Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 38

Appeal P96-000014

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JENNIFER JOYCE

Appellant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Respondent

Before:

Susan Naylor, Director's Delegate

Counsel:

George A. Simpson (for Ms. Joyce)

Stephen Malach (for Co-operators)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is allowed, and the arbitrator's order is rescinded. The following order is substituted:

Jennifer Joyce qualifies for weekly income benefits under section 12(2) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672.

Jennifer Joyce is entitled to her appeal expenses payable by the Co-operators General Insurance Company

March 4, 1997

Susan Naylor Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Jennifer Joyce was injured in an automobile accident on March 11, 1993. She has not been able to return to work since then. Co-operators General Insurance Company ("Co-operators") initially paid Ms. Joyce weekly income benefits of $416.64 a week under section 12 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 ( "the Schedule"). These benefits are linked to employment and are earnings-related. Later on, Co-operators re-classified her entitlement under section 13, for which eligibility is linked not to employment but to the performance of normal tasks and activities, and the benefit amount is a flat-rate $185.00. When Ms. Joyce objected to the re-classification, the dispute went to arbitration. The arbitrator held that Ms. Joyce's entitlement is properly considered under section 13, not section 12. She appeals that order.

The question which section is the appropriate one arises because of the particular nature of Ms. Joyce's working arrangements. Ms. Joyce was a registered nurse who provided home-care nursing services for terminally-ill patients. She worked for two home-care companies, Respiron Care-Plus (Care-Plus), a division of T.L.C. & Medical Equipment Ltd., and Para-Med Health Services (Para-Med), on an "as-needed" basis. Neither agency had an obligation to supply her work, and Ms. Joyce did not have to accept any work offered. She did very little work in the two months before the accident.

The evidence is clear that Ms. Joyce was an employee of the agencies, while working for them. However, her assignments fluctuated with demand and around the time of the accident, neither company had work to give her. Although she was an employee, the terms and conditions of her employment were clearly different from that of a full-time or part-time employee with fixed hours.

The principal issue was whether Ms. Joyce was employed at the time of the accident under section 12 (2) of the Schedule.

II. THE SCHEDULE

Section 12(1) provides for payment of a weekly benefit where the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment. Unlike section 13, it is only available to insureds who are either in the work-force, have a job offer or have a prescribed record of employment. Subsections 12(2) and (3) set out these work-related requirements. It states:

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

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

i. employed or self-employed,

ii. on a temporary lay-off,

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

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

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

(Emphasis added)

III. THE ARBITRATOR'S DECISION

Ms. Joyce's main position was that she was employed at the time of the accident (it was not argued that she was self-employed). The arbitrator disagreed, concluding that the nature of Ms. Joyce's work was such that she was only "employed" when she was actually on an assignment. In reaching his conclusion, the arbitrator considered a number of factors: Ms. Joyce was not guaranteed work and, in any event, had the final say on whether to take any that was offered to her. She was only paid when she worked and was not working or under the control of either agency at the time of the accident. The arbitrator found that Ms. Joyce last worked on January 2, 1993, about two and a half months before the accident, and had no firm future assignments. He described her work period in the year before the accident as "nominal".

The arbitrator found that Ms. Joyce was unemployed during the periods she was not working, and that, if she qualified at all, it would be under subsection 12(3) of the Schedule. However, he calculated that Ms. Joyce only worked about 124 days in the year before the accident, short of the 180 days needed to qualify.

On appeal, Ms. Joyce argued that the arbitrator failed to take the particular nature of her employment into consideration and alleged several factual errors were made.

The arbitration proceeded on the basis of an agreed statement of facts and a document brief, containing written details of Ms. Joyce's employment relationship with Care-Plus and Para-Med. No oral evidence was adduced. In this respect, the facts are necessarily limited. This was a particular problem in determining whether Ms. Joyce had worked a sufficient number of days to qualify under subsection 12(3). There was no breakdown of the hours Ms. Joyce worked in particular pay periods or of the length of her shifts on a particular day. Where the evidence only showed total hours worked in a pay period, the arbitrator assumed a minimum of 5 hours per day to come up with an approximation of days worked.

Counsel for Co-operators referred to the general principle that an arbitrator's findings of fact should not be disturbed on appeal, unless there is clearly insufficient evidence to support them. However, the principle has limited applicability in this case. The arbitration proceeded on the basis of an agreed statement of facts and a document brief. As there was no oral testimony, it is findings derived from undisputed facts and documents rather than conflicting testimony that are in issue. Credibility is not a factor. In these circumstances, the arbitrator was in no better position to reach a conclusion from the evidence than I am on appeal.

In Madore and Co-operators General Insurance Company, (August 24, 1994, OIC A-004305) Arbitrator Mackintosh cited the following dictionary definitions from Black's Law Dictionary¹:

employed:

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

employee:

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

employer:

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

The ordinary meaning of "employed" is not limited to periods actually worked. The arbitrator recognised this in Madore when she held that:

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

Put another way, a contract of employment may continue to subsist between the parties, even though no work is performed or wages earned. An employee obviously continues to remain employed even though it is the week-end or he or she is on holiday.² Likewise, the parties agree that someone who is a regular, part-time employee, working, for example, three days a week, is employed at the time of the accident, even if it occurred on an off-work day.

In my view, the express provision governing "temporary lay-off" in section 12(2) 1. ii. confirms that insureds who are not actually working "on the job" at the time of the accident nonetheless may qualify for benefits. However, the existence of a specific provision dealing with lay-offs should not be construed as restricting the ordinary, broad, meaning of "employed" under section 12 (2) 1. i..

The issue in this case is whether Ms. Joyce was simply a casual employee, with periods of employment interspersed with periods of unemployment, as the arbitrator found, or whether she was operating under a contract of employment even during periods when she was not assigned work.

The line between the two situations is sometimes a fine one. However, the fact that the employer has no obligation to guarantee work or that the employee has a discretion to work, while important factors, are not determinative of employment status. Each case must be determined on its own particular facts.

While "employed" should be given its ordinary meaning, the context and purpose of the statutory scheme must not be ignored. Section 12 benefits are broadly intended to provide compensation, within the parameters of the Schedule, for loss of employment earnings, or opportunity to earn, by reason of disability arising from automobile accidents. Cases that deal with employees' rights in other legislative or common law contexts, such as rights on termination, should be viewed with this in mind.³

According to the facts, Ms. Joyce first starting working for Care-Plus in 1987 and for Para-Med in 1989. She completed an application for employment. The documents filed show that staff are subject to the rules and regulations of the agencies, including such matters as regular performance appraisals, medical check-ups and dress code. Ms. Joyce was paid bi-weekly for the hours she worked and had the usual employment deductions made. Both companies issued a Record of Employment following the accident. They recorded Ms. Joyce's hourly rate to be $15.50 (Para-Med) and $16.00 (Care-Plus), plus 4% vacation pay.

Both agencies characterised their staff in much the same way: In a letter dated February 14, 1995, Care-Plus stated that:

Our nursing/homemaking is considered on-call and as such there is no guarantee of hours.

Para-Med's employment handbook described staff as:

temporary, part-time, hourly employees...employed according to their availability and the availability of work from Para-Med. Staff may chose their own hours without affecting their status as an employee.

Both agencies had similar rules governing availability and call-in procedures. Employees called in the days and shifts they could work for the following week and would be assigned work according to their availability and the amount of work.

It is agreed that, in the fifty-two week period before the accident, Ms. Joyce worked 93 days for Care-Plus. She earned $16,783.52 in 1992 and last worked for Care-Plus on January 1 and 2, 1993, for which she earned $733.16. Ms. Joyce worked 157 hours for Para-Med in 1992, earning $2,932.42, plus an additional 12 hours at the end of February, 1993. According to her income tax returns, her earnings from these agencies were essentially her only source of income.

Her year’s work schedule looked like this:⁴

1992

Jan

Feb

March

April

May

June

48 hours in pay period ending Jan 5, (includes some unidentified time in 1991) and 12 hours in pay period ending Jan 19, (P-M)

32 hours in pay period ending Feb 2, (P-M)

1 day (C-P) (March 31)

22 hours in pay period ending April 12; and 24 hours in pay period ending April 26, (P-M)

2 days (C-P) (April 2,7)

8 hours in pay period ending June 7; and 11 hours in pay period ending June 21, (P-M)

12 days (C-P) (June 10, 11, 12, 13, 14, 17, 18, 19, 20, 23, 24, 30)

July

August

September

October

November

December

13 days (C-P) (July 1, 2, 3, 7, 8, 9, 17, 18, 19, 23, 24, 27, 28)

7 days (C-P) (August 16, 19, 20, 25, 26,29,30)

15 days (C-P) (Sep. 2, 3, 6, 7, 10, 11, 14, 15, 18, 19, 22, 23, 26, 27, 30)

15 days (C-P) (Oct. 1, 4, 5, 8, 9, 12, 13, 16, 17, 20, 21, 24, 25, 28, 29)

16 days (C-P) (1,2, 5, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25, 26, 29, 30)

10 days (C-P) (17, 18, 19, 20, 23, 24, 26, 29, 30, 31)

1993

January

February

March

2 days (C-P) (Jan. 1, 2)

12 hours in pay period ending February 28 (P-M)

Accident occurred on March 11

Even if Ms. Joyce may not have accumulated sufficient time worked to qualify under subsection 12(3), this work record cannot be described fairly as "nominal". While there is no consistent pattern of hours or days worked, Ms. Joyce's work record in the last six months of 1992 is not insignificant. Although there are a number of days she did not work during this time, the nature of the work should be considered. Ms. Joyce took care of terminally-ill patients. Her assignments came to an end on the death of her patient. Inevitably, there were gaps between assignments.

There are periods in which Ms. Joyce had very little work, in particular the Spring of 1992 and the Spring of 1993. Except for a twelve hour stint at the end of February, 1993,⁵ Ms. Joyce did not work after January 2, 1993.

The documents filed show that the lack of work was not Ms. Joyce's choice, but a function of reduced case-load. In fact, both agencies reiterated that Ms. Joyce made herself available for any work that was available for her.

In its February 14, 1995 letter, Care-Plus wrote:

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

Para-Med wrote⁶:

Since her employment with Para-Med, she has made herself available for all shift days, evenings and even nights when ever work was available. She was persistent in her efforts to gain shifts constantly calling in to the office. If we had a case that was going to come through sometime that day, Jennifer would call us 5-6 times during the day to see if the case had started. She even put herself on standby. If work became available we often booked Jennifer into the case without contacting her first, knowing that Jennifer would call in and accept the shifts.

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

In view of this evidence, the arbitrator's comment that Ms. Joyce herself "chose to limit her nursing work to a very minimum level" was unsupported and, in my view, unwarranted.

The length of time during which there is no work is a factor in determining whether an employment relationship continues uninterrupted. However, it is necessary to look at the complete picture. Had there been evidence that Ms. Joyce had removed herself from case-assignments for a significant period, the result in this case might have been different. Similarly, an insured who is simply placed on a roster and called about work from time to time may not qualify. However, in my view, the facts of this case go beyond an ad hoc or intermittent roster-type availability.

There was an ongoing employment relationship between Ms. Joyce and the agencies for which she worked. Ms. Joyce diligently made herself available for any work that was offered. She had worked for both agencies for a number of years, her annual earnings figures were consistent and she relied on this employment to earn her livelihood over the years, including the year before the accident.

Given the nature of the ongoing relationship between the parties, Ms. Joyce's line of work and her employment history, I am not persuaded that her employment relationship was severed every time she completed an assignment and had no immediate work to follow. In my view, the actions of the parties indicate the opposite.

The only question before me is whether Ms. Joyce qualifies for accident benefits designed to compensate her for an inability to work. The amount of any benefit to which she is entitled is determined by the legislation, and, in her case, is based on her previous earnings in the year before the accident.⁷

The legislation is remedial and should be given a large and liberal construction that best attains its purposes. The evidence indicates that Ms. Joyce continued in an employment relationship at the time of the accident, even though she did not actually have a case-assignment at that time. I find therefore that she was employed at the time of the accident. This result is consistent with the language and the underlying purpose of section 12 benefits.

In my view, the arbitrator erred in failing to take the parties ongoing relationship into consideration in concluding that Ms. Joyce was employed only when on assignment. For that reason, I conclude that the decision cannot stand.

The arbitrator's decision is rescinded and the following substituted:

Ms. Joyce qualifies for weekly income benefits under section 12(2) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672.

This is the sole issue on appeal. The arbitration record indicates that the amount of any weekly income benefits to which Ms. Joyce might be entitled was in dispute but not dealt with at the arbitration. If the amount is still in issue, the parties may apply to the Registrar of the Dispute Resolution Group for a pre-hearing conference.

Ms. Joyce is entitled to her appeal expenses.