DECISION ON EXPENSES
Abdi Malin V. State farm Mutual Automobile Insurance Company( FSCO A12-000108, July 4, 2014)
By Arbitrator: Edward Lee
In furtherance of applicant’s (Abdi Malin) claim for accident benefits, pre- hearing was scheduled on September 10, 2013. Both the parties were present on that day and next pre- hearing was fixed for December 6, 2013. Adjudicator approved the motion filled by Mr. Malin’s former counsel to withdraw as representative on December 6, 2013. Adjudicator wrote a letter to the applicant about the new scheduled hearing on March 21, 2014 but the applicant did not respond and attend the hearing. Moreover, he failed to submit the documents. Hence, adjudicator dismissed his claim for accident benefits.
- Whether or not the applicant is entitled for accident benefits?
- Whether or not the insurer is entitled to their expenses incurred on arbitration hearing? If “yes”, then how much they are entitled to receive?
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company (FSCO A12-001880 , July 3, 2014)
- Issue 1 –
In the present case, three pre- hearing were held and State Farm appeared before the court in all hearings scheduled but applicant failed to attend the last two. Moreover, applicant failed to provide evidence and submissions in respect of claim in the 30 days period provided by the Arbitrator. Arbitrator considered the Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company (FSCO A12-001880, July 3, 2014) where, applicant and his counsel were not present at hearing nor provided any documents in support of accident benefit claim and the claim was dismissed by arbitrator in the end. Therefore, in present case too, arbitrator dismissed the applicant’s claim for statutory accident benefits under The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Issue 2-
State farm was present at all hearings and also provided necessary documents within the period given by the arbitrator. Similarly, facts in the present case are similar to Alfons Ranxburgaj and State Farm Mutual Automobile Insurance Company, in which expenses were granted in favour of insurer. Hence,State Farm is entitled to receive expenses in regard of the time and cost spent in preparation of documents in the arbitration hearing.
Applicants claim for accident benefits dismissed and State farm is entitled to receive expense of $1,750.00.[i]
[i]Financial Services Commission Ontario; online: <https://www5.fsco.gov.on.ca/ad>
The case is disputed for the benefits not received by the applicant involving her two accidents, the first one being on October 29, 2003 and the second one May 9, 2004. The present issue arose when the respondent, Aviva Canada Inc., the applicant’s insurance provider, terminated the applicant’s benefits such as attendant care, housekeeping services and caregiver from June 25th to December 8, 2004 to which the applicant claimed to be entitled to under The Statutory Accident Benefits Schedule. The benefits were not resumed until December 8, 2004, the date on which the applicant submitted to orthopedic evaluation. Moreover, the applicant argues the two pain relief treatments denied on the basis of being considered unreasonable and unnecessary by the respondent should be paid for.
In the present case, the applicant claimed to have sustained soft tissue injuries as well as psychological injuries due to the motor vehicle accidents, making her unable to carry on her daily activities such as taking care of herself, her mother and her grandson, Jonathan. The applicant supports her proposition of being entitled to the above denied benefits based on recommendations by an occupational therapist, Ms. Farah Khan and Dr. Chan, who examined her and recommended caregiving and housekeeping assistance for her.
The respondent, Aviva Canada Inc, takes a position that several medical examinations conducted by them reveal the applicant’s injuries to be temporary and of medical tenderness with the ability to heal rapidly, relying on the reports Dr. Joel A. Finkelstein. Also, the respondent seek to submit the applicant’s failure to attend medical examinations scheduled by the respondent as a factor in denying the additional attendant, caregiver, and housekeeping benefits. Thereby, relying on these expert opinions, the respondent takes a position that it does not prevent Mr. Valle from taking care of her mother, grandchild and her home and herself as she was able to before the accidents.
1. 1. Is Ms. Valle entitled to additional attendant care benefits?
2. Is Ms. Valle entitled to additional housekeeping benefits?
3. Is Ms. Valle entitled to additional caregiver benefits?
4. Is Ms. Valle entitled to recover a special award in respect of Aviva’s refusals to pay additional caregiver, housekeeping and attendant care benefits and in respect of Aviva’s decision to suspend benefits from June 25, 2004 to December 8, 2004?
5. Is Ms. Valle entitled to additional medical benefits?
The Statutory Accident Benefits Schedule– Accidents on and after November 1, 1996. O. Reg. 462/96, s.2.
The case is brought in pursuant to Insurance Act, R.S.O. 1990, c.I.8.
1) On May 15, 2004, post second accident, as the applicant was assessed by an earlier occupational therapist, Ms. Farah Khan, was determined to have required 17.75 hours a week to attend for dressing, undressing, grooming, feeding, personal hygiene, coordination of care, exercise, skin care and many other personal activities, costing $932.26 per month. On a second assessment by a registered nurse, on November 11, 2004, Ms. Valle was still assessed as requiring an attendant for 4.74 hours for dressing, undressing, feeding and personal hygiene at a cost of $194.83 per month.
2) The applicant herself testified and provided information stated in the forms to Aviva along with the testimony of a housekeeper, Ms. Lina Cuzzolino, confirming that the applicant was in need of a housekeeping service. The arbitrator relied upon the following section of the Schedule in answering whether in the present case the applicant sustained injuries substantially affecting her ability to carry out daily functions:
- (1)The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. O. Reg. 403/96, s. 22 (1).
The arbitrator awarded the total amount of $733.86 for housekeeping services to Ms. Valle. In reaching this amount, the artibtrator considered the first in house assessment by a physiotherapist, Ms. Sheri Corriero, which stated the applicant required about 5.6 hours a week to account for activities such as dressing, undressing, personal hygiene and bathing. In addition to his, the second and post second accident assessment by an occupational therapist, Ms. Farah Khan, was also considered in which the applicant was assessed as requiring an attendant for similar activities above, requiring 5.09 hours a week in second assessment and 17.75 hours a week post second accident, respectively.By taking these assessments into consideration, the arbitrator deemed it necessary as stated in the above section, to allot housekeeping benefits to the applicant as she was substantially impaired, limiting her ability to attend to the needs of her family and conduct any home chores anymore.
3) The arbitrator considers that although Ms. Valle provided some care for her grandson, Jonathan, including preparing his lunch and boarding him to school bus, but determines that these duties limit her role as a caregiver as described below under the Schedule. In pursuant to the following provision of the Schedule, the arbitrator decides the need for caregiver benefits in this case.
13.(1)The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:
1. At the time of the accident,
i. the insured person was residing with a person in need of care, and
ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.
By referring to the above provision, the arbitrator decided that the applicant was not the primary caregiver of the child as he was in custody of his mother, Elsa, every evening and on the weekends and that just getting him ready for school would not constitute being under applicant’s primary custody. Additionally, in Ms. Valle’s position of requiring caregiver benefits to care for her mother is based on the two assessments by Ms. Farah Khan stating that it requires about 7 hours a week to dedicate the care needed to the elderly. The applicant is confirmed to be the primary caregiver of her mother and the latter was confirmed to be residing with the applicant, complying with the above provision to be considered a person needing a caregiver. Furthermore, Ms. Khan testifies that she observed the applicant’s mother requiring care for similar activities as the applicants such as mobility, personal hygiene, dressing, undressing and grooming.
4) The arbitrator determines that Avivawas being unreasonable by withholding the applicant’s entitlement to the benefits under section 282 (10) of the Insurance Act. This section of the Act states the following:
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.
The arbitrator considered the applicant’s unwillingness to cope with Aviva’s request for medical examinations to determine the extent of benefits that she was entitled to as a mitigating factor in determining the amount of special benefits awarded to her. However, the arbitrator significantly relied upon the application of the above provision in determining whether the applicant is entitled to special cost benefits, determined that Aviva unreasonably withheld Ms. Valle’s payment of her benefits between the time periods of June 25th, 2004 to December 8th, 2004.
5) The treatment plans involving soft issue therapy and mobilsation, received by the applicant was considered necessary and reasonable and have considered being an expense to be borne by the respondent. In citing a case law General Accident Assurance C. of Canada and Violi, the arbitrator cited pain relief treatments as being reasonable and necessary. The DAC’s assessors’ opinion of the first such treatment being considered sufficient was due to the fact that they examined the applicant after she received her first treatment. Lastly, as Ms. Vella still was required to have caregiver and housekeeping services, that contributed to the fact that she was still suffering from the injuries effect and required further medical treatments.
1. Due to the above factors taken into consideration, the additional attendant care benefits that the applicant is entitled to are a total of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.
2. Ms. Valle is entitled to additional housekeeping benefits in the amount of $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.
3. In applying the rate of Form 1 as a guide, the arbitrator determined the total amount of $174.80 plus interest in accordance with section 46 of the Schedule from November 4, 2004 to be given for caregiver benefits to Ms. Valle.
4. By considering the above factor and totality of the benefits awarded to Ms. Vello in this arbitration, the arbitrator awards $500 including interest payable as the amount of special award benefits for suspension of benefits from July 22, 2004 to November 4, 2004.
5. Ms. Valle is entitled to an additional medical benefit in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.
The significance of this case is that it demonstrates several real life incidents which individuals involved in motor vehicle accidents are faced with. It was to be noted that the arbitrator truly played the role of an impartial decision maker as he considered the consequences of several things like such as weighing the mitigating factors, the factors in favour of the opposite party, Aviva, along with the factors in favour of the applicant in making his decisions and presented conditions upon which the decision would have been reversed. Moreover, this case signifies that although one party to a proceeding was deficient in performing their duties, as the applicant failed to attend several medical examinations scheduled by Aviva, but this would not relieve the obligation of the other party to continue to perform their duties in a good faith, to provide the applicant with her entitled benefits.
Anita Aku Akwei, the applicant was injured in a motor vehicle accident on July 19, 2009. Differences between Ms. Akwei and Intact Insurance company developed regarding her accident benefits under The Statutory Accident Benefits Schedule and as a result Ms. Akwei applied for arbitration at FSCO under the Insurance Act.
- March 4, 2014 – Neither applicant or her representation appears for the pre-hearing discussion
- March 4, 2014 – Arbitration hearing is scheduled for May 9, 2014 at 10:00am
- If Applicant appears at hearing it is agreed that it will be turned into a pre-hearing, if applicant does not appear, arbitrator will hear motions to dismiss claims
- March 6, 2014 – Pre-hearing letter is sent to last known address on record for applicant advising her of the consequences of not appearing at the hearing scheduled for May 9, 2014
- May 9, 2014 – Applicant does not appear at hearing
- May 9, 2014 – Applicants claim is dismissed without hearing
Applicants claim was dismissed without a hearing based on rule 68 of the Dispute Resolution Practice Code, which states that:
Dismissal of proceeding without hearing
68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the
proceeding is frivolous, vexatious or is commenced in bad faith.
68.2 Before dismissing a proceeding under the Rule, an adjudicator shall deliver written notice to
all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.
Applicant did not respond to any notices of pre-hearing or hearing dates, has not presented any written objections or submissions.
Applicant’s claim is dismissed. Costs in the amount of 850.00 dollars are awarded to Intact Insurance Company.
Reasons for Decision
As a result of applicants non-response to notices of hearing etc. her claim is dismissed as having become vexatious under rule 68. Costs are amended from initial Bill of Costs asking for $2,185.87 as some of those costs were accrued during the portion of the proceedings which applicant had counsel and matters were proceeding.
The applicant’s (Abdi Malin) previous claim for benefits from motor vehicle accident was dismissed on March 31, 2014 under O.Reg.403/906 of the Statutory Accident Benefits Schedule from the Insurance Act . The hearing was conducted by Financial Services Commission of Ontario held for expenses on Dec 6, 2013. The legal representative for the applicant filed a motion for withdrawal for the said hearing. Upon receiving the motion for withdrawal, the arbitrator (Edward Lee) granted an adjournment of hearing on expenses for both parties on Mar 21, 2014. The applicant failed to attend the hearing but the legal representative for the respondent (State Farm Mutual Automobile Insurance) did. The hearing took place with the absence of the applicant.
The Arbitrator (Edward Lee) was tasked to decide:
- if the respondent (State Farm Mutual Automobile Insurance) would be compensated for expenses (in the form of “tax, disbursement and costs”) in preparation for the hearing.
- if the respondent was rewarded expenses, how much was it entitled to.
- Insurance Act, R.S.O. 1990, c. I.8 s. 282(11)
The Arbitrator (Lee) awarded the respondent (State Farm Mutual Automobile Insurance) expenses of $2000.00. The reward covered the expenses the respondent incurred for this hearing including “costs, disbursements and taxes”.
The Arbitrator (Lee) made the above decision because the applicant (Malin) only attended the pre-hearing conference on Sept 10, 2013. He did not attend the motion of withdrawal hearing for his legal representative on Dec 6, 2013 and also failed to attend the subsequent hearing on Mar 21, 2014. The respondent, in essence, did not subject to two examinations that required swearing. Furthermore, the applicant did not comply with the order for evidence submission with regard to cost within thirty days of the decision made on Mar 21, 2014.
Because the respondent (State Farm) attended the original pre-hearing conference and the other two proceedings with applicant’s absence, the arbitrator felt it was reasonable to reward it $2000.00 for the “cost, disbursement and taxes” incurred for these hearings.
Insurance companies don’t always look for ways to weasel out of paying its clients, this case shows they can be subject to fraud.
Before: Arbitrator Jeffrey Rogers
Heard: May 20, 2014, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Mr. Andrew McKague, solicitor for Belair Insurance Company Inc. No one appearing for Mr. Harriot.
EVIDENCE AND ANALYSIS:
The Applicant, Paul Michael Harriot, alleges that he was injured in a motor vehicle accident on June 5, 2010. He applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended. Disputes arose regarding his entitlement to further claimed benefits. The parties were unable to resolve their disputes through mediation, and Mr. Harriot applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A pre-hearing discussion was held on July 10, 2012. The pre-hearing Arbitrator scheduled the hearing to start on May 27, 2013.
In March 2013, Belair received evidence that Mr. Harriot was not injured in an “accident” as defined in the Schedule. The parties agreed to adjourn the hearing to May 20, 2014. The pre-hearing discussion was resumed on April 10, 2014 in order to ascertain whether Mr. Harriot intended to pursue this arbitration. He was given notice of the resumption at his last known address in the records of the Commission. He did not participate in the resumed pre-hearing.
Mr. Harriot did not attend the hearing on May 20, 2014. This arbitration is dismissed.
Belair claimed its expenses of the arbitration and investigating the alleged accident in the amount of $1,500, inclusive of disbursements and HST.
The issues in this hearing are:
1. Should this arbitration be dismissed because Mr. Harriot has failed to participate?
2. Is Mr. Harriot liable to pay Belair’s expenses of the arbitration, and if so, in what amount?
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
1. This arbitration is dismissed.
2. Mr. Harriot shall pay Belair its expenses of the arbitration in the amount of $1,500.
The Applicant (Nguyen), claims to have been injured in a motor vehicle accident on August 28, 2010 and has applied for accident benefits from the Respondent (State Farm). When disputes arose which were unable to be resolved through mediation Nguyen applied for arbitration on April 2013 at Financial Services Commission of Ontario (FSCO). A prehearing conference was scheduled for March 12, 2014 on September 9, 2013 and all parties were notified. On September 11, 2013 counsel for the Applicant, Mr. Druxerman informed FSCO that he was no longer representing Nguyen and that Nguyen wished to withdraw her application. FSCO replied on September 19, 2013 that they had not complied with the withdrawal.
On March 12, 2014 the pre-hearing took place and only State Farm attended. FSCO contacted Nguyen at her last known address and gave her until April 17, 2014 to enter a submission which she did not do.
Relying on rules with the Dispute Resolution Practice Code s. 9.7 (Code) which outlines the rules for a Representative as follows:
A representative who seeks to withdraw from a proceeding must:
(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding; (b)provide the last known address, telephone number and (if any) e‑mail address of the represented party.
The further relied on rule 70 of the Code which states:
70.1 A party may seek permission to withdraw all or part of a dispute by: (a) serving a request to withdraw on all parties; and
(b) filing the request to withdraw together with a Statement of Service in Form F; or
(c) making an oral request to withdraw all or part of a dispute during a neutral evaluation, pre- hearing discussion, settlement discussion, preliminary conference or at a hearing.
1. Should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith in accordance with Rule 68 of the Dispute Resolution Practice Code?
2. Is the Insurer, State Farm, entitled to its expenses and what amount?
To determine if the action was frivolous and vexatious, the efforts of the Applicant were applied.
The Financial Services Commission of Ontario is in place to hear disputes in regards to personal injuries which generally occur between an individual and an insurance company. There have a two step process, a pre-trial hearing and the hearing of which both parties, the Applicant and the Respondent (the Insurer) are to provide submissions as to the facts, issues and possible outcomes that they are seeking.
As the Financial Services Commission of Ontario only received the initial application from Nguyen and no subsequent evidence they made the only decision possible. The Financial Services Commission of Ontario made every effort to give the Applicant more time to bring forward this information for the submissions.
The Financial Services Commission of Ontario determined that the Applicant did not commence the action in bad faith but determined that the Applicant had manifested no interest in pursuing the claim. The Arbitrator for FSCO granted the motion set out by State Farm to dismiss the application and allowed State Farm to make there only submission in regards to cost. He further determined that it was reasonable to award State Farm some of the costs claimed but not the excessive amount suggested.
State Farm the Respondent was given $1,000.00 inclusive of fees, disbursements and taxes.
 Dispute Resolution Practice Code DRPC Fourth Edition – Updated January 2014