Neutral Citation: 1997 ONICDRG 53
OIC A96-000084
ONTARIO INSURANCE COMMISSION
BETWEEN:
BIENVENIDO MALABANAN
Applicant
and
CANADIAN GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Bienvenido Malabanan, was injured in a motor vehicle accident on January 25, 1995. He applied for and received statutory accident benefits from Canadian General Insurance Company ("Canadian General"), payable under the Schedule.1 Canadian General terminated weekly income replacement benefits on September 15, 1995. The parties were unable to resolve their disputes through mediation and Mr. Malabanan applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A hearing was held on August 6 and 7, 1996 before me, Joyce Miller, Arbitrator. On September 9, 1996, I issued my decision wherein I denied Mr. Malabanan further income replacement benefits pursuant to section 7(1) of the Schedule. However, I did find that Mr. Malabanan was entitled to income replacement benefits pursuant to section 64 of the Schedule from October 16, 1995 to December 6, 1995.
The issues in this hearing are:
- Is the amount of Mr. Malabanan's income replacement benefits $816.76 per week or $376.76 per week for the period of October 16, 1995 and December 6, 1995?
Result:
- Mr. Malabanan's income replacement benefits for the period of October 16, 1995 to December 6, 1995 is $376.76 per week.
Hearing:
Counsel for the parties filed written submissions and participated in a teleconference on March 7, 1997, before me, Joyce Miller, Arbitrator.
Present at the Hearing:
Mr. Malabanan's
Ian Little
Representative:
Barrister and Solicitor
Canadian General's
J.Claude Blouin
Representative:
Barrister and Solicitor
Background:
The matter proceeded by way of an agreed statement of facts2 and submissions.
The Applicant was injured in a motor vehicle accident on January 25, 1995. He was paid income replacement benefits of $816.76 a week. The Insurer stopped paying these benefits on September 15, 1995 because the Applicant had not complied with section 64 by not providing "... such information as is reasonably necessary" for a DAC3 assessment.
In March 1996 the Applicant applied for and received sick leave benefits from his employer retroactive to September 18, 1995.
In my decision of September 9, 1996, I found that by October 16, 1995 the Applicant had provided the necessary information for the DAC to proceed. I also found that as required by section 64 the Insurer had not resumed paying benefits from October 16, 1995 until the DAC report was issued on December 6, 1995. I, therefore, found that pursuant to section 64, the Insurer was required to pay the Applicant income replacement benefits, from October 16, 1995 to December 6, 1995, irrespective of the fact that the Applicant was not entitled to benefits pursuant to section 7(1) from September 16, 1995.
The Applicant submitted that in calculating the quantum of the benefits owing I should not take into consideration the sick leave pay he received from his employer from October 16, 1995 to December 6, 1995. The Applicant submitted that pursuant to section 75(2)(b) sick leave benefits which are "available" to an applicant, but not received, are not subject to being deducted from weekly benefits.
The Applicant's position is that because the Insurer cut off his weekly benefits he was forced to apply for sick leave benefits. The Applicant submitted that it is not fair that because of the Insurers actions, his sick leave benefits, which would have remained "available" to him, should be deducted from the weekly benefits that were awarded to him.
The Insurer's position is that section 75 is clear and unequivocal. There are no conditions or limitations to the rule that if an applicant receives sick leave benefits that it should not be deducted from the accident benefits that are owing.
The Law:
75(1) The insurer may deduct the following amounts from the amount payable to an insured person for weekly income replacement benefits under Part II, education disability benefits under section 15, caregiver benefits under Part IV, other disability benefits under Part V or weekly loss of earning capacity benefits under Part VI:
Net payments for loss of income that have been received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation plan.
Net payments for loss of income that have not been received by the insured person but are available to the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation plan, unless the insured person has applied to receive the payments for loss of income.
(2) Despite subsection (1), no deduction shall be made for,
(a) Unemployment Insurance benefits that have been received by or are available to the insured person;
(b) payments under a sick leave plan that have not been received by the insured person but are available to the insured person; or
Findings:
I agree with the position of the Insurer. In my view, subsection 75(2)(b) can not be given the broad and equitable interpretation that the Applicant seeks.
The subsection clearly states that only sick leave benefits that are "available" shall not be deducted from any accident benefits that have been awarded. Sick leave benefits that are "received" can be deducted. I do not believe that one could read into the subsection any limitation or condition on how the sick leave benefits were received and then decide whether or not they should be deducted.
In my view, if the legislators had intended that sick leave benefits that were "received" could be exempt from being deducted in certain circumstances, then it would have stated so in a clear and straightforward manner. I, therefore, find that the sick leave benefits received by Mr. Malabanan can be deducted from the accident benefits found owing pursuant to section 64.
Accordingly, I find that Mr. Malabanan is entitled to income replacement benefits of $376.76 per week pursuant to section 64 of the Schedule, for the period October 16, 1995 to December 6, 1995.
Order:
- Canadian General shall pay Mr. Malabanan's income replacement benefits of $376.76 per week pursuant to section 64 of the Schedule for the period of October 16, 1996 to December 6, 1996.
March 24, 1997
Joyce Miller Arbitrator
Date
Footnotes
- The 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.
- See Appendix A
- Designated Assessment Centre