Neutral Citation: 2015 ONFSCDRS 1 FSCO A14-004802

BETWEEN:

JASON WORONA Applicant

and

PAFCO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch Heard: December 5, 2014

Appearances: Ms. Alia Khan for Mr. Worona Mr. David Murray for Pafco Insurance Company

Overview:

The Applicant, Jason Worona, was injured in a motor vehicle accident that took place on July 24, 2013. Disputes arose between Mr. Worona and his insurer, Pafco Insurance Company (“Pafco”), concerning his entitlement to accident benefits payable under the Schedule¹ and Mr. Worona applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

Mr. Worona brought a motion for an Order that Pafco pay interim income replacement benefits in the amount of $400.00 per week for the period July 31, 2013 to July 12, 2014. Pafco brought a cross-motion requesting that Mr. Worona’s Application for Arbitration be dismissed.

Issues

The issues in this motion are:

Should Pafco be required to pay interim income replacement benefits in the amount of $400.00 per week to Mr. Worona?
Should Mr. Worona’s Application for Arbitration be dismissed?
Is Mr. Worona entitled to a Special Award on his motion for interim benefits?
Should either party pay all or some of the other party’s expenses of this motion?

Result:

Pafco is not required to pay interim income replacement benefits to Mr. Worona.
Pafco’s motion for a dismissal of the Application for Arbitration is denied.
Mr. Worona is not entitled to a Special Award.
Each party shall bear its own expenses.

Background

Mr. Worona is 42 years of age. The accident occurred when Mr. Worona was a passenger in a semi-transport truck, operated by Constant Trucking. He was training to be a driver. He was unpaid. The driver pulled over to adjust logs that were being transported. Mr. Worona climbed to the top of the loaded trail to adjust the logs and while doing so, fell off the trailer, landing on the ground. He sustained injuries as a result of this fall.

Mr. Worona applied to the Workplace Safety and Insurance Board (“WSIB”) for benefits under the Workplace Safety and Insurance Act (“WSIA”). In a letter from WSIB to Constant Trucking³ dated August 23, 2013, Mr. Worona was identified as Constant Trucking’s worker. I do not take this to be an acceptance of this WSIB claim. In any case, a subsequent letter from WSIB to Mr. Worona⁴ dated August 27, 2013, denied entitlement to coverage by WSIB on the basis that Mr. Worona was an unpaid trainee. On November 8, 2013, Mr. Worona submitted an application for accident benefits to Pafco.

Section 61(1) of the Schedule provides that an insurer is not required to pay benefits described in this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 or any other workers' compensation law or plan. Despite this, if there is a dispute about whether subsection 61(1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if the person makes an assignment to the insurer of any WSIB benefits to which he or she is or may become entitled as a result of the accident and the WSIB approves the assignment.

Mr. Worona executed an assignment of benefits which was received by Pafco on January 13, 2014. The assignment was sent to WSIB for approval on February 13, 2014. According to both parties, approval of the assignment has not been forthcoming.

Pafco takes the position that on this basis, it is not obliged to pay benefits to Mr. Worona until the assignment has been approved. At the same time, Pafco believes that Mr. Worona will ultimately be entitled to WSIB benefits. Mr. Worona takes the position that in fact there is no dispute between him and WSIB, that his WSIB claim has been denied and that he is entitled to interim benefits.

Entitlement to Interim Benefits

There have been numerous arbitration cases dealing with the criteria required for the awarding of an interim benefit.

In Malabanan and Canadian General Insurance Company⁵ and in Ioannidis and Canadian General Insurance Group⁶, Arbitrator Manji found that an interim order for payment of benefits is appropriate where (i) the applicant has put forward a prima facie case for entitlement; and (ii) the applicant has demonstrated some need or necessity or urgency for the interim order pending the final order.

Counsel for Pafco cited the case of Nelson and Liberty Mutual Insurance Company⁷. In that decision Arbitrator Makepeace found the term “prima facie” to be ambiguous and found that an insured person must persuade the arbitrator hearing the interim benefits motion that a favourable ruling is “very probable”. She cited with approval the decision of Kolonjari and Co-operators General Insurance Company⁸ wherein Arbitrator Bayefsky found that an arbitrator hearing an interim benefits motion must consider the evidence of both sides.

I find that Mr. Worona’s motion for interim benefits fails both of the tests set out in Malabanan and Ioannidis, and further refined in Nelson for the following reasons.

“Prima facie” or very probable test

As stated earlier, Mr. Worona was not gainfully employed at the time of the accident. His claim for income replacement benefits is based on his employment at Thunder Bay Truck Centre Inc. that ended May 10, 2013. As described in an OCF-2⁹ provided by his employer, Mr. Worona was employed in the parts department, as a shipping and receiving clerk. The only description of his duties that I have before me is that contained in the OCF-2: “Dealing with customers (sic) phone calls, shipping and receiving parts and stock”. I have no information as to whether this job would be considered physically light, heavy or something in between.

According to medical documentation provided, Mr. Worona initially suffered a laceration to the forehead, swollen foot, bleeding and swollen nose and a fracture of the calcaneus, which was surgically repaired on August 12, 2013. He subsequently developed a wound infection and underwent an irrigation and debridement. On November 15, 2013 he was given medical permission to be weight-bearing with the assistance of crutches. He was given an accessible parking permit on November 14, 2013 which was made permanent beginning May 2014. He underwent physiotherapy from November 2013 to March 2014.

Assuming that Mr. Worona’s job at Thunder Bay Trucking Centre would involve a considerable amount of standing and walking and taking into account the injury to his foot, I find it very probable that Mr. Worona would be entitled to income replacement benefits for a period immediately following the accident. However, in the absence of more evidence regarding his job duties and the progress of recuperation, I cannot make a determination as to how long that period would be. I must bear in mind that he commenced a general labouring job with a construction company on July 14, 2014. I can only assume that this job would be as physically demanding, if not more so, than his job as a shipping/receiving clerk. It follows that Mr. Worona was capable of performing the duties of his former job at some point prior to July 14, 2014. In the absence of further evidence, I cannot determine the point when he ceased to be substantially unable to perform the duties of his employment with Thunder Bay Truck Centre.

Need or necessity or urgency for the interim order pending the final order

In his affidavit, Mr. Worona stated that as a result of Pafco’s refusal to pay income replacement benefits he was forced to file for bankruptcy in Thunder Bay on October 1, 2013. He was forced to move to Manitoba to live with his parents at the end of March 2014. On July 12, 2014 he moved to Fort Frances, Ontario to commence employment with DeGagne Construction as a general labourer. He earns $16.00 per hour. He does not have a benefit plan.

It is difficult to see the necessity or urgency in Mr. Worona’s situation. He is presently employed, apparently full-time, earning more than the minimum wage. The period when he was most in need of interim benefits would appear to be August 2013 to July 2014. That time is past. To grant Mr. Worona interim benefits, even if it were possible for me to determine the length of eligibility within the 50-week period between the accident and his return to employment, would have the effect of deciding his claim, on the basis of very limited evidence. An order for interim benefits is meant to relieve financial hardship, not pre-empt a full hearing.

The length of time Mr. Worona would be entitled to income replacement benefits is unclear. He has not demonstrated an urgent need for those benefits. His motion for interim benefits is dismissed.

Cross-motion for dismissal of the Application for Arbitration.

The basis for the cross-motion is that Mr. Worona is entitled to WSIB benefits and is not entitled to receive statutory accident benefits under the Schedule as per section 61(1). At present I have no evidence that would support a finding that Mr. Worona is entitled to WSIB benefits. His claim for entitlement to WSIB benefits was rejected by letter dated August 27, 2013. There is no evidence that he objected to the ruling, as provided for in that same letter. His counsel indicated that an action has been commenced, however I cannot take that into consideration until it is introduced as evidence. The question of Mr. Worona’s entitlement to WSIB benefits, if any, is best left to the hearing arbitrator. Mr. Worona’s claim for income replacement benefits is very much a live issue. It would be premature to dismiss Mr. Worona’s Application for Arbitration.

Special Award

Subsection 282(10) of the Insurance Act provides that if the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to an award of benefits and interest, shall award a lump sum of up to 50 per cent of the amount to which the insured person was entitled at the time of the award.

Counsel for Mr. Worona provided me with a decision wherein the arbitrator awarded a Special Award on a motion for interim benefits.

Given my finding that Mr. Worona is not entitled to benefits at this time, there is no basis upon which to grant a Special Award.

Expenses

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.¹⁰

Mr. Worona has been unsuccessful in his claim for interim benefits. At the same time Pafco has been unsuccessful in having this claim dismissed. In these circumstances I find that each party should bear its own expenses.

January 2, 2015

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario