Shane Stewart v. Co-operators General Insurance Company, 1996 ONICDRG 86

Neutral Citation: 1996 ONICDRG 86

File No: A-950561

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHANE STEWART

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

Howard Buckle is the stepfather of Shane Stewart, who was injured in a motor vehicle accident on April 15, 1994. Mr. Buckle, a police officer with the Metropolitan Toronto Police Force, took a number of days off work to visit his stepson in the hospital and at home while he recovered from his injuries. Mr. Buckle was compensated for his time by the Metropolitan Toronto Police Force, however, he was forced to use some of the accumulated time from his "sick bank." Accordingly, Mr. Buckle applied to be compensated for the value of his lost sick bank time pursuant to section 53(1) of the Schedule.¹ The Insurer denied Mr. Buckle's claim. The parties were unable to resolve their dispute through mediation and Mr. Buckle applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Buckle entitled to receive "visitor's expenses" pursuant to section 53(1) of the Schedule, despite having received compensation from his sick bank?

2. Is Mr. Buckle entitled to "visitor's expenses" pursuant to section 53(1) and attendant care benefits pursuant to section 47(1) of the Schedule, at the same time?

3. Are the 342 hours being claimed reasonable, having regard to all the circumstances?

Mr. Buckle also claims interest on any amount owing and his expenses in the arbitration.

Result:

1. Mr. Buckle is not entitled to "visitor's expenses" pursuant to section 53(1) of the Schedule.

2. While it may be possible to receive section 53(1) for "visitor's expenses," and section 47(1) attendant care benefits at the same time, in this particular case, in light of my decision above, it is unnecessary to answer this question.

3. 256 out of the 342 hours claimed were "reasonable in the circumstances."

Hearing:

The hearing was held in Toronto on April 11, 1996 before me, M. Guy Jones, arbitrator.

Present at the Hearing:

Applicant: Howard Buckle

Applicant's Representative: Wendy Johns

Insurer's Representative: Steven Malach

Witness: Howard Buckle

Exhibits: Three exhibits were filed, including an agreed Statement of Facts

Facts:

On April 15, 1994, Shane Stewart, Mr. Howard Buckle's stepson received multiple injuries, including a brain injury, in a motor vehicle accident. Shane, who was approximately 10 years of age at the time, was hospitalized at the Hospital for Sick Children, and subsequently, at the Hugh MacMillan Rehabilitation Centre. He remained there until December 16, 1994, at which time he went home to recuperate.

There is no doubt that Shane suffered very significant injuries. Mr. Buckle quite naturally and reasonably spent a great deal of time visiting him while he was in hospital and at home. Mr. Buckle, who is a police constable with the Metropolitan Toronto Police Force, used his sick days available under his sick plan to visit Shane during his convalescence. This arbitration deals with Mr. Buckle's right to receive "visiting benefits" pursuant to section 53 of the Schedule for the time frames: April 16-19, May 10-19, June 24-27, September 14- December 28 and December 19-21, 1994. This amounted to a total of 342 hours. The benefits claimed are the value of the sick days that Mr. Buckle used from his sick bank while visiting Shane. The Applicant takes the position that the value of the sick days is the wages that he would have earned during that time frame.

The Collective Agreement between the Metropolitan Toronto Police Force and its police officers provides that officers may accumulate 12 hours of sick time per month to a total of 144 hours per year. If they have 1,728 hours in their sick bank after 20 years, they will receive five months "pay out" upon retirement, and if they have 3,120 hours after 35 years of service, they receive nine months paid salary. If they have less hours in their sick bank, they get less pay out upon retirement, but the pay still amounts to one half of the total number of hours accumulated.

Pursuant to the Collective Agreement, it is impossible to "buy back" hours taken from this sick bank, but the hours can be built up to the maximum again, over time.

It is worthy of note that the Applicant also claims, along with his wife, Shane's mother, some 2,953.5 hours of attendant care benefits pursuant to section 47(1) of the Schedule for the period between April 14 and December 16, 1994. This encompasses some of the same hours being claimed for visitor's expenses.

FINDINGS AND ANALYSIS

Section 53 of the Schedule states:

53(1) If an insured person sustains an impairment as a result of an accident, each of the individuals described in subsection (2) is entitled to an allowance that is reasonable having regard to all the circumstances for expenses actually incurred in visiting the insured person during his or her treatment or recovery.

53(2) The individuals referred to in subsection (1) are...(c) an individual who has demonstrated a settled intention to treat the insured person as a child of the individual's family.

Thus, in order for Mr. Buckle to be entitled to receive visitor's expenses, he must show that Shane sustained an impairment as a result of a motor vehicle accident, that he has demonstrated a settled intention to treat Shane as a child of his family, that the allowance he is seeking to recover is reasonable, having regard to all the circumstances, and that he has actually incurred the expenses.

But for some 84 hours which will be discussed later, the Insurer has conceded that all of the above criteria were met in this case, except for the issue of whether the expenses were actually incurred.

EXPENSE ACTUALLY INCURRED IN VISITING THE INSURED PERSON:

The first question to be addressed is whether or not an expense was actually incurred, as defined in the Schedule.

It is clear that, at least to date, Mr. Buckle has not actually lost any monies. He has been paid, although he has lost time from his sick bank. This may result in Mr. Buckle not having enough sick days in the future to cover future sickness and injuries. In addition, it may also mean a potentially smaller "pay out" at retirement. It is clear, however, that these consequences are merely speculative at this time. Mr. Buckle may well top up his sick bank so that he gets his full five or nine months pay out at retirement. In addition, he may not have to use all his sick days for illness and injury. Thus, at the very best, he may or may not suffer a loss in the future. To this point, in my view, Mr. Buckle has simply incurred the possibility of a future loss. Section 53 of the Schedule is very clear and specific. It requires not only that there be an expense, but that it be "actually" incurred.

"Expense" is defined in Black's law dictionary (Revised, Fourth Edition), 1957, as "an actual outlay," "an actual and honest disbursement," "an actual outlay of money," "expenditures, outlays, or disbursements of money."

While I am prepared to accept that, in some circumstances, "an expense" need not necessarily involve money, I am of the view that in this particular instance, if there was an expense, it was not "actually incurred." In my view, Mr. Buckle's expenditure of his sick time involves, at the very best, a future loss.

In arriving at this decision, I am reinforced in my view by the fact that the Statutory Accident Benefits Schedule does not allow an injured applicant who would otherwise be entitled to receive income replacement benefits, to recover lost sick days from a sick bank. It would seem odd therefore, to allow visitors such a right, but not injured persons. I find that if this were the legislature's intent, it would have clearly said so.

Section 75(13) of the Schedule:

Section 75(13) of the Schedule states that:

No payment is required for that portion of an expense referred to in part VII, VIII, X or XIII that is reasonably available in respect of the insured person under any insurance plan or law or under any other plan or law.

Some time was spent at the hearing on the question of whether or not the accumulated time in the sick bank was part of an insurance plan. While it would appear to me that it is not, it is unnecessary for me to decide this issue, as I am of the opinion that it is part of a "plan" as set out in section 75(13). The sick bank days are part of the police constable's total benefit package, apparently negotiated as part of the collective agreement. It is a highly detailed system allowing compensation for police officers when certain criteria are fulfilled, including days off when dependents are sick or injured. Thus, to the extent that the "lost" sick days could be considered an expense actually incurred, pursuant to section 53, they would nonetheless be barred by the application of section 75(13). This is consistent with the general intention of the legislature as set out in section 268(6), and (7) of the Insurance Act, whereby insurance provided in the Statutory Accident Benefits Schedule "is excess insurance to any other insurance." Section 75(13) of the Schedule is an example of this general approach.

Entitlement to both Sec. 53(1) Visiting Expenses and Section 47(1) Attendant Care Benefits

As indicated above, the Applicant and his wife, Shane's mother, applied for and received payment for some 2,935.5 hours of attendant care benefits pursuant to section 47(1) of the Schedule. Some of these hours included the same hours for which Mr. Buckle is claiming visiting expenses, pursuant to section 53 of the Schedule. The Insurer takes the position that the Applicant ought not to be permitted to present "duplicate claims" by classifying the hours spent with Shane as visiting as well as attendant care expenses.

In light of my findings above, it is not necessary for me to make a decision in this regard. Nevertheless, in light of the fact that counsel made submissions with regard to this matter, I make the following observations.

I would begin by pointing out that there is nothing in the Schedule which clearly prohibits being compensated under both sections 47 and 53. Indeed, while section 47(3) of the Schedule specifically excludes an applicant from receiving section 47 attendant care benefits and expenses recoverable under section 36(1) (g) (supplementary medical transportation expenses) and section 40(5)(d)(rehabilitation transportation expenses) it does not exclude section 53 benefits. Accordingly, if the legislature had intended to prohibit recovery under both sections 53 and 47, it could have clearly stated so in the Schedule but it did not. Having said this, it is clear that the legislature, in setting up the Schedule, was attempting to keep insurance rates as low as reasonably possible, and wished to avoid double recovery whenever possible.

It is my view, in light of the above, that it may be possible, in very narrow circumstances, to have recovery under both sections 47 and 53. In this particular case, taking into account my findings on the applicability of section 75(13), it is unnecessary for me to determine whether or not the applicant could recover under both sections.

The Reasonableness of the Allowance

Section 53(1) states that an applicant "is entitled to an allowance that is reasonable, having regard to all of the circumstances."

There is little doubt that Shane Stewart suffered very severe head injuries in the April 15, 1994 motor vehicle accident. It is quite natural and understandable that Mr. Buckle would want to spend as much time as possible with Shane during his recovery. The Insurer has, quite rightly, conceded the reasonableness of the vast majority of the time being claimed by the Applicant. By the conclusion of the hearing, the Insurer conceded the reasonableness of all but 86 of the 342 hours being claimed.

Mr. Buckle, under cross examination, honestly admitted that he had no recollection of why he took 86 hours off from September14-28, 1994. While I accept that Mr. Buckle did visit Shane during those two weeks, he testified at the hearing that some of the time that he was off work was due to the fact that he was simply emotionally incapable of properly performing his duties while also coping with Shane's injuries. While I accept this, section 53 does not compensate for being off work for this reason. The onus of proving the reasonableness of the allowance is, of course, on the Applicant. In this particular case, I find that he has failed to satisfy that onus for the period September 14-28, 1994.

Expenses:

In light of the facts of this case, I am exercising my discretion and awarding Mr. Buckle his reasonable expenses incurred in this arbitration. In the event that the parties cannot agree as to the total amount of the expenses, either party may apply to the Registrar for his assessment of the expenses.

Order:

1. Mr. Buckle is not entitled to visiting expenses pursuant to section 53 and 75(13) of the Schedule.

2. Mr. Buckle is entitled to his expenses of the arbitration.

May 27. 1996

M. Guy Jones Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776-93, as amended by Ontario Regulation 635/94.