Financial Services Commission of Ontario
Neutral Citation: 2000 ONFSCDRS 90
FSCO A98-001487
Between:
Lawrence Rumble, Applicant
and
South Easthope Mutual Insurance Company, Insurer
Reasons for Decision
Before: William J. Renahan
Heard: April 3, 2000, in Stratford, Ontario.
Appearances: Robert E. Seabrook for Mr. Rumble Richard J.T. Shaheen for South Easthope Mutual Insurance Company
Issues:
The Applicant, Lawrence Rumble, was injured in a motor vehicle accident on March 9, 1996. He applied for and received statutory accident benefits from South Easthope Mutual Insurance Company ("South Easthope"), payable under the Schedule.1 South Easthope terminated weekly disability benefits on March 9, 1998. The parties were unable to resolve their disputes through mediation, and Mr. Rumble applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Rumble entitled to weekly disability benefits from March 9, 1998 to September 25, 1998 on the grounds that he suffered a partial inability to carry on a normal life within the meaning of subsection 19(1) of the Schedule (the "partial-inability" test)?
Is Mr. Rumble entitled to weekly disability benefits after May 1, 1999 on the grounds that he suffered a complete inability to carry on a normal life within the meaning of subsection 19(7) of the Schedule (the "complete-inability" test)?
Result:
- Mr. Rumble is not entitled to further weekly disability benefits.
Evidence and Analysis:
The matter proceeded by way of submissions based on an agreed statement of facts. The parties asked me to decide when the disability tests set out in section 19 of the Schedule applied and whether Mr. Rumble satisfied the temporal criteria of the tests. The disability tests are described as a "partial inability to carry on a normal life", which is defined in section 2, and a "complete inability to carry on a normal life", which is defined in section 3. The tests are incorporated in the criteria for entitlement to weekly disability benefits under section 19. As well, the tests are incorporated in the criteria for entitlement to weekly education disability benefits under section 15 and weekly caregiver benefits under section 18 and the meaning of the temporal criteria of those tests has been examined in arbitration and appeal decisions of this tribunal.
The parties agreed on when Mr. Rumble satisfied the functional criteria of the two tests. They disagree as to when the temporal criteria apply.
Mr. Rumble is now 73 years old and confined to a nursing home. On March 9, 1996, he suffered injuries in a head-on collision. His injuries included fractures of three cervical vertebrae, a pelvic injury and a closed head injury.
South Easthope paid weekly disability benefits of $185 pursuant to section 19 of the Schedule until August 12, 1996. From August 12, 1996 to February 27, 1997, a period of 28 weeks and four days, Mr. Rumble no longer met the "partial-inability" test. Mr. Rumble's condition deteriorated and on February 28, 1997 he again satisfied the "partial-inability" test. South Easthope paid weekly disability benefits from February 28, 1997 to March 9, 1998.
South Easthope terminated the weekly disability benefits on March 9, 1998 on the grounds that the disability test changed from "partial-inability" to "complete-inability" on that date, 104 weeks after the accident.
Mr. Rumble continued to satisfy the functional criteria of the "partial-disability" test from March 9, 1998 to May 1, 1999. From May 1, 1999 to the present, Mr. Rumble continues to satisfy the functional criteria of the "complete-inability" test.
Law:
The applicable subsections of section 19 provide as follows:
(6) Subject to subsection (7), the weekly disability benefit is payable during the period that the insured person suffers a partial or complete inability to carry on a normal life.
(7) No weekly disability benefit is payable under this section,
(a) for any period before the insured person attains sixteen years of age;
(b) for the first week of the disability; or
(c) more than 104 weeks after the insured person first qualified for weekly disability benefits, weekly income replacement benefits or weekly caregiver benefits, unless the insured person is suffering a complete inability to carry on a normal life as a result of the accident.
The term "complete inability to carry on a normal life" is defined in section 3 as