Neutral Citation: 1997 ONICDRG 207

OIC A97-001551

ONTARIO INSURANCE COMMISSION

BETWEEN:

GREGORY IOANNIDIS

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

DECISION ON INTERIM BENEFITS

Issues:

The Applicant, Gregory Ioannidis, was injured in a motor vehicle accident on May 15, 1996. He applied for statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule, including weekly income replacement benefits.¹ Canadian General refused to pay any benefits. The parties were unable to resolve their disputes through mediation, and Mr. Ioannidis applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act"). A hearing in respect of these disputes has been scheduled for September 7, 8 and 9, 1998.

I conducted a pre-hearing in this matter on October 22, 1997 at the offices of the Ontario Insurance Commission in North York, Ontario. In advance of the pre-hearing, Mr. Ioannidis served notice on Canadian General and the Ontario Insurance Commission that at the pre-hearing he would move for an interim order for payment of weekly income replacement benefits.

The issue in this hearing is:

Is Mr. Ioannidis entitled to an interim order for payment of weekly income replacement benefits in the amount of $185 per week from May 21, 1996 to the date of the arbitration hearing?

Mr. Ioannidis also claims a special award and interest on any amounts owing and his expenses incurred in respect of this motion.

Result:

1. Mr. Ioannidis is not entitled to an interim order.

2. Mr. Ioannidis is not entitled to a special award at this time.

The issue of expenses of this motion shall be determined by the hearing arbitrator at the arbitration hearing of this matter.

Hearing:

This motion for interim benefits was heard before me, Shemin Manji, arbitrator.

Mr. Ioannidis attended, represented by Mr. Norman J. Freedman. Mr. Ken Ho attended on behalf of Canadian General, represented by Mr. Doug Wright.

There were no witnesses. Mr. Ioannidis filed a number of documents in support of his motion, which are listed in an appendix to this decision.

Reasons for decision:

1. Background facts and issues

Mr. Ioannidis is 64 years old. He was involved in a motor vehicle accident on May 15, 1996. In veering to avoid a bus, Mr. Ioannidis' vehicle struck a concrete guardrail.²

At the accident scene, Mr. Ioannidis complained of severe pain in his left thigh and knee, and pain in his chest. He was taken by ambulance to St. Michael's Hospital in Toronto, where it was determined that Mr. Ioannidis' left knee was lacerated. It was also determined that he had sustained a chest contusion. X-rays were taken of Mr. Ioannidis' left leg, knee and chest. He was told that the x-rays were normal. The laceration on his knee was cleansed and sutured, he was given medication and released to go home.³

Later that day Mr. Ioannidis was seen by his family physician, Dr. Nigel Phipps, who referred him to Dr. Bruce Paitich, an orthopaedic surgeon. Dr. Paitich saw Mr. Ioannidis the next day. Mr. Ioannidis' primary complaint was left knee pain secondary to the laceration. A further x-ray indicated slight degenerative changes in the left knee joint.⁴

Mr. Ioannidis subsequently developed swelling and bruising of his left hip and thigh region, and continued to complain of significant pain in his left knee and thigh region. He also continued to have tenderness over his left anterior ribs.⁵ Acupuncture and physio/shiatsu therapy did not relieve his pain.⁶

Further investigations undertaken⁷ revealed that Mr. Ioannidis had sustained a fracture dislocation of the hip.⁸ On the recommendation of Dr. Paitich and Dr. A.A. (Tolis) Tountas (also an orthopaedic surgeon),⁹ Mr. Ioannidis underwent hip replacement surgery on March 26, 1997.¹⁰

At the time of the accident, Mr. Ioannidis and his wife owned a restaurant which they leased to one of their sons and his partner, operating under the name "Master Steaks Ltd." Mr. Ioannidis claims that at the time of the accident, he was employed by his son, Mr. John Ioannidis, in the meat distribution division of Master Steaks Ltd.¹¹ as a travelling sales representative with a weekly salary of $500. Canadian General however contends that Master Steaks Ltd. was Mr. Ioannidis' business and that he was self-employed as a sales/customer service representative.

Mr. Ioannidis applied to Canadian General for statutory accident benefits in February 1997. Canadian General has refused to pay any benefits.

2. Mr. Ioannidis' motion for interim orders

The arbitration hearing will determine the following issues:

1. Is Mr. Ioannidis entitled to weekly income replacement benefits from May 21, 1996 to the present and ongoing pursuant to sections 7 and 8 of the Schedule?

2. What is the correct amount of the weekly income replacement benefit to which Mr. Ioannidis is entitled pursuant to section 10 of the Schedule?

Integral to this issue is the question of whether Mr. Ioannidis was employed or self-employed at the time of the accident.

3. Is Mr. Ioannidis entitled to be paid for acupuncture/physio/shiatsu treatments in the amount of $3,830.10 pursuant to section 36 of the Schedule? and

4. Is Mr. Ioannidis entitled to a special award?

Mr. Ioannidis also claims interest on any overdue benefits and his expenses in respect of the arbitration proceeding.

At the pre-hearing discussion on October 22, 1997, Mr. Ioannidis requested interim orders as follows:

1. An immediate lump sum payment of $13,690 based upon 74 weeks of weekly income replacement benefits at $185 per week from May 21, 1996 to October 22, 1997; and weekly income replacement benefits to be continued at $185 per week to the date of the arbitration hearing;

2. Interest calculated at 2 percent per month compounded on the amount payable;

3. A special award of 50 percent of the amount involved in section 282 of the Act; and,

4. Mr. Ioannidis' expenses in respect of his application for interim benefits.

3. Principles and criteria for making an interim order

An arbitrator's authority to make an interim order for payment of weekly income replacement benefits is found in subsection 279(4.1) of the Act which provides as follows:

The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.

Subsection 279(4.1) of the Act is a discretionary provision. The principles for the exercise of this discretion have been established in number of arbitration decisions. They are as follows:

• Generally an insured person's entitlement to benefits is to be determined after a full hearing of all of the evidence.¹²

• Novel or difficult questions of law should be dealt with in a full hearing and not within an interlocutory proceeding.¹³

• Interim benefits are not to be awarded on a routine basis, but only in certain unusual circumstances.¹⁴

• An interim order, by its very nature, is intended to cover a short period of time between the making of the order and the final order.¹⁵

• An application for an interim order must be heard in a summary fashion and the order made expeditiously. At the arbitration hearing, after a full hearing of all of the evidence, the arbitrator may well come to the conclusion that a substantially different order should be made.¹⁶

• An interim order is subject to the final order and an arbitrator may order interim benefits be repaid.¹⁷

• Subsection 279(4.1) of the Act does not change the onus of proof. The onus of proof remains the insured person's.¹⁸

The following criteria have been identified in exercising the discretion in subsection 279(4.1) of the Act:

• The merits of the case for entitlement.

There has been a divergence of opinions among arbitrators as to the standard of proof that the insured person must meet in order to be entitled to an interim order for payment of benefits.

Some arbitration decisions have held that an interim order will normally be granted only where the insured person presents a "convincing case" for entitlement.¹⁹

Others have held that an interim order for payment of benefits is appropriate where the applicant has established a prima facie case for entitlement to benefits.²⁰

A recent decision stated that in the context of a motion for an interim order for payment of benefits, the term "prima facie" is ambiguous, and does not sufficiently address the standard of proof required for making an interim order. The decision held that, at the very least, a persuasive case for the interim order must be made. The arbitrator hearing the application must have a very positive view of the merits of the case for benefits. The standard of proof should be somewhat higher than at a hearing. On all the material presented the arbitrator should find it not only reasonable, but also very probable, that an applicant will be found to be entitled to the benefits sought.²¹

In Malabanan and Canadian General Insurance Company (July 26, 1996), OIC A96-00084, I concluded that in order to be entitled to an interim order for payment of benefits, an insured person must establish a prima facie case, i.e., the insured person must produce evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement. For the reasons that I gave in that decision, I still believe that that is the appropriate test.

• The existence of an element of necessity or urgency,²² or

• A blatant disregard by the insurer of the Schedule or Act.²³

4. Application of criteria in Mr. Ionnidis' case Interim order for payment of weekly benefits

(1) The merits of Mr. Ioannidis' case

The parties submissions

Mr. Ioannidis submits that he was seriously injured in the accident on May 15, 1996. Mr. Ioannidis submits that this is a clear case for an interim order for payment of weekly income replacement benefits. He submits that he has put forward a prima facie case for entitlement to interim weekly income replacement benefits in the amount of $185 per week, from one week following the accident to the present and ongoing.

Mr. Ioannidis relies on the reports of Dr. Geoffrey R. French, who assessed him at Canadian General's request in March 1997, and who, according to Mr. Ioannidis, concluded that he was totally disabled up to the date of his hip replacement surgery in March 1997.

Mr. Ioannidis submits that in addition, Dr. Phipps, in his reports dated May 7, 1997 and August 18, 1997,²⁴ and Dr. Tountas, in his report of September 10, 1997,²⁵ both state that Mr. Ioannidis continues to have an ongoing disability and is unable to return to his pre-accident employment, which among other things requires heavy lifting, prolonged standing and climbing.

Mr. Ioannidis submits that the reports of Drs. French, Phipps and Tountas also indicate that he suffers from a partial inability to carry on his normal life. The mobility activities in which he ordinarily engaged before the accident have not returned.

Mr. Ioannidis further submits that at the time of the accident, he was earning $500 per week. This is confirmed by his 1996 tax return and a letter from his employer. Mr. Ioannidis submits that even if the amount of his pre-accident income is uncertain, subsection 10(2) of the Schedule requires that an applicant be paid at least a minimum income replacement benefit of $185 per week where the applicant is suffering from a partial or complete inability to carry on a normal life as a result of the accident.

Mr. Ioannidis relies on the arbitration decision in Oliveira and Wellington Insurance Company²⁶ in support of his submission that no matter what income level can be established, he is entitled to at least $185 per week.

Mr. Ioannidis also seeks an interim special award on the basis that Canadian General has been callous and mean spirited in responding to his claims. Mr. Ioannidis submits that Canadian General’s refusal to pay anything despite the reports of Dr. French and Mr. Ioannidis' treating doctors is a direct and wilful violation of the Schedule.

Canadian General concedes that Mr. Ioannidis was disabled from returning to his pre-accident work until a reasonable time after his hip replacement surgery of March 1997 but denies that he is entitled to a weekly replacement benefit of at least $185. Canadian General submits that it is entitled to deduct from the amount of the weekly income replacement benefit payable a percentage of any post-accident income received by Mr. Ioannidis, pursuant to subsections 10(3) and (4) of the Schedule.

Canadian General takes the position that Mr. Ioannidis business continued after the accident and may well have provided an income for him. In fact, Canadian General submits that there is evidence that Mr. Ioannidis has been working in a supervisory and administrative position since the accident.

Canadian General submits that despite a request from its accountant more than a year ago, it has been unable to obtain from Mr. Ioannidis the financial information required to determine the amount of the weekly income replacement benefit to which he is entitled.

Canadian General submits that it has received only a copy of Mr. Ioannidis' 1996 income tax return, which was prepared after the accident, and a letter from his son stating that Mr. Ioannidis was an employee and received a weekly salary of $500 per week paid in cash. Canadian General submits that before Mr. Ioannidis is granted an interim order, it is entitled to test Mr. Ioannidis' and his son's evidence by requiring production of supporting documents from Mr. Ioannidis' business. These documents may show that Mr. Ioannidis' post-accident income was the same or exceeded his pre-accident income and therefore no weekly benefits are payable to him.

Mr. Ioannidis submits that the documents requested by Canadian General's accountant are irrelevant. They may be relevant to the issue of how much more than $185 per week is payable to Mr. Ioannidis but not to the basic entitlement which is $185 per week.

Mr. Ioannidis states that he has received some rental income from the restaurant that he owns²⁷ but he submits this income is irrelevant because he is not asking that rental income be included in the calculation of his income replacement benefit.

Mr. Ioannidis concedes that he has been performing supervisory and sedentary work in his restaurant, the operation of which his wife has taken over, since four months after his surgery.

Mr. Ioannidis submits that, in any event, he is still entitled to a minimum of $185.00 per week until the question of the amount of the weekly income replacement benefit to which he is entitled is resolved.

My findings

I accept that Mr. Ioannidis suffered a serious injury in the accident and the medical evidence adduced at the hearing is uncontroverted that since the accident he has suffered and continues to suffer a substantial inability to perform the essential tasks of his pre-accident work.²⁸ This medical evidence also strongly suggests that since the accident, Mr. Ioannidis has suffered an impairment that results in a substantial inability to engage in mobility activities in which he ordinarily engaged before the accident, and thus has suffered a partial inability to carry on a normal life, as a result of the accident.²⁹

However, subsection 10(2) expressly states that it is subject to subsection 10(3) of the Schedule, which allows an insurer to deduct from the amount of the weekly income replacement benefits payable a percentage of the net post-accident income received in respect of any employment³⁰ subsequent to the accident.

Mr. Ioannidis concedes that he has returned to modified work since four months after his surgery. In fact there is evidence in this case that Mr. Ioannidis returned to modified work even before his surgery. In his report of March 17, 1997, Dr. French states that Mr. Ioannidis advised him on March 17, 1997 that he had returned to working in his restaurant:

He goes to work every morning at around 10:00 o'clock and returns home around seven in the evening. While he is at the restaurant he spends the day sitting in a chair supervising the staff.³¹

Whether it is determined that Mr. Ioannidis was employed or self-employed at the time of the accident, any post-accident income that Mr. Ioannidis received from this work is deductible from the amount of the income replacement benefit payable to him. I received no evidence from Mr. Ioannidis as to when he returned to work following the accident and the amount of the post-accident income that he received. It could be that Mr. Ioannidis returned to modified work shortly following the accident and the net post-accident income received by him was the same or greater than 90 percent of the net weekly income he received prior to the accident such as to disentitle him to any income replacement benefits.

Given the evidence that Mr. Ioannidis returned to modified work at his restaurant sometime after the accident and before his surgery, the letter dated October 14, 1996 from Mr. Ioannidis' son, John Ioannidis, of the Master Steaks Meat Distribution Division, stating that Mr. Ioannidis has not been paid since his motor vehicle accident is not sufficient. Mr. Ioannidis could have received income from the restaurant, which I understand is separate from the Master Steaks Meat Distribution Division.

Based on the limited evidence filed by Mr. Ioannidis, I am unable to reasonably conclude that he is entitled to an interim order for the payment of weekly income replacement benefits in the amount of $185 per week from May 22, 1996 to the present.

I do not read the decision in Oliveira³² as standing for the proposition that no matter what an insured person's post accident income, he or she is entitled to at least $185 per week if he or she can prove that he or she meets the requirements of subsection 7(1) of the Schedule. In that case, the arbitrator was determining the applicant's income from self-employment prior to the motor vehicle accident, and held, in that context, that the applicant was entitled to a minimum of $185 per week. There was no issue about deductibility of post accident income.

Mr. Ioannidis submits that if I were to accept Canadian General's position this would mean a non-wage earner who is disabled is entitled to $185 per week (see section 19) but a wage earner who does not establish his earnings to the satisfaction of his disability insurer is not entitled to anything. I do not accept this submission. Subsection 19(2) of the Schedule, which provides that the amount of the weekly disability payable under section 19 is $185, also states that it is subject to subsection 19(3), which is a provision that is identical to that found in subsection 10(3) of the Schedule. Subsection 19(3), like subsection 10(3), states that the insurer may deduct from the amount of the weekly disability benefit payable to an insured person under that section a percentage of the net income received by the insured person in respect of any employment subsequent to the accident.

(2) The existence of an element of necessity or urgency

At the hearing, Mr. Ioannidis presented no evidence to show the urgency of his application for weekly income replacement benefits. I find, therefore, that Mr. Ioannidis has not established urgency of his claim for interim weekly income replacement benefits.

(3) A blatant disregard by the Insurer of the Schedule or Act

Mr. Ioannidis submits that the intent of subsection 10(2) of the Schedule is to provide an insured person with a minimum weekly benefit of $185 pending proof being presented of greater entitlement. He submits that it is outrageous that Canadian General has refused to pay anything notwithstanding the severity of the injury he sustained in the accident and the fact that the medical evidence, including that of Canadian General’s own doctor, Dr. French, indicates that he is disabled from returning to his pre-accident employment and continues to suffer from a partial inability to carry on a normal life. Mr. Ioannidis submits that Canadian General’s refusal to pay anything is a "direct and wilful" violation of subsection 10(2) of the Schedule.

I agree that where there is evidence of a partial inability to carry on a normal life as a result of the accident (in a case such as this one where less than 104 weeks have elapsed since the insured person first qualified for weekly income replacement benefits) and where there is no evidence of receipt by the insured person of post-accident income or payments of loss of income, subsection 10(2) of the Schedule indicates that the insured person is entitled to a weekly benefit of not less than $185.³³

In this case, however, there is a reasonable basis for concluding that Mr. Ioannidis received post-accident income. Under these circumstances, in my view, Mr. Ioannidis has an obligation to provide Canadian General with some credible evidence of the period during which the income was received and the amount received, so that Canadian General can determine whether he is entitled to at least a minimum benefit of $185, pursuant to subsection 10(2) of the Schedule, for any period from May 22, 1996.

Conclusion:

In this case, I have found that Mr. Ioannidis has not established a prima facie case for entitlement to weekly income replacement benefits in the amount of $185. I have also found that he has not established urgency of his claim for interim weekly income replacement benefits or that there has been a blatant disregard by Canadian General of the Schedule or Act in respect of his claim for weekly income replacement benefits. Accordingly, I conclude that, at this time, he is not entitled to an interim order for payment of weekly income replacement benefits in the amount of $185.

I would urge Mr. Ioannidis, in particular because the arbitration hearing in respect of the disputes between the parties is not scheduled until September 1998, to provide Canadian General with copies of business records confirming that Mr. Ioannidis was an employee of Master Steaks Ltd. and information about any post-accident income he has received and the periods during which this income was received as soon as possible. Upon receiving this information, given the nature of the medical evidence in this case, I would expect that Canadian General would proceed expeditiously to comply with the requirements of section 10 of the Schedule.

Interim special award:

A special award under subsection 282(10) of the Act is based on "...the amount to which the person was entitled at the time of the award...". Since Mr. Ioannidis has failed to satisfy me that he is entitled to interim weekly income replacement benefits, I need not consider whether he is entitled to a special award under the Act at this stage of the proceedings.

Order:

1. Mr. Ioannidis is not entitled to an interim order.

2. Mr. Ioannidis is not entitled to a special award at this time.

The issue of expenses of this motion shall be determined by the hearing arbitrator at the arbitration hearing of this matter.

December 15, 1997

Shemin Manji

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Medical Brief

Exhibit 1A

Report of Dr. Geoffrey R. French dated September 6, 1997

Exhibit 1B

Report of Dr. A.A. (Tolis) Tountas dated September 10, 1997

Exhibit 2

1996 Individual Income Tax Return of Mr. Gregory Ioannidis

Exhibit 3

Letter dated October 14, 1996 from John Ioannidis, Master Steaks Meat Distribution Division

Exhibit 4

Letter dated July 30, 1996 from KPMG Peat Marwick Thorns

Exhibit 5A

Letter dated September 23, 1996 from Mr. Ralf R. Jarchow

Exhibit 5B

Letter dated March 3, 1997 from Mr. Jarchow

Exhibit 5C

Letter dated June 4, 1997 from Mr. Norman Freedman

Exhibit 5D

Letter dated June 10, 1997 from Mr. Freedman

Exhibit 5E

Letter dated June 25, 1997 from Mr. Freedman

Exhibit 5F

Letter dated July 17, 1997 from Mr. Freedman

Exhibit 5G

Letter dated July 16, 1997 from Canadian General

Exhibit 5H

Letter dated August 5, 1997 from Mr. Freedman

Exhibit 5I

Letter dated August 8, 1997 from Canadian General

Exhibit 5J

Letter dated August 14, 1997 from Canadian General

Other documents before the arbitrator:

Report of Mediator dated May 6, 1997

Application for Arbitration dated September 1997

Response to an Application for Arbitration dated September 26, 1997

APPENDIX B

Amount of Benefit

10.-(1) The amount of a weekly income replacement benefit shall be 90 per cent of the insured person's net weekly income from employment determined in accordance with section 81 or 82.

(2) Subject to subsection (3) and section 75, the amount of a weekly income replacement benefit shall not be less than $185 if, during the week in respect of which the benefit is payable,

(a) the insured person is suffering a partial or complete inability to carry on a normal life as a result of the accident, if 104 weeks or less have elapsed since the person first qualified for weekly income replacement benefits or weekly caregiver benefits; or

(b) the insured person is suffering a complete inability to carry on a normal life as a result of the accident, if more than 104 weeks have elapsed since the person first qualified for weekly income replacement benefits or weekly caregiver benefits.

(3) The insurer may deduct from the amount of the weekly income replacement benefits payable to an insured person a percentage of the net income received by the insured person in respect of any employment subsequent to the accident.

(4) The percentage mentioned in subsection (3) shall be,

(a) 75 per cent, if the insured person started the employment more than twenty-six weeks after the onset of the disability in respect of which the weekly income replacement benefits are paid and has been engaged in the employment for less than twenty-six weeks; and

(b) 90 per cent, in any other case.

(5) Subject to section 82, for the purpose of subsection (3), the net income received by a person in respect of an employment subsequent to the accident shall be determined by subtracting the following amounts from the gross income received by the person in respect of the employment subsequent to the accident:

1. The premium payable by the person under the Unemployment Insurance Act (Canada) on the gross income.

2. The contribution payable by the person under the Canada Pension Plan (Canada) on the gross income.

3. The income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross income.

(6) For the purpose of subsection (3), net income from self-employment for a person who was self-employed at the time of the accident shall be determined without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person’s active participation in the business, except to the extent that those expenses were reasonable for that purpose; and

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident.

(7) If the insured person was self-employed at the time of the accident and the person incurs losses from self-employment as a result of the accident, the insurer shall add to the amount of the weekly income replacement benefits payable to the person 90 per cent of the losses from self-employment incurred as a result of the accident.

(8) For the purpose of subsection (7), losses from self-employment shall be determined in the same manner as losses from the business in which the person was self-employed would be determined under subsection 9(2) of the Income Tax Act (Canada) and the Income Tax Act (Ontario), without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person's active participation in the business, except to the extent that those expenses were reasonable for that purpose;

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident;

(d) expenses that are eligible for capital cost allowance or an allowance on eligible capital property; or

(e) losses deductible under section 111 of the Income Tax Act (Canada).

(9) The weekly amount paid to a person under this Part shall not exceed $1,000 after making any deductions permitted by subsection 75(1).

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, is called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Report of Dr. Geoffrey R. French dated March 17, 1997 - Medical Brief - Exhibit 1, Tab 4.
3. 3Note from St. Michael's Hospital and St. Michael's Hospital Emergency report dated May 15, 1996 -Medical Brief, Exhibit 1, Tab 1, and Report of Dr. French, supra, footnote 2.
4. 4Consultation Report of Dr. Paitich, Peel Memorial Hospital, dated May 16, 1996 - Medical Brief - Exhibit 1, Tab 2 and Report of Peel Memorial Hospital Diagnostic Imaging, dated May 16, 1996 - Exhibit 1, Tab 2.
5. 5Clinical notes and records of Dr. Phipps - Medical Brief - Exhibit 1, Tab 7 and Report of Dr. French, supra, footnote 2.
6. 6Report of Dr. Phipps dated May 7, 1997 - Medical Brief - Exhibit 1, Tab 5 and Report of Dr. French, supra, footnote 2.
7. 7A bone scan, CT scan and x-rays.
8. 8Report of Peel Memorial Hospital Diagnostic Imaging dated August 14, 1996, supra, footnote 4, Report of Dr. Paitich dated August 21, 1996, Exhibit 1, Tab 3 and Report of Dr. French, supra, footnote 2.
9. 9Report of Dr. Paitich, supra, footnote 8, Report of Dr. French, supra, footnote 2 and Report of Dr. Tountas dated September 10, 1997, Exhibit 1B.
10. 10Report of Dr. Tountas, supra, footnote 9 and Report of Dr. French, supra, footnote 2.
11. 11Letter dated October 14, 1996 from John Ioannidis, Exhibit 3.
12. 12Gomez and Pilot Insurance Company (May 10, 1995), OIC A-013080 and Cripps and AXA Insurance (Canada) ( August 8, 1997), OIC A-013360
13. 13Malabanan and Canadian General Insurance Company (July 26, 1996), OIC A96-00084 and Harkness and Economical Mutual Insurance Company (December 10, 1996), OIC A96-001420
14. 14Gomez, supra, footnote 12; Cobby et al. and Non-Marine Underwriters, Members of Lloyd's London, England (October 13, 1995), OIC A-014259, A-014260 and A-014261, Malabanan, supra, footnote 13 and Cripps, supra, footnote 12
15. 15Malabanan, supra, footnote 13
16. 16Malabanan, supra, footnote 13 and Cripps, supra, footnote 12.
17. 17Malabanan, supra, footnote 13 and Cripps, supra, footnote 12.
18. 18Gomez, supra, footnote 12, Cobby et al, supra, footnote 14, and Harkness, supra, footnote 13.
19. 19Gomez, supra, footnote 12 and Cobby et al, supra, footnote 14.
20. 20Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Insurance Company (November 18, 1994), OIC A-009110, Lucas and Dominion of Canada General Insurance Company (March 23, 1995), OIC A-009670, Cobby et al, supra, footnote 14, Malabanan, supra, footnote 13 and Harkness, supra, footnote 13.
21. 21Cripps, supra, footnote 12
22. 22Osbourne, supra, footnote 20; Lucas, supra, footnote 20; Malabanan, supra, footnote 13; Harkness, supra, footnote 13; and Cripps, supra, footnote 12
23. 23In Sweete and Jevco Insurance Company (October 24, 1996), OIC A96-000614, the arbitrator relied, in part, on the insurer’s violation of its obligations under section 64 of the Schedule to make an interim order for payment of benefits.
24. 24Medical Brief - Exhibit 1 - Tabs 5 and 6
25. 25Exhibit 1B
26. 26(April 7, 1997), OIC A96-000010
27. 27The restaurant that operates under the name "Master Steaks Ltd."
28. 28Mr. Ioannidis’s pre-accident work involved arranging sales of packaged meats in person or over the telephone and helping his son deliver boxes of meat. This required that he drive a truck and occasionally help his son load and unload the vehicle and carry the boxes from the truck into a client’s place of business. The boxes of meat may weigh up to 70 lbs - Report of Dr. French, supra, footnote 2.
29. 29I rely on the following medical reports in respect of both of my conclusions, i.e, he is disabled from returning to his pre-accident work and he has suffered a partial inability to carry on a normal life: Report of Dr. French, supra, footnote 2, Report of Dr. Phipps dated August 18, 1997 - Medical Brief - Exhibit 1, Tab 6, Report of Dr. French dated September 6, 1997 - Exhibit 1A and Report of Dr. Tountas, supra, footnote 9.
30. 30For the purpose of the Schedule, "employment" is defined in section 5 of the Schedule to include self-employment. Thus, subsection 10(3) appears to apply to net income received by an insured person from self-employment. The Applicant, Mr. Gregory Ioannidis, is a co-owner of Master Steaks Ltd. The limited documentation filed by Mr. Ioannidis raises a legitimate and reasonable issue as to whether Mr. Ioannidis was employed or self employed at the time of the accident. For example, Mr. Ioannidis' 1996 Income Tax Return characterized his 1996 income from the meat distribution division of Master Steaks Ltd. ($500 per week) as "business" and not employment income.
31. 31Medical Brief - Exhibit 1, Tab 4
32. 32Supra, footnote 26
33. 33The full text of section 10 is set out in an appendix to this decision.