Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2003 ONFSCDRS 144

Appeal P00-00037

OFFICE OF THE DIRECTOR OF ARBITRATIONS

GUARDIAN INSURANCE COMPANY OF CANADA Appellant/Respondent

and

PATRICIA ARMSTRONG Respondent/Appellant

Before: Stewart M. McMahon

Representatives: Joan Takahashi for Guardian Colin Still for Mrs. Armstrong

Hearing Date: April 24, 2002

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeals of the arbitration order dated May 23, 2000, are dismissed.
Guardian Insurance Company of Canada shall pay Mrs. Armstrong $750 with respect to the expenses of the appeals.

September 23, 2003

Stewart M. McMahon Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves a consideration of the provisions that govern the calculation of loss of earning capacity benefits ("LECBs") available under the SABS-1994.¹ As the name implies, this benefit is designed to compensate the insured person in the event she sustains a long-term diminishment in her ability to earn an income. Subject to a statutory maximum, LECBs pay 90% of the differential between the insured person's pre-accident earning capacity ("PEC") and her residual earning capacity ("REC"). In this case, the parties were unable to agree on either Mrs. Armstrong's PEC or REC.

The hearing was lengthy, spanning 16 days, spread over 10 months. The Arbitrator heard from 15 witnesses, and the parties filed voluminous document briefs. She considered this evidence and the applicable statutory provisions, in a comprehensive 48-page decision which concluded with a determination that Mrs. Armstrong had no REC, and was entitled to an LECB of $459.58 per week. Both parties appealed.

Guardian Insurance Company of Canada ("Guardian") challenges the Arbitrator's rulings on both the PEC and REC issues. On the PEC issue, it submits she erred in applying s. 86 of the SABS to extrapolate Mrs. Armstrong's part-time earnings to a full-time equivalent. I am not persuaded by Guardian's arguments.

On the REC issue, Guardian submits that the Arbitrator made three distinct errors. One, it submits that Mrs. Armstrong's REC should have been calculated on the basis of the job market in Toronto, where she lived at the time of the accident, not Peterborough, where she lived at the time she became entitled to an LECB offer. Two, it submits that the Arbitrator erred when she failed to assess Mrs. Armstrong's REC on the basis of her ability to engage in clerical work. Three, it submits that the Arbitrator erred when she concluded that the light-duty nursing positions available in the Peterborough area were not accessible to Mrs. Armstrong. I am not persuaded by Guardian's approach to the REC issues.

Mrs. Armstrong challenges the Arbitrator's assessment of her PEC. She submits that the Arbitrator should have deemed her PEC to be the same as the income replacement benefits ("IRBs") she received from Guardian, irrespective of the Arbitrator's finding that this benefit had been overpaid. Mrs. Armstrong also submits that the Arbitrator erred when she refused to impose a special award. I am not persuaded by either argument.

II. BACKGROUND

Mrs. Armstrong was injured in a motor vehicle accident on January 31, 1994. She was 41 at the time. She lived in Toronto, where she had worked for many years as a coding clerk at a brokerage firm. In 1980, Mrs. Armstrong returned to school to study nursing. She became a registered nurse approximately a year before the accident. Her goal was to become a "floor nurse" in a hospital, but no positions were available at that time. In the interim, she registered with three nursing agencies that provided temporary assignments in institutional and home settings.

Mrs. Armstrong became concerned that these temporary assignments were not providing a sufficient income. In early January 1994, she successfully applied for a job at a brokerage firm, which sent her on a three-week training program. The Arbitrator accepted Mrs. Armstrong's evidence that she had agreed to work at the brokerage firm Monday to Wednesday, and that she told the nursing agencies she was available for shifts Thursday through Saturday. The Arbitrator found that the accident occurred on Mrs. Armstrong's first day of work at the brokerage firm.

Mrs. Armstrong was struck by a car as she crossed the street, resulting in a fracture of the left lateral tibial plateau [left knee], which was surgically repaired with internal fixation. Mrs. Armstrong moved to Peterborough to live with her brother and sister-in-law while she recuperated. Within a few months, she decided to relocate to Peterborough permanently.

Mrs. Armstrong's initial progress looked promising. In August 1994, Dr. Stuart Parker, her treating orthopaedic surgeon, reported that she was capable of returning to nursing duties on a graduated basis. Mrs. Armstrong testified that, at that time, she also thought she could return to nursing, and sent out between 30 to 40 resumes. Unfortunately, she did not find a job. She testified that in the fall she expanded her search to include clerical positions, but was told that her skills were outdated.

Mrs. Armstrong returned to Dr. Parker in the summer of 1995 with complaints of persistent aching and tightness around her knee. Dr. Parker removed the hardware from her knee, and she participated in a five-month rehabilitation program. Mrs. Armstrong continued to complain about her knee. Dr. Parker performed an arthroscopic examination in January 1996, and found signs of minimal degenerative changes, but he did not think the residual symptoms should be disabling. He reported that Mrs. Armstrong could return to light nursing duties on a graduated basis.

Guardian used Dr. Parker's opinion as the basis for sending Mrs. Armstrong a notice that it intended to terminate her IRBs. Mrs. Armstrong asked for a disability DAC assessment, thereby preventing Guardian from stopping her benefits pending the assessment. It appears that Guardian then decided to focus on the LECB issue instead of pursuing the IRB termination.

Guardian sent Mrs. Armstrong a nil LECB offer, which she rejected, triggering a REC DAC assessment. The REC DAC reported that Mrs. Armstrong's "residual earning capacity is best represented by the NOC Code 3152, registered nurse in a clinic or doctor's office (CCDO 3131126)." The corresponding wage exceeded Guardian's assessment of Mrs. Armstrong's PEC and, accordingly, it sent her an Explanation of Assessment by Insurance Company stating her LECB was "zero" and it was stopping the payment of IRBs. Mrs. Armstrong rejected Guardian's LECB offer and filed for mediation and then arbitration.

By the time of the hearing, Mrs. Armstrong took the position that she could not work at all. The Arbitrator was provided with a good deal of evidence that addressed her physical and mental condition. She reviewed this evidence at length, ultimately finding that as of the fall of 1996, Mrs. Armstrong was not fit to return to her pre-accident occupation as a floor nurse or private duty nurse, but was capable of working part-time as either a light duty nurse or brokerage clerk.

In addition to disagreements over the extent of Mrs. Armstrong's disability, the parties also disagreed about how to assess her PEC and REC.

Mrs. Armstrong claimed that her PEC was $638.86. Guardian maintained that it was $411.88. The Arbitrator accepted portions of each party's submissions. She found that Mrs. Armstrong's PEC was $520.64.

On the REC side of the equation, the focus was on whether light duty nursing in Peterborough was the occupation that best satisfied the criteria in s. 30(2). The Arbitrator found that it met some of the criteria, but not others. She found that this type of work existed in Peterborough, but would not be accessible to Mrs. Armstrong because she would not have a reasonable opportunity to compete for the limited number of positions that were available. Based on these findings, the Arbitrator concluded that Mrs. Armstrong's REC as of the fall of 1996 was nil, and that she was entitled to a weekly LECB of $459.58.

III. ANALYSIS

A. The PEC Issues

What I generically refer to as the "PEC issues" involved two quite distinct disputes which the Arbitrator had to resolve. As a preliminary matter, the Arbitrator had to decide the rate at which IRBs should have been paid. Guardian took the position that Mrs. Armstrong had been overpaid, and sought a repayment order. It abandoned the repayment request during the course of the hearing, but a resolution of the rate issue was still important because s. 29(1) provides that in most cases the PEC of an employed person will be deemed to be the same as the pre-accident income used to calculate IRBs. Mrs. Armstrong submitted that she had been underpaid. Her position was based on the extrapolation provisions found in ss. 9(2) and 9(7) of the SABS.

The second dispute related to the calculation of the PEC. Mrs. Armstrong argued that notwithstanding she was employed part-time at the time of the accident, her PEC should be calculated on the basis of full-time equivalent. Guardian opposed this suggestion. In addition, Mrs. Armstrong argued that irrespective of everything else, she was entitled to have her PEC fixed at the rate Guardian paid IRBs, even if that benefit had been overpaid. Guardian did not agree.

(i) The disputes over how to calculate the IRB rate

Subject to statutory maximums, IRBs are based on pre-accident income from employment. In general, an employed person can elect to have that income calculated on the basis of her earnings over the four weeks immediately preceding the accident, the 52 weeks preceding the accident, or the 156 weeks preceding the accident.

Mrs. Armstrong started the hearing by asking the Arbitrator to calculate her benefit on the basis of the income she earned in the four weeks preceding the accident. By making this election she hoped to take advantage of the extrapolation provisions in s. 9(2). However, Mrs. Armstrong abandoned this position during the course of the hearing. Instead, she asked the Arbitrator to calculate her benefit on the basis of the income she earned in the 52 weeks preceding the accident. By choosing this option she hoped to take advantage of s. 9(7) which allows an insured person who is unemployed for a portion of the 52 weeks to extrapolate their income over the entire period. Mrs. Armstrong argued that she was employed on the days when the nursing agencies assigned her work, but was unemployed on the days she had no assigned shifts. The Arbitrator rejected this argument, finding that Mrs. Armstrong was employed throughout the 52 weeks, but that the number of shifts she worked varied from week to week.

Mrs. Armstrong's Notice of Appeal states that the Arbitrator erred in not applying the extrapolation provisions in ss. 9(2) and 9(7). However, these arguments were not pursued in Mrs. Armstrong's written argument or oral submissions. For completeness sake, I note that I can see no basis for arguing that the Arbitrator erred in failing to apply s. 9(2), given that Mrs. Armstrong abandoned this position during the hearing. On the s. 9(7) issue, I agree with the Arbitrator's conclusion that Mrs. Armstrong was employed throughout the year, and hence s. 9(7) does not apply to her situation.

(ii) Calculating the PEC

As noted above, Mrs. Armstrong argued in the alternative that the IRB actually paid by Guardian should have been used as the basis for her PEC, irrespective of whether she had been overpaid.

Guardian's accountant determined that if the extrapolation provisions in ss. 9(2) and (7) did not apply, the correct IRB rate was $363.07, which would be indexed to $411.88 as of January 1996. The Arbitrator accepted this figure and then used it as the starting point for the PEC calculations. On appeal, Mrs. Armstrong argued that the Arbitrator erred when she started with the $411.88 figure. Her argument turns on the wording of s. 29(1) and, accordingly, I set it out in full with emphasis on the applicable portion.

For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1, 3, 4 or 6 of subsection 7(1) shall be deemed to be the person's net weekly income from employment used in section 10 in determining the amount of weekly income replacement benefits immediately before payment of the weekly loss of earning capacity benefits begins, converted to full-time net weekly income in accordance with section 86, if section 86 applies.

Mrs. Armstrong argued that the words "shall be deemed to be the person's net weekly income from employment used in section 10 in determining the amount of weekly income replacement benefits immediately before payment of the weekly loss of earning capacity benefits begins," means that she is entitled to have her PEC calculated on the basis that her pre-accident income was calculated initially, irrespective of the fact that this figure was wrong.

The Arbitrator rejected this argument, stating; "I cannot accept that the drafters of the Schedule would have intended that a mistake made at the outset in calculating an applicant's entitlement to IRBs should be carried forward into the PEC calculation." She went on to support her conclusion by noting the unfairness to an insured person in the event an insurer mistakenly underpaid IRBs.

I am not convinced by Mrs. Armstrong's arguments. In most cases, arguments about the rate of IRBs should be worked out before the transition to LECBs, and I can envisage situations where an insurer would be estopped from recalculating the insured person's pre-accident income at the LECB stage. However, Mrs. Armstrong did not argue estoppel. She limited her argument to an analysis of s. 29(1). To my mind, this provision does no more than instruct the parties to calculate the insured person's PEC using the same rules as are employed to calculate pre-accident income. I do not read the section as a prohibition against revisiting these calculations where appropriate. The use of the words "shall be deemed" is a reference to the fact that, with one important proviso that is the subject of the next part of these reasons, an employed person cannot argue that their true capacity exceeds what they were actually earning. This ground of appeal is dismissed.

The last PEC issue concerns the last part of s. 29, which provides that in certain circumstances, if the insured was employed part-time before the accident, she can convert that income to a full-time equivalent, for the purposes of calculating her PEC. The three conditions that trigger such a conversion are set out in s. 86. They can be paraphrased as follows:

the person was employed "at some point" during the period over which she elected to have her pre-accident income calculated;
the person would have worked on a full-time basis at some time after the accident; and
the person's pre-accident income did not include income from self-employment.

The Arbitrator found that Mrs. Armstrong met all of these conditions, and converted her income into a full-time equivalent. Guardian argues that the Arbitrator erred when she found that Mrs. Armstrong met the first and second conditions.

With respect to the first qualification, Guardian argues that the conversion is not available to Mrs. Armstrong because she was working full-time at the time of the accident. I am not persuaded by this argument. Section 86(1)(a) states that the conversion is appropriate if "the person was employed on a part-time basis at some point during the period of time used under section 9 for the purpose of determining the amount of the person's weekly income replacement benefits." Nothing in this wording suggests that the insured person is precluded from taking advantage of the section merely because they are employed full-time at the time of the accident. To the contrary, a plain reading of the provision indicates that it is available if the insured was employed part-time "at some point during the period."

Nor can I see any policy reason for restricting the section in the manner suggested by Guardian. The purpose of the section would be undermined if a person who was employed part-time throughout the applicable period could convert their income to a full-time equivalent, but a person who worked part-time for most of the year, but was fortunate enough to secure full-time employment on the eve of an accident, could not.

On the question of the second qualification – the person would have worked full-time at some time after the accident – the Arbitrator correctly noted that this involves some degree of conjecture. She adopted the test, enunciated in Kennelly and Wawanesa Mutual Insurance Company, (FSCO A99-000139, January 21, 2000), that the insured person must establish "at least a real or cogent possibility" that she would be employed full-time. Mrs. Armstrong testified that she had been told she was next in line for a position at a hospital that was classified as a part-time position, but that the employees in this group all worked full-time hours. The Arbitrator accepted this evidence and found that Mrs. Armstrong had established at least a real or cogent possibility that she would have secured full-time employment. This conclusion was open to her on the evidence.

I see no error in the conclusion that Mrs. Armstrong was entitled to convert her part-time earnings to full-time earnings.²

B. The REC Issues

Section 30(1) states that the insured person's REC shall be based on the type of employment that best suits the criteria set out in s. 30(2). Those criteria are:

The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

The employment exists in the area in which the person lives and is accessible to the person.
It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

Guardian argued that Mrs. Armstrong was capable of working full-time as a light duty nurse, and that this occupation met all of the other criteria in s. 30(2). It also argued that the income from this type of employment exceeded Mrs. Armstrong's PEC, and, accordingly, her LECB should be nil. Guardian's position was bolstered by the findings of the REC DAC which also concluded that Mrs. Armstrong's REC should be calculated on the basis of employment as a nurse in a clinic or doctor's office, and that this work was available in Peterborough and accessible to Mrs. Armstrong. Mrs. Armstrong argued that she was completely disabled at the time of the REC assessment.

The Arbitrator rejected Mrs. Armstrong's assertion that she was incapable of working. However, as noted above, she also found that the REC DAC's assessors overestimated Mrs. Armstrong's physical abilities. She found Mrs. Armstrong was capable of part-time work only. In addition, she found that any part-time work that was available in Peterborough was not accessible to Mrs. Armstrong. In the absence of any alternate position being advanced by Guardian, the Arbitrator found that Mrs. Armstrong's REC was nil. Guardian challenges this conclusion.

The question of what REC the Arbitrator should assign when she concludes the insured person is not totally disabled, but also rejects the REC DAC's conclusions, is a vexing one. I have some sympathy for Guardian's submission that the Arbitrator must have erred when she concluded that Mrs. Armstrong had no REC, given that she had found that she was capable of working at least part-time. In Desroches and Economical Mutual Insurance Company, (P99-00062, June 2, 2002), I indicated that an insured person who was not totally disabled, but consistently took the position that they could not return to work and refused to participate in any meaningful rehabilitation program, had little chance of establishing that their REC should be fixed at nil. However, in this case, the Arbitrator found that, at least initially, Mrs. Armstrong actively pursued employment in the two occupations she had been employed in before the accident, but was unable to secure a job in either field.

Section 30(1) states that the claimant's REC should be based on the employment that best meets all the criteria in s. 30(2). This suggests that the drafters contemplated that in many cases the insured person will be capable of a number ofjobs that would meet the criteria. Ideally, an arbitrator will be presented with a series of possible occupations, from which they could choose the appropriate one. Unfortunately, in many cases the Arbitrator is not given any alternatives, and the arbitration boils down to a "this or nothing" exercise. In this case, the only real option presented to the Arbitrator was employment as a light-duty nurse in Peterborough. She found that this employment did not meet the requirements set out in s. 30(2). Given the facts of this case, and the limited options presented to the Arbitrator, I am not prepared to say that she erred in law when she found that Mrs. Armstrong's REC was nil. Let me turn now to the specific arguments advanced by Guardian.

The accessibility issue

As noted above, the Arbitrator found that the few light-duty nursing positions that were available in Peterborough, at the time of Mrs. Armstrong's REC assessment, were not accessible to her. The Arbitrator started her consideration of this issue by referring to the 1996 version of the Commission's Guideline for Designated Assessment Centres to Conduct Residual Earning Capacity Assessments, which states that employment is accessible "if the claimant could reasonably compete for a job of that employment type, should such a job become available."

The Arbitrator accepted evidence that at the time there were many nurses looking for light duty nursing who were far more qualified and experienced than Mrs. Armstrong. Consequently, she found that Mrs. Armstrong, who had worked in the field for less than a year, would not have had a reasonably opportunity to compete for the available positions.

The written submissions Guardian filed on appeal are very hard to reconcile with its oral argument. In its written submissions, it dealt with the 'accessibility' criteria in the context of its more general argument that the Arbitrator should have assessed Mrs. Armstrong's REC on the basis of clerical work in the Peterborough area. In that regard, it submitted that:

"not only do clerking jobs exist in the Peterborough area, they are accessible to Ms. Armstrong, as nursing jobs are not. The likelihood of Ms. Armstrong securing a job as a clerk in the Peterborough area is far greater than the likelihood of Ms. Armstrong securing a job as a nurse" [emphasis in original].

I do not know how it is possible to read this submission as anything other than a concession that light-duty nursing jobs in Peterborough were not accessible to Mrs. Armstrong.

In contrast, during the appeal hearing Guardian argued that the Arbitrator erred when she found that light-duty nursing jobs in the Peterborough area were not accessible to Mrs. Armstrong. Guardian accepted the definition of "accessible" set out in the Guideline, but argued that the Arbitrator read the Guideline too literally. It conceded that it may have been difficult for Mrs. Armstrong to secure a position, but argued that the evidence could not support a finding that she had "no chance of getting a job."

Quite apart from the inconsistency with the written submissions, I am not persuaded by Guardian's oral argument that the Arbitrator erred in law. This submission is really about the Arbitrator's weighing of the evidence. I am satisfied there was evidence to support the Arbitrator's finding that Mrs. Armstrong could not reasonably have competed, and hence this finding is not reviewable on an error of law standard.

Guardian's second complaint with the Arbitrator's assessment of the REC issue springs from the fact that Mrs. Armstrong's PEC was calculated on the basis of her earnings in Toronto, but her REC was assessed by reference to the job market in Peterborough.

Guardian pursued this argument at two levels. One, it argues that the LECB scheme is based on a formula that can only work if the PEC and the REC are calculated on the basis of the same job market. I am sympathetic to this argument. The model works best if both sides of the equation are in balance, but this ideal is infrequently replicated in the real world. The simple passage of time between the date of the accident and the assessment of the REC may affect the job market. In addition, our world is increasingly mobile and people move from one job market to another for many reasons. As noted by the Arbitrator, if the drafters' intention was to have the REC assessment conducted on the basis of the job market in the place where the insured resided at the time of the accident, it would have been an easy matter for them to have said so. A plain reading of the provision suggests that the REC assessment must be based on the job market where the person resides at the time of the transition to LECBs, not where they lived at the time of the accident.

During oral argument, Guardian conceded that the legislation stipulates that the assessment must be based on the job market where the person lives. However, Guradian argues that the insured person has an obligation to conduct their affairs in such a way that they can return to the workforce once they recover. Guardian argues that Mrs. Armstrong's decision to move to Peterborough was inconsistent with this obligation. It submits that in light of this, the Arbitrator should have assessed her REC in accordance with the Toronto job market. This argument has some attraction at a theoretical level. However, it is inconsistent with the way Guardian adjusted the file.

As the two-year anniversary of the accident approached, Guardian retained Ms. Dana McGee to "conduct a vocational rehabilitation assessment with regard to the client's entitlement to a loss of earning capacity benefits." By then Mrs. Armstrong had already been actively, but fruitlessly, trying to find work in Peterborough. Ms. McGee testified that she and Mrs. Armstrong discussed the fact that the job market in Peterborough was tighter than Toronto. However, Guardian did not point me to any evidence to suggest that Ms. McGee or anyone else told Mrs. Armstrong that she had acted unreasonably when she moved to Peterborough, or that she should move back to Toronto to look for work, and that if she did not, this fact would be taken into account when it came time to assess her entitlement to LECBs. To the contrary, when Ms. McGee prepared her report for Guardian, she prepared it on the basis of the Peterborough job market, not the Toronto job market.

On a related note, Guardian argues that the Arbitrator erred in failing to take into account that Mrs. Armstrong "resisted obtaining a driver's license contrary to her obligation under section 13(1) of the Schedule which would have permitted her to access broader areas of Peterborough and the surrounding areas." The Arbitrator touched on this issue in a part of her reasons designed to give the parties some guidance for the future. The Arbitrator indicated to Mrs. Armstrong that she should enroll in a driver's education program, and that if she did not, it could have consequences for her future entitlement to benefits. But she also stated that Guardian had "dropped the ball" when it failed to tell Mrs. Armstrong that it would fund this program. These findings do not support Guardian's submission that Mrs. Armstrong resisted obtaining a driver's license.

In the alternative, Guardian submits that the Arbitrator erred when she failed to assess Mrs. Armstrong's REC on the basis of employment as a clerk. This argument suffers from the same defect as the Toronto vs. Peterborough argument. Guardian's present submission that "the position of 'clerk' best satisfies the criteria in section 30 of the SABS. . ."[emphasis in original] and that the Arbitrator erred when she failed to make this finding, is inconsistent with the way it put the matter to the Arbitrator.

Ms. McGee, to her credit, recognized that Mrs. Armstrong's first choice was to return to nursing, and she initiated a program designed to assist Mrs. Armstrong in that regard. Subsequently, she prepared a work-up for an LECB offer. That work-up focused on nursing. Guardian then prepared a written LECB offer which states "The type of employment used to calculate your Residual Earning Capacity is: Nurse - clinic or doctor's office (NOC - #3152)."

Guardian is now attempting to recast the debate when it suggests the Arbitrator should have found that clerical work was the employment that best satisfied the criteria in s. 30(2). There was plenty of background information about clerical work, but Guardian did not present the Arbitrator with a REC based on clerical work. In light of the way Guardian argued the case, I am not persuaded that the Arbitrator erred because she failed to identify clerical work as the occupation that best satisfied the criteria in s. 30 and thereafter fixing a REC on the basis of that occupation.

C. The Special Award

Mrs. Armstrong asked the Arbitrator to impose a special award "as a result of various actions taken by the Insurer throughout the course of the adjustment of her claim." The Arbitrator found that "[while] Guardian's conduct was less than exemplary and co-operative throughout the process, I do not feel that there are grounds to order a special award in this case." She went on to state that "[s]pecial awards are payable in specific circumstances in which an insurer has unreasonably withheld or delayed payments to an applicant. They are not awarded in cases in which an insurer has merely been unco-operative, but whose actions have not resulted in a withholding or delay in payments."

Mrs. Armstrong's written submissions suggest that notwithstanding these general comments, the Arbitrator made findings during the course of her decision that amounted to findings that Guardian had unreasonably withheld benefits. However, during the course of oral argument,

Mrs. Armstrong was not able to point to any examples. To his credit, counsel for Mrs. Armstrong conceded that in the absence of any examples, the appeal had no chance of succeeding. This ground of appeal is dismissed.

IV. EXPENSES

Each party submits they are entitled to the expenses of the appeal.

Both the appeals have been dismissed. Guardian's appeal was, in many respects, an attempt to recast the positions it took at the arbitration. As stated earlier, this was not appropriate. On the other hand, Mrs. Armstrong's appeal was quite weak. However, she argues that her appeal should be seen in a different light because it was a "cross-appeal" that would not have been brought in the absence of Guardian's appeal. I am not persuaded by this argument. Mrs. Armstrong had a choice in the matter. With choice comes responsibility. The fact that Guardian appealed first did not absolve her of that responsibility. However, there is room for a consideration of the time spent on the respective appeals. In that regard, the time spent on Guardian's appeal outweighs the time spent on Mrs. Armstrong's appeal. Weighing all these factors, I award Mrs. Armstrong a portion of her expenses, fixed at $750.