Neutral Citation: 1999 ONFSCDRS 8
FSCO A97-000957
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KEN DEVANE
Applicant
and
CANADIAN GENERAL INSURANCE GROUP
Insurer
DECISION
Issues:
The Applicant, Ken Devane, was injured in a motor vehicle accident on July 21, 1991. He applied for and received statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule.1 Canadian General terminated benefits on December 11, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Devane applied for arbitration at the Financial Services Commission of Ontario2 under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On October 14, 1998 the parties advised FSCO that they had settled all outstanding issues except for the issue of the correct amount of Mr. Devane's weekly income benefit.
The issue in this hearing is:
- is the amount of Mr. Devane's weekly income benefit?
Result:
- Mr. Devane's weekly income benefit is $468.
Hearing:
The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, October 23, 1998, before me, Joyce Miller, Arbitrator. No witnesses were called. The parties proceeded on an agreed oral statement of facts.
Present at the Hearing:
Applicant:
Ken Devane
Mr. Devane's Representative:
Fern Silverman Barrister and Solicitor
Canadian General's Representative:
A. Wayne Edwards Barrister and Solicitor
AGREED STATEMENT OF FACTS
The parties agreed on the following:
On July 21, 1991 Mr. Devane was involved in a single-car collision. As a result of the accident he sustained an open depressed skull fracture, an orbital fracture, a frontal sinus fracture, facial lacerations that required reconstructive surgery and a left tibia fracture.
In the year preceding the accident, Mr. Devane had been employed for 42 weeks by Precision Carpentry Limited as a "rough carpenter." At the time of the accident, Mr. Devane had concluded the second week of a planned four-week vacation
Mr. Devane received no income from his employment during the period he was on vacation.
After the accident, Mr. Devane returned to work part time between July 7, 1992 and March 15, 1993, intending gradually to return to full-time work.
On March 22, 1993, Mr. Devane had further neurosurgery. He has not returned to any form of competitive employment since March 15, 1993.
The parties agreed that at the date of this arbitration, Mr. Devane was disabled within the meaning of paragraph 12(5)(b) of the Schedule.3
Pursuant to subparagraph 12(7)(1.)(iii), Mr. Devane's gross average weekly benefit is based on the four weeks preceding the accident.
The parties agreed that the amount of Mr. Devane's weekly income benefit is either $468, if the Vo and Maplex4 method of calculation is followed, or $600, if the Scavuzzo and Canadian Home5 method is used.
The Law
Subsection 12(7) of the Schedule, which deals with calculating gross weekly income, provides as follows:
(7) The following rules apply to the calculation of gross weekly income:
- A person's gross weekly income shall be deemed to be the greatest of,
i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,
ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,
iii $232.
SUBMISSIONS AND FINDINGS
In order to calculate Mr. Devane's weekly income benefit, the parties have asked me to decide which interpretation, that upheld in Vo, or that upheld in Scavuzzo, should be given to subsection 12(7) of the Schedule.
Using the Vo interpretation, all four weeks preceding the accident would be included in arriving at Mr. Devane's average gross weekly income even though he earned no income for two of those weeks. In the Scavuzzo approach, only the two weeks during which income was earned within the four weeks preceding the accident would be included in calculating Mr. Devane's average gross weekly income.