Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 26

FSCO A09-003026

BETWEEN:

TARYN HENRY

Applicant

and

PEMBRIDGE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: November 1, 2010, in Orangeville, Ontario

Appearances: Stanley C. Tessis for Ms. Henry Ian D. Kirby for Pembridge Insurance Company

Issues:

The Applicant, Taryn Henry, was catastrophically injured in a motor vehicle accident on April 28, 2007, a few weeks short of her twenty-first birthday. Because Ms. Henry worked part time before the accident, Pembridge Insurance Company (“Pembridge”) determined she was entitled to a statutory income replacement benefit (“IRB”) of $105.72 per week under the Schedule.¹ It continues to pay this amount. Ms. Henry, however, claims she is entitled to the higher non-earner benefit (“NEB”) of $185 per week from six months after the accident up to 104 weeks, and then $320 per week thereafter under subparagraph 12(1)(3)(ii) of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Henry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Henry entitled to a non-earner benefit of $185 per week from October 27, 2007 to April 28, 2009, and $320 per week thereafter, from that point on, under paragraph 12(1)(3)(ii) of the Schedule?

2. Is Ms. Henry entitled to interest on overdue amounts under subsection 46(2) of the Schedule?

3. Is State Farm liable to pay a special award under subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Henry?

4. Is either party entitled to its expenses of the arbitration proceeding under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

1. Ms. Henry is entitled to a non-earner benefit of $185 per week from October 27, 2007 to April 28, 2009, and $320 per week from that point on, under paragraph 12(1)(3)(ii) of the Schedule.

2. Ms. Henry is entitled to interest on overdue amounts under subsection 46(2) of the Schedule.

3. State Farm is not liable to pay a special award.

4. If the parties are unable to agree on the matter of expenses, either party may, within 30 days of the date of this decision, request an appointment before me to determine the matter and I will do so upon receipt of written submissions of the parties.

EVIDENCE AND ANALYSIS:

To qualify for an NEB under subsection 12(1)(3) of the Schedule, Ms. Henry must establish three things on a balance of probabilities: one, she suffers a complete inability to carry on a normal life as a result of the accident; two, she had “completed her education” less than one year before the accident; and three, she was not employed in a job that “did reflect her education and training.”

The relevant portions subsection 12(1) read as follows:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

3. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

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

ii. 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.

The parties agree that Ms. Henry suffers a complete inability to carry on a normal life as a result of the accident and so meets the first requirement. Her impairments include paraplegia, requiring the use of a motorized wheelchair; impaired function of her left hand; and some memory and executive process deficits due to traumatic brain injury.

The dispute is whether Ms. Henry had completed her education less than one year before the accident and whether her part-time job serving meals in the dining room of a senior’s home reflected her high school education and training, within the meaning of subparagraph 12(1)(3)(ii) of the Schedule.

According to the Agreed Statement of Facts provided, Ms. Henry left Westside Secondary School in Orangeville in June 2005, one credit shy of the 30 required to graduate. In January 2006, she enrolled in the Learning Enterprise, an alternative type of high school with flexible schedules, where she completed her remaining credit and graduated high school with an Ontario Secondary School Diploma on August 31, 2006 – less than one year before the accident.

From September 4, 2006 until the accident on April 28, 2007, Ms. Henry worked part-time in the dining room at the Lord Dufferin Centre in Orangeville, a senior’s residence, where she was paid minimum wage to set the dining room, serve meals, and clean up. The uncontested evidence of Ms. Henry and her mother Cheryl, was that Ms. Henry intended to go to college in September 2007.

The issues to be determined are, one: whether Ms. Henry can be said to have “completed her education” after obtaining her high school diploma, given her intention to go to college; and two: whether her job at the senior’s home “reflected her education and training.”

a. Did Ms. Henry complete her education within one year of the accident?

Pembridge contends that whether Ms. Henry completed her education within one year of the accident is a question of fact, and, based on the uncontested facts of this case - that Ms. Henry intended to continue her education by going to college in September 2007 - she had not “completed her education” within the meaning of subparagraph 12(1)(3)(ii).

Ms. Henry submits that, at the time of the accident, she had “completed her education” because she had finished, i.e. “completed,” high school, as evidenced by her diploma.

Both parties rely on the arbitration and appeal decisions in Kernaghan and AXA Insurance (Canada)², the only decisions directly on point, to support their positions. The facts in that case are very similar to Ms. Henry’s. Mr. Kernaghan, 19 years old, had finished high school, planned to go to college, and had taken a number of unskilled minimum-wage jobs in the meantime. At the time of the accident, in which he was catastrophically injured, he was working as a turkey catcher. Arbitrator Murray held Mr. Kernaghan had “completed his education” and was entitled to the non-earner benefit. She did not discuss or interpret the meaning of the term “completed his or her education,” but based her reasoning “that the break in Mr. Kernaghan’s education was sufficient to conclude that he completed his education ... ,” on her findings of fact — that Mr. Kernaghan’s plans to go to college were ambiguous, too speculative to rely on, (he had not saved enough money, applied or enrolled), and a “couple years away.” On that reasoning, she concluded, “I find that Mr. Kernaghan completed his grade 12 education within one year of the car accident.”

Arbitrator Murray’s decision was upheld on appeal. On the issue of whether Mr. Kernaghan had completed his education within one year of the accident, the Director’s Delegate found, unlike the case before me, that the parties conceded the point, and that in any event, Arbitrator Murray’s finding was one of fact and did not involve a question of law.

I agree that whether a person’s plans to continue his or her education are speculative or concrete is a question of fact and is one element to consider in determining whether someone had “completed” his or her education. However, Ms. Henry has asked me to address directly the meaning of the term “completed his or her education” in the context of the Schedule, which raises not just a question of fact, but one of interpretation.

Pembridge maintains that “education” in subparagraph 12(1)(3)(ii) means education in its broadest sense, in which case it is not “completed” if one has plans to continue it. Ms. Henry, on the other hand, submits the meaning is more specific, and to “complete” one’s “education” means to complete a particular stage of one’s education – such as high school, for example. In her decision in Kernaghan, Arbitrator Murray appears to have used both meanings interchangeably, without any analysis. This raises the question of ambiguity that was not addressed either in her decision or in the appeal.

Both the general and specific interpretations suggested are of course possible. The Concise Oxford Dictionary defines education as “1. The act or process of educating or being educated; systemic instruction. 2. a particular kind of or stage in education . . .” Webster’s New Collegiate Dictionary defines the term as: “the action or process of being educated; also: a stage of such a process.”

I find Ms. Henry’s more specific interpretation makes the most sense in the context of subparagraphs 12(1)(3)(i) and (ii) of the Schedule. It is more consistent both with the actual wording used in both (i) and (ii), and is also consistent with the purpose of the section, which, as recognized by the Director’s Delegate in Kernaghan, is to “avoid locking an insured into a minimal IRB or NEB payment when one has the misfortune of not only being in a motor vehicle accident but also having an accident at a point in one’s life when limited work experience may give one limited marketability”³ — in other words, after finishing high school and before having the opportunity to establish oneself in the workforce.

Subparagraphs 12(1)(3)(i)(ii) require payment of a NEB to injured insureds in two circumstances – where a person is enrolled in education at the time of the accident, or is “underemployed” at the time of the accident, but within one year after “completing” their education:

(12)(1)(3) The insurer shall pay an insured person … a non-earner benefit if the insured person …

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

ii. 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.

[emphasis added].

By identifying three distinct, common and well-known stages of education in (i.) – elementary, secondary, and post-secondary — I find the legislature intended to restrict the meaning of “education” in section 12 to those stages, and the term must mean the same in (ii) as it does in (i.); i.e., it refers to a particular stage of a person’s education. One is either enrolled in one of the three stages listed, or has completed it and is working in the year following completion.

This interpretation is based on a plain reading of the subparagraphs and is consistent with what I find to be common understanding, that education is completed in stages and formal recognition of completion, by way of certificates, diplomas or degrees, is required before moving on from one stage to the next. I find it is fair to say, that one has not “completed” high school, college, university, or even apprenticeship or other formal training in certain occupations or trades, until one has obtained the requisite “paper qualifications” in the form of diplomas, certificates, or licences, etc. Formal qualifications serve two purposes at least – they both permit access to further education or to specific occupations, and serve to recognize and certify certain levels of accomplishment, and potential, for employers in general. One’s completed level of education is a factor that may well define the type of employment one can expect to obtain.

In Ms. Henry’s case, she testified, and I find, that she informed herself and understood she was not eligible for college until she first obtained her high school diploma. I find she “completed” her high school education once she was granted her diploma.

I find the inclusion of the word “training,” in subparagraph (ii) supports the argument that the term “education” in subparagraph (i) refers only to the three levels of formal education named, and not education in a broad or general sense. “Training” is used nowhere else in section 12. According to the dictionary, it means “the state of being trained.” This is a more general, broad and open-ended definition than “education” in (i), which I find has been qualified by the terms “elementary, secondary and post-secondary.”

The use of the broader term “training” together with “education” in subparagraph (ii) complements the term “education” and widens the scope of entitlement to NEBs to include not only insureds enrolled in a stage of formal education interrupted by an accident, but to recent graduates who may have acquired other skills or qualifications outside of formal education, and who find themselves “underemployed” in the year between completing their education and before the accident.

Restricting the meaning of “education” in section 12 to a particular stage of education, as opposed to “education” in general, gives effect to the intent of subparagraphs (i) and (ii), which is to compensate insured persons whose earning potential has been cut short by an accident. In the first situation, (i)., a specific stage of full-time education, not “education” in general, is ongoing, underway, or “incomplete” at the time it is interrupted by an accident. In the second situation, the insured person has completed a stage of education – high school, in the case of Ms. Henry and Mr. Kernaghan; has possibly acquired some additional training and is working in the year before the accident; but his or her job does not reflect his or her “education or training” up to that point.

This interpretation puts students who graduated up to a year before the accident, and were underemployed in that period, on an even footing for entitlement to NEBs, with students enrolled full time when the accident occurred. The two provisions are different, but consistent. I find this interpretation accords with the purpose of subparagraph (ii) as articulated by Directors’ Delegate Blackman who found that “what the provision recognizes, as stated by Brockenshire J. in Walker v. Ritchie, 2003 CanLII 17106 (ON SC), [2003] O.J. No. 18, is that those who have recently graduated will not forever engage in the activities of students, that “eventually” they will get jobs “commensurate with their education . . . Although the Schedule is generally retrospective, this provision provides an exception, recognizing that in the circumstances provided there is potential for higher earnings for an insured person and that it would be unfair to lock an insured person into his or her economic circumstances shortly after completing one’s education. Accordingly, a modest supplemental increase in weekly benefits is allowed, and only after a two-year waiting period.” ⁴

Regardless of how one interprets the meaning of “education” in section 12, I find Ms. Henry’s plans were not concrete enough to support the conclusion that she had not completed her education after high school. As a question of fact, I find Ms. Henry’s plans to attend college in September 2007 were too speculative to conclude she could, or would, have enrolled in a college programme that year. I accept her testimony and that of her parents that they were insistent that she go to college and that they would help her financially. However, I accept their testimony that although Ms. Henry sent away for applications far and wide (including the United States), she had not actually applied to any colleges because she could not make up her mind about what to study (advertising, comedy writing or teaching – three very different career paths). Also, Ms. Henry had saved very little money, and had not yet worked out, logistically or financially, whether it made more sense to live at home and commute, or to live on campus. I find her plans were very much “up in the air” at the time of the accident and she was not ready to begin a college programme that September.

b. Was Ms. Henry employed in an employment that reflected her education and training?

Pembridge submits Ms. Henry qualifies for an IRB and not an NEB because her job at the senior’s residence reflected her “basic” high school education and training, and was the type of job a high school graduate with such a “basic education” could expect to obtain. Ms. Henry argues that Pembridge erred in making this determination, as her job did not reflect or require a high school education or diploma.

I agree with Ms. Henry.

As set out in the appeal decision in Kernaghan, the test an insurer must apply in determining whether Ms. Henry qualifies for an NEB under section 12, is whether her job was commensurate with her education and training.⁵ This requires comparing the actual requirements of Ms. Henry’s employment to her education and training, to determine whether or not she was “underemployed.”

Ms. Barb Gailor, Pembridge’s accident benefits adjuster, provided two reasons for why she felt Ms. Henry’s part time job at the senior’s residence reflected her education and training. Firstly, she testified that she reviewed Ms. Henry’s school records, the job requirements at the senior’s home, and the arbitration and appeal decisions in Kernaghan, and concluded there was no evidence to indicate Ms. Henry had anything more than a ‘basic’ high school education. She stated that she interpreted the Kernaghan decision to mean that an insured person had to demonstrate a “special emphasis or direction” in his or her education, such as Mr. Kernaghan’s high school courses in art and his demonstrated artistic talent, in order to show that the person’s job did not reflect that special emphasis, and the person could therefore be considered underemployed. Ms. Gailor stated that nothing in Ms. Henry’s school records indicated any particular emphasis or direction.

Secondly, Ms. Gailor testified that she was familiar with the Georgetown area where Ms. Henry lived, where “minimum wage is standard for kids in and finishing high school, that’s what you hear.” Ms. Gailor did not feel Ms. Henry, or any other high school graduate, presumably, could find a job paying more than a minimal wage in the Georgetown area with only a basic high school education and no specialization. Ms. Gailor testified she did not herself have any particular training or qualifications from which to base an opinion about what employment might be commensurate with a high school education, in Georgetown or anywhere else, and she did not feel she needed to consult a vocational or labour market specialist, or anyone other than her supervisor (who agreed with her) on that point.

I find Ms. Gailor was wrong in her opinion because she misunderstood the test for entitlement to NEBs and did not consider or apply the correct facts. The test does not include, as Ms. Gailor believed, consideration of the type of work a high school graduate could expect to obtain in Orangeville. That is a question of marketability, a criteria neither explicit nor implied on a plain reading of subparagraph 12(1)(3)(ii), and one which was specifically rejected by the Director’s Delegate in Kernaghan. What the test does require, is a comparison of Ms. Henry’s actual job duties, with her high school education, to determine if they are commensurate.

The facts before me indicate they were not. For one thing, Mr. Fred Timman, Ms. Henry’s employer, confirmed, and there is no dispute, that “we don’t require a high school diploma to wash and serve.”

Secondly, I find Ms. Henry’s job required very little education and minimal skill. Although styled as “Aide Dietary” on the Employer’s Confirmation of Income (“OCF-2”) by Mr. Timman, he described the job on the same form in two words — “serving - cleaning.” Ms. Henry described the job as setting the dining room, serving the seniors, plating and decorating the desserts, clearing the tables, and cleaning. It paid minimum wage and there were no benefits. I accept the testimony of Ms. Henry and her mother that the work was irregular, almost casual, with split shifts around meals and an irregular schedule that could change at short notice. It was not uncommon for her to work only one day a week, although sometimes she worked more. I find the work was both casual and menial.

It was evident at the hearing that Ms. Henry has a lively, engaging and outgoing personality. She is smart, funny and direct. I found her credible. I accept her evidence that she liked the seniors, albeit realizing they could be difficult. I accept her testimony that she had hoped the job would lead to something more in terms of permanent status and opportunity for advancement, and was disappointed to learn it would not, primarily because it was less costly for her employer to employ part-time staff. I find the only aspect of the job that reflected anything about Ms. Henry’s background was her ability to enjoy interacting with the seniors. This, however, was due solely to her outgoing personality; and, possibly, to her previous experience as a Girl Guide, engaging seniors in making Christmas crafts — experience that hardly qualifies as “training.” These two aspects of her skill set had nothing to do with her high school education.

Ms. Gailor testified that she understood from reading a case manager’s report (Exhibit 5) of an interview with Ms. Henry, that Ms. Henry had expressed an interest in working with seniors, and this was a factor she took into account in determining whether Ms. Henry’s job at the senior’s centre reflected her education and training. I find Ms. Gailor should not have considered this factor at all, for three reasons. Firstly, it is irrelevant, as interest or motivation are not factors included in the test set out in subparagraph 12(1)(3)(ii).⁶ The focus of the test is not whether a job is suitable or a “good fit” for a particular person. The test focuses on two factors only, education and training, and whether these are reflected in a person’s employment. Secondly, there is no evidence of any course work even remotely related to serving meals to seniors in Ms. Henry’s high school records. Thirdly, I accept Ms. Henry’s testimony that the information in the case manager’s report is wrong. She maintained she never told the case manager she was interested in working with seniors. Rather, the case manager asked her what she was doing at the time of the accident, and, wrongly, inferred a career preference from that information. I prefer Ms. Henry’s direct evidence over Ms. Gailor’s second-hand assumption. I find Ms. Henry’s unskilled, casual, and menial work at the time of the accident did not reflect her high school education or training.

Although Ms. Gailor did not consult a vocational expert on the question of whether Ms. Henry’s job reflected her education, Ms. Henry did. In a report prepared on her behalf on August 27, 2010, David Antflick, a Registered Rehabilitation Professional working in the capacities of Vocational Evaluation Specialist and Earning Capacity Analyst, concluded that Ms. Henry’s job in the dining room of the senior’s home was not employment which reflected her education and training.

I agree with Mr. Antflick’s conclusion and the analysis on which he based it. Ms. Henry’s high school records indicate she was a very good student in grades 9 and 10, less so in certain subjects in grades 11 and 12, where, she admitted, “things went off the rails.” Nevertheless she did consistently well in courses related to Information Technology, Communication Technology and Health and was praised by a number of teachers for her ability to produce excellent work and her creativity. She had decent marks in math, excelling particularly in “Mathematics for Personal Finance,” which, together with her mother’s testimony about her daughter’s frugality, indicates to me a very practical side to Ms. Henry’s nature. She was an above-average English student, and her drama teacher thought she would make a great drama teacher. Mr. Antflick noted that throughout high school Ms. Henry consistently had good to excellent learning skills. I find his conclusion that Ms. Henry had a good working knowledge of possible careers available to her because she did well in her Grade 10 Career Studies course, to be reasonable and relevant.

I find Ms. Henry’s high school education and training qualified her for a better job, a fact of which she herself would have been aware. Furthermore, based on Mr. Antflick’s analysis of Statistics Canada data indicating Ms. Henry was not earning even close to the average wage of a high school dropout or high school graduate, I find Ms. Henry had a potential to earn more than a minimal wage. Although the Statistics Canada evidence may be somewhat out-dated⁷, I find it is an objective and reliable factor to consider in determining whether Ms. Henry’s job was commensurate with her status as a high school graduate, as compared to Ms. Gailor’s uninformed view about what a high school graduate could expect in terms of work and wages in Georgetown. In any event, I find Ms. Gailor’s opinion was erroneously based on the local marketability of Ms. Henry’s high school diploma which, as pointed out by both the arbitrator and the Director’s Delegate in the Kernaghan decisions, is not part of the eligibility test contemplated by subsection 12(1)(3)(ii) of the Schedule.

I find the fact Ms. Henry was earning below her potential in the year before the accident puts her squarely in the class of insured persons subparagraph 12 (1)3(ii) is intended to benefit, for the reasons outlined by Brockenshire, J. and adopted by the Director’s Delegate in Kernaghan.

Ms. Henry’s school records and the particular knowledge gained and strengths revealed; the effort she put into her last Grade 12 course to get her diploma; her training to be a Girl Guide Junior Leader, lifeguard and swimming instructor; and her testimony persuaded me that her minimally-skilled and – paid part-time job at the senior’s centre did not reflect her education or training.

SPECIAL AWARD

Under subsection 282(10) of the Insurance Act, if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator “shall award a lump sum of up to 50 per cent of the amount [of a benefit] to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured . . . at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.”

Ms. Henry maintains that Pembridge’s refusal to pay her a NEB was unreasonable and merits a special award for two reasons. The first is that Ms. Gailor did not provide Ms. Henry with an opportunity to elect which type of three weekly benefits available under the Schedule she wished to receive – income replacement, non-earner, or caregiver benefits – contrary to subsection 36(2) of the Schedule, which provides that where a person’s application for accident benefits indicates she “may qualify” for more than one type of weekly benefit, the insurer must notify her that she must elect which benefit she wishes to receive. It is not disputed that Ms. Gailor did not provide Ms. Henry with an “Election of Income Replacement, Non-Earner or Caregiver Benefit” form (“OCF-10”) until February 2008, almost a year after the accident, and only at Mr. Tessis’ insistence.

The second reason Ms. Henry claims a special award is because she feels that Pembridge was intransigent and unreasonable in continuing to deny her a NEB.

I do not find Pembridge’s conduct merits a special award in this case. Part 5 of the Application for Accident Benefits form submitted to Pembridge on behalf of Ms. Henry, where an applicant is asked to describe his or her status at the time of the accident, indicates only that Ms. Henry was employed and working. The box stating “student or recent graduate” was not checked off. Ms. Gailor explained that it was not evident from the application that Ms. Henry might be entitled to anything other than an IRB, or to an election for another weekly benefit. I do not find this to be unreasonable.

When Ms. Gailor sent Ms. Henry the OCF-10 on February 21, 2008, after discussions with Mr. Tessis, she also sent a letter carefully explaining the different weekly benefits, and confirmed her understanding, based on information originally provided, that Ms. Henry was one credit short of her high school diploma at the time of the accident. She advised, “In order to establish your entitlement to the election between the income replacement benefit and non-earner benefit, we will require that supporting documentation regarding the status of your education at the time of the accident be provided along with the completed election form.”⁸ I find that up until February 2008, at least, Ms. Gailor did not have enough information, or correct information, to appreciate that Ms. Henry might be entitled to an NEB.

Further correspondence indicates Ms. Gailor was not convinced of the basis for Ms. Henry’s NEB claim, even after Mr. Tessis sent her a copy of the appeal decision in Kernaghan on March 11, 2008.⁹ By the time Ms. Gailor wrote back to Mr. Tessis on June 17, 2008, she knew Ms. Henry had gotten her high school diploma within a year of the accident, she had a copy of Ms. Henry’s high school transcript and she had reviewed the Kernaghan decision. However, she requested further information “. . . as to how Ms. Henry’s situation is similar to the case of Kernaghan,” who had a “basic secondary school education with an emphasis in art.” Ms. Gailor’s letter advised that, “Upon receipt of the above noted information further consideration will be given to the election between income replacement and non-earner benefits.”

I do not find Ms. Gailor’s position to be unreasonable under the circumstances. The eligibility test for NEBs set out in subparagraph 12(1)(3)(ii) is open to interpretation. The arbitration and appeal decisions in Kernaghan clarify the law but not to the extent that one could simply extract from them a set of reliable principles that could easily be applied to the facts in any particular case. There was room for disagreement about whether Ms. Henry was entitled to an NEB, and Ms. Gailor did disagree. Nevertheless, I find that she continued to request further information and to communicate that she would reconsider an NEB election, presumably if she received information she considered persuasive. I do not find this to be an unreasonable position in this particular case.

EXPENSES:

If the parties are unable to agree on entitlement to or amount of expenses, either party, within 30 days of receiving this decision, may make an appointment for me to determine the dispute by way of written submissions.

March 14, 2011

Susan Sapin Date Arbitrator

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 26

FSCO A09-003026

BETWEEN:

TARYN HENRY

Applicant

and

PEMBRIDGE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Pembridge shall calculate and pay to Ms. Henry a non-earner benefit of $185 per week from October 27, 2007 to April 28, 2009 and $320 per week from April 29, 2009 and ongoing, pursuant to subsection 12(1) of the Schedule, less amounts paid and together with interest in accordance with section 46 of the Schedule.

March 14, 2011

Susan Sapin Date Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO A06-000287, May 17, 2007 and FSCO P07-00018, Appeal, February 4, 2008)
3. 3Kernaghan appeal at p. 8
4. 4Kernaghan appeal at p.7
5. 5Delegate Blackman, quoting Brockenshire, J. at p 8
6. 6At pg. 15 of the Kerhaghan arbitration decision, confirmed on appeal.
7. 72001
8. 8Exhibit 2, tab 2, Page 2.
9. 9Exhibit 2, tab 4.