Dianne Scott v. State Farm Mutual Automobile Insurance Company, 2003 ONFSCDRS 77

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2003 ONFSCDRS 77 FSCO A01-001288

BETWEEN:

DIANNE SCOTT Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: David Muir Heard: February 17, 18, 19 and 20, 2003, in Hamilton, Ontario. Appearances: Pamela Blaikie for Mrs. Scott Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Dianne Scott, was injured in a motor vehicle accident on March 20, 1999. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on May 10, 2001. The parties were unable to resolve their disputes through mediation, and Mrs. Scott 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:

1. Is Mrs. Scott entitled to income replacement benefits from May 10, 2001 to date and ongoing pursuant to section 4 of the Schedule?

2. What is the quantum of income replacement benefits to which Mrs. Scott is entitled pursuant to sections 4, 7 and 60 of the Schedule? State Farm takes the position that a HOOPP pension that Mrs. Scott began receiving effective June 1, 2000 is deductible from her income replacement benefit.

3. Is Mrs. Scott entitled to a medical or rehabilitation expense for a golf cart in the amount of $1,300 pursuant to section 14 or 15 of the Schedule?

4. Is Mrs. Scott entitled to be paid a special award, pursuant to section 282(10) of the Insurance Act, because State Farm unreasonably withheld or delayed the payment of a benefit?

5. Is Mrs. Scott entitled to interest on any overdue payments of benefits, pursuant to subsection 46(2) of the Schedule?

6. Is either party entitled to their reasonable expenses of the arbitration?

Result:

1. Mrs. Scott is entitled to income replacement benefits from May 10, 2001 to date and ongoing pursuant to section 4 of the Schedule.

2. The HOOPP disability pension is not deductible from the income replacement benefit and accordingly Mrs. Scott is entitled to a weekly benefit of $218.25.

3. Mrs. Scott is entitled to a rehabilitation expense for a golf cart in the amount of $1,300, pursuant to section 15 of the Schedule.

4. Mrs. Scott is not entitled to a special award.

5. Mrs. Scott is entitled to interest on amounts found to be owing, pursuant to section 46(2) of the Schedule?

6. The question of expenses is deferred at the request of the parties.

At the outset of the hearing, Mrs. Scott requested an order pursuant to Rule 42.4 of the Dispute Resolution Practice Code, allowing her to call three experts: Dr. R. Dunlop, an orthopaedic surgeon; Dr. Bryan Alton, Mrs. Scott's family physician; and Mr. David Antflick, a rehabilitation counsellor. Her counsel indicated that Mrs. Scott would be giving evidence, as well as her husband and her son. State Farm opposed the requested order.

I declined to grant the order, subject to the opportunity to renew the request after Mrs. Scott gave her evidence. The request was not renewed.

The parties agreed to the admission of a limited number of documents, out of the four volumes of material provided by Mrs. Scott. Several additional exhibits were filed as well.

The evidence was recorded by a court reporter, although no transcript was produced prior to this decision being released.

EVIDENCE AND ANALYSIS:

Mrs. Scott seeks income replacement benefits beyond 104 weeks. In order to be entitled to benefits she must establish that she is completely unable, as a result of impairments from injuries sustained in the motor vehicle accident, to perform the duties of any position for which she is reasonably suited by reason of her education, training or experience. State Farm takes the position that Mrs. Scott does not meet the standard of disability in the Schedule and argues that there is work that Mrs. Scott can do.

State Farm also states that Mrs. Scott has honestly but mistakenly focussed on the accident as the source of her difficulty. State Farm argues that Mrs. Scott's real difficulties are the result of pre-existing back problems or, alternatively, a painful incident at the kitchen sink after the accident. State Farm also argues that Mrs. Scott has given up on working in favour of disability benefits of various kinds.

The parties also disagree about the treatment of a Hospitals of Ontario Pension Plan ("HOOPP") disability pension that Mrs. Scott began receiving in June 2000. Mrs. Scott states that this benefit is akin to a Canada Pension Plan Disability Pension and is not deductible from income replacement benefits. State Farm takes the position that this pension is more in the nature of a temporary disability plan or an income replacement plan and deductible either pursuant to section 7 or section 60 of the Schedule.

The parties are agreed that Mrs. Scott's income replacement benefit, if she is entitled to it, is $218.25, if the HOOPP pension is not deductible. If the pension is deductible the income replacement benefit is reduced to zero.

Mrs. Scott is a 54 year old married woman, with a son who is approximately 30 years old. Mrs. Scott has worked much of her life in various administrative or clerical positions. Prior to the car accident, Mrs. Scott had been employed for about 14 years as a medical secretary at the St. Joseph's Health Centre in Hamilton. For most of her adult life she has worked full time but, like many women, reduced her involvement in the formal labour market when her son was young.

The Causation Issue:

Mrs. Scott's pre-accident health was generally good with some notable exceptions which have raised some questions, at least in the view of State Farm. Mrs. Scott has suffered from some back and neck problems in the past. In the late 1980s, she experienced some neck pain and missed some time at work. Physiotherapy was successful in returning Mrs. Scott to her prior level of function. In the mid 1990s, she was again off work as a result of pain in her lower back. Again, physiotherapy was helpful and she returned to her previous job. In mid to late September 1998, Mrs. Scott bent down to retrieve a file from a bottom drawer and in her words "put her back out." She worked with the pain for a couple of weeks but was soon directed by her treating physician, Dr. Alton, to stop working. She was diagnosed as suffering a herniated disc at left L5-S1. She began a regime of physiotherapy and medications with a view to returning to the workplace.

When conservative treatments were not successful in resolving her pain, it was decided that surgery was required. The procedure was performed by Dr. Dunlop on January 14, 1999.

Mrs. Scott testified that after the surgery she felt like "a new woman." The pain she had been suffering since the Fall was gone and she was able to begin resuming most of her pre-accident activities. Her evidence is confirmed to some degree by Dr. Dunlop who saw Mrs. Scott on February 23 and, based on what she told him about her condition and his physical examination, cleared her for physiotherapy with a view to her returning to her normal daily activities. Dr. Dunlop testified that he has conducted approximately 2,500 surgeries like that performed on Mrs. Scott and in his experience, 85% of them are completely successful with a further 10% receiving some benefit. He also testified that a referral for physiotherapy is normally a sign that the patient falls within the completely successful category.

Dr. Dunlop testified that based on what he observed of Mrs. Scott in February, it was possible that she would have been able to return to work. In a letter written to Dr. Alton at the time, Dr. Dunlop indicated that he had felt that Mrs. Scott "was probably going to be ready to return to work."

Mrs. Scott testified that she was planning to return to work after Easter, in April 1999. She stated that she made some new outfits to wear to work, spoke to colleagues and her supervisor about a possible return, and made arrangements with one of the doctors she worked for to come in on the weekend of April 6 to meet with him to review current patient files.

There is no substantial evidence contradicting Mrs. Scott's evidence that she planned to return to work and, despite the lack of a formal clearance to return to work from her doctors, I find that she planned to return to work in early April 1999.

I accept Mrs. Scott's testimony that, as a result of the car accident, the pain that she had been experiencing prior to the back surgery returned and she was unable to return to work as she had planned. Again her evidence is supported by Dr. Dunlop who saw her shortly after the car accident and conducted a physical examination. I find that the motor vehicle accident materially and substantially contributed to Mrs. Scott's difficulties and were the source of her subsequent complaints and impairments.

I also do not agree with State Farm's position that an incident recorded in the clinical notes of Dr. Alton, Mrs. Scott's family doctor, where Mrs. Scott is reported as having turned away from her kitchen sink and then feeling a sharp pain in her lower back, is evidence of the real source of her physical complaints.

The only evidence with respect to the incident at the kitchen sink in April 1999 is contained in the notes of Dr. Alton. It is limited and ambiguous. Is it a record of a symptom of an injury sustained in the automobile accident, or something else? It is not clear. I am not able to make a finding that this incident is the source of Mrs. Scott's difficulties rather than the car accident, where it is clear from other evidence contained in the records of Dr. Alton, the evidence of Dr. Dunlop, and elsewhere in the material tendered in evidence, that she was in difficulty prior to April 26, the date the kitchen sink incident is said to have occurred. Mrs. Scott had no particular recollection of this incident and I accept her evidence that the injuries she sustained in the car accident were the reason she was unable to return to work as she had planned in April 1999.

State Farm also relied upon a response in Box #5 of Mrs. Scott's application for Canada Pension Plan Disability Benefits in its argument that it was the pre-existing back injury in the Fall of 1998 that prevented Mrs. Scott from returning to the work force. The question required Mrs. Scott to indicate why she had stopped working, to which the following reply is given: chronic pain in neck, back and low back, pain in legs and hips. Mrs. Scott agreed that this is a description of the symptoms that arose from the car accident and not the back injury in 1998, but stated that she had understood the question to be asking for an explanation for why she could not work at the time she made the application. She maintained that position despite the fact that there is another question (#18) that asks for a description of the illnesses or impairments that prevent you from working. I accept Mrs. Scott's explanation.

State Farm also states that either at the time of the accident or at some time thereafter, Mrs. Scott mistakenly fixed on the accident as the source of her problems and gave up on the notion of working again. Instead, she began her pursuit of benefits of various kinds to secure her future.

I do not agree.

Her work history, detailed in the evidence, indicates a woman of some competence and drive. Mrs. Scott testified at length about her work at St. Joseph's which she evidently enjoyed. She testified that she does not enjoy her life now. She does not enjoy the isolation of being stuck in her home and misses the social interaction that the working world and in particular the job at St. Joseph's had provided.

Mrs. Scott also testified that the effects of the car accident have limited her other activities of daily living. She stated that she no longer gardens, boats, golfs or participates in many of the activities organised at the trailer park where she and her husband attend most weekends in the summer. She also stated that she can no longer dance with her husband at the Legion on Friday nights, an activity that the couple regularly enjoyed prior to the car accident.

Contrary to State Farm's assertion that Mrs. Scott has devoted herself to the pursuit of benefits, Mrs. Scott has done all that has been asked of her in seeking to rehabilitate herself. She participated in relatively extensive passive and active physiotherapy until at least the end of 1999 when she discontinued treatments after benefits were terminated. She testified that she administers TENs treatments at home and attempts to walk each day to remain active. She also attended the Chedoke/McMaster Pain Management Clinic in August/September 2001, and will soon attend a further pain management program at St. Joseph's Hospital. Although these treatments have helped Mrs. Scott to cope with her limitations to some degree, she stated they have not had much impact on her level of function.

In February 2001, she sought to return to work; however, Dr. Alton, in consultation with officials at St. Joseph's Hospital, vetoed her return to work proposal.

The Disability Issue:

Mrs. Scott testified that she continues to be unable to work because the neck and back pain, headaches, pain in her legs, memory loss and difficulties ambulating, prevent her from reliably attending at any work place. She stated that she has some good days where she would be able to work for a period of time, but there are many other days when she is unable to even get out of bed because of her pain and stiffness. She also stated that she cannot drive because she cannot turn her head, and she needs a cane to ambulate indoors and out, or she loses her balance and falls. As described above, she also testified about the effect her injuries have had on her ability to continue to participate in other pre-accident activities of daily living.

Dr. Stoltz, a neuroligist, testified at the hearing. She examined Mrs. Scott on behalf of State Farm in September 1999. Dr. Stoltz offered the opinion in a report dated September 21, 1999 that Mrs. Scott should have been able to return to work by November 1999 with modified hours initially. Dr. Stoltz has not seen Mrs. Scott since that time and could not comment on her current state of health, although she did state that nothing she had seen in preparation for the hearing had caused her to change her opinion.

Mrs. Scott was also assessed by Dr. R.G. Josefchak, an orthopaedic surgeon, in November 1999, at the request of State Farm. Dr. Josefchak found that there was no specific orthopaedic reason for Mrs. Scott being unable to perform the duties of a medical secretary.

A functional abilities evaluation was performed by Ms. Cathy Butler of F.I.T. Rehabilitation and Assessment Centres (F.I.T.) in February 2001 at the request of Mrs. Scott's representatives. Despite her findings of very pain focussed behaviour and inconsistent effort in testing, Ms. Butler concluded:

Overall, Ms. Scott demonstrated as unable to meet any of the strength or mobility demands of her job as a medical secretary. In addition, her slow work pace would not meet the demands of gainful employment.

A transferable skills analysis was performed by Evergreen Rehabilitation Services in conjunction with the F.I.T. evaluation. The assessors, Corinne T. McAuley, psycho-vocational consultant, and J. Carson Bock, psychologist, concluded that Mrs. Scott was not competitively employable because of her physical inability to perform sedentary work such as her pre-accident employment as a secretary. These assessors were of the view that Mrs. Scott was in need of psychological counselling with a view to some further rehabilitation efforts, such as reducing her fear of driving.

State Farm commissioned a functional capacity evaluation (FCE) and transferable skills analysis of its own. The FCE was conducted by Phil Towsley, Occupational Therapist, in March 2001. Mr. Towsley determined Mrs. Scott's effort in the functional testing to be inconsistent and the results very likely underestimated her physical abilities. However, based on her actual performance in the testing, Mr. Towsley identified four categories of positions that Mrs. Scott could adequately perform, given some workplace accommodations and a graduated return to work or work hardening. Mr. Towsley did not conduct any labour market analysis to determine whether there were any positions available for people who would require workplace accommodations and a graduated return to work.

The four categories of position identified by Mr. Towsley included Customer Service, Information and Related Clerks; Receptionist and Switchboard Operators; Secretary (except legal and medical); and Medical Transcriptionist.

Mrs. Scott was assessed by Mr. David Antflick, a Vocational Evaluation Specialist and Registered Rehabilitation Professional, in July 2002 at the request of her representatives. Mr. Antflick reviewed a medical brief provided by Mrs. Scott's representative (much of which was not presented at the hearing) and interviewed Mrs. Scott.

Mr. Antflick concluded in a report dated July 4, 2002 that Mrs. Scott was continuously prevented from working in any occupation for which she was reasonably suited by reason of her education training or experience:

Even with the motivation of a return to the customary work she knew as a competent secretary/receptionist and loved (job satisfaction); a resumption of earning an income and regaining her financial independence (financial incentive); and a re-establishing of her self-esteem (personal and 'quality of life' incentive); the extent of her disability continues to prevent her from carrying on with the essential duties of her pre-accident work or any work. I think this further confirms her disability.

In my opinion this 56 year old woman is not capable of any alternate employment mainly because of her severe and prolonged physical and mental disabilities. She has participated willingly and fully in all those treatment measures prescribed for her and yet she has not accomplished symptomatic or functional improvement. She remains one with severe physical disabilities and psychological/psychiatric issues. In my opinion, as a result she will never be capable of a return to any gainful employment.

Mr. Antflick also testified at the hearing that, in addition to the issues he raised in his report, the length of time that she has been out of the work force, her age and need for accommodations and work hardening, as well as her physical limitations, all of these together made it extremely unlikely that there is a "real world" employer or job for Mrs. Scott.

I find that Mrs. Scott is completely unable to perform the essential duties of any of the categories of position identified by Mr. Towsley because of the injuries she sustained in the accident.

I make this finding based in part on her evidence that she suffers constant but variable pain in her back, neck, legs as well as her headaches, memory problems, inability to sit or stand for lengthy periods of time, to reach above her head, crouch, squat or bend at the waist or to ambulate properly. I also accept her evidence that because of these difficulties she is not employable in any capacity because of her limited levels of function and essential unreliability.

I also prefer the conclusions of Mr. Antflick, and the Evergreen and F.I.T. assessors each of whom concluded that Mrs. Scott was not employable in a competitive capacity because of her extremely inconsistent and unreliable levels of effort and function, over that of Mr. Towsley who although coming to similar conclusions about her functional capacity concluded that there were jobs that she could do even with her marked limitations and unreliability.

There is no real disagreement about Mrs. Scott's level of function. Her limitations are amply demonstrated in the FCE conducted by Mr. Towsley. For example, Mrs. Scott was only able to cursive write 10.5 words per minute over 10 minutes after which she reported fatigue. Her typing test was somewhat better - she was able to type 227 words in 10 minutes with 17 errors. After this short test Mrs. Scott reported an increase in neck and low back pain, aching in her left arm and increased fatigue. It is difficult to imagine any clerical/administrative work that would require such minimal levels of output.

As suggested by Mr. Antflick, compounding the difficulty posed by her functional limitations are the facts of Mrs. Scott's age and, more significantly, her need for workplace accommodations. I find that Mr. Towsley's assumption that there are employers who would hire someone with Mrs. Scott's impairments and need for workplace accommodations to be unrealistic.

I find, therefore, that Mrs. Scott is entitled to an income replacement benefit from May 10, 2001 to date and ongoing.

The Golf Cart:

Mrs. Scott seeks the cost of a second-hand golf cart which she uses to get around the trailer park where she and her husband spend most weekends for six months of the year. She states that she needs the golf cart because she is unable to walk more than short distances and to get around the park to participate in leisure activities there and to visit friends.

In order to be entitled to the cost of the cart, Mrs. Scott must establish that it is reasonable and necessary under either of section 14 or 15 of the Schedule. Although a claim might have been made pursuant to section 14(2)(f), I am inclined to think that the better fit would be section 15(2) and 15(5)(l), which require the insurer to pay for reasonable and necessary measures undertaken by the insured person to reduce or eliminate the effects of an impairment suffered in a motor vehicle accident.

State Farm suggested that the cart was purchased for the use of Mr. Scott who has had some undisclosed health problems in the recent past. However, I accept his evidence that the cart was bought for the use of his spouse, that he was a walker, and, in any event, he was required to walk the family dog who could not be persuaded to use the golf-cart. I also accept his evidence that he bought a second-hand cart and fixed it up himself - I have taken this into account when considering the reasonableness of the purchase. I accept the evidence of Mrs. Scott that she could not walk any great distance at the trailer park, that it was a large space and, to participate in any sense in the social life of the park, she required assistance in getting around. I also accept her uncontradicted evidence that the use of automobiles was prohibited in the park except for arrivals and departures. I find that the purchase and use of the second-hand golf cart was a reasonable and necessary measure to minimize the effects of her inability to walk other than short distances, which is a result of impairments suffered in the car accident.

The HOOPP Issue:

State Farm takes the position that the HOOPP pension is deductible from Mrs. Scott's income replacement benefit pursuant to either section 7(1) or section 60(1) of the Schedule. The parties were unable to point to any decided cases directly on point, however a number of decisions concerning the deductibility of collateral disability benefits from income replacement benefits were provided.²

Section 7(1) of the Schedule provides that the quantum of income replacement benefits can be reduced by the amount of "net weekly payments for loss of income that are being received by the person as a result of the accident ... or under any income continuation plan." Section 60 allows the insurer to deduct from an income replacement benefit "any temporary disability benefit ... in respect of an impairment that occurred before the accident."

I find that the HOOPP disability pension is not deductible from Mrs. Scott's income replacement benefit.

Mrs. Scott opted to pay into the HOOPP pension plan. She paid a portion of the premium for this plan, with the remainder being paid by her employer.

A guide to the HOOPP plan describes the options available to Mrs. Scott when she remained unable to return to work after the motor vehicle accident as follows:

Disability Pensions

If you can't return to any job due to a total and permanent disability, you have two options under HOOPP:

• you can, at the end of your approved health leave, apply for an extended disability leave (see previous section); or

• you can apply for a HOOPP disability pension.

To qualify for a disability pension, HOOPP must determine that you meet its definition of totally and permanently disabled. In addition, you must be under age 65 and:

• have belonged to HOOPP for at least two years;

• have contributed to the Plan before your date of disability; and

• apply for the disability pension within four years of the last day that you worked.

A HOOPP disability pension is calculated based on the projected years of contributory service you would have built in HOOPP up to age 65 or 35 years of service, whichever would have come first had you not become disabled. However, projected disability pensions cannot exceed the year's maximum pensionable earnings (YMPE) for the year in which the disability pension started.

In May 2000, Mrs. Scott applied for a HOOPP disability pension as she was entitled to, within four years of the date of her disability. In July 2000, Mrs. Scott was approved for the pension effective June 1, 2000. The pension was calculated on the projected weeks of contributory service she would have accumulated to age 65 (or 35 years of service) had she not become disabled from working, subject to a maximum established by Revenue Canada. The plan also provided for death benefits, in the forms of a survivor's pension or a lump sum payment to a beneficiary if there is no spouse.

State Farm argued that the HOOPP plan was in the nature of a temporary disability plan until age 65 and therefore an income continuation plan within the meaning of section 7. State Farm relied on a decision of the Ontario Superior Court of Justice in De Frias v. Lumbermeens Mutual Casualty Company [2000] O.J. No. 603. The case dealt with a similar question arising under a prior Schedule - whether the payments made to Mr. De Frias, pursuant to a disability insurance program under a collective agreement, were for "loss of income" and whether the payments were an "income continuation plan." Brockenshire J., after reviewing the law in this area including the decision of the Ontario Court of Appeal in Cugliari, found that the payments in question were deductible because the sickness and accident and long term disability plans "were and are income continuation plans":

The origin of the plans under the Collective Agreement, the direct relationship of the disability to the employment of the disabled person, the commencement date of payments being tied to the working schedule of the disabled person, the exemption out of holidays, the continuing involvement of the union and the employer in disability examinations, and the direct relationship of the amount of benefit to the amount of income of the disabled person all point to the payments as being payments for loss of income.

The nature of the disability plan at issue here is different than that described in the court’s reasons set out above. It is not so clearly tied to Mrs. Scott’s employment and I find is more like the disability pension at issue in the decision of Director's Delegate Draper in Wilcox and Economical Mutual Insurance Company (FSCO P99-00015, March 2, 2000).

In Wilcox, the dispute centred on the deductibility of payments received on a personal disability policy. The question again was whether or not the payments made pursuant to that plan were "payments for loss of income ... under any income continuation plan." Drawing on the factors considered important by the Director's Delegate in Wilcox, I find that the disability retirement pension received by Mrs. Scott is not an income continuation plan because:

It is a pension. The benefit level is not directly related to Mrs. Scott's income at the time that she went off work, but is a defined benefit plan based on years of membership in the plan;

Mrs. Scott voluntarily chose to enroll in the plan and was not required to do so;

Mrs. Scott was not required to show economic loss in order to qualify for the pension;

The pension was payable, so long as Mrs. Scott met eligibility criteria, at any time within four years of her last day of work.

Accordingly, the HOOPP pension is not a payment for loss of income under an income continuation plan and therefore is not deductible from income replacement benefits, pursuant to section 7(1) of the Schedule.

I also find that the HOOPP pension is not deductible from income replacement benefits pursuant to section 60 of the Schedule.

State Farm did not specify precisely which provisions of section 60 that it was relying on, however, I find that neither of paragraphs 1 or 2 of the section is applicable to Mrs. Scott's circumstance. In both provisions the deduction allowed is of temporary disability benefits or other periodic benefits received by an applicant "in respect of an impairment that occurred before the accident."

I have already concluded that what prevented Mrs. Scott from returning to work, and what continues to prevent her from working, was the motor vehicle accident and not the back problems which initially caused her to leave her work in the Fall of 1998. Accordingly, I find that the HOOPP disability payments were not made in respect of an impairment that occurred before the accident and they are not deductible from the net weekly benefits that she is entitled to receive from State Farm.

SPECIAL AWARD:

Mrs. Scott indicated at the outset of the hearing that she was not prepared to abandon the special award claim at that stage. The issue was not raised in submissions at the conclusion of the hearing. In any event, I find there is no basis for a special award in this case.

EXPENSES:

The parties requested that the issue of expenses be deferred. They may speak to the issue now, in accordance with the provisions of the Dispute Resolution Practice Code, if unable to resolve the issue themselves within 30 days of the release of this decision.

May 15, 2003

David Muir Arbitrator

Neutral Citation: 2003 ONFSCDRS 77 FSCO A01-001288

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DIANNE SCOTT Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE 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. State Farm shall pay Mrs. Scott income replacement benefits from May 10, 2001 to date and ongoing in the amount of $218.25, pursuant to section 4 of the Schedule.

2. State Farm shall pay Mrs. Scott a rehabilitation expense of $1,300 for a golf cart, pursuant to section 15 of the Schedule.

3. State Farm shall pay Mrs. Scott interest on those amounts found owing to her, pursuant to section 46(2) of the Schedule.

May 15, 2003

David Muir Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2In the decision Crevier-Lamarche and Missisquoi Insurance Company (OIC A96-000865, January 12, 1998), it was agreed and therefore not decided that a HOOPP disability pension was deductible from income replacement benefits. 3(1998) 1998 CanLII 5505 (ON CA), 159 D.L.R. (4th) 254; leave to appeal to the Supreme Court of Canada denied, [1998] S.C.C.A. No. 302