Allstate Insurance Company of Canada v. Simpson, 2003 ONFSCDRS 90

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2003 ONFSCDRS 90

Appeal P01-00057

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALLSTATE INSURANCE COMPANY OF CANADA

Appellant

and

PAMELA SIMPSON

Respondent

Before:

Nancy Makepeace

Representatives:

John D. Dean for Allstate

David S. Wilson for Ms. Simpson

Hearing Date:

June 11, 2002

APPEAL ORDER

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

1. The appeal is allowed, and the Arbitrator’s order, dated November 16, 2001, is revoked.

2. The parties shall bear their own appeal expenses.

June 6, 2003

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Allstate Insurance Company of Canada (“Allstate”) appeals from the Arbitrator’s order, dated November 16, 2001, that Ms. Simpson’s accrued vacation credit of $3,124.42 must be included in her pre-accident income, for the purpose of calculating her income replacement benefit (“IRB”) under s. 8 of the SABS–1996.¹ Allstate also challenges the Arbitrator’s order that Ms. Simpson “continued to be entitled to” IRBs as of the last day of the arbitration hearing. Although Allstate continued to pay IRBs at that time, and agreed that Ms. Simpson continued to be entitled to them, it contends that the Arbitrator lacked authority to make an entitlement order without a full hearing on the merits.

For the following reasons, I find the Arbitrator erred in law on both points.

II. BACKGROUND

Pamela Simpson was injured in two automobile accidents. The first occurred on November 1, 1995. Trafalgar Insurance Company of Canada (“Trafalgar”) was the Insurer responsible for paying accident benefits under the SABS-1994.² At the time of the first accident, Ms. Simpson worked as a linen room attendant at two Toronto hotels, the Westin Harbour Castle and the Hilton. She worked full-time hours at both jobs, for a total of 80 hours per week. After the accident, she was able to return to modified work at the lighter of her two pre-accident jobs (the Hilton) on a graduated basis, beginning in September 1996. By April 1, 1998, she was working four full-time days, totalling 32 hours per week. She has not returned to her job at the Westin.

Ms. Simpson received IRBs from Trafalgar pursuant to s. 7 of the SABS-1994. On October 31, 1997, Trafalgar terminated her IRBs and made a “zero” loss of earning capacity benefit (“LECB”) offer under Part VI of the SABS-1994. Ms. Simpson commenced arbitration in February 9, 1998, eventually leading to interim arbitration orders, under s. 279(4.1) of the Act, dated July 16, 1998 and February 4, 2000, and an expenses assessment order dated July 10, 2000.

Ms. Simpson was involved in another automobile accident on May 4, 2000. A different accident benefits regulation B the SABS-1996 B governed her claim, and she received IRBs from a different insurer B Allstate. On October 16, 2000, Allstate issued a stoppage notice. Ms. Simpson did not request a DAC assessment,³ but applied for mediation and arbitration of the dispute. On November 22, 2000, Allstate stopped paying IRBs in accordance with the stoppage notice, as it was entitled to do.

Soon after applying for arbitration, Ms. Simpson requested an interim benefits order. Allstate requested an insurer examination under s. 42 of the SABS-1996. At a combined motion/pre-hearing on May 16, 2001, Allstate agreed to reinstate IRBs between November 22, 2000 and April 25, 2001, and from June 26, 2001, and ongoing, on condition that she attend another insurer examination scheduled for that day. As a result, Arbitrator Evans held that the interim benefits motion was premature. He also found that financial hardship was not an issue since Ms. Simpson had recently received $15,000 in relation to the first accident. As well, Trafalgar had granted Ms. Simpson’s claim for an LECB supplement of $250 per week and ongoing, pursuant to s. 32 of the SABS-1994. Allstate deducted 20 per cent from Ms. Simpson’s reinstated IRBs in order to recover the overpayment related to Trafalgar’s LECB supplement award.

At Ms. Simpson’s request, Arbitrator Evans reserved a motion date in August 2001, in case Allstate terminated benefits before the main hearing. Allstate continued to pay, so the date was vacated. The arbitration hearing went ahead on October 29-November 1, 2001. The issue in dispute was Ms. Simpson’s claim for IRBs after the November 2000 termination date.

Arbitrator Leitch presided. When the hearing commenced, Allstate did not oppose Ms. Simpson’s position “that she currently satisfies the test” for IRBs, and continued to pay IRBs pursuant to the agreement reached at the pre-hearing in May 2001. Ms. Simpson requested an order “establishing her entitlement to income replacement benefits.” In a decision dated November 16, 2001, the Arbitrator made the order over Allstate’s objections. Allstate submits this was an error of law.

Vacation pay was the second issue before the Arbitrator. Ms. Simpson was entitled to five weeks vacation per year, equivalent to 10 per cent of her wages. She testified that she could cash this money out if she terminated her employment, but could not do so while working for the hotel. However, she could carry forward her balance from year to year. By the time of the accident, she had accrued vacation pay of $3,124.42. The Arbitrator concluded this accrued vacation pay should be included in Ms. Simpson’s pre-accident income for the purpose of calculating her IRBs.⁴

Allstate appealed the order on December 13, 2001. Because the decision left several issues to be spoken to at a resumption of the arbitration hearing on December 14, 2001, I invited the parties to make submissions as to whether the appeal was premature. The parties agreed it would be more cost-effective to put the appeal on hold pending that decision. After its release, Allstate advised that it would appeal only the November 16, 2001 decision.

I heard the parties’ oral submissions on June 11, 2002. On October 10, 2002, I received a letter from Allstate, advising that the parties had settled, and that settlement documents were being prepared. On January 21, 2003, Allstate advised that the settlement would not be finalized.

III. ANALYSIS

A. The Entitlement Order

Allstate submits the Arbitrator exceeded his jurisdiction by ordering that Ms. Simpson continued to be entitled to IRBs as of the last day of the hearing. The Insurer relies on s. 279(1) and s. 282(3) of the Act, which, read together, give arbitrators jurisdiction over disputed issues about entitlement to accident benefits and the amount of benefits. The most the Arbitrator could do, Allstate argued, was record Allstate’s agreement that Ms. Simpson was entitled to benefits. In the alternative, Allstate submitted that if the Arbitrator had jurisdiction, he should not have made an entitlement order without a full hearing on the merits.

Arbitrator Leitch held that his jurisdiction included “any closely-related jurisdiction, procedural or remedial issue even if the underlying issue of entitlement or quantum is not disputed.”⁵ Since the parties’ agreement addressed entitlement (“the entitlement issue”), but “did not address the Applicant’s request for an order establishing entitlement” (“the order issue”), he concluded he had jurisdiction over the order requested. He relied on s. 279 and s. 283 and his inherent authority to control the process. Therefore, he concluded he was not bound to accept Allstate’s withdrawal as putting an end to the matter without further orders or consequences. He concluded he should issue the order requested because Allstate reserved its right to contest entitlement at a later date.

I agree this was an error of law.

The key to the Arbitrator’s decision is the following passage:

Having decided not to contest the Applicant’s entitlement, I fail to see how my issuing an order establishing her entitlement results in any unfairness or prejudice to the Insurer. I have made no finding about the effect of this order. Both parties retain all their rights to dispute the effect of the order. In any event, it is also not clear to me how the issuance of the order “changes the nature of the relationship between the parties.” Even if section 287 does afford the Applicant the procedural protection described by Mr. Wilson, a point which remains to be determined, the Applicant will still be required to satisfy the applicable rules of eligibility.

On the other hand, I clearly see how my refusing to issue an order establishing entitlement results in both unfairness and prejudice to the Applicant: unfairness in that entitlement was not contested by the Insurer, though it could have been; prejudice in that, without the order, the Applicant can make no argument about its effect. An order establishing the Applicant’s right to income replacement benefits will, therefore, be issued.⁶

The only possible reason for Ms. Simpson to request an order was to gain the protection of s. 287 of the Act, the “protection of benefits” provision:

An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284.

The effect of s. 287 is clear: it protects an insured person’s benefits after an order of the Director or an arbitrator. Contrary to the Arbitrator’s reasons, this marks a significant change in the parties’ relationship. Without the order, Allstate could terminate Ms. Simpson’s benefits by following the procedure set out in the SABS-1996. The Arbitrator’s order prevented it from doing so without obtaining a further order or the insured person’s consent.

Allstate relied on Nelson and Liberty Mutual Insurance Company. Mr. Wilson made the same argument in that case, and it was rejected by Arbitrator Sapin. In this case, Mr. Wilson attempted to distinguish that decision on the basis that is was an interim decision⁷ and arose out of an attempted settlement of the matter. In my view, these distinctions are matters of form only. In substance, the issue before the Arbitrator was the same one considered by Arbitrator Leitch: is an insured person entitled to an order based on an insurer’s reinstatement of benefits. I cannot improve on Arbitrator Sapin’s reasons:

The mandatory language of section 287 is very clear, prohibiting an insurer from reducing benefits unless it first applies to vary or appeal an existing order of an arbitrator. The prohibition depends upon the existence of an order; without one, the prohibition, and the section itself, is meaningless.

How then, does one obtain such an order? Under the arbitration scheme as set out in the Insurance Act, there are two ways to obtain an order contemplated by section 287. The first is as part of the final determination of the matters in dispute by an arbitrator as a result of an arbitration hearing on the merits.⁸ The second is on the consent of the parties. In the latter case, where the parties have settled the matters in dispute, an arbitrator may order that the arbitration is dismissed.⁹ Presumably, settlement need not be the only circumstance in which the parties may consent to an order, and not every consent order need result in the dismissal of an arbitration.

In this case, the Applicant did not obtain an order for ongoing IRBs as a result of her motion for interim benefits, and an arbitration hearing on the issue of her entitlement to these benefits has not yet taken place. Liberty does not consent to an order for ongoing IRBs, and I was presented with no authority that would permit me to impose such an order either as a term of settlement, or on any grounds other than a hearing of the merits. Indeed, the imposition of an order runs contrary to the concept of voluntary settlement of disputes.

The Applicant’s argument is, in essence, one of fairness, in that it can be said that she has not as yet received the full benefit and protection of the arbitration process, which in her case is an order for ongoing benefits pursuant to section 287. However, the process is not yet over. As there is no order dismissing the arbitration, and the issue of an order for ongoing entitlement to IRBs is still very much in dispute, there is no reason why a hearing on the merits cannot still take place, regardless of the fact that Liberty Mutual reinstated benefits and continues to pay them. A hearing on the merits would no doubt be considerably shortened by the fact that Liberty Mutual concedes that Ms. Nelson currently qualifies for IRBs based on the medical evidence.¹⁰

The same logic applies in this case. Shortly before the hearing, Allstate agreed Ms. Simpson was entitled to benefits, but it did not waive its right to contest entitlement at some later date. There was no settlement agreement. Ms. Simpson may have hoped that Allstate would not reassess her claim after the arbitration hearing, but the simple answer is that absent a consent order based on the parties’ agreement to that effect,¹¹ her options were to proceed with the arbitration hearing in the hopes of obtaining a s. 287-protected order, or dispute any future termination at that time.

I am not persuaded Allstate has treated Ms. Simpson unfairly. The Insurer did not attempt to withdraw, or otherwise prevent Ms. Simpson from proceeding to a full hearing on the merits.¹² The Arbitrator was given no reason to believe it would terminate benefits improperly, or that Ms. Simpson would be precluded from seeking an appropriate remedy if it did.¹³ This was not an appropriate case for rendering an entitlement order without a hearing. The order was premature, and the Arbitrator erred in law in making it.

B. Accrued Vacation Pay

The parties agree that vacation pay is “income” for SABS purposes. The issue is how it should be counted and over what period. Ms. Simpson submitted that since, at the time of the accident, she would have been entitled to cash out the entire amount of her vacation pay on termination of her employment, and she was entitled to take the equivalent amount of vacation (about six weeks), the entire amount should be included in her income. The Arbitrator accepted her position. Because she elected to have her income calculated based on the four weeks before the accident, rather than the 52 weeks before the accident, as permitted under s. 8 of the SABS-1996, the addition of some six weeks pay substantially increased her benefit entitlement.

Allstate submits that the Arbitrator erred in finding that Ms. Simpson’s income included her accrued vacation pay, since she neither received it nor took vacation in the four weeks before the accident.

Vacation entitlement disputes are often complicated by ambiguous language. “Vacation pay,” strictly speaking, is the income a person receives while on vacation. “Accrued vacation pay” might be better described as a vacation credit or entitlement. Vacation credits are a way of deferring income to a period when the employee is not working. Employers give vacation credits in different ways. For salaried employees, an annual income is usually spread out over the year’s pay periods, so that a pay stub during a vacation period looks no different from any other pay stub, as long as the employee has accrued enough vacation credits. However, Ms. Simpson’s employer differentiated between regular pay and vacation pay on her pay stubs.

For example, her pay stub for the pay period ending February 12, 2000, when she worked one week and took vacation one week, listed “regular pay” of $513.28 and “vacation pay” of $507.20. Ms. Simpson also took the next two weeks off, so her pay stub for the period ending February 26, 2000 listed “vacation pay” of $1,029.60 and no “regular pay.” Her pay stub for the period ending May 11, 2000 (the pay stub following the accident) listed “regular pay” of $720.72 and no vacation pay. Under the “year-to-date” column, there is an entry for “vacation pay” of $1,536.80. This was the total amount of vacation pay Ms. Simpson received for her three-week vacation in February that year. She did not take vacation or receive vacation pay in the four weeks before the accident.

The accrual of vacation credits is another issue. While some employees accumulate vacation credits expressed as a certain number of weeks per year, or a certain number of days per month, Ms. Simpson’s employer used a percentage of wages method. A letter from the hotel itemized its contributions on Ms. Simpson’s account for Employment Insurance, Canada Pension Plan, workers compensation, vacation, and other benefits in the four weeks before the accident. The vacation contribution was described as follows:

Percentage accrual of vacation pay = $1,853.28 x 10% = $185.33

This amount did not appear on Ms. Simpson’s pay stubs and was not actually paid to her. If the contribution of $185.33 was income, Ms. Simpson’s gross income for the four weeks before the accident totalled $2,038.61.

The Arbitrator took another approach. He accepted Ms. Simpson’s submission that her income for the four weeks before the accident included her “unpaid vacation pay” of $3,124.42, accumulated by carrying forward her unused balance from year to year. Ms. Simpson testified this represented her unused vacation pay accrued over 25 years of employment with the Hilton.

The Arbitrator described as “rather surprising” Ms. Simpson’s evidence “that she took no vacation between November 1995 and January 1999,”¹⁴ but ultimately accepted it, based on her affidavit evidence introduced in her interim benefits motion. Allstate challenged this ruling on appeal, noting that Ms. Simpson did not return to work after the first accident until September 1996, and then worked only on a part-time basis. Allstate submitted that the Arbitrator erred in law by finding that the most accurate “earnings picture” included both regular pay and banked vacation pay.

Appeals are restricted to questions of law,¹⁵ and it is not my role to second-guess the Arbitrator’s factual findings. My finding that the Arbitrator erred does not depend on his factual assessment of Ms. Simpson’s earnings picture. I find that he erred in law by finding that Ms. Simpson’s accrued vacation credits were “income” before they were paid. To see why this is so, consider what Ms. Simpson’s entitlement would have been if she had taken vacation for two of the four weeks before the accident. Allstate concedes that her vacation pay received during that period would be included in her income. Her benefits would be based on two weeks “regular pay” plus two weeks “vacation pay.” For her two vacation weeks, she would receive vacation pay instead of her regular pay, not in addition to it. The remainder of her “accrued vacation pay” B about three weeks pay, if she had five weeks accrued at the beginning of her vacation B would remain in her vacation “account” for use at another time.

On the other hand, if Ms. Simpson had terminated her employment before the accident, and cashed out her accrued vacation pay, that payment would count as income, though the parties might disagree as to whether the amount should count as a lump sum payment or be averaged over four weeks or 52 weeks or some other period. But Ms. Simpson did not terminate her employment at the Hilton. As a result, she retained the right to receive her accrued vacation pay at some future date. In that event, her vacation pay would be counted as post-accident income, not pre-accident income.

FSCO decisions on this issue have consistently stressed that different employment situations require different treatment of vacation pay. For example, in Ford and Wawanesa Mutual Insurance Company, the insured person had just started his vacation when he was injured in an automobile accident. He was entitled to vacation time, and accrued vacation pay at the rate of 8 per cent of his income. Director’s Delegate Draper determined that his income in the four weeks before the accident included his vacation pay, but not his accrued vacation pay:

Mr. Ford’s vacation pay was in no sense a windfall. It was not paid on top of other income, but as part of his regular work schedule, which included vacation time. Consequently, I see no reason the “income when received” approach cannot be adopted. However, the two approaches cannot be mixed. If Mr. Ford’s income includes the vacation pay he received, it cannot also include his accrued vacation pay.¹⁶

Delegate Draper found that Mr. Ford’s employment arrangements differed from the insured person’s situation in Nguyen and Progressive Casualty Insurance Company. Mr. Nguyen was involved in an accident after starting his regular seasonal layoff. He was not entitled to vacation time, but received a lump sum payment of his annual vacation pay within the four weeks prior to the accident. Arbitrator Naylor held that Mr. Nguyen’s vacation pay was income, but, on the facts of that case, “it better reflects the reality of Mr. Nguyen’s earnings profile to allocate the money at the rate that it accrues, than to attribute it exclusively to the four weeks when it was paid.”¹⁷

The facts in Brooks and Wawanesa Mutual Insurance Company were closer to those in Nguyen than Ford. Ms. Brooks was employed on a term contract in the four weeks before the accident and was not entitled to vacation time. She was paid on an hourly basis, and received an additional 4 per cent for vacation pay on each pay cheque. (This distinguished her situation from Mr. Nguyen’s B she received her vacation pay as it accrued, not in a lump sum.) Unlike Ms. Simpson, Ms. Brooks “could theoretically work 52 weeks and be paid 54 weeks’ wages.” Arbitrator Muir concluded that Ms. Brooks’ accrued vacation pay was income because she “was entitled to and did receive on each pay cheque the accrued amount of her vacation pay for that period.”¹⁸

In Howden and Pafco Insurance Company, the insured person accrued vacation pay at the rate of 10 per cent of income, which was listed separately on each pay cheque. The Arbitrator rejected Ms. Howden’s argument that her income in the four weeks before the accident should be increased by 10 per cent to reflect her accrued vacation pay. Director’s Delegate Naylor confirmed this on appeal. In this case, Arbitrator Leitch attempted to distinguish Howden:

The Applicant was not constrained, as was Ms. Howden, to take her annual vacation in accordance with the normal cycle described above. In fact, between November 1995 and January 1999, the Applicant took no vacation at all but rather took her accrued vacation pay through annual contributions to her vacation account.

I recognize that the Applicant’s employer holds this money in trust and must, eventually, pay it out to the Applicant, just as the employer in the Howden case had to pay Ms. Howden her remaining vacation pay on termination. However, in the Howden case, the employer’s payment was only necessary in order to reconcile Ms. Howden’s vacation entitlement for the year of termination. It did not form part of Ms. Howden’s normal “earnings picture”; in the normal year, Ms. Howden was forced to take her vacation pay in the form of paid vacations. The Applicant, on the other hand, was not forced to take her vacation in the form of paid vacations. She was permitted to take her vacation pay in the form of contributions to her vacation account. Moreover, the available evidence regarding her recent employment history confirms that she most frequently, though not always, took her vacation pay in the form of contributions to her vacation account.¹⁹

This confuses vacation contributions or credits and vacation pay. Ms. Simpson’s “contributions to her vacation account” were deferred payments that she could later use for vacation pay. This money cannot be paid twice.

I am not persuaded Howden is distinguishable. As I read Delegate Naylor’s decision, the balance in Ms. Howden’s vacation account was a factor in her reasoning, but it was not determinative. The following is the key passage:

In my view, this case turns on its facts. The purpose of vacation pay is to ensure that employees continue to receive wages during holiday periods when they are not working. Ms. Howden was paid her full salary for the four weeks. Under the collective agreement, vacation time had to be taken within the vacation year. Vacation pay was not payable unless Ms. Howden took a paid vacation day in lieu of working or was terminated, neither of which happened in the relevant time. According to evidence, at the time of the accident, Ms. Howden was well on her way to having taken the vacation time to which she was entitled in the year before the accident. In other words, paid vacation was included in her annual income, not on top of it.²⁰

As I stated in Singh and Wellington Insurance Company, “a yearly vacation is an expected and regular part of the work cycle.”²¹ In my view, vacation pay generally becomes income when it is actually paid. Accrued vacation pay is not income; it is deferred income. There will be exceptions to this general rule B for example, where the employee is not entitled to vacation time, but receives an additional amount for vacation pay, as in Nguyen and Brooks.

In Ms. Simpson’s case, her vacation credit of $3,124.42 was deferred income. It was not received by or available to her at the time of the accident. For these reasons, I find that the Arbitrator erred by ordering Allstate to count Ms. Simpson’s accrued vacation pay as income for the purpose of determining her IRB.

The question remains whether the $185.33 her employer contributed for the four weeks prior to the accident was “income.” This would present a more accurate picture of Ms. Simpson’s gross annual income,²² but I am not satisfied it resolves the more serious conceptual problem identified above. Ms. Simpson earned this employer contribution in the four weeks before the accident, but it was not paid or available to her because she did not terminate her employment or take vacation during that period. The money is deferred income, to be paid to the employee at some later time. Ms. Simpson can only be paid this money once. By deferring her vacation, she deferred its payment.

IV. EXPENSES

Allstate succeeded on both grounds of appeal. However, I do not find it appropriate to order an insured person who had the benefit of an arbitrator’s order to pay the appeal expenses of a successful insurer-appellant. The parties shall bear their own expenses.

June 6, 2003

Nancy Makepeace Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule C Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Statutory Accident Benefits Schedule B Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended.
3. 3A disability assessment at a Designated Assessment Centre under s. 37 of the SABS-1996.
4. 4The three subsequent decisions in this matter (February 6, 2002, March 11, 2003 and April 4, 2003) do not pertain to the issues on appeal.
5. 5Arbitration decision, at p. 7.
6. 6Arbitration decision, p. 8.
7. 7See also Sellathamby and Allstate Insurance Company of Canada, (FSCO P02-00009, December 17, 2002)
8. 8Subsections 282(3) and (13) require an arbitrator to determine all issues in dispute, and to deliver a copy of his or her order together with a copy of his or her written reasons for decision, respectively. [footnote in original]
9. 9Under Rule 66 of the Code, which deals with settlement, an arbitrator has no authority to issue an order other than a consent order dismissing the proceedings. Rule 66 requires the parties to file with the Commission, among other things, the terms of their settlement and a written agreement that the consent order is final and shall not be subject to appeal, variation, revocation, or judicial review. Compared to an order obtained as a result of a hearing, an order under Rule 66 amounts to an ironclad guarantee of finality. [footnote in original]
10. 10(FSCO A00-000253, November 8, 2001), at pp. 6-7.
11. 11Pursuant to Rule 69 of the Dispute Resolution Practice Code - Fourth Edition (May 31, 2001).
12. 12Contrary to Allstate’s submission, nothing in the Act or the SABS prevents an insurer from contesting an insured person’s entitlement to benefits while it continues to pay benefits. In fact, where a disability DAC report supports the insured person’s claim, s. 37(5) of the SABS-1996 expressly preserves the insurer’s right to dispute entitlement and requires the insurer to pay benefits pending resolution of the dispute.
13. 13Ms. Simpson relied on Jensen and GAN Canada Insurance Company, (FSCO P96-00079, March 31, 1999) and Graper and Liberty Mutual Fire Insurance Company, (FSCO A00-000133, July 20, 2001), which stand for the proposition that an insurer’s unilateral reinstatement of benefits before the hearing does not preclude a special award, under s. 282(10) of the Act, based on unreasonable delay. They do not suggest the insurer should be ordered to pay the now-reinstated benefits.
14. 14Arbitration decision, p. 9.
15. 15Act, s. 283(1).
16. 16(FSCO P00-00005, August 4, 2000), at p. 11.
17. 17(OIC A-004698, August 31, 1994), at pp. 16-17.
18. 18(FSCO A00-000790, March 6, 2002), at p. 18.
19. 19Arbitration decision, pp. 13-14.
20. 20(FSCO P00-00028, June 22, 2001), at p. 18.
21. 21(OIC A-004139, June 24, 1994).
22. 22The Arbitrator did not specify whether the $3,124.42 was to be added to Ms. Simpson’s gross annual income or her gross income in the four weeks prior to the accident. The latter calculation would add some $40,000 to Ms. Simpson’s gross annual income, because paragraph 1 of s. 8(3) requires the four-week amount to be multiplied by 13. The SABS does not appear to contemplate any other method of calculation where the insured person designates the four-week “window” under s. 8(1). It could also be argued that an insured person’s annual vacation entitlement, or the balance that remains at the time of the accident (probably two weeks in Ms. Simpson’s case), should be added to her gross annual income. I would dismiss this argument for the reasons given. Ms. Simpson could have designated the 52 weeks before the accident, but presumably found the four-week window more to her benefit.