Financial Services Commission of Ontario

Neutral Citation: 2008 ONFSCDRS 94 FSCO A07-000707

BETWEEN:

MELISSA RUSHLOW Applicant

and

ING INSURANCE COMPANY OF CANADA Insurer

DECISION ON A MOTION & PRELIMINARY ISSUE

Before: Arbitrator Suesan Alves Heard: By telephone conference call on February 14, 2008. Submissions were received by February 20, 2008 Appearances: Frank Van Dyke for Ms. Rushlow Chris T. J. Blom and Anna-Marie Musson for ING Insurance Company of Canada

Issues:

Melissa Rushlow was injured in a motor vehicle accident on April 14, 1996. She applied for arbitration at the Financial Services Commission of Ontario in relation to her claims for entitlement to loss of earning capacity benefits, interest, payable under the Schedule,¹ and her claims for expenses and a special award under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

ING seeks a determination that its neuropsychological assessment of Ms. Rushlow is reasonable. Ms. Rushlow disputes that it is, and submits that ING’s motion should be dismissed.

Ms. Rushlow seeks a determination of a preliminary issue that ING is precluded from disputing her entitlement to an offer in respect of her loss of earning capacity benefits, and that ING is estopped from denying that she suffers a partial or complete inability to carry on a normal life. ING disputes that Ms. Rushlow is entitled to these orders.

ING also submits that two paragraphs in an Affidavit sworn by Ms. Amral, filed by Ms. Rushlow on these motions, should be struck, as they refer to “without prejudice” communications.

For the reasons which follow, I conclude that the neuropsychological assessment as arranged is not reasonable. I conclude that Ms. Rushlow has established her entitlement to loss of earning capacity benefits and is entitled to an offer in respect of those benefits.

The issues are:

1. Is the proposed neuropsychological examination by Dr. Robyn Stephens reasonably required by ING pursuant to section 65 of the Schedule?
2. Is ING precluded from disputing Ms. Rushlow’s entitlement to an offer in respect of her loss of earning capacity benefits pursuant to section 21(1)(4) of the Schedule?
3. Is ING precluded from disputing that Ms. Rushlow suffers from either a partial or complete inability to carry on a normal life pursuant to sections 15(1)2(iii) and 15 (4) of the Schedule?
4. Should paragraphs 18 and 19 of the Affidavit of Ms. Amral be struck because they refer to without prejudice communications?
5. Which party is entitled to its expenses in respect of these motions?

Result:

1. The proposed neuropsychological examination by Dr. Robyn Stephens is not reasonably required by ING pursuant to section 65 of the Schedule.
2. ING is precluded from disputing Ms. Rushlow’s entitlement to an offer in respect of her loss of earning capacity benefits pursuant to section 21(1)(4) of the Schedule.
3. ING is precluded from disputing that Ms. Rushlow suffers a partial inability to carry on a normal life at the 104 week mark. The issue of whether Ms. Rushlow suffers a complete inability to carry on a normal life is irrelevant.
4. I do not need to decide the issue of the admissibility of paragraphs 18 and 19 of the Affidavit of Ms. Amral and of the associated exhibits.
5. If the parties are unable to agree on expenses of this motion and preliminary issue hearing, that issue may now be addressed.

EVIDENCE AND ANALYSIS:

Background

Melissa Rushlow sustained injuries, including a brain injury in a motor vehicle accident on April 14, 1996. Ms. Rushlow was a seven year old pedestrian who was attending Grade 2 at the time of the accident. In this arbitration, Ms. Rushlow claims post 104-week education disability benefits or other disability benefits, an offer in respect of loss of earning capacity benefits, interest and expenses.

Following the pre-hearing, counsel for ING arranged a neuropsychological assessment of Ms. Rushlow with Dr. Robyn Stephens, a psychologist, to determine whether she was entitled to education disability benefits. Counsel for Ms. Rushlow disputed the assessment was reasonable, and declined to have Ms. Rushlow assessed.

Is the proposed assessment reasonable?

Law

Section 65 of the Schedule permits an insurer to arrange insurer examinations for the purposes of determining entitlement to education benefits and loss of earning capacity benefits “as often as reasonably necessary” ²

“The arbitrator’s focus should be on information available to the insurer at the time the request was made. The arbitrator’s role is to weigh all the circumstances to determine whether an insurer’s examination is reasonably necessary for the insurer to effectively assess entitlement. An insurer’s request must be determined in light of the nature of the applicant’s injuries, the history of any treatment or assessments and the relevance of the proposed examination to the issues in dispute in the arbitration”³

Analysis

Ms. Rushlow sustained a number of injuries, including a brain injury. Following the accident, she had a Glasgow Coma Scale reading of 8/15. A CT-Scan taken following the accident showed evidence of small mid-brain pinpoint haemorrhages. An MRI about a year later, in 1997, showed evidence of diffuse axonal injury, as well as evidence of earlier haemorrhage in her anterior corpus callosum. The corpus callosum is a thick band of fibres which connects the left and right hemispheres of the brain. The MRI also showed asymmetry in her occipital lobe.

Counsel for ING submits the neuropsychological assessment is reasonable to assess Ms. Rushlow’s claim for entitlement to post-104 week education disability benefits, and there is a reasonable nexus between Ms. Rushlow’s brain injury and ING’s choice of specialist.

Neuropsychological assessments examine brain-behaviour relationships, provide information as to the location and severity of a brain injury, and identify which cognitive abilities are impaired or remain intact. In Ms. Rushlow’s case, her test results have been used to recommend educational interventions, appropriate treatment and rehabilitation and to predict her ability to engage in employment. I agree with ING’s submission that there is a reasonable relationship between Ms. Rushlow’s injuries and the specialty of its proposed examiner.

Counsel for ING submits that the last neuropsychological assessment of Ms. Rushlow took place in 2006, at the request of her counsel. ING submits that although Ms. Rushlow has undergone several neuropsychological assessments, it has not as yet arranged this type of assessment of Ms. Rushlow. I reject this submission. I find ING has conducted several neuropsychological insurer examinations of Ms. Rushlow.

Dr. Aurelie K. Collings, a neuropsychologist with a practice of Clinical Psychology & Developmental & Adult Neuropsychology, performed Ms. Rushlow’s initial neuropsychological examination in April 1997. Dr. Collings reported that this examination was done based on a referral from Halifax Insurance Company, now ING. As an insurer’s only authority for arranging such assessments is an insurer’s examination under section 65 of the Schedule, I find that this initial neuropsychological assessment was an insurer’s examination.

Dr. Collings recommended that Ms. Rushlow undergo a further neuropsychological assessment the following year. That assessment in April 1998 and the subsequent ones performed by Dr. Collings in December 1999, November 30, 2001, January 2002 and 2003 were all arranged by the case manager, and paid for by ING. I find that in arranging those examinations the case manager acted as ING’s agent. I find that all of the assessments which Dr. Collings performed were insurer examinations under section 65 of the Schedule. I reject the submission that ING has not as yet had a neuropsychological assessment of Ms. Rushlow.

The existing neuropsychological opinions

Dr. Collings authored five reports in relation to Ms. Rushlow. In her 1997 report, Dr. Collings opined that Ms. Rushlow had a serious to moderate brain injury, and that her patterns of neurological deficit on assessment were suggestive of a coup-contra-coup type of injury involving the frontal and right occipital-parietal regions of her brain.

In her 2001-2002 report, Dr. Collings reported that “Successive neuropsychological assessments have also consistently identified a pattern of residual impairments consistent with injury to the left frontal and right occipital-parietal regions of the brain. At the time of our last assessment, nearly two years ago, we were seeing a stabilizing or plateauing in her performance profile with little further spontaneous recovery. … earlier predictions of long lasting cognitive effects resulting from damage to the frontal regions of the brain were confirmed as Melissa struggled with higher level executive functions. Standardized measures further indicated that she was failing to make age appropriate academic gains in her core subject areas.”

In 2003, Dr. Collings opined that “Now nearly eight years post-injury, Melissa has essentially reached a plateau in terms of her intellectual or neurocognitive functions. Melissa’s work experiences have been minimal and of limited success… The typical pattern would be for Melissa to work well for approximately an hour before she would begin to complain about being tired. Her attention would begin to wander and she would sometimes act inappropriately such as lying across the worktable or taking a nap.” Dr. Collings attributed this behaviour to Ms. Rushlow’s fatigue levels and lack of social judgement, both of which stem from the accident.

Dr. Collings opined that it was unlikely that Ms. Rushlow was competitively employable on a full-time basis, but thought that she might be able to manage part-time vocational work. While noting Ms. Rushlow’s pattern of being able to work well for approximately an hour, Dr. Collings did not specify the number of hours she intended as part-time work. She recommended a vocational assessment.

In September 2005, counsel for Ms. Rushlow arranged for Dr. Joanna Hamilton, psychologist, to conduct a neuropsychological and vocational assessment. Dr. Hamilton has authored three reports in relation to Ms. Rushlow.

In 2005, Dr. Hamilton concurred with Dr. Collings’ opinion that Ms. Rushlow’s cognitive functioning had plateaued. She also noted that in comparing Ms. Rushlow’s patterns of performance across evaluations by herself and by Dr. Collings, that Ms. Rushlow’s pattern of performance remained relatively stable.

Given her pattern of performance and given that the experts on both sides agree that Ms. Rushlow’s cognitive function has plateaued, I find further neuropsychological testing of Ms. Rushlow to be unnecessary and therefore not reasonable. I find no useful purpose would be served by requiring Ms. Rushlow to submit to yet another neuropsychological assessment.

The limited area of dispute between these experts in neuropsychology is whether Ms. Rushlow is able to do part-time work, or only able to do volunteer work, which would provide her with some sense of satifaction. According to Dr. Hamilton, Ms. Rushlow estimates that she can work for one hour a day. As noted earlier, Dr. Collings opined that Ms. Rushlow might be able to do part-time work, although she did not specify how many hours per day or per week she intended by that term.

In the context of the existing neuropsyhological assessments and reports filed on this motion, I was not persuaded by the submission that ING should have a further assessment simply because Ms. Rushlow is now an adult. The demands of functioning as an adult are greater than those of a child and generally adults are provided with less structure and support than children.

In February 2007, Ms. D. Barrett, Ms. Rushlow’s occupational therapist, reported that she intended to submit a Form 1 to ING recommending that ING pay attendant care benefits “to reflect the type and quantity of support that Melissa receives from her boyfriend and his family to manage on a day to day basis.”

ING arranged a capacity assessment by Dr. C. Bush, a psychologist and designated capacity assessor under the Substitute Decisions Act, at the joint request of Ms. Rushlow’s occupational therapist and treating psychologist because of Ms. Rushlow’s struggles with problem solving, dealing with finances, etc. In 2008, Dr. Bush opined that Ms. Rushlow is incapable of managing property and requires the appointment of a guardian of her property.

I find Ms. Rushlow has been the subject of numerous assessments and reports between the ages of seven and nineteen. In this case, the facts and history have been well established and documented. There is a wealth of documentation referred to in the neuropsychological assessments. These documents include occupational therapy assessment and progress reports; speech language pathology progress reports, augmentative communication services computer consultation report; speech language and a cognitive communication assessment report, rehabilitation reports, school report cards, case conference minutes and follow-up reports from the Child Development Centre, which provided much of Ms. Rushlow’s rehabilitation.

In addition, counsel for the Applicant has provided ING with disclosure of documents, some of which pre-date 1996, the date of Ms. Rushlow’s accident. These are detailed in paragraph 26 (a) – (q) of Ms. Amral’s Affidavit. Thus, the facts and the history exist on which an expert of ING’s choosing could readily provide opinions on these issues without assessing Ms. Rushlow in person.

If ING desires further input of a neuropsychological nature there is nothing to prevent it from obtaining a “paper” opinion based on the documents and reports. Dr. Collings has already reviewed a great deal of the documentation and has interviewed Ms. Rushlow’s father and stepmother. When asked whether Dr. Collings was available to do the further assessment, counsel for the Insurer stated that ING had not approached Dr. Collings.

A neuropsychological assessment typically consists of a review of relevant documentation, clinical interview of the person being tested and perhaps of a caregiver, the administration of tests,⁴ an evaluation both of how the tests were approached and completed as well as the test scores, and a comparison of those results against various norms. The neuropsychological reports in this case document these steps. Thus, even if Dr. Collings is unavailable, another psychologist could with the wealth of neuropsychological reports and documentation provide ING with an opinion.

Addressing Ms. Rushlow’s impairments in the context of the requested assessment

Ms. Rushlow lives in the Bay of Quinte area. ING arranged for her assessment to take place in Toronto, and stated that it would pay reasonable transportation expenses.

I find that when an insurer arranges an insurer examination, it is obliged to address the impact of the insured person’s impairments, at least those which result from the motor vehicle accident.

Ms. Rushlow has a number of documented impairments which result from the accident. These include difficulties with memory, poor social judgement, impulsivity, fatigue, and difficulties getting lost, for example after the lunch break at an assessment, Ms. Rushlow was unable to find her way back to Dr. Hamilton’s office. I find that in order to address her impairments in the context of scheduling an insurer examination, ING should at a minimum have arranged for Ms. Rushlow to be accompanied and supervised by a responsible adult to attend the assessment in Toronto.⁵ Arrangements should also have been made for the payment of that adult and overnight accommodation and meals.

Had I concluded that an in-person assessment was reasonably required, I would have found that ING’s failure to address Ms. Rushlow’s impairments which result from the accident rendered the examination unreasonable because, in the absence of adult supervision, Ms. Rushlow would have been put at significant risk to her safety by attending an in-person assessment.

Entitlement to a LECB offer?

1. Entitlement to claim LECBs

Ms. Rushlow claims entitlement to an offer in respect of loss of earning capacity benefits. Under this Schedule, weekly disability benefits are payable during the pre-104 week period. At the 104 week mark and beyond, loss of earning capacity benefits are payable.

Ms. Rushlow’s accident occured in 1996. Effective March 1, 2006, the Bill 164 Schedule was amended by O.Reg. 26/06 to limit the persons who may assert a claim for loss of earning capacity benefits. Section 20.1 states:

20.1 Sections 21 to 25 apply only if, before March 1, 2006,

(a) the insurer has refused to pay weekly income replacement benefits under Part II, weekly education disability benefits under section 15, weekly caregiver benefits under Part IV or weekly disability benefits under Part V;

(b) the insurer has not made an offer with respect to the payment of weekly loss of earning capacity benefits under section 21 and there is no agreement under section 24 or 25; and

(c) an arbitration proceeding under section 282 of the Act or under the Arbitration Act, 1991 or a court proceeding has been commenced in accordance with subsection 279 (1) of the Act in respect of the insured person’s entitlement to a benefit referred to in clause (a). O. Reg. 26/06, s. 2.

I find Ms. Rushlow is able to pursue her claim for loss of earning capacity benefits because she claimed weekly education disability benefits and in the alternative other disability benefits under sections 15 and 19 of the Schedule before March 1, 2006. I find she commenced an earlier arbitration on or about April 27, 2005, in which she claimed weekly education disability benefits and other disability benefits. I find ING has not made Ms. Rushlow an offer in respect of her loss of earning capacity benefits. I find no evidence of an agreement in writing that ING will pay Ms. Rushlow loss of earning capacity benefits pursuant to section 24 or 25 of the Schedule.

2. Is ING estopped from denying Ms. Rushlow qualified for LECBs

Counsel for Ms. Rushlow seeks a determination that she qualifies for post-104 week benefits and is entitled to an offer in respect of loss of earning capacity benefits based on the analysis in Gray and Zurich Insurance Company (FSCO P98-00047, June 11, 1999).

In Gray, Director’s Delegate Draper, as he then was, held that an insured person may become entitled to be paid loss of earning capacity benefits in one of two ways. One way is to meet the qualifications for pre-104 week benefits and then also meet one of the tests for entitlement to loss of earning capacity benefits set out in the seven paragraphs of section 21 of the Schedule.

Alternatively, an insured person’s entitlement to loss of earning capacity benefits will be triggered when the insurer continues to pay weekly disability benefits at the 104 week mark.

As I understand the analysis in Gray, the insurer triggers entitlement to the loss of earning capacity benefits because by paying weekly benefits to the 104 week mark, the insurer has acknowledged entitlement to loss of earning capacity benefits, and is therefore estopped from disputing entitlement.

For the reasons which follow, I find that on either approach Ms. Rushlow has established her entitlement to loss of earning capacity benefits under paragraph 4 of section 21(1) of the Schedule, and that ING is obliged to make her an offer in respect of those benefits.

(1) Triggered entitlement

ING’s Response states:

Education disability benefits were paid to the applicant when she reached 16 years of age. The benefit was paid under s.15(4) of the Schedule as she suffered a partial inability to carry on a normal life. The benefit was paid in a lump sum amount, in accordance with an agreement reached through counsel.

In October 2006 the applicant reached 18 years of age. She reached the 104 week mark following the payment of the education disability benefit. Benefits were not paid thereafter as she does not meet the test of entitlement under s.15(4), requiring that she suffer a complete inability to carry on a normal life.”

In the weekly benefits portion of the Response, ING states that it paid $185 per week from October 24, 2004 to October 24, 2006.

Based on ING’s Response, I find ING paid Ms. Rushlow 104 weeks of weekly education benefits based on a partial inability to carry on a normal life. Education disability benefits were paid once she reached sixteen. I find that Ms. Rushlow’s date of birth is October 25, 1988, and that she turned sixteen on October 25, 2004. On this basis, the payment of 104 weeks of education disability benefits commenced at the earliest on that date and would therefore have continued to October 25, 2006.

I find that ING paid Ms. Rushlow 104 weeks of weekly disability benefits and triggered her entitlement to loss of earning capacity benefits. Counsel for ING urged caution in interpreting the effect of the payment which ING made. ING submits that these benefits were not paid on a weekly basis, the benefits were never started, nor were the stoppage provisions invoked. The payment was made in a lump sum amount once Ms. Rushlow turned sixteen but before she turned eighteen. I am not persuaded that a different analysis applies because these benefits were paid by agreement, in a lump sum, or because the lump sum payment in respect of 104 weeks of benefits may have been prepaid. The payment was made in respect of 104 weeks of benefits.

For these reasons I conclude that ING triggered Ms. Rushlow’s entitlement to loss of earning capacity benefits and is obliged to maker her an offer in respect of loss of earning capacity benefits.

(2) Entitlement under s.21(1)4 of the Schedule.

Section 21(1) of the Schedule states that an insurer shall promptly deliver a written offer to an insured person with respect to the payment of weekly loss of earning capacity benefits if one or more of the following circumstances occurs: Paragraph 4 of that section states:

4. The insured person qualified for weekly education disability benefits under section 15 and, 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits or on the date the person attains sixteen years of age, whichever occurs later, continues to qualify for weekly education disability benefits.

I find based on ING’s Response to the arbitration application filed in this case that the parties agreed that Ms. Rushlow qualified for weekly education disability benefits under section 15 of the Schedule based on a partial inability to carry on a normal life.

The question then becomes whether she continues to meet the test for weekly education disability benefits on the later of two dates. One of those dates is October 25, 2004, the date on which Ms. Rushlow reached sixteen years of age.

The parties disagree on whether the other date in paragraph 4 refers to April 14, 1998 or October 25, 2006, because they disagree on the meaning of “104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits.” One interpretation, which emphasizes the onset of the disability, is that the phrase means 104 weeks after the date of the accident, namely April 14, 1998.⁶ The other interpretation equates “first qualified” with the date on which benefits are first payable. Since education disability benefits are not payable until an insured person turns sixteen, 104 weeks after that date would be when Ms. Rushlow turned eighteen on October 25, 2006. Thus under the first interpretation, the later of the two dates contemplated by paragraph 4 of section 21(1) of the Schedule is October 25, 2004; under the second, the date would be October 25, 2006. Whichever date obtains, I find Ms. Rushlow met the test based on the agreement that Ms. Rushlow met the partial inability test and the payment of 104 weeks of benefits.

Complete inability?

ING submits that Ms. Rushlow must meet the complete inability test on October 25, 2006 to qualify for loss of earning capacity benefits. I disagree. I find the complete inability test is irrelevant to Ms. Rushlow under the provisions of the Schedule.

In Gray, the Director’s Delegate stated that at the 104 week mark an insured person who qualified for education disability benefits must suffer either a substantial inability to continue his or her education or a complete inability to carry on a normal life in order to gain entitlement to loss of earning capacity benefits. In my view, his comments did not address nuances in educational disabilty benefits provisions of the Schedule raised by the facts of this case and were therefore obiter.

I find that under section 15(4) of the Schedule, the only educational disability benefits claimants who must meet the complete inability test at the 104 week mark are those who qualified for weekly education disability benefits under section 15(1)1.(iii) and who did not also qualify on the basis of section 15(1)1.(i) and (ii). Section 15 is set out as Appendix A in this decision.

On the facts of this case, Ms. Rushlow qualified under section 15(1)1.(i) and (ii), but not under 15(1)1.(iii). At the time of the accident, Ms. Rushlow was seven years of age and a full time student in elementary school in Grade 2. A person meets the qualifications of section 15(1)1.(iii) on the basis that he or she “iii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.” However, the circumstances set out in subparagraph (iii) have no application to Ms. Rushlow.

Thus, Ms. Rushlow continues to qualify for weekly education disability benefits under paragraph 4 of section 21(1) if she establishes that she continues to have a partial inability to carry on a normal life at the 104 week mark. Based on ING’s payment to Ms. Rushlow of 104 weeks of weekly education disability benefits, made in respect of the period from October 25, 2004 to October 25, 2006, and ING’s admission that the basis of the payment was that Ms. Rushlow met the partial inability to carry on a normal life test, I find that Ms. Rushlow has established that she meets the test for entitlement to loss of earning capacity benefits.

I find that ING is precluded from disputing that Ms. Rushlow met that test at the 104 week mark based on its admission. I find the question of whether Ms. Rushlow met the complete inability to carry on a normal life test is irrelevant. As Ms. Rushlow has established that she is entitled to loss of earning capacity benefits, ING is obliged to promptly make her an offer in respect of her loss of earning capacity benefits in accordance with section 29 of the Schedule.

As the Applicant has succeeded on this basis, I do not need to deal with her alternative claim for the same relief based on the settlement of the previous arbitration, or to decide the admissibility of paragraphs 18 and 19 of Ms. Amral’s Affidavit and related exhibits.

Clarification

The focus of the dispute when ING requested the neuropsychological assessment was whether Ms. Rushlow was entitled to an offer in respect of loss of earning capacity benefits. Based on Ms. Rushlow’s success on the issue she raised, the case has now moved forward. The focus is now on the amount of the offer in respect of loss of earning capacity benefits which ING is obliged to make. I clarify that my ruling has not determined ING’s entitlement to reasonable assessments in relation to the amount of Ms. Rushlow’s LECB offer.⁷ Such disputes do not as yet exist, and it is open to the parties to agree to such assessments, or to defer ING’s obligation to make an offer until the assessments are performed.

Expenses:

If the parties are unable to agree on expenses of the motion and preliminary issue hearing, that issue may now be addressed.

June 17, 2008

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2008 ONFSCDRS 94 FSCO A07-000707

BETWEEN:

MELISSA RUSHLOW Applicant

and

ING INSURANCE COMPANY OF CANADA Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The proposed neuropsychological insurer examination is not reasonable.
2. Ms. Rushlow is entitled to loss of earning capacity benefits. ING shall promptly make Ms. Rushlow an offer in respect of loss of earning capacity benefits pursuant to section 29 of the Schedule.

June 17, 2008

Suesan Alves Arbitrator

Date

Appendix A

EDUCATION DISABILITY BENEFITS

Weekly Benefits

15. (1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly education disability benefit if the insured person meets the following qualifications:

16. The insured person,

i. was less than sixteen years of age at the time of the accident,

ii. was enrolled on a full-time basis in elementary, secondary or post-secondary education at time of the accident, or

iii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.

2. The insured person, as a result of and within two years of the accident,

i. suffers a substantial inability to continue his or her education, in the case of an insured person who qualifies under subparagraph i or ii of paragraph 1,

ii. suffers a substantial inability to engage in employment that reflects his or her education and training, in the case of an insured person who qualifies under subparagraph iii of paragraph 1, or

iii. suffers a partial or complete inability to carry on a normal life, in the case of an insured person who qualifies under subparagraph i, ii or iii of paragraph 1. O. Reg. 776/93, s. 15 (1).

(2) Subject to subsections (3) and (4), the weekly education disability benefit is payable during the period that the insured person suffers,

(a) a substantial inability to continue his or her education, in the case of an insured person who qualifies under subparagraph i of paragraph 2 of subsection (1);

(b) a substantial inability to engage in employment that reflects his or her education and training, in the case of an insured person who qualifies under subparagraph ii of paragraph 2 of subsection (1); or

(c) a partial or complete inability to carry on a normal life, in the case of an insured person who qualifies under subparagraph iii of paragraph 2 of subsection (1). O. Reg. 776/93, s. 15 (2).

(3) No weekly education disability benefit is payable under this section,

(a) for any period before the insured person attains sixteen years of age; or

(b) for the first week of the disability. O. Reg. 776/93, s. 15 (3).

(4) If an insured person qualifies for weekly education disability benefits under subparagraph iii of paragraph 2 of subsection (1) and does not qualify under subparagraph i or ii of paragraph 2 of subsection (1), no weekly education disability benefit is payable under this section more than 104 weeks after the insured person first qualified for weekly education disability benefits unless the insured person is suffering a complete inability to carry on a normal life as a result of the accident. O. Reg. 776/93, s. 15 (4).

(5) The amount of a weekly education disability benefit shall be equal to half of the net weekly income determined in accordance with section 81 or 82 using a gross annual income from employment equal to 52 multiplied by the Average Weekly Earnings for Ontario, Industrial Aggregate, for the month of June in the year immediately preceding the year in which the benefit is first payable, as published by Statistics Canada under the authority of the Statistics Act (Canada). O. Reg. 776/93, s. 15 (5).

(6) The insurer may deduct from the amount of the weekly education disability benefits payable to an insured person under this section a percentage of the net income received by the insured person in respect of any employment subsequent to the accident. O. Reg. 781/94, s. 3.

(7) The percentage mentioned in subsection (6) shall be,

(a) 75 per cent, if the insured person started the employment more than 26 weeks after the onset of the disability in respect of which the weekly education disability benefits are paid and has been engaged in the employment for less than 26 weeks; and

(b) 90 per cent, in any other case. O. Reg. 781/94, s. 3.

(8) Subject to section 82, for the purpose of subsection (6), the net income received by a person in respect of an employment subsequent to the accident shall be determined by subtracting the following amounts from the gross income received by the person in respect of the employment subsequent to the accident:

1. The premium payable by the person under the Unemployment Insurance Act (Canada) on the gross income.

2. The contribution payable by the person under the Canada Pension Plan on the gross income.

3. The income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross income. O. Reg. 781/94, s. 3.

(9) No weekly education disability benefits are payable to a person under this section,

(a) after the person attains 65 years of age, if the person had not attained that age at the time of the accident; or

(b) for more than 104 weeks, if the person had attained 65 years of age at the time of the accident. O. Reg. 781/94, s. 3.

(10) Subsection (9) does not prevent a person from qualifying for weekly disability benefits under Part V. O. Reg. 781/94, s. 3.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended.
2. 2Counsel agree that section 65 of the Schedule is the appropriate section of the Schedule under which this dispute is raised.
3. 3Vidinopulos and Liberty Mutual Insurance Company of Canada, (FSCO A00-000977, December 5, 2001)
4. 4Typically there are tests of short and long-term memory; the ability to learn new skills, solve problems; attention, concentration and distractibility; logical and abstract reasoning; the ability to understand and express language; visual-spatial organization, visual motor co-ordination; planning, synthesizing and organizing abilities and executive function.
5. 5The reports also refer to Ms. Rushlow’s significant driving anxiety, raising the question of whether it is reasonable to schedule the assessment in Toronto. I have no evidence whether her anxiety has been successfully treated, or that neuropsychological experts are unavailable in a location closer to her residence. I accept that Ms. Rushlow has previously been assessed by Dr. Collings in Toronto while she was under 18. On those occasions, she was accompanied by her caregivers. There is also a reference to her having overnighted in a hotel. I do not know whether ING made these arrangements in the past or whether this was something for which her father and stepmother assumed responsibility.
6. 6In Eldridge and AXA Insurance(Canada) (FSCO A05-002881, February 6, 2007), Arbitrator Rogers took this approach.
7. 7Such assessments were once performed by designated assessment centres (“DAC”), but are now done by way of insurer examinations because the DAC system was largely abolished as a result of the March 1, 2006 amendments to the Schedule.