Neutral Citation: 1998 ONFSCDRS 23

FSCO A97-000107

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JACKIE JUBENVILLE

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Jackie Jubenville, was injured in a motor vehicle accident on August 28, 1994. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate paid Ms. Jubenville weekly education disability benefits under section 15 of the Schedule at the rate of $220.15, from September 4, 1994 to December 10, 1994.² Allstate also paid her a lump sum education disability benefit of $2,050 under section 16(1)(b) of the Schedule. The parties were unable to resolve their disputes through mediation. Ms. Jubenville applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Jubenville entitled to further weekly education disability benefit under section 15 of the Schedule?

2. Is Ms. Jubenville entitled to an additional lump sum education benefit under section 16(1)(c) of the Schedule?

Ms. Jubenville also claims interest on any amounts owing and her arbitration expenses.

Result:

1. Ms. Jubenville is entitled to weekly education disability benefits from December 10, 1994 to March 14, 1995 at the rate of $220.15, plus interest calculated in accordance with section 68 of the Schedule.

2. Ms. Jubenville is not entitled to an additional lump sum education disability benefit.

3. Ms. Jubenville is entitled to her arbitration expenses.

Evidence and Findings:

Background

At the time of the accident of August 28, 1994, Ms. Jubenville was 17 years old. She had finished Grade 11 and was about to start the first semester of Grade 12 at John McGregor High School in Chatham, a secondary school organized on a semester basis. She was working at PDQ restaurant as a "bus girl," a regular part-time job she had started about a year prior to the accident.

The accident occurred on Highway 2 in Chatham when the driver of the pickup truck in which Ms. Jubenville was a passenger lost control of the vehicle, travelling at approximately 90 kilometres per hour. The pickup truck rolled over several times, and Ms. Jubenville, who was not wearing a seat belt, was ejected from the vehicle and fell on the ground. She was taken by ambulance to St. Joseph's Hospital in Chatham, and treated for multiple injuries she sustained in the accident. Later the same day, she was admitted to Victoria Hospital in London where she remained until September 5, 1994. Upon discharge she was fitted with a back brace (a thoracolumbosacral orthosis (TLSO) that goes over the lumbar, sacral and thoracic regions which limits the movement of the chest and back).

There is no dispute regarding the injuries Ms. Jubenville sustained as a result of the accident. They included a broken collar-bone, multiple rib fractures, pulmonary contusion, and a 40 percent compression fracture of the body of the thoracic spine at the level of T-7.

Ms. Jubenville testified that with the exception of her back problems, all of her injuries have resolved since the accident. She stated that she still gets back pain, mostly associated with activities involving heavy lifting, carrying, pushing, pulling and repetitive bending.

In support of her claim, Ms. Jubenville called Dr. James Allen, an orthopaedic specialist; Mrs. Louise Jubenville, her mother; Ms. Annette Shydetschak, a former registered nurse assistant; Ms. Rebecca Queen, Registrar of St. Clair College in Chatham, and Ms. Anne Marie Quenville, owner of PDQ restaurant. She also filed into evidence a medical brief containing, among other documents, the clinical notes and records of St. Joseph's and Victoria hospitals, the reports of Dr. T. Carey, and the reports of Dr. Allen. Allstate called no witnesses. It filed into evidence an arbitration brief containing the Application for Accident Benefits, an Election of Weekly Benefits, and correspondence with Ms. Jubenville, including Explanation of Assessment by Insurance forms.

Pre-accident Activities

There is no dispute regarding the various activities in which Ms. Jubenville engaged prior to the accident. She was an active 17-year-old who lived at home with her family, went to school on a full-time basis, and maintained a regular part-time job. She had no previous injury or condition that restricted her activities.

Before the accident, Ms. Jubenville usually walked the half-mile distance between her home and her school. It took her approximately 20 minutes each direction. Occasionally, her mother gave her a ride. Ms. Jubenville drove her own car to work and other places. She cleaned her room, did her own laundry, and washed her car. She also participated in housekeeping activities, including vacuuming once a week, washing the bathtub, shovelling snow, doing the dishes and cooking.

Ms. Jubenville's part-time work at PDQ as a "bus girl" involved cleaning dishes and tables, carrying dishes, putting dishes in the dishwasher and taking them out. The job involved walking, standing, lifting and carrying up to 30 pounds, repetitive bending, pulling, pushing, and twisting. She worked 10 to 15 hours per week.

As a full-time student, Ms. Jubenville's activities included walking to and from school carrying her books, sitting in classes, taking notes, studying, writing tests and examinations, student co-op placements, and extra-curricular activities.

Ms. Jubenville testified that she did not do much by way of recreational activities. She bowled occasionally and painted in oil and water colours as a hobby.

Post-Accident Activities

As a result of the injuries she sustained in the accident, Ms. Jubenville was unable to attend school the whole of September and part of October, 1994. During that time, she followed her studies from home with the help of a tutor. Her mother attended to most of her self-care needs. She did not engage in any household activities. She was unable to do any pushing, pulling, lifting or carrying. She wore her brace which severely restricted the movement of her back. She could not sit for more than half an hour at a time.

Ms. Jubenville started a gradual return to school in mid-October, while still wearing her brace. Her mother drove her to and from school every day during the first semester (September 1994 to January 1995). Initially, Ms. Jubenville attended school half-days only. She took two courses instead of the normal four. She went home in the afternoon to take off her brace and rest.

Ms. Jubenville stopped wearing her brace on December 6, 1994 on the advice of her treating orthopaedic specialist, Dr. T. Carey. She was able to resume her own self-care activities after the removal of the brace. She stayed longer at school and participated in class but not in extra-curricular activities. She walked inside the school, carried a light weight of books, sat in classes, took notes, studied, and sat for examinations. She passed the two courses she was taking.

Ms. Jubenville testified that she could not recall specifically when she started driving after the accident; however, she stated she was able to drive within "a couple of months" after she stopped wearing her brace. Her mother continued to drive her to school until the end of 1995. Usually, her mother would drive her to school in the morning, and she would walk home after school.

Ms. Jubenville attended physiotherapy from December 1994 to January 1995 at St. Joseph's Hospital, while going to school. During the second semester (February to June 1995- spring semester), she was able to attend school full-time. She took the normal course load and successfully completed Grade 12 in June 1995. She continued to attend school full-time in the 1995 fall semester, taking the normal load of courses.

From January 1995 to March 7, 1995, Ms. Jubenville underwent further physiotherapy at the Chatham-Kent District Rehabilitation Clinic. Ms. Jubenville testified that after physiotherapy her condition improved significantly. On March 14, 1995, while still pursuing her high school education, Ms. Jubenville attempted to return to her former part-time employment at PDQ. She was unable to work as a "bus girl" due to the heavy physical demands of the job; however, she was assigned to modified work as a waitress. She was forced to quit this job after six months, on September 12, 1995, because of continued back problems.

In the spring semesters of 1995 and 1996, in addition to attending classes, Ms. Jubenville participated in the co-op student internship programmes, working five days a week, four to five hours a day for the duration of each semester. In 1995, her placement was as a medical secretary at Dr. Aidan Brady's clinic. This was a light sedentary job which involved typing letters, opening mail and filing. In 1996 she worked as a pharmacist's assistant at BIG V pharmacy. Her main tasks were answering the phones, counting pills and taking inventory of stock. She was able to perform the job tasks at both placements, despite her back problem. Ms. Jubenville successfully completed her high school studies and received her secondary school diploma in June 1996.

Ms. Jubenville testified that her intention after completing high school was to continue her education as a nursing student by enrolling in the nursing programme at St. Clair College in September, 1996. She testified that working in the medical field as a Registered Nurse or a Registered Nursing Assistant was a career path she had developed long before the accident; however, she did not apply to study nursing because she was advised by her doctors and other people she knew that she would not be able to work as a nurse due to her back problems.

Ms. Jubenville testified that because of her interest in a career in the medical field, she enrolled in the Office Administration programme at St. Clair College in September 1996 with the intention of later specializing as a medical secretary. She stopped after two semesters, not because of her back problems, but because she changed her mind about a career as a medical secretary.

Since February 1997, Ms. Jubenville has been employed as a ticket operator at Wheels Inn, a hotel and amusement complex in Chatham. This is a light sedentary job that does not involve heavy lifting, carrying, pushing, pulling or repetitive bending.

Ms. Jubenville testified that her back condition has not changed in the past few years. She gets back pain a couple of times a week, she cannot lift or carry heavy items or engage in any activity that requires repetitive bending, pulling, pushing and pulling. She cannot engage in her pre-accident part-time job, wash her car, vacuum the house, wash the bathtub, or shovel snow. However, she can perform the rest of her pre-accident activities.

She has had no treatment in the last two years. She takes Advil to deal with her back pain.

Medical Evidence:

By all accounts, Ms. Jubenville has made significant progress since the accident, considering the serious nature of her injuries. Most of her injuries were resolved within a few months following the accident. Her treating physician Dr. Carey feIt, as early as October 1994, that she was making good progress, although she still had "a little bit of exercise intolerance and fatigued easily." In January 1995, when Ms. Jubenville started the physiotherapy programme at the Chatham-Kent District Rehabilitation Clinic, her complaints were recorded as "intermittent mild thoracic discomfort, decreased sensation along the lateral aspect of her right arm." The physiotherapist felt that Ms. Jubenville was experiencing "muscular deconditioning due to disuse as a result of prolonged use of a back brace. Ms. Jubenville was then placed on a strengthening and conditioning programme to help her overall activity tolerance."

Ms. Jubenville attended school regularly while she underwent the physiotherapy programme. She was discharged from physiotherapy on March 7, 1995. In a report dated the same day, the physiotherapist stated:

Upon discharge, Jackie managed to regain a functional level of active trunk mobility, as well as markedly improving the dynamic strength of her trunk musculatures. Jackie was able to fulfill the criteria of the treatment objective with conservative measures. She was instructed on a home exercise programme to help her maintain her proper posture and dynamic trunk strength.

Ms. Jubenville testified that her back problems improved significantly after the physiotherapy sessions. On March 14, 1995, she returned to her part-time employment at PDQ and worked as a waitress for six months. She stopped on September 12, 1995 because of her back problem.

Ms. Jubenville saw Dr. Carey on September 27, 1995, two weeks after she left PDQ. She had not seen him for 11 months. In a letter dated November 28, 1995, Dr. Carey reported as follows:

The most recent examination of this patient [September 27, 1995] has demonstrated an excellent recovery from her thoracic spine injuries. She has residual changes in her examination, consistent with a wedge compression fracture involving the T7 vertebral body. There is also evidence of slight lateral wedge compression fracture of T8. There has been no change in her x-ray appearance over the past few months and in terms of her activity she is back to essentially all activities. She does note that in her job as a waitress she does have some discomfort in the mid-thoracic region at the level of her fracture. (emphasis added)

Regarding her functional abilities, Dr. Carey stated follows:

...it is certainly difficult to say with 100 % certainty whether or not she will have any problems with her chosen career as a registered nurse. Certainly, her current waitressing job would approximate the amount of lifting she may be required to do as a nurse, and she seems to be tolerating this quite well. Her fracture pattern is stable and she is unlikely to go on to any significant progression of deformity. I have mentioned to Jackie that she may have problems with occasional back discomfort with vigorous activities, but certainly I do not think she is at risk for injuring herself and I would think there is a good chance she can do virtually unrestricted activities. In light of this, I do not think that any specific action need be taken with regard to her vocational counseling.

Ms. Jubenville testified that while she does not remember her conversation with Dr. Carey in September 1995, she would not deny telling him that she was back essentially to all her duties at that time. However, she stated that Dr. Carey's opinion regarding her ability to work as a nurse was based on the mistaken assumption that she was still working as a waitress. This was something Dr. Carey later acknowledged.

Dr. Carey saw Ms. Jubenville again on January 2, 1996. In his letter to Ms. Jubenville's counsel, dated the same day, Dr. Carey clarified his opinion expressed in his November 28, 1995 letter as follows:

[Jacqueline] reports that contrary to my previous letter to you she in fact has had to quit her waitressing job due to back pain. Her clinical examination is essentially unchanged. She has no significant deformity of her back, but is tender to palpation in the region. She describes the back pain as being mid thoracic and aggravated by lifting or bending.

In view of the fact that she has been unable to continue in her occupation as a waitress, I think it is likely she may indeed have long term difficulties with occupations which would involve such activities and therefore would likely have to consider her vocational choices with regard to the nursing profession.

In this letter, Dr. Carey also noted that Ms. Jubenville's thoracic fracture had completely healed.

In another letter to Ms. Jubenville's counsel, dated March 18, 1996, Dr. Carey indicated that Ms. Jubenville tended to underplay her symptoms and complaints at her November 1995 visit with him. He stated that:

...her mid-thoracic pain still seemed to be significant enough to cause her to modify her activities and will likely continue to do so. This may indeed have some effect on her choice of vocation, and as such my opinion from January 2nd, 1996 is the most accurate.

In April 1996, Ms. Jubenville was seen by Dr. James Allen, an orthopaedic surgeon, at the request of her counsel. Ms. Jubenville complained to Dr. Allen of pain in the mid-thoracic area, which was not always present but was triggered by certain activities and movements.

Dr. Allen found, on examination of Ms. Jubenville, that she was tender in the area of her fracture; however, he noted that she had full extension of her back and full forward flexion with minimal discomfort. He found twisting to the left increased her discomfort more than to the right and bending to the left and right was not uncomfortable for her.

Considering that she was then two years following the injury, Dr. Allen felt that Ms. Jubenville "will have some continued discomfort in her back and may always be bothered with any heavy lifting, pushing and pulling." With regard to her future career as a nurse, Dr. Allen stated that:

...the lifting, twisting and bending that is required with nursing, would only prove to aggravate her problem and she would be spending a lot of time, money and energy obtaining her nursing degree for a job that she perhaps would not be able to continue to pursue, because of the problem with her back."

(emphasis added)

Dr. Allen examined Ms. Jubenville again on October 20, 1997, and found no change in her condition. Ms. Jubenville continued to complain of back pain, associated with heavy lifting, carrying, pushing and pulling. In his testimony, Dr. Allen reiterated the contents of his report dated October 20, 1997. He felt that Ms. Jubenville would not be able to return to "any job that requires any repetitive lifting, either heavy or perhaps even light lifting on a repetitive basis."

Dr. Allen testified that Ms. Jubenville would not be able to engage in the tasks of a nurse," in view of the lifting, pushing, and pulling that is often required with full-time nursing." He testified that she may also not be able to perform some of the clinical aspects of training as a nurse, such as lifting patients during clinical training.

Both Dr. Carey and Dr. Allen had suggested a functional abilities evaluation. However, none has taken place.

In cross-examination, Ms. Jubenville was questioned about clinical notes made by Dr. P. Dowdy, an orthopaedic resident at Victoria Hospital, on September 26, 1994, and by Dr. Carey on October 24, 1994 indicating that she reported no back pain, and that her only complaint at that time was that of right arm numbness.

Ms. Jubenville testified that while she does not deny telling the doctors that she had no back pain; she made the statement only in relation to the time of her visits with them. She testified that in September and October 1994, she was still wearing her brace and her back was sore. She could not sit for more than half an hour without experiencing back pain. She was taking Tylenol and was unable to do any pushing, pulling, or bending. In the absence of any contradictory evidence, I accept Ms. Jubenville's explanation and find that her statements that she had no back pain referred only to the time of her visits with the doctors. I find that during the months in question, Ms. Jubenville continued to suffer from back problems.

I have found Ms. Jubenville to be a credible witness. She gave her evidence in a straightforward manner, without embellishing her disability. I accept her testimony, which was supported by the medical evidence and uncontradicted by any evidence. I find that as a result of the back injuries she sustained in the accident, she continues to experience disabling pain while engaging in activities that require heavy lifting and carrying, pulling, pushing, twisting and repetitive bending.

Analysis and Conclusion:

Entitlement to Weekly Education Disability Benefits

Under subparagraphs 15(1)2(i) & (iii) of the Schedule, Ms. Jubenville is entitled to weekly education disability benefits if she can prove, on a balance of probabilities, that as a result of and within two years of the accident, she suffers a substantial inability to continue her education or suffers a partial or complete inability to carry on a normal life. The benefits are payable during the period she suffers the requisite disability. However, 104 weeks after the onset of her disability, she would be entitled to the benefits only if she continued to suffer a substantial inability to continue her education or suffers a complete inability to engage in normal life.

Substantial inability to continue education

Ms. Jubenville does not dispute that after December 6, 1994, she was able to continue and successfully complete her high school education, and that she would have been able to engage in the activities of a nursing student in a post-secondary educational institution, had she been enrolled in one.³ She allows that she completed two semesters at St. Clair College despite her back problem. Ms. Jubenville's claim for ongoing entitlement to education disability benefits under subparagraph 15(1)2(i) is "not because [she] could not do the school work, but because [she] could not do the nursing job" due to her back problem.

I accept Ms. Jubenville's testimony that she had planned to continue her education as a nurse but that she decided not to pursue it because she would not be able to engage in the essential tasks of a nurse. While I agree with the general proposition that some branches of the nursing profession involve physical demands which are beyond Ms. Jubenville's current physical abilities, for the reasons discussed below, I do not find it is necessary to make a finding as to whether Ms. Jubenville suffers a substantial inability to perform the essential tasks of a nurse, in order to decide the question of her entitlement to weekly education disability benefits.

Even if I were to find that Ms. Jubenville cannot perform the essential tasks of a nurse due to her back problem, such a finding would not lead to the conclusion that she is entitled to education disability benefits under subparagraph 15(1)2(i) of the Schedule. Ms. Jubenville's' argument, in essence, is that she should be compensated for the loss of opportunity to work as a nurse, a clear and discernible career path she had embarked upon long before the accident but one she can no longer pursue because of the accident. As stated in several arbitration and appeal decisions, the Schedule does not provide compensation for future economic loss or loss of opportunity.⁴

I recognize that it would have made little sense for Ms. Jubenville to engage in an educational endeavour knowing that she would not be able to perform the job duties of the occupation she was being trained for. Because of her back problem, she is restricted in the type of work she can do and she may be forced to change or modify her career path. A decision that Ms. Jubenville cannot claim for such a loss under the Schedule may seem harsh, particularly in light of the fact that due to the legislation in effect at the time of the accident, she cannot sue for economic loss in a tort action.⁵ However, as an arbitrator, my role is to interpret the legislation and not to change it to obtain a just result in a particular case.

In my view, the words "suffers a substantial inability to continue his or her education" in subparagraph 15(1)2(i) are clear and unambiguous. They cannot reasonably be interpreted to mean "suffers a substantial inability to continue his or her education or to engage in future employment" as Ms. Jubenville's argument would appear to suggest. In my view, subparagraph 15(1)2(i) is intended to compensate an insured person who was a full-time student at the time of the accident for a substantial inability to engage in the tasks required to continue being a full-time student.

I found subparagraph 15(1)2(ii) of the Schedule useful in interpreting subparagraph 15(1)2(i) . The former specifically provides that an insured person who completed his or her education less than one year before the accident and was not employed before the accident in an employment that reflects his or her education and training, is entitled to education disability benefits if the person suffers a substantial inability to engage in employment that reflects his or her education and training. This provision, read harmoniously with the language of subparagraph 15(1)2(i), suggests that the legislature had turned its mind to the type of situation that Ms. Jubenville has found herself in and decided to restrict the test of inability to engage in future employment to a person who had completed his or her education before the accident. In my view, the legislature would have used a corresponding wording in subparagraph 15(1)2(i), if it intended to apply a similar test to a person who was still a student at the time of the accident.

There is no question in this case that Ms. Jubenville was able to continue her education after high school. She was enrolled in a course at St. Clair College for two semesters. She withdrew from this course voluntarily, not due to back problems. It is equally clear from the evidence that had she enrolled in the nursing programme at St. Clair College, she would have been able to complete the course, despite her back problems.

Accordingly, I find that Ms. Jubenville did not suffer a substantial inability to continue her education, as a result of the accident. She is not entitled to further weekly educational benefits under subparagraph 15(1)2(i) of the Schedule.

Partial or complete inability to engage in normal life

Ms. Jubenville claims entitlement to weekly disability benefit for 104 weeks after the accident under subparagraph 15(1)2(iii) and subsection 15(4) of the Schedule because she suffers a partial inability to carry on a normal life, as a result of the accident.

Partial inability to carry on a normal life" is defined in section 2 of the Schedule as follows:⁶

2. For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

Ms. Jubenville claims that she meets the test under paragraph (b) in that as a result of the accident, she suffers an impairment that resulted in a substantial inability to engage in the mobility activities of her pre-accident part-time employment.

Ms. Jubenville claims that before the accident, as a part-time "bus girl" she ordinarily engaged in activities that required heavy lifting, carrying, pushing, pulling, repetitive bending and twisting-activities in which she can no longer engage.

Mr. Richard Rose, counsel for Allstate, submitted that section 2 must be read absent any employment test, and that mobility activities involved in Ms. Jubenville pre-accident job are not relevant in deciding the issue.

I do not agree with Mr. Rose's interpretation. The definition under section 2 does not contain the restrictions suggested by him. The word "activity" is not defined in the Schedule; however, the Concise Oxford Dictionary defines it as "1. a. the condition of being active or moving about. b. the exertion of energy; vigorous action. 2. a particular occupation or pursuit (outdoor activities).⁷

In Gray and Zurich Insurance Company⁸ Arbitrator Julaine Palmer stated that the word "activities" is key and is distinguished from the word "tasks" of the previous regulation and that all mobility activities, "appropriately weighted as to their degree of significance or frequency, are to be considered." She stated that "in considering the activities of section 2 a subjective inquiry into the activities of the injured person prior to the accident is required." She suggested as an example that "someone who waterskied daily during the season might be seen to "ordinarily engage" in that mobility activity, whereas someone who engaged in that activity only occasionally might not. The question would then become that of the frequency of the activity."

I agree with Arbitrator Palmer's interpretation of section 2(b). Adopting her approach in this case, I find that the mobility activities involved in Ms. Jubenville's pre-accident employment are relevant and should be considered, along with her other mobility activities, in determining whether she suffers a substantial inability to engage in the mobility activities in which she ordinarily engaged before the accident.

On the basis of the evidence before me, I find the mobility activities in which Ms. Jubenville ordinarily engaged before the accident included standing, walking (including walking to and from school half a mile in each direction), sitting (including prolonged sitting while attending classes, studying, and sitting for examinations), and lifting, carrying, pulling, pushing, twisting, and bending ( including repetitive bending, lifting and carrying up to 25 pounds while working as a "bus girl" 10 to 15 hours per week ).

It has been established in numerous arbitration decisions that "substantial inability" means a considerable, sizable or significant inability, and not some or total disability. I have considered the mobility activities of Ms. Jubenville's pre-accident employment in the context of her overall pre-accident mobility activities and her relative post-accident abilities to engage in those activities. I find that her inability to engage in heavy lifting, carrying, pulling pushing and repetitive bending, while significant in terms of her job functions, does not represent a significant or sizable inability when compared with the other pre-accident mobility activities she is able to engage in after the accident.

Allstate takes the position that Ms. Jubenville did not suffer a substantial disability to engage in her non-job related mobility activities after December 6, 1994, when her brace was removed. Allstate terminated her benefit on December 10, 1994 because she resumed driving and performing her own self-care activities after that date. Allstate based its decision on its understanding that Dr. Carey had released her to "normal daily life activities," effective December 6, 1994.⁹

Other than the documents created by its adjuster, Allstate has filed no evidence to support its claim that Dr. Carey had released her to normal daily activities. The evidence indicates that Dr. Carey first referred to Ms. Jubenville returning to her daily activities in his report of November 28, 1995. While he stated then that Ms. Jubenville told him that she had resumed her normal daily activities, he did not specify when this had occurred.

Based on the medical evidence and Ms. Jubenville's testimony, I find that Ms. Jubenville continued to experience considerable problems after she stopped wearing the brace on December 6, 1994. During the Fall 1994 semester, she only took half of the normal course load. Although she was able to walk, she could not undertake the prolonged half-mile walk to school; her mother drove her to school. She was unable to sit or stand for prolonged periods. According to the physiotherapist at Chatham-Kent District Rehabilitation Clinic, in January 1995, Ms. Jubenville was still experiencing muscular deconditioning due to disuse as a result of the prolonged use of her back brace.

Ms. Jubenville testified that she noticed significant improvement in her condition after she completed the physiotherapy sessions on March 7, 1995. She was able to return to her pre-accident part-time employment on March 14, 1995 and continued to work as a waitress for six months. During that time, she was able to perform virtually all of her pre-accident activities, except the heavier physical demands involved in her part-time job as a waitress.

The question of determining the date when disability ends is always a difficult one. In this case, Ms. Jubenville did not undergo an insurer's examination, a functional abilities evaluation or a disability assessment at a Designated Assessment Centre. Allstate terminated benefits solely on the basis of an understanding that Ms. Jubenville's treating doctor had released her to normal daily activities when he removed her brace on December 6, 1994.¹⁰ The evidence; however, as discussed above, shows that Ms. Jubenville continued to be disabled from engaging in her non-employment pre-accident mobility activities for a considerable period after the removal of her brace.

Having considered the entire circumstances, I find that March 14, 1995 is an appropriate date for stopping Ms. Jubenville's weekly education disability benefits. I find that since that date, she returned to her pre-accident part-time employment, albeit unsuccessfully, participated in most of her household chores, completed high school, attended full-time post-secondary education for two semesters and is currently working.

Accordingly, I find that Ms. Jubenville is entitled to weekly education disability benefits under subparagraph 15(1)2(iii) from December 10, 1994 through to March 14, 1995. She is entitled to these benefits at the rate of $220.15 per week, as agreed upon by the parties, plus interest calculated in accordance with section 68 of the Schedule.

I note that the question of the deductibility of post-accident income under subsection 15(6), if any, was not before me, and I make no orders in respect of this issue.

Lump Sum Education Disability Benefits:

Subparagraph 16(1)(c) of the Schedule states, in part:

16-(1) Subject to subsections (2) and (3), an insured person who sustains an impairment as a result of an accident is entitled to a lump sum education disability benefit of,

(b) $4,008 for each year or, if the person is enrolled in a secondary school organized on a semester basis, $2,004 for each semester, to a maximum of $4,008 in any year, of secondary education that the person is unable to attend or successfully complete as a result of the accident; and

(c) $8,016 for each year or, if the person is enrolled in a post-secondary educational institution organized on a semester basis, $4,008 for each semester, to a maximum of $8,016 in any year, of post-secondary education that the person is unable to attend or successfully complete as a result of the accident.

Allstate paid Ms. Jubenville a lump sum educational benefit under paragraph 16(1)(b) of the Schedule because she was unable to attend school during the first semester of Grade 12 (September 1994 to January 1995). Ms. Jubenville claims an additional lump sum disability benefit under subparagraph 16(1)(c) on the basis of the same argument that she advanced above under weekly education disability benefits; i.e., she would have attended a post-secondary educational institution to pursue a nursing degree, but for her back problem which prevents her from engaging in the job tasks of a nurse.

I find the language of subparagraph 16(1)(c) clear. The insured is entitled to a lump sum education disability benefits under this provision "if the person is enrolled in a post-secondary educational institution" and he or she is unable to attend or successfully complete the post-secondary education as a result of the accident. The evidence indicates that while Ms. Jubenville was enrolled at St. Clair College after the accident, she did not discontinue the course because of the accident. Ms. Jubenville does not dispute that if she had enrolled at a post-secondary educational institution to study nursing, she would have been able to attend and successfully complete the course.

Accordingly, I find that section 16 (1)(c) does not apply in the circumstances of this case. She is not entitled to further lump sum education benefits.

Expenses:

The issues involved in this hearing are novel, and Ms. Jubenville was partially successful in her claim. I exercise my discretion to award her the expenses she incurred in respect of the arbitration proceeding.

Order:

1. Ms. Jubenville is entitled to weekly education disability benefits from December 10, 1994 through to March 14, 1995 at the rate of $220.15, plus interest calculated in accordance with section 68 of the Schedule.

2. Ms. Jubenville is entitled to her expenses incurred in respect of the arbitration proceeding.

August 14, 1998

Asfaw Seife

Arbitrator

Date

Appendix

Hearing:

The hearing was held in Chatham, Ontario, on November 3 and 4, 1997, before me, Asfaw Seife, Arbitrator.

Present at the Hearing:

Applicant:

Jackie Jubenville

Ms. Jubenville's

James E. S. Allin

Representative:

Barrister and Solicitor

Allstate's

Richard F.L. Rose

Representative:

Barrister and Solicitor

Witnesses:

Jackie Jubenville

Louise Jubenville

Rebecca Queen

Anne Marie Quenville

Annette Shydestschek

Dr. James Allen

Exhibits:

The parties filed eight exhibits.

Footnotes

1. 1The 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.
2. 2Since Ms. Jubenville was both a student and working at the time of the accident, she was entitled under section 61 of the Schedule to elect weekly income replacement benefits or weekly education disability benefits. She elected the latter.
3. 3Other than Dr. Allen's suggestion that Ms. Jubenvillle would have difficulty performing some of the tasks of a nursing student, such as lifting and bathing patients, I heard no evidence regarding the physical demands of a nursing student or why Ms. Jubenville would not be able to perform them.
4. 4Cabral and State Farm Mutual Automobile Insurance Company, (OIC A-005119, March 24, 1995), see also Palumbo and Dominion of Canada General Insurance Company, (OIC A-007314, April 13, 1995), and Sands and Dominion of Canada General Insurance Company, (OIC A-01104, June 29, 1995), Levenson and The General Accident Assurance Company of Canada,(OIC P-000260, September 29, 1992).
5. 5The right to sue for economic loss was removed by the amendments to the Insurance Act introduced by Bill 164 on January 1, 1994. It was restored by Bill 59 on November 1, 1996.
6. 6Paragraphs (a) through (f) of section 2 are to be read disjunctively, not conjunctively. See Dhaliwal and Gore Mutual Insurance Company, (OIC A-011188, June 22, 1995).
7. 7The Concise Oxford Dictionary of Current English, Oxford: Clarendon Press, 1990
8. 8Gray and Zurich Insurance Company, (OIC A95-000412, August 2, 1996)
9. 9This was the reason given by Allstate in the Explanation of Assessment form dated December 8, 1994, terminating Ms. Jubenville's benefits.
10. 10I heard no evidence as to whether the procedures under section 64 of the Schedule regarding termination of weekly benefits were followed in this case.