Neutral Citation: 1998 ONFSCDRS 103

FSCO A97-001209

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JAMES TUSTIN

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

DECISION

Issues:

James Tustin was injured in a motor vehicle accident on August 23, 1994. He received statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule¹ Canadian General continues to pay Mr. Tustin loss of earning capacity benefits. However, the parties disagree about the calculation of Mr. Tustin's income replacement benefits and his pre-accident earning capacity. They were unable to resolve their disputes through mediation and Mr. Tustin applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What is the correct amount of weekly income replacement benefit that Mr. Tustin should have received, pursuant to section 10 of the Schedule? Do the extrapolation provisions of section 9(7) apply to the calculation of this benefit?

2. What is the correct amount of Mr. Tustin's pre-accident earning capacity and his weekly loss of earning capacity benefit, pursuant to section 20 of the Schedule?

3. Is Mr. Tustin entitled to additional attendant care benefits from July 1, 1997, ongoing, pursuant to section 47 of the Schedule?

4. Is Mr. Tustin entitled to $503 in unpaid supplementary medical and rehabilitation benefits?

5. Is Mr. Tustin entitled to a special award, according to the provisions of section 282(10) of the Act?

Mr. Tustin also claims interest on amounts owing and his expenses incurred in the arbitration.

Result:

1. Mr. Tustin is entitled to the benefit of the extrapolation provisions of section 9(7) of the Schedule in the calculation of his income replacement benefit which is $457.33 per week.

2. The correct amount of Mr. Tustin's pre-accident earning capacity is $515.45 per week. Accordingly, his LEC benefit is $463.91 (90% x $515.45).

3. Mr. Tustin is entitled to attendant care benefits of $413.33 per month for the period July 1, 1997, ongoing, until the report of the attendant care DAC is received.

4. Mr. Tustin is entitled to $503 in unpaid supplementary medical and rehabilitation benefits.

5. Mr. Tustin is entitled to interest on amounts outstanding, pursuant to section 68 of the Schedule.

6. Mr. Tustin is entitled to a special award, according to the provisions of section 282(10) of the Act, as set out in the body of the decision.

Mr. Tustin also claims his expenses incurred in the arbitration.

The details of the hearing are set out in the Appendix.

Evidence and Findings:

Background

Jim Tustin was seriously injured in a single-vehicle accident on August 23, 1994. He spent nine days in a coma and was eventually released from a rehabilitation hospital in January 1995. Besides a closed head injury and many broken bones, Mr. Tustin suffered a spinal chord injury. Before the accident, Mr. Tustin drove a dump truck for a living. For at least three years before the accident he worked exclusively for one company. For more than two years following the accident, Canadian General paid income replacement benefits (IRBs) to Mr. Tustin. Now, he is receiving loss of earning capacity benefits (LECs). The parties disagree about the proper calculation of these two benefits.

Extrapolation

The parties agree that Mr. Tustin is entitled to weekly IRBs under paragraph 1 of subsection 7(1) of the Schedule, because he was working at the time of the accident. They also do not dispute that paragraphs 4 and 6 of subsection 7(1) do not apply to his case, because he was neither on strike, locked out, nor on leave at the time of the accident. Their dispute centres on whether Mr. Tustin qualifies for the extrapolation provisions of subsection 9(7) of the Schedule. Subsection 9(7) directs that gross income from employment shall be determined "by taking the person's gross income from employment for the part of that period for which the person earned income from employment and

extrapolating it over any part of the period for which the person,

(a) did not receive temporary disability benefits or benefits under the Unemployment Insurance Act (Canada); and

(b) did not earn any income from employment for one of the following reasons:

1. The person was not employed.

2. The person was on a leave of absence without pay.

3. The person was on a layoff from employment.

4. The person was on strike from employment or was locked out from employment.

[emphasis added]

In order to be successful in a claim under subsection 9(7), Mr. Tustin must prove either that he was "not employed" during the winter months or that he was "on a layoff from employment," as provided in subparagraphs 1. and 3. of section 9(7)(b) and that he did not collect either temporary disability benefits or unemployment insurance benefits. I find Mr. Tustin did not collect either temporary disability benefits or unemployment insurance benefits during the winter of 1992-93. Neither party submitted that subparagraphs 2. or 4. of section 9(7)(b) were applicable and I do not find them applicable here.

Canadian General submitted that Mr. Tustin should be treated as continuously self-employed and that the seasonal gap in his revenues simply reflects the nature of his self-employment, rather that the cessation and recommencement of self-employment. Canadian General submitted that the application of extrapolation of section 9(7) would cause overcompensation, since Mr. Tustin would be paid IRBs based on a weekly income level which he was only able to achieve during the summer months. If subsection 9(7) is not applied, his IRB would be based on his average income over a full calendar year.

In the scheme of the Schedule in any case where the extrapolation provisions operate, the same argument could be made, because an income amount is allotted to a period of no income. By virtue of amendments to the Insurance Act in effect at the time of this accident, the Legislature provided that pecuniary loss for accident victims would be determined by formulae set out in the Schedule. The Legislature determined that extrapolation, or estimation from known values, was the method by which income calculations for employed and self-employed persons would be made for periods in which they are not employed, on leave of absence without pay, laid off, or on strike or lock out. For example, employed persons who began employment during the four weeks before the accident are entitled to extrapolate their income (section 9(2)), as are persons who started self-employment in the 52 weeks before the accident (section 9(3)).

Plainly, the calculation of IRBs are not wholly connected to the actual annual income an employed or self-employed person had earned at the time of the accident. The statutory scheme was intended to accommodate insured persons in widely varying employment and self-employment situations, with an historical perspective as to their income, yet tempered with considerations of what their future income stream might have been, but for the accident. In Mr. Tustin's case, for example, evidence developed by the insurer subsequent to the accident showed that Mr. Tustin, himself, would have been able to work at least to the end of December 1994, had the accident not intervened, although the previous year, his work had terminated in the third week of November.

Arbitrator Makepeace, in the Oliveira and Wellington Insurance case, considered the extrapolation provisions of section 9 in the context of an insured person who began his business about seven months before an accident. She made the following comments:

Section 9(3) says that a self-employed person may take his "income from the self-employment in which he was engaged at the time of the accident for the part of the 52-week period for which the person earned income from that employment." This clause distinguishes between self-employment and earning income from self-employment and implies that a person may be self-employed but not earning income from that self-employment. In my view, the plain words of section 9(3) form a complete response to [the insurer's chartered accountant's] opinion that a self-employed person cannot be unemployed because slack periods are part of self-employment. That may be so from an accounting or tax perspective. For the purposes of the Statutory Accident Benefits Schedule, the governing principle is set out in section 9(3), which clearly contemplates that a self-employed person may exclude periods in which he did not "earn income from ...employment" from calculation of his gross annual income.

Arbitrator Makepeace's decision was upheld on appeal.³ I agree with her comments.

I find that during at least the three years before the accident, Mr. Tustin hauled exclusively for Jen Re Utilities or Jen Re Excavating, a related company. I find Mr. Tustin did not generate trucking revenues during the winter months. When the ground was frozen, no excavation work was performed. For example, in the year prior to the accident, Mr. Tustin hauled on November 18, 1993 and did not resume work again until April 11, 1994. I find he worked about 32 of the 52 weeks prior to the accident.

During the winter months Mr. Tustin testified he did "nothing," spending a lot of his time shooting pool and doing some maintenance on his truck while it sat parked on a lot near his home. I find Mr. Tustin qualifies for extrapolation because during several winter months in the year before the accident he was "on a layoff from employment." Following the language of section 5 of the Schedule, I find that Mr. Tustin was not "engaged in employment, including self-employment" during this time period.⁴ In the particular circumstances of Mr. Tustin's self-employment, he performed a contract of service and had worked exclusively for one contractor for several years prior to the accident in a long-term relationship. He was instructed by the principals of Jen Re when and where work was available. Jen Re, not Mr. Tustin, decided when weather conditions were such that excavation could no longer take place, and, correspondingly, when excavation could resume. The period of layoff was time limited, regular (seasonal), and temporary. I find Mr. Tustin's actual work circumstances tantamount to that of payroll employees of Jen Re who were engaged in the same excavation work and who were laid off in winter. In my view, nothing in the Schedule suggests the phrase "on a layoff from employment" excludes self-employment, especially as the section 5 definition of employment makes it clear that "employment" includes self-employment.

If I am wrong in finding Mr. Tustin qualifies for extrapolation on the basis that he was on a layoff from employment, then I find that during approximately 20 weeks of the 52 weeks preceding the accident, he did not earn any income from employment because he was "not employed" as contemplated by section 9(7)(b)1. In my view, being "not employed" does not necessarily imply that Mr. Tustin had to wind-up his business each winter, as the insurer submitted. In the particular circumstances of Mr. Tustin's self-employment, he was not engaged in that employment during the winter months.⁵ In my view, the tests under section 9(7)(b) are more concerned with the activity of insured persons, and their situation of not earning income during a particular period, than with their status. I do not find the decision in Gibson and York Fire and Casualty Insurance Company, (OIC A-006150, January 4, 1995), and Arbitrator Mackintosh's comments about Mr. Gibson's status in that case, interpreting different statutory language in a prior scheme of no-fault accident benefits, to be applicable to interpret the language of section 9 and the scheme of the Schedule under consideration. I find the small amount of time Mr. Tustin spent maintaining his truck over the winter negligible and insufficient to find him engaged in self-employment in those months.

Calculation of Income Replacement Benefit

The parties disagreed about the calculation of Mr. Tustin's IRBs for the first 104 weeks following the accident—differing on the manner in which fixed expenses should be treated, if Mr. Tustin had the right to extrapolate his income. I am persuaded by the argument advanced on Mr. Tustin's behalf that it would be erroneous to increase his fixed expenses by the extrapolation factor. By their nature, fixed expenses do not vary. I accept the figures of $45,305 in gross revenues in the 52 weeks before the accident, together with $19,913 in variable expenses and $8,242 in fixed expenses, leaving a gross annual income of $17,150 before extrapolation. I accept the extrapolation factor of 1.625, since Mr. Tustin worked about 32 out of the 52 weeks before the accident.

Gross annual income ($45,305) less variable expenses ($19,913):

$25,392.00

Weekly gross income less variable expenses ($25,392 31.71 weeks worked):⁶

$800.76

Annual extrapolated gross income less variable expenses ($800.76 x 52 weeks):

$41,639.52

Annual extrapolated income net of variable and fixed expenses ($41,639.52 - $8,242):

$33,397.52

Extrapolated weekly gross income net of all expenses:

$642.26

Less deductions ($104.12 income tax, $30.00 CPP = $134.12)

$134.12

Net weekly income:

$508.14

Weekly income replacement benefit (90% x $508.14):

$457.33

The amount actually paid to Mr. Tustin was not before me in evidence. Canadian General should pay any shortfall in IRBs to Mr. Tustin, plus interest, in accordance with section 68 of the Schedule.

Pre-accident Earning Capacity

If an insured person qualifies for a loss of earning capacity benefit, a calculation must be completed according to the terms of section 29 to determine pre-accident earning capacity (PEC). In this case, I find Canadian General completed only the minimum calculation required under section 29(4) (a) of the Schedule, not the "gross annual income from employment that ...[Mr. Tustin] could reasonably have earned at the time of the accident, having regard to ...[his] personal and vocational characteristics at that time," as required by section 29(2). I base this finding on the statements of Mr. Edwards, the insurer's accountant, and Ms. Serapiglia, its vocational evaluator, as to the scope of their respective retainers, and on the evidence of Ms. Baumgartner, the insurer's representative, as well as the documentary evidence of Canadian General's Loss of Earning Capacity (LEC) Benefit Offer dated January 15, 1997.

I accept Mr. Tustin's submission that the appropriate PEC figure for net weekly income determined in accordance with section 81 of the Schedule using the "gross annual income from employment that ...[he] could reasonably have earned at the time of the accident, having regard to ...[his] personal and vocational characteristics at that time" is $515.45 per week, representing the earnings of a truck driver instructor. At the time of the accident Mr. Tustin had spent over 20 years in the trucking industry. Had his vocational circumstances prior to the accident taken a slightly different path, it is reasonable to conclude that he might have pursued truck driver instruction as a realistic alternative occupation, given his personal and vocational characteristics.

In my view it is not determinative in considering the provisions of section 29(2) that Mr. Tustin had, historically, not earned net income of $515.45 per week, at least in the few years preceding the accident. Truck driver instructor was an occupation identified by Ms. Serapiglia after a vocational evaluation in January 1996 that considered Mr. Tustin's competitive employment aptitudes, transferable skills, residual physical/cognitive capacities, general educational development and assessed vocational interests. Since the analysis was conducted with a view to Mr. Tustin's post-accident capabilities, only occupations classified in the sedentary to light categories of physical demands were considered. However, I find that Ms. Serapiglia's analysis contains the elements necessary to determine what Mr. Tustin "could reasonably have earned at the time of the accident" and is appropriate for the purpose of calculating a PEC figure.

The analysis was completed by a knowledgeable vocational evaluator and a reasonable conclusion was drawn. In this case, the best evidence of Mr. Tustin's PEC is Ms. Serapiglia's report and it supports this conclusion. Accordingly, following the provisions of section 38, an LEC benefit of $463.91 should be paid, based on 90% of $515.45.⁷

Attendant care benefits

Part 10 of the Schedule sets out the provisions relating to attendant care benefits. Canadian General began paying attendant care benefits after Mr. Tustin's release from the rehabilitation hospital, but over time, the amount paid per month has decreased. Since the summer of 1997 Canadian General has paid $271 per month, based on one hour of care daily at a rate of $8.75 per hour. Mr. Tustin claims entitlement to $522 per month, based on an assessment performed by an occupational therapist in November 1996. That assessment indicated he needed 52 hours of attendant care each month, calculated at three different hourly rates, according to the provisions of Form 1 to the Schedule. Karen Tustin, James Tustin's spouse, is a registered nurse. She has assisted in her husband's care since the accident.

When Canadian General reduced the attendant care amount in the summer of 1997, the reduction was carried out in a rather arbitrary fashion, without consultation with the Tustins or any up-to-date assessment being conducted.

On October 15, 1996 Canadian General requested Mr. Tustin undergo an "In-Home Functional Abilities Evaluation to determine his current needs for attendant care," pursuant to section 65 of the Schedule. This evaluation was performed by occupational therapist Susanne Evanitski about one month later. In the same letter, Canadian General refused to pay for the attendant care expenses submitted on October 1, 1996 without a medical certificate from Mr. Tustin's "treating practitioner to indicate that the expenses for attendant care as presented are reasonable and necessary in view of the injuries he sustained directly as a result of the motor vehicle accident." Such a certificate can be requested under section 48. The insurer's letter also advised that once the medical certificate was received "we will be asking for a second opinion in accordance with section 39(1) of the Statutory Accident Benefits Schedule, and will be requesting that Mr. Tustin attend an Attendant Care Designated Assessment Centre to confirm the expenses."

Mr. Tustin did not participate in an Attendant Care DAC assessment prior to the hearing. Dr T. Cait, Mr. Tustin's family doctor, wrote to Canadian General on March 25, 1998 stating that he had reviewed the November 1996 assessment by Ms. Evanitski "and agree[d] with the findings and recommendations. Further, over the course of the last year, Mr. Tustin has improved minimally." Dr. Cait and Ms. Evanitski both testified at the hearing.

The burden of proving the amount of attendant care to which Jim Tustin is entitled, and has received, since the summer of 1997 lies with Mr. Tustin. Ms. Evanitski's report from November 1996 forms a solid basis for considering the many areas in which Mr. Tustin requires assistance in the course of his daily life. Ms. Evanitski was familiar with Mr. Tustin's abilities from working with him for several months prior to the assessment; she interviewed the Tustins in depth and discussed the level of assistance he required in the various seasons of the year, and in the variety of situations in which the family operated, not just the "normal" daily routine. Ms. Evanitski also brought her professional experience to bear on her final assessment.

I find that Canadian General was not justified in its use of the St. Michael's Hospital report of July 25, 1997 to reduce the attendant care benefit to one hour per day. Nothing in their brief report supports one hour daily as an appropriate figure. They did not have Ms. Evanitski's report on which to comment. Further, Canadian General's request for this team to use data acquired nine months earlier during a medical and rehabilitation assessment to reconstruct comments on the attendant care needs of the insured person, even relating to the time of the assessment, is contrary to the provisions allowing insurers' examinations. Section 65(4) requires that a notice of such an examination "state the expense to which the examination relates."

The witnesses at the arbitration, including Dr. Cait, who are familiar with Mr. Tustin's capabilities since the summer of 1997, maintained that Mr. Tustin has improved "minimally" or "somewhat" over time. I accept this as a reasonable global assessment. Everyone agreed that Mr. Tustin's capabilities differ, depending on the day and the situation at hand. Without a more recent detailed assessment, like that which would be provided by an attendant care DAC, it is difficult to quantify small improvements or translate them into variances in the amount of attendant care assistance Mr. Tustin requires. Many people, not just Karen Tustin, assist with Jim Tustin's attendant care. On a daily basis, the children's daycare provider and his mother-in-law are among those who provide small, but regular amounts of assistance to Mr. Tustin.

Canadian General cross-examined Karen Tustin at length about her attendant care activities with her husband, particularly in relation to the four hours claimed for assistance with Mr. Tustin's exercise program each week. I was not persuaded by the oral evidence presented at the hearing that Karen Tustin has been able to provide four hours per week of supervised exercise activity regularly over the past year, even though I find that amount is a reasonable recommendation. I find it more likely that most weeks she would have been able to spend about two hours dedicated to this activity, given her work schedule, and the other demands on her time. I find that two hours per week of such activity is a more reasonable estimate of the amount of direct exercise assistance she has most recently provided.

Apart from this reduction, which calculated according to the hourly rates of exhibit 4.5, is a reduction of $38.70 per week or $166.41 per month, I find that Mr. Tustin has proved that he is entitled to and has received approximately 43.68 hours of attendant care monthly since the summer of 1997. He should have received $413.33 monthly on this account.⁸ Canadian General shall pay the difference, plus interest, and continue to pay this amount until a comprehensive attendant care DAC more accurately assesses Mr. Tustin's current needs and predicts his future needs, as the procedure under section 50 of the Schedule provides.

Interest and Special Award

I find Mr. Tustin is entitled to interest on all overdue amounts, at the rate of two per cent per month compounded monthly, for each day the amount is overdue, from the date it became overdue, as set out in section 68 of the Schedule.

Section 282(10) of the Act provides that an arbitrator shall award a lump sum special award to an insured person if an insurer has unreasonably withheld or delayed payments. The section reads as follows:

282.--(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled...shall award a lump sum of up to 50 per cent 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.

The evidence that I heard with respect to this claim related mainly to medical, rehabilitation and attendant care benefits allegedly delayed or withheld. No claim was advanced for unreasonable delay of Mr. Tustin's income replacement benefit or loss of earning capacity benefit, which were regularly "computer-generated" and did not require the manual adjustment Canadian General applied to other payments.

In her testimony, Karen Tustin expressed her dismay over the manner in which medical, rehabilitation and attendant care claims were adjusted by the four different claims representatives with whom she has had close dealings since the fall of 1994. She gave many specific examples of frustrating experiences and described often feeling as if she were begging for benefits to which she felt her husband was entitled. In many respects, it appeared that Mrs. Tustin was thrust unwillingly into the role of an unpaid, quasi-case manager advocating on her husband's behalf. It became clear to me after three days of testimony that certain items, payment of which might have been requested from the insurer, (for example recreation equipment, under section 40) were never submitted to the insurer by the Tustins. I say this not to fault an insurer for failing to pay a claim that was never submitted, but because it reinforces my view that the Tustins are not overreaching claimants seeking to attribute every family expenditure to the accident.

An insurer is required to follow the timelines of the Schedule and pay expense claims in accordance with either section 39.1, 50.1 or 67. In some cases 30 days is allowed for the insurer to examine the claims, but in most cases the time period is 14 days. I received evidence as to approximately 25 requests for payment and it was clear that on at least 10 occasions the cheques were issued more than "14 days after the insurer receive[d] the certificate," without payment of interest. On one occasion in April 1995, interest was paid on a cheque issued four days after the 14 day examination period. In May 1995 and October 1996 further documentation was requested with respect to claims submitted. (When a certificate under section 37 is requested, the 14-day period does not run until the certificate is received).

Although the applicant has proved many payments were late, lateness is not the equivalent of unreasonable delay. To prove the delay was unreasonable, more evidence would be required. In my review of the testimony, I found only two cases where the cheque was issued more than 30 days after the claim had been stamped "received," for cheques issued August 8, 1996 and May 13, 1997 relating to claims dated June 30, 1996 and April 2, 1997, respectively. On many occasions it would appear that the payments were overdue, and interest should have been paid, in accordance with section 68, which is a mandatory section. However, it remains unclear which expense requests concerned claims for dependants' care or home maintenance, which an insurer has 30 days to examine.

With respect to the attendant care claim itself, however, I find that the basis on which the significant decrease was founded in the summer of 1997 was unreasonable. The reduction was made in a high-handed and arbitrary manner, supposedly based on a report which should never have been requested, and which, even on its face, did not support the change, as set out previously. The unreasonable withholding of the difference in the benefit between the amount awarded ($413.33 per month) and the amount paid ($262.50 or $271.25, depending on the month) should attract a special award of 25 per cent of the amount to which Mr. Tustin is now entitled, together with interest on all amounts owing to him (including unpaid interest) at 2 per cent per month, compounded monthly, from August 1997 as the benefits became payable under the Schedule. I do not find Canadian General's conduct to be so egregious as to attract the maximum penalty of 50 per cent.

With respect to the alleged delay in payment of physiotherapy expenses in the fall of 1997, I accept the insurer's position that it never terminated physiotherapy. Indeed, it is clear from exhibit 39, a document listing the treatment dates, invoice dates and payment dates of the physiotherapy, that the situation in the summer and early fall of 1997 was not greatly different from the pattern that had existed from the outset. In 1995 and 1996, treatment rendered in one month was not invoiced until the third week of the following month, then was paid, sometimes in two to four month blocks. From the summer of 1996 payments from the insurer were more regular, monthly, and usually issued within two weeks of receipt of the invoice. An apparent problem occurred with an invoice dated March 7, 1997 for treatment in February, which was not paid until July 9, 1997, after payment was made for March treatments (invoiced April 9, 1997) and paid April 30, 1997. A letter from the physiotherapy partnership, dated August 26, 1997, states that they had received no payment since the beginning of May 1997. This letter is clearly in error. I accept the insurer's evidence that a payment of $3,356 relating to treatment in April, 1997 invoiced on May 12, 1997 was made on July 9, 1997 and recorded in the physiotherapy partnership's own accounting records on July 11, 1997. I find the misunderstanding occurred as a result of the physiotherapy partnership's poor accounting practices. Unfortunately, Mr. Tustin was the one who suffered an interruption in treatment as a result.

In these circumstances, I do not find the insurer unreasonably withheld or delayed the physiotherapy payments, although it would appear that payments were mainly overdue, sometimes significantly. The insurer should have paid interest, as set out in section 68 on the overdue amounts. The issue of interest on these payments, however, is not before me on this arbitration.

Unpaid Supplementary Medical and Rehabilitation Benefits: $503

Canadian General admitted responsibility for this amount, but it remained outstanding. I order that Canadian General pay Mr. Tustin $503.00, forthwith, plus interest.

Expenses:

I have decided all the issues in dispute, except expenses. If the parties cannot agree with respect to expenses, either party may contact the case administrator to resume submissions with respect to this issue by teleconference, in accordance with the procedures of sections 73 to 77 of the Code.

Order:

1. Canadian General Insurance Group shall pay Mr. Tustin income replacement benefits of $457.33 per week from August 30, 1994 to August 23, 1996.

2. Canadian General Insurance Group shall pay Mr. Tustin LEC benefits of $463.91 per week, based on a PEC of $515.45, from August 23, 1996, ongoing.

3. Canadian General Insurance Group shall pay Mr. Tustin attendant care benefits of $413.33 per month from July 1, 1997, until the report of the attendant care DAC is received.

4. Canadian General Insurance Group shall pay Mr. Tustin $503 in unpaid supplementary medical and rehabilitation benefits.

5. Canadian General Insurance Group shall pay Mr. Tustin interest on amounts outstanding, according to the provisions of section 68 of the Schedule and shall have credit for all amounts paid to date for IRBs, LECs and attendant care.

6. Canadian General Insurance Group shall pay Mr. Tustin a special award, according to the provisions of section 282(10) of the Act, on the difference in the attendant care benefit between the amount awarded ($413.33 per month) and the amount paid ($262.50 or $271.25, depending on the month), from July 1, 1997, of 25 per cent of the amount to which Mr. Tustin is entitled, together with interest on all amounts owing to him (including unpaid interest) at 2 per cent per month, compounded monthly, from August 1997 as the benefits became payable under the Schedule.

December 30, 1998

K. Julaine Palmer

Arbitrator

Date

Appendix

Hearing:

The hearing was held in Whitby on October 5, 6, and 7, 1998 and resumed in North York on October 16, 1998, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant:

James Tustin and Karen Tustin, his wife

Mr. Tustin's

Michael F. Head, Barrister and Solicitor

Representatives:

Donald I. Harvey, Barrister and Solicitor

Marysia Colvin, Law Clerk

Canadian General's

Kenneth Coulson

Representative:

Barrister and Solicitor

Canadian General's

Anne Baumgartner

Officer:

ADR Coordinator (Ontario)

Witnesses:

Jim Tustin, Ted Cait, Maureen Tustin, Karen Tustin, Susanne Evanitski, Pina Serapiglia, Daniel Edwards, Anne Baumgartner

The parties filed five document briefs and 34 other exhibits.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Effective July 1, 1998, the Ontario Insurance Commission became the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3Oliveira and Wellington Insurance Company, (OIC A96-000010, April 7, 1997), (OIC P97-00021, April 17, 1998).
4. 4Emphasis added.
5. 5See comments by Arbitrator Young in Ms. G. and Allstate Insurance Company of Canada, (OIC A -013283, December 7, 1995) regarding the meaning of "engaged."
6. 6The calculations advanced by the parties on this point used 31.71 weeks worked instead of 32 weeks. For simplicity, I have used their figures.
7. 7Subsequent to the REC/DAC report of July 1997 it would appear Canadian General accepted that Mr. Tustin's residual earning capacity was zero dollars.
8. 8Part I - 8.94 hours x $8.97 = $80.19, plus Part II - 23.99 hours x $6.95 = $166.73 [not $164.33 as shown in exhibit 4.5], plus Part II as allowed 10.75 hours x $19.35 = $166.41. $80.19+$166.73+$166.41 = $413.33. If any of the hourly rates have changed, the monthly amount should be adjusted as of the date of the change.