Neutral Citation: 2002 ONFSCDRS 42

FSCO A00-000790

BETWEEN:

ALETTA BROOKS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

December 3, 4, 5, 6 and 19, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Linda Wolanski for Ms. Brooks

Donald G. Cormack for Wawanesa Mutual Insurance Company

The Applicant, Aletta Brooks, was injured in a motor vehicle accident on February 16, 1998. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Brooks 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 Ms. Brooks entitled to receive income replacement benefits (IRBs) for the periods March 27 to May 11, 1998 and from August 1, 1998 and ongoing pursuant to section 4 of the Schedule?
Is Ms. Brooks entitled to receive reimbursement of expenses for her university studies pursuant to section 15 of the Schedule?
Is Ms. Brooks' vacation pay included in the calculation of her IRB entitlement under Part II of the Schedule?
Is Wawanesa liable to pay Ms. Brooks' expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I. 8?
Is Ms. Brooks liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I. 8?

At the outset of the hearing Mrs. Brooks withdrew her claim for housekeeping and home maintenance as an independent category of benefit claimed. A claim for housekeeping expenses is included as part of the rehabilitation claim set out above.

Ms. Brooks also claims interest on unpaid benefits calculated in accordance with section 46(2) of the Schedule.

Ms. Brooks is entitled to receive an income replacement benefit (IRB) from August 1, 1998 to February 16, 2000, the second anniversary of the motor vehicle accident. She is not entitled to an income replacement benefit beyond that time.
Ms. Brooks is not entitled to a university education and ancillary expenses as a rehabilitation expense pursuant to section 15 of the Schedule.
The vacation pay that Ms. Brooks received in each pay period is included in income from employment for purposes of the calculation of her income replacement benefit. The parties agreed that if vacation pay is included in the calculation, Ms. Brooks' entitlement is $302.11 per week.
Ms. Brooks is entitled to interest on unpaid amounts.
The parties may speak to the issue of expenses if unable to resolve it themselves.

The dispute between the parties revolves around two key issues: First, whether and to what extent Ms. Brooks suffered impairments that have limited her ability to function in the labour force and second, whether the expenses associated with a university program she began shortly after the motor vehicle accident are proper rehabilitation expenses.

Ms. Brooks claims that her impairments suffered as a result of the motor accident were significantly disabling such that she was entitled to IRBs for the period immediately after the accident to the date of the hearing and ongoing. She claims that her impairments are now primarily emotional and psychological. She also claims that the university education she has pursued is a necessary measure for her rehabilitation and is compensable under the Schedule.

Wawanesa claims that Ms. Brooks was not impaired to the extent that she was substantially unable to perform her pre-accident job duties. It was argued that Ms. Brooks' attendance at university was inconsistent with her alleged level of impairment and that in fact, her decision to attend university had been made prior to the accident and its occurrence provided her with a way in which she could claim it as an expense.

Testimony of the Applicant:

Ms. Brooks was born in Nova Scotia where she completed some of her high school education before coming to Ontario in the late 1970s. In 1984, Ms. Brooks obtained a diploma in Radio Communications from Humber College. She later enrolled at Burnhamthorpe Collegiate Institute in Toronto (1991/1992 and 1996/1997). It is not clear on the evidence whether Ms. Brooks would be considered to have graduated high school in Ontario.

From roughly 1984 to 1991 Ms. Brooks was employed in a variety of administrative/executive positions. However she found it increasingly difficult to care for her family and work outside the home. In particular, she found it increasingly difficult to juggle the demands of work and the need to care for her eldest son who suffered from asthma. Accordingly, in the years immediately prior to the motor vehicle accident, Ms. Brooks had a limited work history outside the home. However in late 1997, Ms. Brooks obtained a short-term clerical position at the Regional Municipality of Peel ("Peel"). Short-term employment contracts with Peel are limited to 59 days by agreement with the trade union representing its employees.

In March 1997, approximately 11 months prior to the accident, Ms. Brooks suffered the loss of her eldest son, who died of complications related to his asthma. Ms. Brooks described this loss as devastating for her.

In late 1997, Ms. Brooks ended a romantic relationship with a man after a couple of years. Ms. Brooks testified that she ended the relationship and it had little or no impact on her.

At the time of the motor vehicle accident, Ms. Brooks was and remains a single mother of her two remaining school age children, one aged 12 and the other aged 17, at the time of the hearing. Prior to the accident she was the sole caregiver to her two children and was responsible for all of the caregiving, housekeeping and home maintenance activities of a parent.

The motor vehicle accident occurred on February 16, 1998. Ms. Brooks was the driver of the car, accompanied in the front seat by her daughter. While proceeding through an intersection on a green light, the front passenger side of her vehicle was struck by another vehicle. Ms. Brooks recalls being stunned and confused by the impact of the collision. She recalls her daughter being with her in the vehicle and reaching for her as they were struck. Her daughter was not physically injured in the accident.

Passersby came to see if they were alright and someone took her daughter to a nearby restaurant while Ms. Brooks examined her car and waited for emergency assistance to arrive. Ms. Brooks was driven to the Collision Reporting Centre and then attended at a hospital that evening but gave up waiting to be seen after a couple of hours and returned to the family home.

The motor vehicle accident occurred several weeks before the completion of the first of two contracts with Peel. Ms. Brooks testified that she was able to complete the first contract with Peel but, in doing so, went through considerable "physical, emotional and cognitive upheaval."

The first contract ended on March 27, 1998. Ms. Brooks testified that she hoped that she could use the break to rest and hopefully recover from her injuries. She applied and was successful in securing a second short-term contract beginning on May 11, 1998. Ms. Brooks testified that she began to realize that there were things beyond her mental and physical abilities. She told her employer that she may not be able to continue working because of these problems. This advice to her employer is confirmed in a letter dated May 26, 1998 written by Ms. J. McMaster of Ontario Works in Peel, Ms. Brooks' supervisor at the time.

The two positions held by Ms. Brooks at Peel were clerical/administrative positions. She testified that she provided support to a number of social workers in the Ontario Works program for Peel. This involved booking of appointments for clients, telephone work, data entry, some typing and filing.

Ms. Brooks testified that when the second contract ended on July 31, 1998 she did not apply for a similar available position. She testified that she believed that she would not be able to perform the job because of considerable pain in her neck, back and shoulders, recurrent headaches,dizzy spells, recurrent nightmares, insomnia, fatigue, anxiety, depression, periods of confusion, panic attacks, as well as an inability to concentrate, focus or remember things.

Ms. Brooks applied for entrance to York University in May 1998 and commenced her studies there in September 1998. She testified that she decided to enter university because she felt unable to work as a result of her emotional and cognitive impairments resulting from the car accident. She testified that she concluded that she needed to retrain herself because she would be unable to return to her clerical work without such retraining. She testified that while she could not function in a work environment, she was able to do so to some degree at university because of a reduced course load, the academic accommodations² to which she was entitled as a disabled student, as well as the flexibility inherent in university studies.

Ms. Brooks made the decision to attend York University without consulting her treating physicians. She could not be sure when she told either one of them about her attendance at York.

She has continued in that course of study to the date of the hearing, taking a reduced course load in each semester. She has had mixed success in her program, passing all of her courses, but having had to drop several before completion. As of November 30, 2001, Ms. Brooks was considered a full-time student with a 40 percent course load.

Ms. Brooks testified that her complaints were largely unchanged in the two years after the accident. She testified that she continued to suffer low back pain, shoulder and neck pain and headaches at least once per week. When suffering a headache, she would often have to stop and rest. She testified that her emotional problems remained significant as she continued to suffer feelings of helplessness, anxiety and depression although the panic attacks were becoming less frequent. She testified that a return to work would have been too challenging for her and she could not function without medication because of the lack of flexibility in a full-time job and her inability to concentrate.

She testified that the university program in contrast assisted her to rediscover her organisational and cognitive abilities, which she claimed had been lost as a result of the accident. She testified that York was training her "to relearn everything."

Ms. Brooks testified that she improved slowly in the latter half of 2000 and into 2001. She stated that the overwhelming sense of fear and dread that she had experienced in the past were reduced. Although still claiming cognitive impairments, she testified that these were reduced as well in 2001. She testified that she continued to experience low back pain, neck pain and headaches, although each of these complaints were getting less serious.

Ms. Brooks testified that she took a job with Statistics Canada where she participated in the census taking between April 28 and June 23, 2001. She testified that she found the work time-consuming and she had difficulty keeping up with its demands. She testified that she terminated the job before it was completed. This is contradicted by the Record of Employment which indicates that Ms. Brooks left the job because of a shortage of work. Ms. Brooks testified that the demands of this job persuaded her that she remained unable to hold down a permanent job.

Testimony of Heather Osmand:

Heather Osmand testified that she was a friend of Ms. Brooks and had assisted her with some of her housekeeping and childcare needs after the death of her son in March 1997. Ms. Osmand has been self employed as a house cleaner for several years. After the death of Ms. Brooks' son, Ms. Osmand assisted the family out of friendship. Ms. Osmand testified that she saw Ms. Brooks often through 1997 and while the loss of her son was devastating, she testified that Ms. Brooks did recover and seemed to be ready to get on with her life again towards the end of that year.

Ms. Osmand also testified that after the accident, Ms. Brooks was depressed, withdrawn and inactive in marked contrast with her persona prior to it. For example, Ms. Brooks loved to roller blade but after the accident she was unable or unwilling to. She also complained about headaches and other aches and pain. Ms. Osmand testified that the ending of a romantic relationship prior to the accident had no discernible impact on Ms. Brooks.

As I have concluded that Ms. Brooks is not entitled to claim her university and ancillary expenses, amongst which is a claim for housekeeping, there is no need to relate Ms. Osmand's evidence further other than to note that she testified she provided housekeeping assistance from February 24, 1998 to early April 2000.

Testimony of the Applicant's Son:

Ms. Brooks' son, Tren, testified that prior to the accident his mother had been a lively, happy and active woman. He testified that while the death of his brother was devastating for his mother, his perception was that after several months, she was recovering and appeared to be getting on with her life. He felt that his mother's getting the job with Peel was a sign of her recovery. Tren further testified that after the car accident his mother was quite different; she became depressed, sad, withdrawn, inactive and in pain. Whereas prior to the accident she had been able to help him and his sister with their school work, he now found that he must help her with her studies. Tren testified that he noted no serious impact on his mother when she ended a romantic relationship prior to the accident, but conceded that she did not discuss her personal life with him or his sister.

The Medical Evidence:

Ms. Brooks attended at her family doctor, Dr. F.A. Texiera, on February 18, 1998. At that time Ms. Brooks complained of predominantly right-sided neck, upper and lower back pain as well as headaches. Dr. Texiera's notes of that visit indicated that Ms. Brooks attended at work on February 17th but left because of pain and stiffness. No formal diagnosis was made at that visit, but the doctor recommended hot packs and advil.

Ms. Brooks attended at the office of Dr. Janjau, another family physician, on March 23, 1998. She began seeing Dr. Janjua because his office was significantly closer to her home than Dr. Texiera's. Dr. Janjua found Ms. Brooks to be depressed, dejected and upset. He conducted a complete physical assessment of Ms. Brooks and detected significant spasms associated with her cervical spine and neck. He noted no neurological deficits. Dr. Janjua noted several fibrocystic points across the upper back, just below the dorsal spine. X-Rays taken the next day indicated some mild pre-existing disease in the neck.

Dr. Janjua testified that he attempted to reassure Ms. Brooks and counselled her about the consequences of her injuries. He referred her to a rehabilitation centre for physiotherapy and explained to her the difference between "hurt" and "harm."

Dr. Janjua saw her again on March 26 and again on April 8, 1999. The same complaints were noted on each occasion. Dr. Janjua referred Ms. Brooks to Dr. Pieter Butler because of her reports of anxiety, recurrent nightmares, depression, and dizziness. Dr. Janjua completed a Disability Certificate (OCF-3/59) on or about April 8, 1998 which indicated that Ms. Brooks was totally disabled at that point as a result of organic and non-organic difficulties. He testified that he understood Ms. Brooks to be employed at the time, although he did not know much about her work. Dr. Janjua was clear however that this opinion was not a functional abilities evaluation but a general assessment of her state of emotional and physical health.

Dr. Janjua's diagnoses of Ms. Brooks were cervical, dorsal and lumbar strain, Whiplash Grade II. He also believed that she suffered from Post-Traumatic Stress Disorder and other emotional disorders as a result of the accident.

Dr. Janjua testified that Ms. Brooks' complaints remained essentially the same, with some minor improvement in her level of body pain throughout the summer and fall of 1998. At the end of 1998, Dr. Janjua concluded that Ms. Brooks was suffering from chronic pain syndrome as a result of injuries sustained in the motor vehicle accident.

Dr. Janjua's reporting of Ms. Brooks' condition remained essentially consistent through 1999, and 2000 with physical examinations revealing moderate to severe degrees of spasm and tenderness. Dr. Janjua prescribed Ativan, Neprozene, Norflex and Tylenonl #2 for Ms. Brooks at various times throughout this period.

There was no substantial change in Ms. Brooks' physical condition, according to Dr. Janjua, until November 5, 2001, when he reported for the first time that there were no tender fibrocytic points.

Dr. Michael Ford, an orthopaedic surgeon, assessed Ms. Brooks at the request of Wawanesa in June 1998. Dr. Ford generally concurred with Dr. Janjua's diagnoses. He would not endorse Dr. Janjua's findings of post-traumatic stress disorder because this was beyond his expertise, but in evidence at the hearing, he testified that it was possible that Ms. Brooks had developed a chronic pain syndrome. From a musculoskeletal point of view, it was his opinion that Ms. Brooks was not medically prevented from returning to clerical-type duties or engaging in her pre-accident activities of daily living.

Dr. Butler testified at the hearing that he began treating Ms. Brooks in May 1998 and has continued to see her up to the hearing. He initially diagnosed Ms. Brooks as suffering from Post-Traumatic Stress Disorder (PTSD). He prescribed Prozac and Lorazepam which Ms. Brooks initially resisted taking because of a fear of taking such medications. In August 1998, Dr. Butler concluded that Ms. Brooks may be experiencing a chronic pain disorder. Dr. Butler diagnosed her as suffering Major Depression as a result of her disability, anxiety and chronic PTSD, in September 1998. He testified that in September 1998 he felt that Ms. Brooks should not be working and believes he told her so on September 22.

Dr. Butler testified that he was not consulted about the decision to attend university but said he supported the decision when he learned of it and felt that it would be good for her rehabilitation - to improve her self-respect and learn to improve her concentration. Ms. Brooks testified that when Dr. Butler first learned of it, he thought it was a bad idea but came around when she told him she needed something to occupy her mind. On November 23, 2001, Dr. Butler wrote a letter, at the request of counsel for Ms. Brooks, in which he states that Ms. Brooks had attended university as part of a treatment and rehabilitation program.

Dr. Butler's diagnoses for Ms. Brooks are substantially unchanged to date although his notes indicate some slight improvement in her condition. Dr. Butler testified that Ms. Brooks continues to suffer from chronic PTSD which he distinguished from the acute form of the disorder. He also feels that she continues to suffer from Major Depression although he notes that there has been some improvement since he first began seeing her. He continues to feel that she is unable to work.

Ms. Brooks was assessed by Dr. Brian Hines, a psychiatrist, at the request of Wawanesa in July 2000. Dr. Hines testified that he concurred that Ms. Brooks may have suffered PTSD but felt that she had recovered by the time he interviewed her in August 2000. He was not asked about it and gave no opinion with respect to Dr. Butler's distinction between acute and chronic forms of PTSD. He also concurred that Ms. Brooks suffered from a Major Depressive Disorder but felt that it was of a mild to moderate degree and should not result in impairment to her level of function. It was also his opinion that the depression was no longer related to the car accident but by this time was related to characterological and psychological issues such as the loss of her son and the ending of a romantic relationship in the months prior to the accident.

Ms. Brooks was assessed by Dr. James Alcock, psychologist, at the request of her counsel. In November 2001, Dr. Alcock reported that Ms. Brooks had suffered a very significant emotional disorder, which was improving but which still interfered with her ability to sleep, drive, study and enjoy life.

Analysis:

Ms. Brooks claims income replacement benefits (IRBs) from March 27 to May 11, 1998 and from August 1, 1998 and ongoing.

The Schedule establishes two standards for entitlement, depending on the length of time that benefits are claimed. In order to establish entitlement to IRBs for the first period of 104 weeks after the accident, Ms. Brooks must show that she suffered an impairment, as a result of the motor vehicle accident, which made her substantially unable to perform the essential tasks of her pre-accident employment.

After 104 weeks post-accident, the test becomes more strict and Ms. Brooks must establish that she has suffered a complete inability to engage in any employment for which she is reasonably suited by reason of her education, training and experience.

IRB Entitlement to 104 weeks Post-accident:

The period of entitlement includes two periods — from the end of the first contract (March 27, 1998) to the beginning of the second (May 11, 1998); and then commencing with the end of the second contract (August 1, 1998).

Wawanesa argued that if Ms. Brooks was capable of university studies she must have been able to work. I do not agree. In coming to this conclusion I considered the manner in which Ms. Brooks conducted herself at the hearing — she is an intelligent and articulate woman. I also considered that she took a reduced course load; that she was accepted as a disabled student and was accordingly entitled to "academic accommodations;" and that there is an inherent flexibility in university studies which does not normally exist in the workplace. I find that these factors would have allowed Ms. Brooks to function in that environment to some degree, where she would not have been able to function competitively in the office environment at Peel.

Wawanesa also argued that Ms. Brooks had always planned to attend university and that the car accident afforded her the opportunity to accomplish this goal at its expense. The only concrete evidence supporting Wawanesa's theory are statements or remarks made by Dr. Alcock in a report dated November 15, 2001. The remarks are part of a narrative describing Ms. Brooks' education and work experience in the period leading up to the accident and then her attendance at York university. They are not clearly statements out of the mouth of Ms. Brooks. In any event they are not sufficient to establish the proposition advanced by Wawanesa.

Dealing with the medical evidence, I accept Dr. Ford's opinion. However, I find that Ms. Brooks' debilitating impairments were almost entirely psychological, thus limiting the usefulness of his views.

I have considered the evidence of Dr. Robert Hines. I note that he agreed with Dr. Butler's initial diagnoses of PTSD and Major Depression but believes that these conditions were either resolved or no longer disabling. Dr. Hines saw Ms. Brooks in August 2000. I am unable to extrapolate back six months to conclude on the basis of Dr. Hines'opinion that Ms. Brooks was able to perform the essential tasks of her employment on February 16, 2000. As for Dr. Hines' opinion of the causes of Ms. Brooks' continuing symptoms, I prefer the evidence of Ms. Brooks and her friend, Heather Osmand, as well as her son, Tren, that the ending of a romantic relationship was of no particular significance to her, and while the death of her son was a devastating event, she was, by the end of 1997, recovering and getting on with her life. This is not to say that the death of her son did not remain an issue for her as indicated in the report of Dr. Butler,³ however, the evidence indicates that she was coping and able to function despite this loss, in the weeks and months leading up to the motor vehicle accident. I note that while neither Dr. Butler or Dr. Janjua directly considered Ms. Brooks' ability to function in her pre-accident employment duties, their medical opinions do provide some support for her evidence of impairment resulting from the motor vehicle accident.

I find that Ms. Brooks is entitled to IRBs from August 1, 1998 to February 16, 2000, two years post-accident. I find that the essential tasks of her clerical/administrative support work would have required her to function competitively for a full workday, providing support to a number of social workers, including fielding telephone calls from the public, scheduling and tracking appointments and other support functions.

I accept her evidence of the nature and extent of her impairments and I find that Ms. Brooks became substantially unable to perform her pre-accident duties because of her major depression, chronic PTSD and associated headaches, fatigue, anxiety, panic attacks, memory loss and inability to concentrate. I find that these impairments persisted until the two-year mark (104 weeks post-accident), although it is clear from the evidence that, as time passed, she was improving in her levels of function. Ms. Brooks' evidence of impairment is supported by the testimony of her son,Tren and Ms. Osmand, her friend, who provided housekeeping assistance. As for the period between the two contracts, from March 27 to May 11, 1998 there is very little evidence of Ms. Brooks' functional capacity during that period. I am not prepared to infer, from her description of a growing recognition during the second contract, of cognitive and emotional consequences of the injuries she suffered, that these impairments existed to the degree that she was substantially unable to perform those employment duties during this interim period.

Post-104 entitlement:

I find that Ms. Brooks has failed to meet the significantly more onerous burden of establishing that after February 16, 2000, she was completely unable to perform any work for which she was reasonably suited by reason of her education, training and experience.

Although Dr. Butler continued to believe that Ms. Brooks was incapable of working after the two-year mark it is not clear why he held that view. Reviewing his evidence as a whole, it is clear that Dr. Butler had an incomplete understanding of what Ms. Brooks was doing at various times while treating her. I note for example, that he only learned of her attendance at university well after she began her studies there. He also had an incomplete understanding of her accomplishments in her studies. In a letter to her counsel dated January 2000, Dr. Butler indicates that Ms. Brooks was still suffering and had been unable to complete her course at York University. This is contrary to the records filed in the arbitration, which indicate that Ms. Brooks completed 12 credits over the fall and winter of 1999-2000. The suggestion that Ms. Brooks failed in her attempts to return to university is repeated in a letter dated August 2, 2000. At this point Ms. Brooks appears to have successfully completed 51 credits and was entitled to continue in the Honours program. These results may have not been entirely to Ms. Brooks' liking but it is difficult to describe her attempts at a post-secondary education as a failure. Accordingly, I have difficulty placing any weight on Dr. Butler's opinions about Ms. Brooks' level of function in considering her entitlement to benefits after 104 weeks.

I have also considered Ms. Brooks' evidence respecting work performed for the census in April - June 2001. Her evidence with respect to that employment was limited and quite vague. I note the contradiction between Ms. Brooks' evidence that she quit this job before completing the work and the record of employment which indicated that the job had ended. In short, while I accept that Ms. Brooks may have found the work difficult and time-consuming, I do not accept her conclusion that this experience establishes that she was unable to work.

In light of Ms. Brooks' previous work experience, her evident intelligence, and the degree of success she had achieved in her university studies as well as the opinions of Dr. Hines which I have accepted, I am not persuaded that as of February 16, 2000, Ms. Brooks was completely unable to engage in any employment for which she was suited by reason of her education, training and experience.

Rehabilitation Benefits:

Ms. Brooks claims expenses associated with her attendance at York University as a rehabilitation expense pursuant to section 15 of the Schedule. The relevant portions of the provision are set out here:

15 (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(3) Measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to,

(a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident;

There was no treatment plan submitted for this claim. Wawanesa did not vigorously pursue the argument that the claim cannot be allowed merely because there was no treatment plan submitted and I make no finding in that regard. I agree with Wawanesa's submission that the failure of Ms. Brooks to provide a treatment plan is an important factor in considering the validity of the claim.

The rehabilitative goal of the university program, advanced at the hearing by Ms. Brooks, was a return to employment. The Schedule requires that insurers pay for reasonable and necessary measures to reintegrate the insured person into, among other things, the labour market. The Schedule describes such measures as those which will allow the insured person to engage in employment that is as similar as possible to employment in which they were engaged before the accident. Section 38 of the Schedule requires that a treatment plan be submitted before expenses are incurred to afford the insurer an opportunity to make an assessment of the merits of the measures being proposed.

In assessing the reasonableness or necessity of a treatment or rehabilitation program, a primary consideration must be whether the program is the most effective means to the chosen end. Where there is more than one option to choose from, issues such as utility and expense will often have to be balanced.

None of this analysis was performed here. Ms. Brooks decided on her own that the only solution to the cognitive and emotional difficulties which were preventing her from working was a university education. There is no evidence that this is so. Her treating physicians were not consulted beforehand and their evidence amounted to little more than stating that attending university was a good thing for her because it is always better to do something than nothing. This is very likely true but the Schedule requires more for a rehabilitation program to be considered reasonable and necessary.

Dr. Butler did write a letter in November 2001, indicating that her studies were undertaken as part of a rehabilitation program. However he offers no reasons why it ought to be accepted as such. There is no analysis of its value in returning Ms. Brooks to work nor any consideration given to the length of the program, or its cost in comparison to other alternatives. In short, there is no evidence that pursuing a university education is a proper rehabilitation expense under the Schedule. I find that the decision to attend York University, while undoubtedly of some benefit to Ms. Brooks, was not a reasonable and necessary measure to return her to an employment as close as possible to that she engaged in before the accident.

As I have found that there is no entitlement to the expense of a university education as a rehabilitation benefit, there is no need to consider the ancillary expenses related to it, nor any other issues that may have arisen in respect of this claim.

Quantum of Income Replacement Benefits:

The parties disagree about whether vacation pay should be included in income from employment for the purpose of calculating the quantum of her IRBs.

During the four-week period prior to the accident, Ms. Brooks was employed on a term contract that could not last more than 59 days. Ms. Brooks was entitled to apply for other contract positions as they came up and could conceivably have been employed on a series of such contracts. She was paid on an hourly basis. In addition to her wages for time worked , she was paid 4 percent vacation pay on the wages earned in a pay period — this amount being added to each pay cheque. This amount reflects the minium entitlement to vacation pay required under the Employment Standards Act.⁴

The Schedule provides that the amount of the IRB is calculated as 80 percent of the insured's income from employment." It does not define this term.

Wawanesa argued that the calculation methods outlined in the Schedule attempts to annualise a claimant's income. In doing so the drafters assumed a 52-week work year as the norm. Wawanesa proposed a hypothetical: If Ms. Brooks had been employed for a 52-week contract, it would have to include 50 weeks of work and two weeks vacation, and to interpret the provisions in the manner suggested by Ms. Brooks would amount to a windfall to her, i.e., 54 weeks pay for 52 weeks of work. It cannot have been intended, submitted Wawanesa, that Ms. Brooks can receive a greater IRB than she would receive if she had worked for a full year.

I do not agree. The hypothetical proposed by Wawanesa includes assumptions which are not supported by any evidence nor the possibilities existing in the labour market. For example, there is no evidence that Ms. Brooks would be unable to work a series of contracts with Peel totalling 52 weeks or more with no vacation time. It would not be contrary to the Employment Standards Act, which creates an entitlement to two weeks vacation with 4 percent pay after each 12 months of employment but does not require the vacation be taken until 10 months after the 12- month period during which the vacation was earned.⁵ Contrary to the proposition of Wawanesa, Ms. Brooks could theoretically work 52 weeks and be paid 54 weeks' wages.

The cases cited by the parties⁶ do suggest that the reality of the employment contract and the manner in which vacation pay is treated under that contract should be determinative. For example in the Howden⁷ case, according to the contract of employment, vacation pay was included in the insured person's annual income and was not paid on top of it. That is not the situation here. Ms. Brooks was entitled to and did receive on each pay cheque the accrued amount of her vacation pay for that pay period. Ms. Brooks' "earnings picture," to borrow the language of Director's Delegate Naylor in Howden, included the payment of vacation pay in each pay period. Vacation pay had a cash value for Ms. Brooks. It may have been its only value given her limited attachment to the labour market at the relevant times.

For these reasons I find that the 4 percent vacation pay paid to Ms. Brooks ought to be included in her income from employment for the purpose of calculating the quantum of her IRB.

Expenses:

The parties may speak to the issue of expenses if they are unable to resolve the issue themselves.

March 6, 2002

David Muir Arbitrator

Date