occlusal splint. Dr. MacLean found that the Applicant could not open her jaw fully; he also noted a click on the left side. In his opinion, the Applicant's TMJ "was initiated by trauma, but may be aggravated by bruxism which is likely caused by Debora's constant pain" (note of November 4, 1994, Exhibit 1, Tab 6-2). Dr. MacLean noted that the Applicant appears "very sad".

Dr. Clifford examined the Applicant twice at the Insurer's request - on July 31, 1992 and June 17, 1993. His findings and diagnosis were set out in my first decision. In his medical-legal report of July 9, 1993⁷, prepared after the second examination, Dr. Clifford drew the following conclusion:

It is the writer's opinion that it is safe and appropriate that this patient becomes involved in a co-ordinated Functional Restoration Program designed to safely increase her level of function to its pre-MVA status.

Notwithstanding the patient's stated opinion as to her own state of disability, it is the writer's opinion that this patient is not significantly disabled/handicapped - except by over-restrictive medical management.

Expressed positively, it is the writer's opinion that, notwithstanding expected fluctuations of ongoing pain perception, this patient can expect to become a fully employed/productive member of society. However regaining such a role in society will require not only the termination of ongoing Medical Management, but also the consistent position of all care givers that she must continue to strive to achieve her full functional potential - notwithstanding the expected exacerbations of pain perception.

The Applicant's Disability:

I accept the opinions of the Applicant's treating physicians that the Applicant must work within the following ongoing restrictions: she must frequently change position, and cannot stand or sit for prolonged periods; she must have flexible hours; she cannot drive for prolonged periods; and she must avoid heavy or repetitive bending, lifting, overhead work, and prolonged neck flexion. In addition, because of her ongoing pain and headaches, she has limited tolerance for stress, her concentration is sometimes impaired, and she must be able to rest periodically throughout the day.

As a result of her restrictions, the Applicant was unable to complete more than three university courses a year. According to my calculation, based on her transcript (Exhibit 6), the Applicant's average for her first four sessions (1990 through 1994) was C. She withdrew from two courses in her first term (reducing her course load from five to three), and she withdrew from a third course which she had planned to take during the summer of 1992. In 1993/94, she received a D in one course. She also testified that she has been unable to work part-time, engage in volunteer work, or participate in social or recreational activities.

At the time of the hearing in January 1995, the Applicant was completing her final three courses, and planned to graduate with a General (three-year) degree in the spring. She believed that her marks would not qualify her for admission to Althouse (the teaching faculty at the University of Western Ontario). Although she hoped that she might be considered for admission into the teaching program at the University of Windsor, where experience is considered, as well as marks, she worried that she had not accumulated the necessary experience. She believes that her academic potential and career prospects have been adversely affected by her ongoing pain and headaches. She claims that she obtained lower grades because of impaired concentration, missed classes, and restrictions on her ability to study, all caused by her pain and headaches.

The Applicant appears to have almost abandoned teaching as a career goal. She is not sure what she will do next. She believes that she would need a 70 per cent average to be admitted into an Honours degree program. She is considering taking a year off, then enroling in the Development Worker program at Fanshawe College.

The applicant in Levenson submitted that her grades fell, and as a result she could not get into graduate school, as she had planned. The arbitrator made the following comments:

I do not accept that the Applicant's ability to perform the essential tasks in which she would normally engage as a student is defined by her ability to achieve equal or better academic results that she achieved before the accident. This would be to substitute the test established in the No-Fault Benefits Schedule with something quite different - compensation akin to general damages or damages for loss of opportunity. Counsel for the Applicant cited no authorities to me to support this interpretation of the legislation.

This is not to say that the grades a student receives are not relevant indicia of his or her ability to engage in those studies. However, I am not satisfied that, in this case, the Applicant's academic results were so substantially below her pre-accident performance as to warrant a finding that she was substantially unable to perform her essential tasks as a student.

On appeal, Director Sachs agreed that the applicant's post-accident performance must be assessed with respect to her pre-accident performance, not with respect to her hope of attending graduate school.

The Applicant in this case admitted that her high school marks were in the low seventies, and that she had never had an 80 per cent average in high school. However, she had maintained that high school average while attending school full-time, engaging in normal social activities, and working part-time. Her university marks were based on part-time attendance at school, very little social activity, and no part-time work. Although the issue of the Applicant's entitlement to benefits in the first 156 weeks was not before me, I accept that she remains substantially unable to attend university full-time as a result of her accident-related problems, and was therefore entitled to weekly income benefits during that period. The Insurer submitted that the Applicant's high school marks would not likely have allowed her to become a teacher anyway. I am inclined to agree. In any event, I agree with the comments made by Senior Arbitrator Naylor and Director Sachs in Levenson: whether the applicant will suffer future economic loss or loss of opportunity as a result of the accident is an issue for the courts. These heads of damage are not compensable under the Schedule.

The Insurer did not strenuously argue that the Applicant can work as a pet store clerk or a house painter. I find that her accident-related injuries continuously prevent her from doing these jobs, because of their physical demands and attendance requirements.

I find that the Applicant is able to pursue post-secondary education on a part-time basis, as she has done for the past five years. However, having completed her general degree, it is not clear what her options for further education are, given her marks.

In a number of decisions dealing with weekly income benefits before 156 weeks, arbitrators have said that while not just any disability entitles an insured person to weekly income benefits, weekly income benefits will be awarded where the insured cannot do her pre-accident job on a remunerative or competitive basis, or to the satisfaction of a reasonable employer⁸. In the appeal decision in Levenson, the Director made a similar point about students, in discussing the effect of section 16(3) of the Schedule:

Attendance at school is not just the physical act of occupying space in a classroom or lecture hall. Attendance at school encompasses many other activities, including the ability to comprehend and absorb classroom and laboratory instruction, complete assigned work, participate in discussions and projects, study, write or take examinations, meet any physical requirements of the course work, and generally function as a part of the student body with provision for some reasonable extra-curricular activities. This does not mean a person must excel in any one of these tasks or be able to function in them as if the accident had not occurred, but be substantially able to perform them.

Of the predecessors to section 12(5)(b), it has often been said, in court decisions, that insured persons are not required to engage in marginally remunerative "make work" activity of much lower status than their pre-accident job. Further, insured persons are not required to prove a negative: that is, that there is no comparable job they can do. I heard little evidence or argument about what other occupations would be suitable for the Applicant.

Considering the nature and demands of university and college education, I find that the Applicant's ongoing problems continue to prevent her from engaging in full-time post-secondary studies on a competitive or realistic basis. I also find that the Applicant's injuries prevent her from competitively completing a part-time post-secondary program.

The Insurer submitted that the Applicant is able to work as a tutor, or in some similar occupation, on a part-time, casual or freelance basis. Court decisions under the predecessor provisions have stated that the Insurer need not show that a suitable job is actually available. Since section 12(5)(b) makes no reference to job availability, I am inclined to think the same principle applies. Nonetheless, the "employment or occupation for which the insured person is reasonably suited" must be an actual job, and not one that is merely notional. Further, a reasonably suitable job is one which is comparable to the applicant's pre-accident occupation in nature, status and remuneration. In this case, I heard no evidence about specific occupational categories for which the Applicant would be reasonably suited (other than those of pet store clerk, house painter, and part-time student, about which I have made my findings). Considering all the medical evidence, I am not satisfied that the Applicant can do any job that requires regular attendance and productivity, or which provides more than nominal remuneration.

The Insurer submitted that the Applicant, by refusing treatment, has failed to mitigate her loss. I accept Dr. Clifford's opinion that medical management of the Applicant has been overly restrictive and that her successful rehabilitation depends on an aggressive functional restoration approach. I also accept that the Applicant's disability includes a psychological element which must be addressed.

I am concerned that the Applicant has refused psychological treatment, despite the recommendations of all her doctors. However, depression often accompanies chronic pain, and it often causes injured people to take a passive and helpless approach to their injuries. I find that the Applicant is not malingering or consciously exaggerating her symptoms. I find further that the Applicant's ongoing physical and psychological disabilities result from the accident.

In my view, this case does not call for weekly income benefits to be paid indefinitely. I hope that the rehabilitation caseworker appointed pursuant to the agreement of the parties reached on the second day of hearing will assist the Applicant to embark on a rehabilitation program which takes a functional restoration approach and includes psychological treatment.

Special award:

The Applicant initially sought a special award on the basis of the Insurer's refusal to appoint a rehabilitation caseworker. When the parties settled the rehabilitation caseworker issue, Applicant's counsel advised that the special award claim remained outstanding. However, I heard no evidence or submissions pertaining to this claim. For this reason, I decline to order a special award.

Expenses:

The Applicant is awarded her expenses incurred in the hearing.

Order:

1. The Applicant is entitled to weekly income benefits after June 24, 1993.

2. The Applicant is not entitled to a special award.

3. The Applicant is entitled to her expenses incurred in respect to the arbitration.

June 30, 1995

Nancy Makepeace Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Applicant's brief - volumes 1 and 2

Exhibit 2

Insurer's brief - volumes 1 and 2

Exhibit 3

Letter from Dr. Teasell to Dr. Rechner, dated January 1995

Exhibit 4

Vocational Rehabilitation Assessment, dated June 14, 1994

Exhibit 5

Chronology prepared by Applicant's counsel

Exhibit 6

Transcript of Academic Record - University of Western Ontario, issued November 11, 1994

Other Documents Before the Arbitrator:

Reports of Mediator, dated May 6, 1993, October 15, 1993, and October 10, 1994

Application for Appointment of an Arbitrator, dated February 7, 1994

Response by Insurer, dated April 8, 1994

Pre-hearing letter, dated July 19, 1994

APPENDIX B

Brooks v. London Life Insurance, 1979 ALTASCAD 155, [1979] I.L.R. 1-1115 (S.C.)

Campbell v. Canada Life Assurance Co. (1929), 1989 CanLII 10409 (MB QB), 39 C.C.L.I. 40 (Man. Q.B.)

Coombe v. Constitution Insurance Company, [1972] I.L.R. 1-1034 (S.C.)

Depape v. The Manitoba Public Insurance Corporation, [1921] I.L.R. 1-1351 (Q.B.)

Green v. Mutual of Omaha Insurance Co. (1923), 1983 CanLII 5504 (NS SC), 4 C.C.L.I. 34 (N.S.S.C.)

Hiscock v. Metropolitan Life Insurance Company, [1929] I.L.R. 1-2417 (Nfld. S.C.)

Johal v. National Life Assurance Co. of Canada, [1992] I.L.R. 1-2725 (Ont. Ct.)

Kerr v. Prudential Insurance Company of America et al., [1990] I.L.R. 1-2570 (S.C.)

McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412 (S.C.)

Mercuri v. Imperial Life Assurance Company of Canada, 1990 CanLII 11501 (NB QB), [1990] I.L.R. 1-2660 (N.B.Q.B.)

Paul Revere Life Insurance Co. v. Sucharov (1983), 1983 CanLII 168 (SCC), 5 D.L.R. (4th) 199 (S.C.C.)

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 1j 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Students are expressly recognized in the schedule of benefits applicable to accidents occurring on or after January 1, 1994.
3. 3I heard no submissions on the application of section 12(3) to part-time employment.
4. 4For the application of this provision to students, see David Senater and Simcoe & Erie General Insurance Company, October 28, 1994, OIC File No. A-007147 (under appeal).
5. 5Arbitrators have dealt with students under both sections. Section 12: Elaine Boone and State Farm Mutual Automobile Insurance Company. July 17, 1992, OIC File No. A-000790; Elizabeth Andreacchi and Metropolitan Insurance Company, March 9, 1993, OIC File No. A-000161; David Senater and Simcoe & Erie General Insurance Company, October 28, 1994, OIC File No. A-007147. Section 13: Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260; Louise-Ann Dugas and Wellington Insurance Company, February 10, 1994, OIC File No. A-003517; Esther McLean and Algoma Mutual Insurance Company, May 15, 1995, OIC File No. A-009917.
6. 6In addition to the reports filed in the first hearing, the Applicant filed the following reports prepared by Dr. Teasell: a May 31, 1994 letter to the Applicant concerning her jaw pain; a September 15, 1994 medical-legal report; a October 11, 1994 note concerning problems attending classes; and a January 17, 1995 consultation note to Dr. Rechner.
7. 7This report was excluded at the first hearing, although Dr. Clifford's consultation note of June 17, 1993, pertaining to the examination of that date, was admitted.
8. 8Donna Flemming and Wawanesa Mutual Insurance Company, April 28, 1992, OIC File No. A-000406 (under appeal); Wayne Allan Plowright and Wellington Insurance Company, October 29, 1993, OIC File No. A-003985; Mariam Audisho and State Farm Mutual Automobile Insurance Company, November 7, 1994, OIC File No. A-004981; Elaine Boone and State Farm Mutual Automobile Insurance Company, July 17, 1992, OIC File No. A-000790; Rajbir Singh and Wellington Insurance Company, June 24, 1994, OIC File No. A-004139 Maria Rodrigues and State Farm Mutual Automobile Insurance Company, June 30, 1994, OIC File No. A-005908 (under appeal); Lillian Baldassarra and Wellington Insurance Company, March 13, 1995, OIC File No. A-005088.