Jerry Champaigne v. Co-operators General Insurance Company, 2008 ONFSCDRS 189

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 189

Appeal P07-00011

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JERRY CHAMPAIGNE

Appellant/Cross-Respondent

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Respondent/Cross-Appellant

BEFORE:

David Evans

REPRESENTATIVES:

Ms. Carolyne Champaigne and Ms. Jill Stevens for Mr. Champaigne

Bruce A. Keay for Co-operators General

HEARING DATE:

December 11, 2007, with additional materials filed January 7, 2008

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 by Mr. Champaigne of the arbitrator’s order dated March 14, 2007 is denied and paragraphs 1, 2, 3, 5, and 6 thereof are confirmed.

2. The cross-appeal by Co-operators General Insurance Company of the arbitrator’s order dated March 14, 2007 is allowed and paragraph 4 thereof is rescinded.

3. If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 27, 2008

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Jerry Champaigne appeals the arbitrator’s denial of his claims for various benefits under the SABS–1996.¹ Co‑operators cross-appeals the arbitrator’s award of some rehabilitation benefits.

II. BACKGROUND

Mr. Champaigne claimed for injuries arising out of a motor vehicle accident on August 22, 2002. The arbitrator found the accident exacerbated Mr. Champaigne’s pre-existing cervical degenerative disc disease and caused cervical, shoulder and low back injuries, and some dizziness complaints.

Mr. Champaigne was a self-employed broker delivering freight in his own truck for Apex Motor Express Ltd. to Sudbury-area customers. The arbitrator found that he had a solid work history building up a cargo transport business where earnings depended on cargo weight. He found that Mr. Champaigne’s pre-accident employment required pushing, loading, unloading, lifting and carrying extremely heavy items on a deadline.

Mr. Champaigne tried to continue his business, partly by using replacement labour. Co-operators paid income replacement benefits (IRBs) pursuant to s. 4 of the SABS, subject to deductions for post-accident employment, until June 16, 2003. On that day, Mr. Champaigne pulled a muscle in his back at work. The arbitrator found the work accident unrelated to the car accident. Furthermore, the arbitrator found that during the ensuing six weeks, when Mr. Champaigne was receiving Workplace Safety and Insurance Board (WSIB) disability benefits, Co‑operators was not required to pay benefits because of s. 59 of the SABS. This section provides that an insurer is not required to pay benefits under the SABS where the insured person is entitled to receive benefits under any workers’ compensation law or plan. The arbitrator required Co‑operators to resume paying IRBs after those six weeks.

The arbitrator made a similar finding with respect to a work-related accident on October 31, 2003: He was not persuaded that any dizziness arising out of the motor vehicle accident caused the work accident, or that any exception to s. 59 applied. However, he also found that Mr. Champaigne had not recovered enough to resume his former employment, and awarded him IRBs from February 13, 2004 until August 21, 2004.

The arbitrator denied IRBs more than 104 weeks after the accident on the basis that there was other suitable employment for Mr. Champaigne that he could perform.

The arbitrator’s findings that the car accident did not cause the October 2003 work accident and that Co-operators did not owe any post-104 week benefits were based on his extensive review of the medical evidence as well as his lengthy review of Mr. Champaigne’s credibility. The appeal focused in particular on these findings.

With respect to the IRB amount, the arbitrator found that Mr. Champaigne was not entitled to business losses that were hypothetical or represented lost increases in profits.

With respect to medical claims under s. 14, the arbitrator denied two claims for treatment from Dr. C. Michlowski, chiropractor. Other denials played little role in the appeal and, based on the reasons given by the arbitrator, I see no error and will deal with them no further:

• truck rental: no explanation of its reasonableness or necessity or connection to s. 14;
• YMCA membership – enhanced spa use: heat relief was available elsewhere;
• rehabilitation worker/assistant: no particulars;
• housekeeping: no documentation, independent evidence, or medical support.

The arbitrator denied a special award under s. 282(10) of the Insurance Act.

Co-operators cross-appeals the arbitrator’s s. 15 rehabilitation awards for a driver’s helper and for replacement drivers. The arbitrator found that the assistance served a rehabilitative purpose by allowing Mr. Champaigne to keep working.

III. ANALYSIS

Mr. Champaigne submits that the arbitrator failed to provide adequate reasons, distracted him due to his typing during the hearing, and took so long to write the decision that he forgot what the case was about.

By way of background, I note that this was a long arbitration hearing. There were a total of 15 hearing days from July 19, 2004 to January 10, 2006. On September 3, 2004, the arbitrator issued an interim benefits decision. Due in part to Mr. Champaigne’s difficulty in presenting his case, the arbitrator ordered Co‑operators to fund expert reports about his physical condition and the amount of his IRBs, up to the maximum of $1,500 per report. That decision is about 35 pages long, there were several letters to the parties afterwards, and the final decision is about 80 pages long. There is no lack of reasons. The arbitrator devoted many pages to assessing the medical evidence and to explaining why he found problems with Mr. Champaigne’s credibility. The arbitrator was entitled to make notes, and since he had a transcript (ordered late in the process, by letter dated December 2, 2005), there is no reason to think the passage of time affected his decision.

Mr. Champaigne submits that the arbitrator erred when he did not discuss the psychovocational report of Dr. Trevor Smith dated December 23, 2005 that Mr. Champaigne sought to introduce during final submissions. However, I take that as an implicit refusal to accept evidence filed at the very end of the process, which was certainly within the arbitrator’s jurisdiction. Furthermore, he had already accommodated Mr. Champaigne on other reports to the detriment of Co-operators, such as when he ultimately admitted an April 15, 2005 report of Dr. M. St. Martin, general practitioner, which he had originally sealed. In any event, the arbitrator was not required to discuss every piece of evidence.

Mr. Champaigne’s tendency to raise new issues and present new evidence late in the process, such as with Dr. Smith’s report, continued at the appeal hearing with respect to the WSIB claim after the second work accident. Mr. Champaigne injured himself at work on October 31, 2003, when a large bolt impaled his leg. A good portion of the decision related to the arbitrator’s finding that Co-operators was not required to pay benefits for the period immediately after that work accident because, pursuant to s. 59 of the SABS, Mr. Champaigne was entitled to and was approved to receive WSIB benefits.² I take no note of evidence given during the appeal submissions of discussions with the WSIB regarding these benefits. What matters is that the WSIB had paid a claim for a $3,750 treatment plan for physiotherapy dated November 10, 2003 from Mr. M. De Angelis, registered physiotherapist, a claim that was withdrawn at the hearing on that basis.

The arbitrator made the comment that Mr. Champaigne spent considerable time arguing not what the law is, but what he believed it should be. That comment is particularly apt regarding the WSIB issue. Pursuant to s. 59(2), s. 59 does not apply if an insured elects to bring an action, provided the election was not made primarily for the purpose of claiming benefits under the SABS. However, since there was no evidence that Mr. Champaigne ever brought an action, the arbitrator found that s. 59(2) did not apply and that Mr. Champaigne made the election primarily to claim SABS benefits from Co‑operators. The arbitrator made a finding and applied the law correctly.

Mr. Champaigne submits that the arbitrator erred in rejecting the causation issue. Mr. Champaigne argued that he suffered the leg injury at work due to dizziness arising from the August 2002 automobile accident. The arbitrator rejected this theory because, based on contemporaneous injury reports, he was not persuaded that any dizziness arising out of the car accident contributed to the October 2003 work accident. (The arbitrator added that, due to Mr. Champaigne’s belief that Co-operators was responsible for the October 2003 accident, he withdrew his claim for WSIB disability benefits, which contributed to the demise of his business.) Mr. Champaigne’s submissions reflect his misunderstanding of the arbitrator’s role in arriving at a decision and my role in reviewing it. Essentially, Mr. Champaigne submits that there were other reports after the accident that referred to dizziness at the time of the accident.

However, appeals are only on a question of law.³ As reiterated by the Divisional Court in Kanareitsev v. TTC Insurance Co., 2008 CanLII 26262, [2008] O.J. No. 2132,⁴ this means that my role is not to try the case de novo or substitute my own views of the facts. The reasons simply need refer to the principal evidence relied upon and provide a justification for the conclusions. In that regard, the arbitrator listed the reports that did not refer to dizziness at the time of the accident:

• contemporaneous ambulance and Sudbury Regional Hospital records;
• Employer’s Report of Injury to the WSIB;
• November 6, 2003 Disability Certificate from Dr. J. Kusnierczyk.

He then set out the reason why he did not place weight on later reports that referred to dizziness, as these turned on Mr. Champaigne’s own self-reports, about which the arbitrator had serious concerns. The arbitrator’s decision was therefore based on and justified by evidence.

In any event, the causation issue is irrelevant because s. 59 precludes Mr. Champaigne from pursuing statutory accident benefits no matter which insurer would have been liable to pay them.

Accordingly, the arbitrator’s finding that Co-operators was not liable to pay benefits during the acute phase of injury after the work-related accident of October 2003 is upheld.

Mr. Champaigne submits that the arbitrator erred in assessing both the medical evidence and his credibility when he considered benefits for the post-104 week period, when the insurer is not required to pay IRBs “unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience” [s. 5(2)(b)]. Indeed, the arbitrator’s assessment of Mr. Champaigne’s credibility played a large role in his conclusion regarding these benefits, given the limitations and conflicts in the medical evidence that the arbitrator saw and the degree to which that evidence relied on information from Mr. Champaigne.

However, most of Mr. Champaigne’s submissions consist of his referring to other evidence that he considers to be in his favour and therefore, he submits, the arbitrator’s reasons are inadequate. Again, the decision in Kanareitsev provides guidance, since it held that adequate reasons do not require a detailed analysis of each and every aspect of the major points in issue. Furthermore, it is important to understand the relationship between the arbitrator’s findings about medical evidence and credibility: he found that there was little medical evidence to support post-104 week payments, and Mr. Champaigne’s lack of credibility meant that the arbitrator had no other basis on which to make such an award. By way of comparison, in Watson and TTC Insurance Company Limited, (FSCO A04–000346, July 18, 2006),⁵ the arbitrator faced a similar situation, but found the applicant in that case credible enough to award some benefits despite the problems in the medical evidence.

Turning to the medical evidence first, Mr. Champaigne submits that the arbitrator erred in assessing it, particularly with respect to the witnesses he called. However, Mr. Champaigne is essentially asking me to weigh the evidence, which is not my role. The arbitrator reviewed the medical evidence over a considerable number of pages and explained why he found much of it unhelpful. With respect to the witnesses in particular, the arbitrator noted that, notwithstanding the broad range of experts Mr. Champaigne had seen, he chose to only call Mr. De Angelis, a physiotherapist, and Ms. D. Borosch, a massage therapist. The arbitrator noted that Ms. Borosch testified that she could not express an opinion on Mr. Champaigne’s ability to work, the key issue in dispute. Similarly, the arbitrator found that Mr. De Angelis provided opinion evidence significantly outside his area of expertise that was of little assistance because they were based on incomplete information and on expertise that he did not possess. Instead, he accepted the view of Dr. J. Cisa, an orthopaedic surgeon retained by the Insurer who conducted a March 3, 2005 paper review, that Mr. De Angelis had taken on the role of Mr. Champaigne’s champion.

Mr. Champaigne submits that the arbitrator should not have accepted Dr. Cisa’s view on Mr. De Angelis’s role, as his report was a paper review that did not meet the criteria for an insurer’s examination set out in s. 42. However, this was not an insurer’s examination under s. 42 but a response to the late filing of a report from Mr. De Angelis, so the s. 42 criteria did not apply. The arbitrator specifically allowed Dr. Cisa’s report as evidence over Mr. Champaigne’s objections in light of his earlier ruling. As noted in the recent arbitration decision Borowski and Aviva Canada Inc., (FSCO A07–002593, September 12, 2008), such paper reviews have not been censured by arbitrators, and a paper review is a relatively unobtrusive means of obtaining evidence for a hearing. Accordingly, the arbitrator did not err in preferring Dr. Cisa’s view.

The arbitrator set out why he was not prepared to find in Mr. Champaigne’s favour based on the medical evidence, and there was evidence to support his conclusion. The same can be said of the other submissions Mr. Champaigne made regarding the medical evidence.

I will now deal with the one major piece of evidence that might have helped Mr. Champaigne prove his entitlement to post-104 week benefits. The arbitrator was aware of the problems with the medical evidence on this issue. That is why he had provided interim funding for a medical report to address Mr. Champaigne’s post-104 week condition.

However, the report that Mr. Champaigne obtained was from Dr. M. St. Martin, a general practitioner. First, the arbitrator found him to be an advocate for Mr. Champaigne. For instance, Dr. St. Martin signed a Disability Certificate dated August 24, 2004 that was almost identical to those of Mr. De Angelis (dated August 27, 2004) and Dr. Michlowski⁶ (dated July 26, 2004). Amongst other things, all three reports denied – despite Dr. Michlowski’s extensive pre-accident treatment – any pre-accident disease, condition or injury affecting Mr. Champaigne’s ability to work. Furthermore, Mr. Champaigne testified that he and another patient of Dr. St. Martin had actually filled in the report. Given that context, the arbitrator drew the reasonable conclusion that none of the reports were actually written by the medical practitioners and simply reflected Mr. Champaigne’s endeavours to advance his cause.

Second, the arbitrator found Dr. St. Martin’s report itself to be medical-legal advocacy. The arbitrator noted that the report did not mention Mr. Champaigne’s prior medical condition, the June 2003 accident, or the effect of the October 2003 accident. He did not explain how, even though Mr. Champaigne was supposedly getting worse, his own documents showed him returning twice to full hours of employment. Most critically, he did not explain how someone who, in his own view, missed little time from work in the months after the August 2002 accident and could return to his pre-accident work or some modification thereof (which would still involve heavy lifting and carrying) was now suffering a complete inability to engage in any type of suitable employment.

Accordingly, the arbitrator was justified in concluding that Dr. St. Martin’s evidence did not assist Mr. Champaigne. Given the lack of evidence to show that Mr. Champaigne met the post-104 week test, the arbitrator then considered whether his credibility nonetheless suggested that he should receive benefits. However, the arbitrator documented over 16 pages of his decision his concerns about Mr. Champaigne’s credibility. He found that Mr. Champaigne massaged the facts to fit his perspective of what the law should allow and tailored the evidence to maximize what Co‑operators should pay. The arbitrator found that Mr. Champaigne had not been up-front about his pre-accident medical history, the extent of his disabilities, the significance of his post-August 2002 work-related accidents, or his use of replacement labour.

Mr. Champaigne submits that the arbitrator erred in drawing those conclusions about his credibility. However, all the conclusions drawn were supported by evidence.

For instance, regarding the pre-accident history, the arbitrator concluded that Mr. Champaigne had a pre-accident spinal condition, including his neck, of some significance, given the 47 attendances with Dr. Michlowski from October 1999 to September 2001 that Mr. Champaigne paid for himself, despite a high tolerance for pain. The arbitrator then documented the instances where Mr. Champaigne downplayed this history, such as in statements to assessors and testimony before the arbitrator. Regarding the extent of Mr. Champaigne’s disabilities, the arbitrator set out the documentary evidence after the accident showing that Mr. Champaigne missed relatively little time, such as in a disability certificate prepared by Dr. St. Martin on November 21, 2002, and used relatively little replacement labour.

Furthermore, the arbitrator’s reasons for his findings on credibility were extensive. A useful comparison is with the Watson case. Watson, which was about attendant care and housekeeping, also turned on credibility, and despite “an ample foundation for doubting the credibility of the Claimant,” as the Divisional Court put it, the arbitrator noted that Ms. Watson was “adamant that she had received both attendant care and housekeeping services.” The court found that the decision was based not just on demeanour but “when read in its entirety the decision of the Arbitrator demonstrates that he weighed the issues of credibility in the context of the evidence as a whole in coming to his conclusion that the care had been provided. The Arbitrator was entitled to believe all, some or none of what a witness said and, in this instance, he believed the evidence that the Claimant did need the services and that she received the care and services.”

The same applies in this case. The arbitrator set out in detail why he did not believe that Mr. Champaigne was entitled to benefits beyond the 104 weeks, and he was entitled to do so.

Finally, with respect to the 104-week test, the arbitrator noted that Mr. Champaigne had made no effort to try to find alternative employment, despite having skills from knowledge of the pool business and the movie industry, shipping and receiving, and some managerial experience. Rather, the arbitrator was persuaded that Mr. Champaigne put his effort into this litigation, which explained his lack of effort in seeking other employment.

Accordingly, based on his credibility concerns, the arbitrator was not persuaded that Mr. Champaigne’s pain complaints related to the August 2002 accident were sufficiently disabling to meet the post 104-week disability test. I see no reason to intervene.

Mr. Champaigne submits that the arbitrator erred in not awarding him greater IRBs. The parties agreed that Mr. Champaigne was self-employed on the date of the accident and had a base IRB, looking solely at s. 6(1) of the SABS, of $331 a week. They disagreed on the deductions for post-accident income [s. 6(2)] and the losses from self-employment that could be added to the base IRB [s. 6(5)]. With respect to the deductions, the arbitrator considered six earnings periods. In particular, as noted above, he found Mr. Champaigne was not entitled to IRBs for the six-week period following the June 16, 2003 work accident or for the acute phase following the October 31, 2003 work accident.

As for the losses from self-employment, the arbitrator first found that there was no basis for Mr. Champaigne’s claim that after January 16, 2004, he was entitled to an additional $647.12 a week as an incurred business loss from self-employment. This figure was based on hiring replacement labour. However, the business no longer existed, so as the arbitrator put it, these were hypothetical expenses which had not been paid and which were not owed.

The arbitrator then found that Mr. Champaigne could not claim for lost increases in profits. Mr. Champaigne alleged that there had been a 19 percent increase in business at Apex, so he was entitled to his portion of the increase. The arbitrator rejected that claim on factual grounds, as he heard no evidence how the branch increase in freight translated into increased earnings per driver. More significantly, he rejected the claim on legal grounds, noting the consistent case law set out in cases such as Bress and State Farm Insurance, (OIC A-000191 and OIC A-000192, March 23, 1992) and Welsh and Economical Insurance Company, (FSCO A01-000916, August 16, 2002) that future business profits, or future economic loss (what Mr. Champaigne was really claiming) is not compensable under the SABS. The arbitrator’s analysis of the law is correct.

Mr. Champaigne’s submissions regarding these losses do not address the legal issues but focus on factual or procedural ones. For instance, he submits that the arbitrator erred in refusing his request for an order requiring Apex to deliver its records to Co-operators for a calculation of his loss. The arbitrator refused to do so since the request was made during final submissions, noting that the time for such production requests was prior to the start of the arbitration hearing, and ordering further production would have required him to reopen the hearing for further evidence. I agree that it was too late for Mr. Champaigne to make that request. Furthermore, the factual issues are irrelevant because Mr. Champaigne cannot claim for future economic loss.

Mr. Champaigne submits that the arbitrator erred in denying his medical and rehabilitation claims. The arbitrator denied two claims for chiropractic treatment from Dr. Michlowski dated November 21, 2003 and January 26, 2004. He found that Dr. Michlowski was apparently not aware that Mr. Champaigne had stopped working by that point due to the second work accident, and that Mr. Champaigne’s condition nonetheless continued to deteriorate despite 65 adjustments with Dr. Michlowski between September 5, 2002 and February 2004, so the arbitrator concluded that further treatment was neither reasonable nor necessary. I see no error in his finding.

Finally, Mr. Champaigne submits that the arbitrator erred in denying him a special award under s. 282(10) of the Insurance Act for an unreasonable delay in paying benefits. The arbitrator was not persuaded that any delay in IRB payments was unreasonable “given the conflicting evidence regarding the existence and the significance of both pre and post August 2002 symptoms and accidents, as well as the difficulty in determining the Applicant’s appropriate IRB quantum in light of his post-accident income and the Applicant’s varying calculations.” As for the payments for replacement workers – the subject of the cross appeal, discussed next – I find that Mr. Champaigne is not entitled to those payments so no special award could be payable.

Mr. Champaigne hired replacement workers during the period (August 29, 2002 to June 15, 2003) when the arbitrator found no IRB was payable. However, the arbitrator ordered Co-operators to pay as rehabilitation benefits $1,000 for a driver’s helper from August 30 to September 27, 2002, and $1,382.55 for replacement drivers from August 23 to September 13, 2002. He made these orders pursuant to s. 15 on the basis that by incurring these expenses Mr. Champaigne could continue working and mitigate his loss. He also held that Mr. Champaigne was entitled to these benefits despite not submitting a treatment plan because Co-operators had not told him one was needed.

Co-operators in its cross-appeal relies on the FSCO appeal decision in Ms. G – Pilot Insurance Company and Ms. G, (FSCO P06-00004, August 28, 2006) – in which the delegate held that expenses obtainable under one section of the SABS in one set of circumstances cannot be obtained in a different set of circumstances under a different section of the SABS. Accordingly, Co-operators submits that s. 15 is not broad enough to encompass the claims at issue. It submits that allowing an insured to submit business expenses under s. 15 would render the provisions of s. 6(4) superfluous. Co‑operators also submits that these payments were really business expenses that were taken account of in s. 6(4) of the SABS by effectively increasing the amount of the IRB, in that reasonable salary expenses paid to replace a person’s active participation in the business are not deducted from the IRB under s. 6(2).⁷

However, Ms. G was reversed on judicial review in G. B. – G. B. v. Pilot Insurance Company, 2008 CanLII 2602, 232 O.A.C. 356 (D.C.).⁸ In that case, the issue concerned whether an applicant’s caregiver or “nanny” expenses, normally claimed under s. 13, could be claimed as a rehabilitation benefit. Such expenses can only be claimed under s. 13 for a child alive at the time of the accident, so Ms. G claimed for the expenses of her child born after the accident under s. 15. Subsection 15(5) lists in clauses (a) through (k) items that may be claimed as rehabilitation expenses provided that, as required by s. 15(2), the expenses are rehabilitative.⁹ The final “basket clause,” s, 15(5)(l), adds “other goods and services that the insured person requires, except services provided by a case manager.” This was the clause applied in G.B.

Most of the points raised by Co-operators are answered in G.B. First, the court held that the arbitrator had made an important factual finding that the nanny care was rehabilitative. This deserved deference. The same applies here, as the arbitrator found that the expenses claimed were rehabilitative.

As to the breadth of the basket clause, the court held that s. 15(5)(l) is not of lesser importance than clauses (a) through (k), nor is it an “exemption” and so to be construed narrowly, but “On the contrary, its existence demonstrates the Legislature’s intention that rehabilitation expenses be construed as broadly as the needs of the claimant for rehabilitation require.” The relevant criterion is that the claim be for a rehabilitative service. Accordingly, it appears that any claim for a service can be made under s. 15 as long as an arbitrator finds it rehabilitative, unless the claim is otherwise barred.

Co-operators submits s. 6 does bar the claim. That is, in Ms. G, the delegate held that s. 13 occupied the field for nanny expenses, so claims under s. 15 were barred. Similarly, Co-operators submits that s. 6 occupies the field for replacement salary expenses, so claims under s. 15 for those expenses are barred. However, in paragraph 31 of G.B., the Divisional Court stated that a “serious flaw” in the delegate’s reasoning was “the view that because ‘nanny expenses,’ as a class of expense, can be obtained under section 13, they could not be available under section 15. There is no logic in this assumption.” Expanding on the point, the Court added the following in paragraph 33:

Much of the Director’s Delegate’s decision appears to assume that if this applicant can obtain benefits under section 15, then any injured person with a child can do so. That is manifestly an error. Only those for whom, like the applicant, such expenses are for her rehabilitation and not simply to fund child care, can access the benefit under section 15(5)(l). It is a provision embedded in a section entirely devoted to the rehabilitation of the injured party and so the finding of fact by the Arbitrator is central to the availability of any benefit. It is unreasonable to suppose that a floodgate will open and section 13 will be rendered unnecessary or ineffective. There is ample room for both sections to operate.

As I understand it, when the court stated that there is ample room for both sections 13 and 15 to operate, it found that any injured person with a child could make a claim for caregiver expenses under s. 15, as long as the expense is rehabilitative. It did not limit itself to the situation where only one claim could be made, as was the case in G.B. That is, claims for rehabilitative nanny care are not limited to those with children born post-accident. Applying the court’s logic here means that expenses increasing the IRB under s. 6 are also claimable under s. 15 if they are rehabilitative. The arbitrator found those salary replacement expenses were rehabilitative. Therefore, Mr. Champaigne had two possible claims: an increased IRB under s. 6 and a rehabilitation claim under s. 15.

However, Co-operators’ submission about double recovery – that these payments were really business expenses that had already taken account of in s. 6(4) of the SABS – is discussed in G. B. as well, but this assists Co-operators. As noted above, in the facts of G.B., the claimant could not claim under s. 13 for the child born post-accident, so there was no possibility of double recovery under s. 15. By way of contrast, Co-operators points to specific accounting reports that took into account Mr. Champaigne’s claims for a driver’s helper and replacement drivers in calculating the IRBs. Therefore, in making the claim for these expenses as rehabilitation expenses, Mr. Champaigne is seeking to cover the same expenses. For that reason, I cite the rest of paragraph 31 of G.B., where the court discusses the relationship between s. 13 and s. 15:

Section 15 deals with the rehabilitation of the injured person herself; section 13 deals with an allowance to replace the caregiving services which the injured person provided to others at the time of the accident. The circumstances giving rise to the need are utterly different, as are the terms on which payment can be made under the two sections. There is no necessary or logical inference that because such expenses can be obtained pursuant to one section of the Regulations in one set of circumstances, they could not be obtained in a different set of circumstances under a different section of the regulations, always subject to the common sense rule that the same expenses will not be covered twice [emphasis added].

I take the court’s “common sense rule” to mean that a claimant cannot claim both a caregiver benefit and a rehabilitation benefit for the same nanny expense – and Mr. Champaigne cannot receive an increased IRB and claim a rehabilitation benefit for the same salary expense.

In this case, the arbitrator discussed the IRBs for the time period August 29, 2002 to June 15, 2003. He found that no IRBs were owed for that period because Mr. Champaigne’s average weekly net post-accident income exceeded his $331 weekly IRB, but he ordered the replacement labour as a rehabilitation expense. However, those expenses had already been included in the calculation of the IRB. The same expenses were therefore covered twice. Accordingly, applying G.B., I find that the arbitrator erred in awarding those expenses as rehabilitation benefits.

In conclusion, the appeal is denied and the cross-appeal is allowed. Paragraphs 1, 2, 3, 5, and 6 of the arbitrator’s order are confirmed and paragraph 4 is rescinded.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 27, 2008

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The arbitrator also noted that Mr. Champaigne was not even an insured of Co-operators at that point.
3. 3Insurance Act, s. 283(1).
4. 4Leave to appeal refused (unreported, July 14, 2008, Ont. C.A., Court File No. M36091).
5. 5Upheld on appeal (FSCO P06–00027, September 24, 2007) and on judicial review: TTC Insurance Company Limited v. Watson, 2008 CanLII 49337, [2008] O.J. No. 3820, 2008 CarswellOnt 5779 (ON S.C.D.C.).
6. 6As noted above, the arbitrator denied two treatment plans by Dr. Michlowski, chiropractor.
7. 7That is, s. 6(2) allows a deduction from the IRB of 80 per cent of net post-accident income. Clause 6(4)(b) then provides that net post-accident income from self-employment is not even reduced for salary paid to a replacement worker “except to the extent that those expenses were reasonable for that purpose.”
8. 8Leave to appeal refused: G.B. v. Pilot Insurance Co. (M36025), June 11, 2008. “Ms. G” refers to the appeal decision, and “G.B.” refers to the judicial review decision.
9. 9Defined as “reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.”