Ruth Martins v. Commercial Union Assurance Company, 1999 ONFSCDRS 45

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 1999 ONFSCDRS 45

FSCO A98-000552

BETWEEN:

RUTH MARTINS

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Stewart M. McMahon

Heard: January 7, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Stanley C. Tessis for Ms. Martins

Edmund W. Kent for Commercial Union Assurance Company

Issues:

The Applicant, Ruth Martins, was injured in a motor vehicle accident on January 1, 1995. She applied for and received statutory accident benefits from Commercial Union Assurance Company ("Commercial Union"), payable under the Schedule.¹ Commercial Union paid Ms. Martins an income replacement benefit ("IRB") for 104 weeks, at which point it presented her with a Loss of Earning Capacity Benefit ("LECB") offer of "zero." Ms. Martins asked the Insurer to arrange a Residual Earning Capacity Assessment at a Designated Assessment Centre ("REC DAC"). She also asked the Insurer to reinstate her IRB pending receipt of the REC DAC report. The Insurer refused to reinstate the IRB, stating that the legislation permitted it to substitute its LECB offer in the place of the IRB. Ms. Martins disagrees with the Insurer's interpretation and maintains that she is entitled to an IRB pending receipt of the REC DAC report. The parties were unable to resolve their dispute through mediation, and Ms. Martins applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Resolution of the dispute involves an analysis of section 23 of the Schedule, which deals with the transition from income replacement benefits to a loss of earning capacity benefit. The analysis of the case is complicated by the fact that the REC DAC report is incomplete. The Insurer conceded that the document produced by the REC DAC does not comply with the statutory requirement that the report include a determination of Ms. Martins' residual earning capacity, and accordingly it should not be characterised as a REC DAC report. The reason for this omission and the consequences are in issue.

The preliminary issue is:

1. Is Ms. Martins entitled to receive ongoing income replacement benefits pending resolution of the dispute concerning the quantum of her loss of earning capacity benefit?

Result:

1. Ms. Martins is entitled to receive ongoing income replacement benefits.

EVIDENCE:

No viva voce evidence was called. The parties filed a brief Agreed Statement of Facts, an affidavit sworn by the applicant, a number of letters between the Applicant's counsel and the Insurer, and the REC DAC "report." The only point of contention concerns the REC DAC "report," and the balance of the facts can be set out concisely.

• Ms. Martins was injured in a motor vehicle accident on January 1, 1995.
• Ms. Martins was paid an IRB for 104 weeks.
• On January 16, 1997, the Insurer presented Ms. Martins with an LECB offer, as it was required to do by the terms of subsection 23(1) of the Schedule.
• The Insurer unilaterally assessed Ms. Martins residual earning capacity as equal to her pre-accident capacity. Accordingly, its LECB offer was zero.
• The offer was accompanied by a cheque representing 45 days worth of IRBs. The 45 days represented the time frame allowed by the Schedule for the Applicant to consider the Insurer's offer.
• Ms. Martins rejected the offer and requested a REC DAC. She also asked that her IRBs be reinstated until the REC DAC report was received.
• The REC DAC assessment was conducted in late May 1997.
• The Insurer refused to pay further IRBs. The Insurer asserted that after an LECB offer was presented, it was entitled to stop paying an IRB, and it its place to begin paying LECBs in accordance with its offer, notwithstanding that its offer was zero.

The circumstances surrounding the REC DAC assessment and report require a little more amplification. The assessment was conducted over a two week period at the end of May 1997. In accordance with the guidelines issued by the Ontario Insurance Commission, (the predecessor to the present Financial Services Commission) Ms. Martins was seen during the first week by; a medical doctor, a psychologist, a physiotherapist and an occupational therapist. During the second week, the occupational therapist conducted work simulations designed to test Ms. Martins' ability to engage in five occupations selected by the assessment team. The REC DAC "report" was delivered on June 19, 1997. Subsection 27(5) of the Schedule requires the DAC to deliver a report that identifies suitable employment, and the gross annual income the person could earn from that employment (residual earning capacity).

In this instance the REC DAC did not determine Ms. Martins' residual earning capacity. The "REC DAC Summary" and the accompanying certificate state; "Based on Ms. Martins' general performance during the Work Simulation Assessment, the data gathered is deemed invalid and unreliable, and as such, a determination of her maximum and current work abilities cannot be formulated at present." The summary also notes that the cognitive data generated during the psycho-vocational testing probably underestimated her abilities and was therefore an "unreliable and inaccurate estimate of her level of cognitive function." The summary concludes; "As such, no residual earning capacity can be determined."

Neither the Schedule or the Commission's guidelines appear to contemplate that a REC DAC might complete its assessment and thereafter deliver a report, without stating the individual's residual earning capacity. The Schedule does, however, contemplate that an insured person may fail to cooperate. Subsection 23(6) authorizes sanctions that I shall discuss below, in the event that the REC DAC indicates that it is unable to deliver a report because the insured person did not cooperate.

In this instance, the REC DAC did not deliver a notice stating that Ms. Martins failed to cooperate. The Insurer's counsel argues however, that on the face of the report it is clear that the REC DAC was unable to determine a residual earning capacity because Ms. Martins failed to put forth a genuine effort. The Applicant's counsel responded that a more careful review of the individual reports revealed that Ms. Martins is incapable of engaging in any of the occupations that were identified.

ARGUMENT AND ANALYSIS:

Because of the difficulties posed by the document prepared by the REC DAC, I shall divide the analysis into two distinct periods. The first is from the delivery of the LECB offer by the Insurer on January 16, 1997, to July 4, 1997, being 14 days after delivery of the REC DAC report. The second period is from July 4, 1997 onward.

The question of Ms. Martins entitlement to an income replacement benefit, from the date of the LECB offer to July 4, 1997, turns on a pure legal analysis, and I start with that period.

In very general terms, the Schedule contemplates that if an insured person receives income replacement benefits, education benefits, caregiver benefits, or other disability benefits [weekly benefits], for 104 weeks, the insurer shall replace the weekly benefit with a loss of earning capacity benefit. The latter benefit is more akin to a pension, and is designed to compensate the insured person for the difference between what they earned (or could have earned) pre-accident, and what they can earn now.

The transition from the weekly benefit to the loss of earning capacity benefit begins with the insurer delivering an offer based upon its own assessment of the individual's pre-accident earning capacity (the PEC), and residual earning capacity (the REC). The LECB represents the shortfall between the REC and the PEC. Section 23 of the Schedule sets out the procedure to be followed by the parties in the event that the insured person rejects the insurer's offer.

Section 23 was amended as part of the extensive revisions to the Schedule that occurred in December 1994. Ms. Martins' entitlement to benefits is governed by the amended Schedule, but to understand the effect of the amendments, it is necessary to consider the procedure in place before December 31, 1994. For ease of reference I have reproduced the entire text of both versions of section 23 in appendices "A" and "B" to these reasons.

The Schedule contemplates the possibility of a disagreement over either; the pre-accident earning capacity, the residual earning capacity, or both. The difficulties in this case arise in the context of a dispute over the residual earning capacity, and for present purposes I will restrict my comments to this situation.

Pursuant to the original version of section 23, if the insured person rejected the insurer's offer, the insurer was obliged to arrange for a REC DAC assessment [s. 23(2)]. If the insured person did not dispute the findings of the REC DAC, the insurer was bound to begin paying a loss of earning capacity benefit based upon the REC DAC's determination of residual earning capacity [s. 23(5)]. No further IRBs were payable after the LECB payments began.[s. 31(a)]. Conversely, in the event the insured person disputed the conclusions of the REC DAC, she had the right to proceed to arbitration or court. For present purposes, it is important to note that if the insured person challenged the REC DAC report, the Insurer was obligated to continue paying weekly benefits, rather than an LECB, pending resolution of the dispute over the quantum of the LECB [s. 23(8)].

The revisions to section 23 contained a significant amendment to subsection 23(8). Whereas the original subsection 23(8) stipulated that the Insurer was required to pay all of the weekly benefits pending resolution of a dispute concerning the amount of an LECB, the amended version refers only to the obligation to continue paying caregiver or "other disability" benefits. The section no longer contains any reference to either; income replacement, or education benefits.

In this case the Insurer adopted a common belief that the intent of the amendment was to relieve insurers of any further obligation to pay income replacement or education benefits beyond 104 weeks. The Insurer took the position that once it made an LECB offer, it was entitled to begin paying an LECB in accordance with that offer, notwithstanding that the offer might be zero, and irrespective of whether or not the insured person rejected the offer and sought a REC DAC assessment.

In support of its position, the Insurer relied upon subsection 31(b), which provides that no further weekly benefits are payable if the LECB has been determined "in accordance with this Part [part VI - loss of earning capacity benefits] to be zero."

The procedure set out in part VI contemplates three potential assessments of the insured person's residual earning capacity. The first is made by the Insurer after its own investigation, and forms the basis of its offer. The second is made by the REC DAC. The third is made by an arbitrator or judge. Any of these three may become the "determination" of the individual's LECB in the sense that it concludes the matter. The insured person may accept the insurer's assessment, in which case it would become the "determination." Similarly, the insured person may accept the conclusion of the REC DAC, in which case the DAC's conclusion becomes the determination. Finally, failing agreement, the arbitrator's or judge's conclusion is the "determination."

In cases such as this where the insured person rejects the insurer's offer, it is self serving for the insurer to equate its own assessment as a "determination." In effect the Insurer's argument ignores the comprehensive procedure laid out in part VI for the "determination" of an insured person's loss of earning capacity. In my view, subsection 31(b) is simply the counterpart of sub-section 31(a). No more weekly benefits are payable once the Insurer begins to pay a loss of earning capacity benefit [s. 31(a)]. Alternatively, no more weekly benefits are payable if, at the end of the process, it has been determined that no loss of earning capacity benefits are owing [s. 31(b)]. Subsection 31(b) does not authorize the insurer to cease paying weekly benefits simply because it has unilaterally concluded that no loss of earning capacity benefits are owing.

In my view, the Insurer's error stems from the fact that it fails to recognize that the starting point to understanding the purpose of the amendments to the section as a whole, is the amendment to subsection 23(5). As noted above, in the initial version of section 23 the insurer was only authorized to substitute the loss of earning capacity benefit, for the weekly benefit, if the insured person did not challenge the REC DAC findings. Notwithstanding the possibility that an independent DAC might conclude that the individual had a significant residual earning capacity, the insurer was obliged to continue paying the full income benefit, pending final resolution of the matter. The amendments to subsection 23(5) address this situation, by providing that the insurer may begin to pay an LECB based upon the REC DAC report, irrespective of whether or not the insured person accepts the findings. The insured person may, of course, still challenge the REC DAC report by way of an arbitration hearing or court proceeding, but in the interim, the insurer may begin to pay a loss of earning capacity benefit in accordance with the findings of the REC DAC.

I note that in allowing the Insurer to pay in accordance with the REC DAC, pending resolution of the matter, the REC DAC's findings are now being treated like all other DAC assessments. In each case where the Schedule provides for a DAC assessment, once the report is released, the insurer is entitled to begin paying (or cease paying) in accordance with the DAC report, pending final resolution of the matter.

The amendments to section 23(5) allow the insurer to substitute an LECB for income replacement benefits and weekly education benefits, but the insured person's right to continue receiving caregiver and "other disability" benefits is preserved. This restriction is effected by continuing to make subsection 23(5) subject to subsection 23(8), which, as noted above, stipulates that the insurer must continue to pay caregiver or "other disability" benefits pending resolution of the dispute about the amount of the LECB.

To allow the insurer to substitute the LECB for the income replacement and education benefits subsection 23(8) had to be amended by deleting the reference to income replacement and education benefits. To my mind, the substantive change to the parties' rights was effected by the amendment to subsection 23(5). The amendment to subsection 23(8) was merely a housekeeping change necessitated by the amendment to subsection 23(5). It did not, as suggested by the Insurer, signal the legislature's intention to relieve the Insurer of its obligation to continue paying IRBs once an LECB offer was delivered.

The error in the Insurer's premise can be demonstrated by reference to other sections. The most obvious is subsection 23(6) which is central to the next part of these reasons. It provides that if a REC DAC informs an insurer that the insured person is not cooperating, the insurer may begin to pay an LECB based upon its initial offer. If, as suggested by the Insurer's counsel, the Insurer already had the right to pay a loss of earning capacity benefit as soon as it made an offer, subsection 23(6) would be redundant.

The Insurer argued that any interpretation of the present section 23 that requires it to pay income replacement benefits for any period after an LECB offer is made, runs contrary to the appeal decision in Lehman ² I disagree. The analysis at first instance was limited to the question of which version of section 23 governed the application. It is apparent from a review of the initial arbitration decision, that both counsel proceeded on the premise that if the amended section governed claims arising out of accidents that occurred before the amendments were enacted, that no income replacement benefits were payable after the insurer made a loss of earning capacity benefit offer. Likewise on appeal, Director's Delegate Draper focused on the issue of which version of the Schedule governed. Neither decision contained an analysis of the amendments.

The only two decisions that I am aware of that directly address the new provisions governing the transition from income replacement benefits to loss of earning capacity benefits are Simpson and Rocca.³ The first is a decision of Arbitrator Palmer, the second a decision of Arbitrator Evans. In each case the insurer resisted a demand for ongoing income replacement benefits, relying upon the amendment to subsection 23(8). In both instances, the arbitrator rejected the insurer's argument and ordered payment of income replacement benefits pending the release of REC DAC reports. The analysis in each cases is similar to my own, and I adopt the arbitrators' reasoning.

In conclusion, the insurer is not authorized to substitute a loss of earning capacity benefit until the release of the REC DAC report. Section 31 provides that no weekly benefits are payable after either loss of earning capacity benefits begin to be paid, or there has been a determination that none are owing. It follows that in the interim, Ms. Martins is entitled to income replacement benefits, unless the Insurer has properly terminated the benefit in accordance with section 64.

The Insurer argued that section 64 has no effect after 104 weeks. I disagree. If the insurer seeks to stop paying income replacement benefits on the basis of the transitional provisions to a loss of earning capacity benefit, recourse to section 64 is unnecessary. But if the insurer wishes to terminate a weekly benefit pending a REC DAC report, on the basis that the individual is no longer disabled, it must follow the procedure set down in section 64.

Because the Insurer has not properly stopped the payment of income replacement benefits, I order it to pay Ms. Martins income replacement benefits until July 4, 1997, being 14 days after the delivery of the REC DAC "report."

I turn now to an analysis of the parties positions after the release of the "report." As noted earlier, each counsel conceded that because the REC DAC did not fulfill its statutory obligation to define Ms. Martins' residual earning capacity, that for the purposes of section 23(5), the document should not be treated as a REC DAC report. Beyond this common starting point there was little if any agreement concerning; what the document said, who was responsible for the deficiencies, who bore the onus of advising the REC DAC that it had not fulfilled its mandate, or what effect this had on Ms. Martins' demand for ongoing income replacement benefits.

Each counsel urged me to review the document and to draw inferences concerning the authors' intentions. As I noted at the start of these reasons, the summary and the certificate indicate that because the data generated during the psycho-vocational testing and the work simulations was considered to be unreliable, no residual earning capacity could be determined.

The Insurer argued that it was apparent from references to phrases such as "inconsistencies in the Applicant's performance," that she was not cooperating. Counsel argued that because she did not cooperate, she should not to be entitled to ongoing income replacement benefits, until she re-attended.

In contrast, the Applicant's counsel pointed to references to his client's inability to sustain the necessary effort over the course of the work simulations, as proof that her residual earning capacity was "nil." Counsel also argued that the REC DAC was for the Insurer's benefit, and that if there was a deficiency in the report, the onus was on the Insurer to advise the REC DAC. On the latter point, I disagree. The DAC system, including REC DACs are statutory entities charged with conducting neutral evaluations. The reports produced by the DACs are designed for the benefit of both parties.

I have reviewed the document in its entirety. I cannot discern with any certainty, what the authors intended to say about Ms. Martins' level of commitment to the assessment process. It certainly is arguable that the inconsistencies in Ms. Martins' performance on the work simulations, and the lower than expected results on the cognitive testing, are attributable to a conscious lack of effort or failure to cooperate. Conversely, Ms. Martins' performance may be the product of her condition. The authors of the report do not comment on this, and it would be inappropriate for me to hazard a guess. More to the point, I do not think it is necessary for the proper resolution of this matter. I have already determined that Ms. Martins is entitled to the receipt of income replacement benefits until the release of a REC DAC report. As noted, both counsel conceded that the document released by the REC DAC ought not to be considered a "report." That being the case, the Insurer must continue to pay income replacement benefits unless it can avail itself of the remedy provided for in subsection 23(6). The subsection provides that if a REC DAC informs an insurer that a report is not being submitted because of the insured person's failure to cooperate, the insurer may, on notice to the person, and until a report is submitted, pay the person a loss of earning capacity benefit based on its initial offer.

Subsection 23(6) contemplates that the REC DAC will withhold its report and in its place deliver a notice advising the insurer that it cannot complete its mandate. I am prepared to consider the notion that a REC DAC might mistakenly present a report, that includes a statement that no conclusion could be reached because of the insured's failure to cooperate. In such a case it would seem appropriate to treat the report as notice pursuant to subsection 23(6), thereby triggering the insurer's right to begin paying an LECB based on its own assessment. However this is not such a case. As already stated, the report does not contain a clear statement indicating that Ms. Martins was not cooperating. Nor is there any evidence to suggest that upon receipt of the report, the Insurer put Ms. Martins on notice that it was taking the position that she had failed to cooperate and that it was going to withhold the payment of further income replacement benefits until such time as she re-attended. In the circumstances, the Insurer is not in a position to avail itself of the provisions of subsection 23(6). Accordingly, Ms. Martins is entitled to continue to receive income replacement benefits until such time as a report is produced, or the dispute over the LECB issue is resolved. In the circumstances, I order the Insurer to pay Ms. Martins income replacement benefits from the date they were terminated, to present, together with interest in accordance with section 28.

The REC DAC produced its "report" almost two years ago. I received no evidence to suggest that either party has advised the REC DAC that it has failed to fulfill its mandate. Nor was there any suggestion that either party had asked the REC DAC to clarify whether or not the REC DAC was taking the position that Ms. Martins was not cooperating. This certainly should have been done. The failure of the parties to seek out a complete report, or clarification on the cooperation issue contributed to this motion. More distressing, the absence of a complete report means that at the upcoming arbitration, neither the parties, or the arbitrator will have the benefit of potentially significant evidence on the proper amount of the loss of earning capacity benefit. In my view, both parties must bear some responsibility for this state of affairs. Because I am hearing the request for income replacement benefits as a preliminary issue, I have some flexibility. Accordingly, I order that the outstanding income replacement benefits are to be paid forthwith, but are subject to review by the hearing arbitrator, who may direct that the Insurer is to be reimbursed all or any portion of the amount paid.

EXPENSES:

I exercise my discretion to award Ms. Martins her expenses incurred in this preliminary issue hearing.

March 24, 1999

Stewart M. McMahon

Arbitrator

Date

FSCO A98-000552

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RUTH MARTINS

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Insurer shall pay Ms. Martins income replacement benefits from the date of termination to present together with interest in accordance with section 68. The outstanding benefits are to be paid forthwith, but are subject to review by the hearing arbitrator, who may direct that that the Insurer is to be reimbursed all or any portion of the amount paid.

2. The Insurer shall pay Ms. Martins her expenses of the motion.

March 24, 1999

Stewart M. McMahon

Arbitrator

Date

Appendix A

Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994 Regulation 776/93 (original)

Procedure if No Agreement

23.-(1) An insured person who does not accept the insurer's offer within forty-five days after receiving it shall be deemed to have rejected the insurer's offer in respect of both residual earning capacity and pre-accident earning capacity.

(2) An insured person who rejects the insurer's offer in respect of residual earning capacity shall be assessed under section 27, and the insurer shall give the person notice of that requirement.

(3) If an insured person rejects the insurer's offer in respect of pre-accident earning capacity, the dispute may be resolved in accordance with sections 279 to 283 of the Insurance Act, based on section 29 of this Regulation.

(4) If an insured person rejects the insurer's offer in respect of both pre-accident earning capacity and residual earning capacity, the dispute may be resolved in accordance with sections 279 to 283 of the Insurance Act, based on sections 29 and 30 of this Regulation, but no steps shall be taken under sections 279 to 283 of the Insurance Act, other than the filing of an application for mediation, pending receipt of the report of the designated assessment centre under section 27.

(5) Forty-five days after receipt by the insurer of the report from the designated assessment centre under subsection 27(5), the insurer shall commence payment of weekly loss of earning capacity benefits based on the insurer's offer made under section 21 in respect of pre-accident earning capacity and the gross annual income determined by the centre in respect of residual earning capacity, unless the insured person disputes the report within thirty days of receiving it in accordance with sections 279 to 283 of the Insurance Act or has disputed the insurer's offer in respect of pre-accident earning capacity in accordance with those sections.

(6) If, six months after the centre notifies the insured person under subsection 27(2), no report has been submitted under subsection 27(5) and the centre has informed the insurer that the report has not been submitted because of the insured person's failure to cooperate, the insurer may, on notice to the person and until a report is submitted under subsection 27(5), pay the person weekly loss of earning capacity benefits based on the insurer's offer made under section 21.

(7) By agreement between the insurer and the insured person,

(a) the forty-five-day period referred to in subsection (1) may be extended;

(b) the assessment referred to in subsection (2) may be delayed;

(c) the forty-five-day period referred to in subsection (5) may be extended;

(d) the thirty-day period referred to in subsection (5) may be extended.

(8) Subject to subsections (5) and (6) and to subsection 281(4) of the Insurance Act, the insurer shall continue to pay benefits under Part II, section 15, Part IV or Part V pending resolution of a dispute under subsection (3) or (4), if the person continues to qualify for those benefits.

Appendix B

Extracted from Ontario Regulation 776/93 and

Amended by Ontario Regulation 635/94

Applicable to accidents occurring on or after January 1, 1994

Procedure if No Agreement

23.(1) An insured person who does not accept the insurer's offer within forty-five days after receiving it shall be deemed to have rejected the insurer's offer in respect of both residual earning capacity and pre-accident earning capacity.

(2) An insured person who rejects the insurer's offer in respect of residual earning capacity shall be assessed under section 27, and the insurer shall give the person notice of that requirement.

(3) If an insured person rejects the insurer's offer in respect of pre-accident earning capacity, the dispute may be resolved in accordance with sections 279 to 283 of the Insurance Act, based on section 29 of this Regulation.

(4) If an insured person rejects the insurer's offer in respect of both pre-accident earning capacity and residual earning capacity, the dispute may be resolved in accordance with sections 279 to 283 of the Insurance Act, based on sections 29 and 30 of this Regulation, but no steps shall be taken under section 279 to 283 of the Insurance Act, other than the filing of an application for mediation, pending receipt of the report of the designated assessment centre under section 27.

(5) Subject to subsection (8), if an insured person rejects the insurer's offer in respect of residual earning capacity or both residual earning capacity and pre-accident earning capacity, the insurer may commence paying weekly loss of earning capacity benefits to the insured person 14 days after receiving the report from the designated assessment centre under subsection 27(5).

(5.1) The benefits paid under subsection (5) shall be based on,

(a) the insurer's offer made under section 21, in respect of the insured person's pre-accident earning capacity and

(b) the determination made by the designated assessment centre of the insured person's gross annual income in respect of the person's residual earning capacity.

(5.2) Subject to subsection (8), if an insured person rejects the insurer's offer in respect of pre-accident capacity but not residual earning capacity, the insurer may, upon receiving the rejection, commence paying weekly loss of earning capacity benefits to the insured person based on the insurer's offer made under section 21.

(6) If, after the centre notifies the insured person under subsection 27(2), no report has been submitted under subsection 27(5) and the centre has informed the insurer that the report has not been submitted because of the insured person's failure to cooperate, the insurer may, on notice to the person and until a report is submitted under subsection 27(5), pay the person weekly loss of earning capacity benefits based on the insurer's offer made under section 21.

(7) By agreement between the insurer and the insured person,

(a) the forty-five day period referred to in subsection (1) may be extended;

(b) the assessment referred to in subsection (2) may be delayed;

(8) Subject to subsection (6) and subsection 281(4) of the Insurance Act, the insurer shall continue to pay benefits under Part IV or V pending the resolution of a dispute under subsection (3) or (4), if the person continues to qualify for those benefits.

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.
2. 2Lehman and Gan Canada Insurance Company (OIC A96-001417)
3. 3Simpson and Trafalgar Insurance Company of Canada (FSCO A98-000215, July 16, 1998) and Rocca and Gan Insurance Company (FSCO A97-000147, December 31, 1998)