Neutral Citation: 1997 ONICDRG 7

OIC A96-000359

ONTARIO INSURANCE COMMISSION

BETWEEN:

GRAZIA GULIZIA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

The Applicant, Grazia Gulizia, was injured in a motor vehicle accident on June 29, 1991. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Dominion on September 29, 1991. Weekly benefits were reinstated on August 9, 1993 until August 14, 1994. The parties were unable to resolve their disputes through mediation, and Mrs. Gulizia applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What is the period during which weekly income benefits are payable under section 13(1) of the Schedule? What is the meaning of the words "for any period in excess of 156 weeks..." in section 13(8)(b) of the Schedule?

Result:

1. The period during which weekly benefits are payable under section 13(1) of the Schedule is 156 weeks of disability.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on December 18, 1996, before me, Joyce Miller, Arbitrator. Written submissions were received on December 23, 1996 and January 6, 1997.

Present at the Hearing:

Mrs. Gulizia's Representative:

Ian A. Little Barrister and Solicitor

Dominion's Representative:

D'Arcy McGoey Barrister and Solicitor

The Law:

13.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

13.-(8) The insurer is not required to pay a weekly benefit under this section,

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.

Evidence and Findings:

The parties proceeded on an Agreed Statement of Facts which is attached as Appendix A.

Briefly, Mrs. Gulizia was injured in a motor vehicle accident on June 29, 1991. She was paid weekly benefits pursuant to section 13(1) of the Schedule until September 29, 1991. Dominion reinstated Mrs. Gulizia's benefits from August 9, 1993 to August 14, 1994. In total, 65 weeks of section 13(1) benefits were paid. Mrs. Gulizia is claiming weekly benefits from August 15, 1994 and ongoing.

The issue I am asked to determine is whether Mrs. Gulizia can make a claim for weekly benefits pursuant to section 13(1) as opposed to section 13(8)(b) of the Schedule. In order to determine this issue, I must first decide what is the meaning of the words "for any period in excess of 156 weeks ..." (hereinafter referred to as "the phrase") in section 13(8)(b).

There have been a number of arbitration decisions on this issue. Three different interpretations have been attributed to the phrase. In those cases, the arbitrators were considering the interpretation of the phrase in section 12(5) of the Schedule, which deals with weekly income benefits for employed persons. Nevertheless, I find that since the phrase is exactly the same in both sections 12(5)(b) and 13(8)(b), their comments are relevant in this case.

The first case to deal with the interpretation of the phrase was Pina Coles and Dominion of Canada General Insurance Company"² In that case Arbitrator K. Julaine Palmer held that the period of 156 weeks referred to the weeks of benefits actually paid by the insurer, and did not include the weeks that the applicant was disabled and was receiving collateral benefits.

In Rene G. Lafleur and Zurich Insurance Company,³ Senior Arbitrator Fredericka Rotter came to another conclusion than Cole and held that the 156-week period commenced from the date of the accident and ran consecutively for three years.

Arbitrator Stewart McMahon in William J. Whyte and Metropolitan Insurance⁴ concluded that "... the better interpretation of the 'period' is to treat it as 156 weeks of disability...". The reasoning and conclusion in Whyte was adopted by Arbitrator Shemin Manji in Carole A. Caruso and Guarantee Company of North America.⁵

It is clear from the different interpretations of the phrase that it is vague and ambiguous and can lend itself to different interpretations.

Mrs. Gulizia's submissions were very brief. Her position was that I should adopt the reasoning of Arbitrator McMahon in Whyte.

Dominion submitted that I should accept the interpretation in Lafleur which "...allows for greater certainty to both the insurer and the insured in respect of the running period for Section 13 benefits."

Dominion further submitted that the Whyte analysis "... provides an incentive to the claimant in the position of Mrs. Gulizia to make 'sporadic' claims on and off in order to keep the insurer's file open longer." Moreover, it submitted that "... Arbitrator McMahon has confused the "best interests of the insured" with "how do I obtain as much money as I possibly can from the insurance company."

In my view, these latter submissions represent a cynical view of the no-fault insurance scheme and do not deal with the substance of the issue. Moreover, I agree with Mrs. Gulizia's submissions that there is no incentive to an applicant to advance a "sporadic" claim given the greater burden of proving causation in such a situation.

Dominion further submitted that if the reasoning in Whyte is adopted then it would result in the absurd situation whereby Dominion would be put into the position of arguing that Mrs. Gulizia was, in fact, disabled for approximately two years, from September 29, 1991 to August 9, 1993 in order to reach the end of the 156-week period sooner.

I agree with Mrs. Gulizia's submissions that an insurer is not going to argue in good faith that an applicant was disabled for a period in which the applicant claims not to be disabled. The insurer's exposure in all three interpretations is always a maximum of 156 weeks. There is no logical reason as to why an insurer would wish to pay two years of benefits, when an applicant claims not to be disabled, in order to get to the end of the 156-week period sooner.

Having considered all three interpretations, I find that I agree with the reasoning and conclusion of Arbitrator McMahon in Whyte which was followed by Arbitrator Manji in Caruso.

I also agree with Arbitrator Manji's reasoning that the interpretation in Cole leads to an illogical and arbitrary distinction, namely, that where an applicant receives collateral benefits which is less than the quantum of his or her accident benefits, the benefit period would continue; but would not continue where the collateral benefits are greater than the amount of the accident benefits.

I concur with Arbitrator Manji's summary of Whyte in the Caruso decision where she states:

In my view, interpreting the "period" in section 12(5)(b) of the Schedule as 156 weeks of disability harmonizes best with the rest of the Schedule and produces results that are logical. With this interpretation, the initial benefit period in section 12(1) would be temporarily interrupted in circumstances where an applicant's disability has temporarily subsided, thereby encouraging early efforts to return to work, school or regular activity. Such an interpretation would also ensure an equal level of protection for an injured applicant who experiences an immediate onset of disability and one who experiences a late onset of disability.

In addition, I wish to add that it is illogical to expect that in every case where a person is injured in a motor vehicle accident that his or her injuries would always take the same straight course and that the disability would be continuous for a certain period of time and then resolve itself. In my view, the Whyte and Caruso interpretation is more realistic in that it relates to the diversity of the healing processes of different individuals. It provides for the not too infrequent situation where the healing process includes periods of progression and regression as well as plateaus.

The Insurer's concern that there will be a lack of certainty as to when the period is concluded if one adopts the Whyte interpretation, in my view, is balanced off by the issue of causation. As noted above, it is not to the advantage of an applicant to drag out the period of time when claiming accident benefits because of the heavy burden of proving causation. However, in certain circumstances where an applicant can satisfy the burden of causation, the Whyte decision lends itself to a more fair and just solution.

Dominion also submitted that the reasoning in Whyte does not apply in this case because of Arbitrator McMahon's policy argument that "..both parties and society in general benefit if the insured is encouraged to return to work." Dominion submitted that this policy argument of encouraging a return to work is inapplicable under section 13.

As I noted above, I find that the comments made regarding the phrase in section 12(5)(b) are relevant in this case because the exact wording of the phrase is used in section 13(8)(b). I find that the policy reason of encouraging an applicant to return to work to be the same with respect to encouraging a person to return to their regular daily activities. Everyone benefits if an applicant attempts to return to his or her daily activities as soon as possible. By applying the reasoning in Whyte, an applicant is encouraged to an early return to his or her daily activities; it ensures that the applicant does not lose the possibility of recovering 156 weeks of benefits under section 13(1) merely because he or she attempts to return to his or her regular daily activities.

In its oral and written submissions, Dominion noted that in the case of Sabita Johnson and Halifax Insurance Company,⁶ Arbitrator Palmer made the statement that "The test for eligibility for weekly income benefits, at a period of three years after the accident, changes." Dominion submitted that this case stands for the proposition that the 156-week period is continuous from the date of the accident.

I disagree. As I stated during the oral submissions, in the Johnson case Arbitrator Palmer was not dealing with the issue of interpreting the meaning of the phrase "for any period in excess of 156 weeks I, therefore, give little weight to Dominion's submission that her statement stands for the interpretation that the 156-week period runs continuously from the date of the accident. I note that later on when Arbitrator Palmer specifically deals with the interpretation of the phrase in Cole, she clearly did not limit the 156-week period to run continuously from the date of the accident.

Moreover, I agree with the submission of Mrs. Gulizia that if a person is continuously disabled from the time of the accident and is continuously paid weekly benefits, the three interpretations merge. In the Johnson case, Arbitrator Palmer was simply stating that since the insured person was found not to be disabled within 156 weeks of the accident, it was moot to decide further if she was eligible for post-156 week benefits.

For all of the above reasons, I conclude that the interpretation of the phrase "for any period in excess of 156 weeks ..." in section 13(8) should be interpreted to mean 156 weeks of disability.

Order:

1. The peiod during which weekly benefits are payable under section 13(1) of the Schedule is 156 weeks of disability.

January 13, 1997

Joyce Miller Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2February 13, 1995, OIC File No. A-007416
3. 3May 11, 1995, OIC File No.A-004141
4. 4April 30, 1996, OIC File No. A-009277
5. 5May 9, 1996, OIC File no. A-006856
6. 6September 1, 1994, OIC File No. A-005216