Neutral Citation: 1997 ONICDRG 197

OIC A97-000460

ONTARIO INSURANCE COMMISSION

BETWEEN:

KATHLEEN ADA SHEPPARD

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

In 1991, the Applicant, Mrs. Kathleen Sheppard, took early retirement from Bell Canada management to pursue an active outdoor lifestyle centred in the small town of Collingwood, Ontario. That idyllic existence was abruptly ended by a tragic March 23, 1995 motor vehicle accident in the Rocky Mountain town of Aspen, Colorado. Mrs. Sheppard was walking in a pedestrian crosswalk when struck by a motor vehicle. She was thrown onto the hood of the car with such velocity that her head went through the windshield. She was subsequently carried some 47 feet before being thrown from the vehicle.

As a result of the serious injuries which she sustained in this accident, Mrs. Sheppard applied for and received statutory accident benefits from the Personal Insurance Company of Canada ("Personal"), payable under the Schedule¹, including weekly "Other Disability Benefits" ("ODBs"). Through great perseverance, Mrs. Sheppard recovered significantly from her injuries. Following an insurer's medical examination, the Personal terminated payment of ODBs effective September 15, 1996. Mrs. Sheppard objected to this decision. The parties were unable to mediate a resolution of their disputes, and Mrs. Sheppard applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

On the eve of the arbitration hearing, the Personal agreed to pay Mrs. Sheppard weekly benefits up to March 23, 1997, being the second anniversary of the motor vehicle accident.

The remaining issues in this hearing were:

1. Should this arbitration hearing be adjourned until Mrs. Sheppard attends a further insurer's medical examination requested by the Personal?

2. Is Mrs. Sheppard entitled to payment of Other Disability Benefits subsequent to March 23, 1997, pursuant to paragraph 19(7)(c) of the Schedule?

3. Is Mrs. Sheppard entitled to interest on overdue payments, pursuant to section 68 of the Schedule?

4. Is Mrs. Sheppard entitled to payment of a special award, pursuant to subsection 282(10) of the Act?

5. Is Mrs. Sheppard entitled to her expenses incurred in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Act?

Result:

1. The arbitration hearing is not adjourned.

2. Mrs. Sheppard is not entitled to payment of Other Disability Benefits from March 23, 1997 until September 30, 1997.

3. Mrs. Sheppard is entitled to payment of a special award in the amount of $2,750.00.

4. Mrs. Sheppard is entitled to her expenses incurred in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Act.

Hearing:

The hearing was held in Collingwood, Ontario, on September 29 and 30, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Kathleen Ada Sheppard

Mrs. Sheppard's

William A.E. Sheppard, Q.C.

Representatives:

M. Judith Sheppard

Barrister and Solicitor

Personal's

Peter Kazdan

Representative:

Barrister and Solicitor

Personal's

John Welton

Officer:

Witnesses:

Mr. Wm. A.E. Sheppard

Ms. M. Judith Sheppard

Mrs. Kathleen Ada Sheppard

The proceedings were transcribed by Ms. Jackie Paterson and Ms. Lynn Zinn of Legal Reporting Services.

Exhibits:

See Appendix "A."

Evidence and Findings:

1. Adjournment request

At the opening of the hearing, the Personal requested an adjournment of the arbitration until Mrs. Sheppard attended an insurer's medical examination. Mrs. Sheppard had attended a two-day multidisciplinary assessment in July 1996 at Work Able Centres Inc. ("Work Able"). I agree with the Personal that this was an insurer's medical examination pursuant to section 65 of the Schedule, as the assessment had been set up at the behest of the Personal to obtain a medical opinion concerning ongoing disability, amongst other questions. Although Mrs. Sheppard argued that this examination was conducted by Work Able as a designated assessment centre ("DAC"), I find that the assessment was not conducted by Work Able in such a capacity, as section 64 of the Schedule only allows a disability DAC assessment to be requested by an insured person.

After the June 23, 1997 pre-hearing discussion in this case, the Personal arranged a further insurer's medical examination for August 14, 1997, which Mrs. Sheppard did not attend.

The Personal requested an adjournment based on the Director's Delegate's decision in F.S. and Belair Insurance Company Inc. (June 11, 1996), OIC P96-00039A, that the "insurer's right to require an examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system [which] include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute. The objectives are generally served by permitting insurers to arrange timely medical examinations, in appropriate cases."

I found that it was neither reasonable nor appropriate to adjourn this hearing to permit a further insurer's medical examination. Unlike Belair², the basis of the disability claim in this case had remained consistent. The Applicant had previously attended a comprehensive insurer's medical examination which provided the Personal with a fair opportunity to address the questions of partial and complete inability to carry on a normal life which were in dispute in this arbitration proceeding. I was not persuaded that any of the objectives enumerated by the Director's Delegate had not been met in this case.

However, I am further not persuaded that I have a general discretion to adjourn an arbitration until an applicant attends an insurer's medical examination, outside of the context of section 71.1 of the Schedule (which does not apply in this case as the Insurer's request in issue was made after mediation had been commenced). I agree with Arbitrator Manji³ that I do not have authority to compel an insured person to attend an insurer's examination. The ultimate consequence of granting the Personal's adjournment request would be tantamount to compelling such an attendance. I agree that if the Legislature had intended to provide arbitrators with such invasive authority, it would have incorporated such powers into the Act, as it has in other legislation such as the Courts of Justice Act, R.S.O. 1990, c. C.43.

The objectives noted by the Director's Delegate can still however be met with timely medical examinations under section 71.1 of the Schedule, as well as the broad production rights now established in the arbitration system, the opportunity to conduct surveillance and investigation, and the option to have the available evidence reviewed independently by medical practitioners of the insurer's own choice, who can be called as expert witnesses at the arbitration hearing.

2. Weekly benefits

(a) Injuries sustained

Mrs. Sheppard's injuries as a result of the accident included compound fractures of both lower legs, multiple facial lacerations and fractures, a significant nasal injury, the loss of several upper teeth, and a compression fracture of her mid-back. Her treatment at the Aspen Valley Hospital included an open reduction and intramedullary fixation of both tibiae. Dr. J. Schatzker, a treating orthopaedic surgeon, has noted that Mrs. Sheppard's left leg was nailed in an anatomical position 15 to 20 degrees of internal rotation from normal.

In April 1995, Mrs. Sheppard was transferred by air ambulance from Colorado to Collingwood General and Marine Hospital. Following a skin graft on her leg, a bone graft of her right tibia was conducted at the Sunnybrook Medical Centre in May 1995. The Applicant's husband, Mr. William A.E. Sheppard, testified that the surgery was "wonderfully successful." Mrs. Sheppard was then returned to Collingwood General and Marine Hospital, and subsequently transferred in July 1995 to the rehabilitation unit of the Penetanguishene General Hospital, where she progressed from using a wheelchair to walking independently with a straight cane. Mrs. Sheppard was discharged from Penetanguishene General Hospital in September 1995.

With the assistance of the Sports Medicine and Rehabilitation Centre in Collingwood, by December 1995, Mrs. Sheppard could walk 15 minutes outdoors, and ascend stairs without the use of a cane.

Mrs. Sheppard continued to improve through 1996, as noted in the case management reports of GENEX Services of Canada, Ltd. ("GENEX"). Dr. A. Mickelson, Mrs. Sheppard's then family doctor, notes that the Applicant "vigorously pursued outpatient rehabilitation in an attempt to gain as much improvement as is possible after her substantial injuries."

As noted above, Mrs. Sheppard attended a multidisciplinary insurer's examination at Work Able in July 1996. As a result of this assessment, the Personal terminated payment of Mrs. Sheppard's weekly benefits.

In January 1997, Dr. Mickelson noted that Mrs. Sheppard's ongoing medical problems included facial asymmetry, numbness of her top lip and the left side of her forehead, persistent nasal discharge, a loss of sense of smell, tiring easily, and persistent backache aggravated by activity and prolonged sitting and standing. In addition, Mrs. Sheppard had persisting difficulty with her gait and balance. She had significant difficulty rising from a seated position, could not squat, could only kneel with an assistive device, and was hesitant and unsteady when walking, particularly on uneven ground or when trying to manoeuvre at any speed greater than slow and deliberate. Dr. Mickelson noted that Mrs. Sheppard had "difficulty with significant portions of household and garden care" and had been unable to return to "most of the recreational activities that brought her enjoyment previously."

(b) The Statutory context

Under subsection 19(1) of the Schedule, an insured person who suffers either a partial or complete inability to carry on a normal life as a result of an automobile accident is entitled to payment of ODBs if the insured person is not entitled or ceases to be entitled to payment of other categories of weekly disability benefits.

"Partial inability to carry on normal life" is defined in section 2 of the Schedule as follows:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

[emphasis added]

An insured person is only entitled to continued payment of ODBs subsequent to 104 weeks after first qualifying for such benefits, if the insured is "suffering a complete inability to carry on a normal life as a result of the accident," which is defined in section 3 of the Schedule as follows:

For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

[emphasis added]

(c) Inability to carry on a normal life

Mrs. Sheppard's stepdaughter, Ms. Judith Sheppard, testified that although the Applicant had recovered "amazingly well" since the accident, there was still a marked contrast between her pre-accident lifestyle and the activities in which she was now able to engage. The evidence of all three witnesses, as well as the affidavits filed, depicted physical pursuits as being central to Ms. Sheppard’s pre-accident life.

I find that the words "activities in which the person ordinarily engaged before the accident" in section 3 "cannot be based solely on a 'snapshot' of what [an insured] happened to be doing on the date of the accident." Rather, the activities must be considered "over some reasonable time period."⁴

At the time of the March 23, 1995 accident, Mrs. Sheppard was recuperating from a fall approximately a month earlier at a ski chalet, as a result of which she had minimally displaced three ribs. I do not accept that the period of inquiry should be limited to this one month period. Rather, I am prepared to look at the period after Mrs. Sheppard's retirement and after she had limited her horse riding activities following a riding injury.

I found all three witnesses to be credible and I accept their evidence. I find that Mrs. Sheppard ordinarily engaged in a wide variety of outdoor activities during the relevant pre-accident period, including weekly cross-country and downhill skiing in winter, weekly hiking in other seasons, golfing, extensive sailing, motor boating, canoeing, cycling and swimming. I find that Mrs. Sheppard is unable to engage in these activities as a result of a combination of poor balance, poor manoeuvrability including rising from a sitting position, fear of falling, and lack of endurance.

I further find that Mrs. Sheppard's active pre-accident vacations, including skiing every winter in both Aspen and the Canadian Rockies, sailing with her husband in their boat every summer to Martha's Vineyard, and exploring other locales by foot, have been severely curtailed.

I also find that Mrs. Sheppard's household activities have been significantly curtailed, as she can no longer get down on her knees, crouch down to lower spaces, mount step ladders, care for the family's two horses, or attend to her flower and vegetable gardens other than engage in some minimal tasks.

I further accept that Mrs. Sheppard has curtailed her entertaining activities, which included preparing dinners for parties of ten or so people.

However, the witnesses agreed that Mrs. Sheppard was not impaired in activities in which she ordinarily engaged before the accident that required the exercise of cognitive powers. Mrs. Sheppard has continued her interest in Globe and Mail cryptic puzzles, and has taken up bridge since the accident. Indeed, I found Mrs. Sheppard to be a most intelligent and well-spoken person.

The Applicant also acknowledged that she did not have any impairment which resulted in any inability to engage in activities that required the ability to control emotions or behaviour, or that required communication abilities.

Mrs. Sheppard is still able to prepare meals for her husband and herself (and the occasional visitor). She is able to sweep, do light household tasks, do the laundry (except carry heavy baskets up and down the stairs), make the beds (but not turn the mattress), and iron (albeit at a slower pace). Mrs. Sheppard also grocery shops on almost a daily basis.

Mrs. Sheppard is also able to engage in the personal care activities in which she engaged prior to the accident, other than take baths.

With regard to her pre-accident mobility activities, it is obvious that Mrs. Sheppard continues to suffer a substantial inability to return to her prior energetic lifestyle. However, she is able to drive (although she voluntarily restricts the distance she drives). She does errands on her own and meets friends at local restaurants. She is able to walk without the use of a cane. She has been able to go on trips since the accident, although at a significantly reduced level of participation.

(d) Conclusion

The Applicant's argument, succinctly put, is that she is entitled to post 104-week ODBs as she has suffered a significant, if not a drastic change to her pre-accident way of life. Mrs. Sheppard's submission echoes that of the applicant in Ms. G. and Allstate Insurance Company of Canada (December 7, 1995), OIC A-013283 who submitted that the words "substantially all" in the non-income disability provision under the prior schedule⁵ should be interpreted in a qualitative fashion. Arbitrator Young did not reject that argument, but was guided by a "practical" approach looking at how "effectively" one is able to "re-engage" in one's former activities.

The difficulty that I have with Arbitrator Young's approach in this context is that the words "continuously prevents the [insured] from engaging in substantially all of the activities in which the person ordinarily engaged before the accident" in section 3 represents a higher degree of disability than the "substantial inability" test of section 2.⁶ The words of section 3 cannot be ignored, and I do not find that that provision allows post 104-week entitlement to ODBs if, as the Applicant submits, an insured person is no longer able to engage in a "goodly number" or even a majority of one's pre-accident activities.

I find that the pre-accident activities referred to in section 3 may include, but are not necessarily limited to, the categories of activities set out in section 2. I further find, based on the evidence and submissions of Mrs. Sheppard herself, that from March 23, 1997 until the date of this hearing, the Applicant has been able to engage in a substantial number of significant and varied activities in which she participated prior to the accident. Accordingly, I find that Mrs. Sheppard is not prevented "from engaging in substantially all" of the pre-accident activities in which she ordinarily engaged.

3. Special Award.

Subsection 282(10) of the Act requires an arbitrator to order a special award should the arbitrator find that an insurer has unreasonably withheld or delayed payments.

Mrs. Sheppard asserts that she is entitled to a special award because the Insurer improperly terminated payment of ODBs in September 1996, after the wrong disability test was put to the insurer's medical examiner, Work Able.⁷

The question in issue is set out in a July 2, 1996 letter from the medical rehabilitation manager from GENEX to Work Able:

Do you believe, in your opinion, that Ms. Shepperd [sic] currently has a substantial inability to perform the essential activities of daily living?

Work Able replied in its August 8, 1996 multidisciplinary assessment summary report:

Please find the following in response to the specific referral questions which you posed in your letter to us, dated July 2, 1996.

1. Do you believe, in your opinion, that Ms. Sheppard currently has a substantial inability to perform the essential activities of daily living?

It is the opinion of Dr. Delaney, Orthopaedic Surgeon, that Ms. Sheppard currently does not have a substantial inability to perform the essential activities of daily living. This is supported by the Functional Abilities Evaluation findings.

The Personal thereupon advised Mrs. Sheppard by Explanation of Assessment dated August 28, 1996, that "the insurer's examination indicate [sic] that you are able to resume your pre-accident activities of daily living with correct pacing techniques." By letter dated September 4, 1996 the Personal reiterated its position, and indicated that disability benefits were being terminated, subject to a request by Mrs. Sheppard for an evaluation through a Designated Assessment Centre.

Despite several letters from or on behalf of the Applicant which echoed the wording of section 19 of the Schedule, the Personal maintained its position by letter dated September 26, 1996, that the insurer's examination indicated that Mrs. Sheppard did "not have a substantial inability to perform the essential pre-accident activities of daily living for which disability entitlement is given."

This was not the correct disability test. At the time benefits were terminated, the appropriate disability test was partial (consisting of alternative categories of activities) or complete inability to carry on a normal life. The test however cited by the Insurer most closely resembles the non-income weekly benefit test of the prior schedule, which speaks of "substantial inability to perform the essential tasks in which" the insured person would normally engage.

By addressing the wrong test, the Personal ignored the conclusion of Dr. Delaney of Work Able that Mrs. Sheppard "has been unable to resume most of her previous activities, such as hiking, sailing, cycling and skiing." I find the logical extension of Dr. Delaney's comments to be that Mrs. Sheppard was suffering "an impairment that results in a substantial inability to engage in . . . mobility activities in which [she] ordinarily engaged before the accident," under section 2 of the Schedule.

As the Personal was considering the wrong disability test, it was apparently further content to rely on the Functional Abilities Evaluation's ("FAE") restricted inquiry into Mrs. Sheppard's ability to perform general homemaking activities, and which ignored her other pre-accident mobility activities. However, the FAE's findings (based on her heart beat measure) that even a five-minute walk was a mild physiological challenge to Ms. Sheppard (and which required Ms. Sheppard to stop due to pain and general fatigue), in addition to their conclusion that Mrs. Sheppard "has poor endurance and tolerance to physical activity," would satisfy a reasonably objective person that the Applicant continued to meet the partial inability to carry on a normal life test, at least on the basis of subsection 2(b).

I received no explanation as to why the Insurer agreed to pay up to 104 weeks of ODBs only on the eve of the arbitration hearing. Insurers are expected to consider entitlement to benefits based on the correct statutory provisions. I find that it is unreasonable for an insurer to do otherwise, and in this case to further ignore the Insurer's own medical evidence confirming Mrs. Sheppard’s continued significant restriction in her pre-accident mobility activities.

I find on the evidence that Mrs. Sheppard is entitled to payment of pre-104 week ODB benefits. Payment of these benefits was still due and outstanding at the time of the hearing, although payment had been promised.⁸ I find that the Personal unreasonably delayed payment of these benefits. These benefits amount to 27 weeks at $185.00 per week, or a total of $4,995.00. A special award is limited to a maximum of "50% of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule." Considering the unreasonableness of the Insurer's conduct in this case, and the need to deter such conduct, I exercise my discretion and order a special award in the amount of $2,750.00, inclusive of interest.

4. Expenses

I found Mrs. Sheppard to be an honest and forthright witness who brought her claim in good faith. She was partially successful in this proceeding. Accordingly, I find that Mrs. Sheppard is entitled to her expenses of the arbitration proceeding, as prescribed by Ontario Regulation 664, R.R.O. 1990, as amended. I may be spoken to if there is any dispute as to the proper quantum of expenses.

Order:

1. The arbitration hearing is not adjourned.

2. Mrs. Sheppard is not entitled to payment of Other Disability Benefits from March 23, 1997 until September 30, 1997.

3. The Personal shall pay Mrs. Sheppard a special award in the amount of $2,750.00.

4. The Personal shall pay Mrs. Sheppard her expenses incurred in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Act.

October 31, 1997

Lawrence Blackman Arbitrator

Date

Appendix "A"

Exhibit 1

Photocopy of Certificate of Automobile Insurance (Ontario) and original owner's Ontario Automobile policy (OAP 1).

Exhibit 2

Photocopy of letter from the Personal dated May 15, 1995, and attached Statutory Accident Benefits Schedule, applicable to accidents occurring on or after January 1, 1994.

Exhibit 3

Photocopy of letter from Work Able Centres Inc., dated June 27, 1996.

Exhibit 4

Photocopy of letter from GENEX Services of Canada, Ltd., dated July 2, 1996.

Exhibit 5

Photocopy of letter from Work Able Centres Inc., dated August 8, 1996.

Exhibit 6

Photocopy of letter from the Personal, dated September 4, 1996.

Exhibit 7

Photocopy of letter from the Personal, dated October 29, 1996.

Exhibit 8

Photocopy of letter from Work Able Centres Inc., dated November 1, 1996.

Exhibit 9

Photocopy of letter from Mr. Wm. A.E. Sheppard, dated November 4, 1996.

Exhibit 10

Photocopy of letter from the Personal, dated November 5, 1996.

Exhibit 11

Photocopy of letter from Mr. Wm. A.E. Sheppard, dated November 6, 1996.

Exhibit 12

Photocopy of letter from the Personal, dated November 11, 1996, with attached unsigned Permission to Disclose Health Information to the Assessment Centre (OCF-14).

Exhibit 13

Photocopy of letter from the Personal, dated November 15, 1996.

Exhibit 14

Photocopy of letter from Mr. Wm. A.E. Sheppard, dated November 22, 1996, and Application for Mediation dated October 22, 1996.

Exhibit 15

Photocopy of letter from the Personal, dated September 26, 1996.

Exhibit 16

Photocopy of Application for Accident Benefits, dated June 2, 1995.

Exhibit 17

Photocopy of Traffic Accident Report, March 23, 1995 date of accident.

Exhibit 18

Photocopy of Health Practitioner's Certificate of Dr. A. Mickelson, dated June 15, 1995.

Exhibit 19

Photocopy of letter from the Personal, dated June 23, 1995.

Exhibit 20

Photocopy of Health Practitioner's Certificate of Dr. A. Mickelson, dated February 17, 1997.

Exhibit 21

Photocopy of letter from Mrs. Kathleen Sheppard, dated March 12, 1997.

Exhibit 22

Photocopy of letter from Mr. Wm. A.E. Sheppard, dated June 17, 1997.

Exhibit 23

Photocopy of unsigned letter of Dr. Joseph Schatzker, dated May 17, 1995.

Exhibit 24

Photocopy of Operation Record of Sunnybrook Health Science Centre, dated May 18, 1995.

Exhibit 25

Photocopy of unsigned letter of Dr. Joseph Schatzker, dated August 11, 1995.

Exhibit 26

Applicant's Medical Brief.

Exhibit 27

Photocopy of Statutory Accident Benefits Schedule, Accidents on or after January 1, 1994.

Exhibit 28

Photocopy of Explanation of Assessment by Insurance Company, dated August 28, 1996.

Exhibit 29

Photocopy of letter from the Personal, dated September 26, 1996.

Exhibit 30

Photocopy of letter from the Personal, dated October 28, 1996.

Exhibit 31

Photocopy of letter from the Personal, dated November 15, 1996.

Exhibit 32

Photocopy of Affidavit of Ms. M. Judith Sheppard, sworn September 25, 1997.

Exhibit 33

Original Affidavit of Ms. Twylla-Fay Tassie Goad, sworn September 18, 1997.

Exhibit 34

Affidavit of Mr. Ian McFee Rogers, sworn September 24, 1997.

Exhibit 35

Photocopy of Diagnostic Imaging report of Collingwood General & Marine Hospital, dated June 29, 1995.

Exhibit 36

Insurer's Arbitration Brief.

Exhibit 37

Photocopies of transcribed and original clinical notes of Dr. A. Mickelson, re: Mrs. K. Sheppard.

Exhibit 38

Photocopy of decoded OHIP summary, dated August 11, 1997.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2In Belair I found at first instance that the insurer's request for a psychiatric examination was reasonably required as the emotional sequelae of the accident had become more important and the insurer had never psychologically assessed the insured. The insurer's submissions in Belair were pursuant to subsection 71.1(c) of the Schedule, which was not argued in this case.
3. 3in Granic v. Allstate Insurance Company of Canada (January 30, 1995), OIC A-006615.
4. 4This was the approach of Arbitrator Draper, in Frank Donohue and State Farm Mutual Automobile Insurance Company (August 31, 1994), OIC A-006746 which considered wording under the preceding schedule.
5. 5paragraph 13(8)(b).
6. 6to quote Arbitrator McMahon in Roberta Urquhart and Zurich Insurance Company (June 4, 1997), OIC A96-000368 which considered similar wording in paragraph 13(8)(b) of the prior schedule.
7. 7In light of the recent appeal decision of Royal Insurance Company of Canada and Sandra Clark (September 26, 1997) OIC P97-00008, I note that the question of a special award was identified as an issue both in the June 23, 1997 pre-hearing letter and at the commencement of the hearing, notwithstanding which the Insurer indicated that it was its intention not to call any witnesses. In her Application for Arbitration, Mrs. Sheppard indicated that the disability question on which the Personal terminated her benefits was misleading. Prior to calling any witnesses, Mrs. Sheppard again identified as a ground for a special award her assertion that Work Able was asked the wrong question concerning her entitlement to weekly benefits. The Personal however maintained its decision not to call any witnesses, and did not make any final submissions regarding the special award issue.
8. 8In this regard I follow the decisions of Arbitrator Kirsch in Ms. B and Non-Marine Underwriters, Members of Lloyds, London, England (June 24, 1996), OIC A-013947 and Arbitrator Baltman in Quarrington and Jevco Insurance Company (July 17, 1995), OIC A-010804, which found that a special award could be ordered, irrespective of whether the substantive issue was settled on the eve of or during the hearing.