FSCO A09-00641
Dennis Ferguson (Applicant)
ING (Insurer)
February 22 & 23, 2010
Resons for Decision
Issues:
Mr. Ferguson was injured in a motor vehice accident on August 23, 2007. He applied and received SABs from ING payable under Schedule. An issue arose concerning the amount of income replacement benefits to which Mr. Ferguson was entitled and the parties were unable to resolve their dispute through mediation. Mr. Ferguson applied for arbitration at the FSCO.
The issues in this hearing are:
1. Was Mr. Ferguson an employee or self-employed at the time of the accident?
2. What is the amount of the income replacement benefit to which Mr. Ferguson is entitled pursuant to section 6 of the Schedule, from Aug. 30, 2007 onwards?
3. Is Mr. Ferguson entitled to interest for the overdue payment of income replacement benefits pursuant to section 46(2) of the Schedule?
Results:
1. Mr. Ferguson was employed as an employee at the time of the accident.
2. The amount of the income replacement benefit to which Mr. Ferguson is entitled is $294.12 per week from August 30, 2007.
3. Mr. Ferguson is entitled to interest for the overdue payment of the income replacement benefits, calculated in accordance with s. 46(2) of the Schedule.
Wednesday, September 8, 2010
FSCO, Kevin Tam and Wawanesa Mutual Insurance Company
FSCO A07-002163
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
FSCO, Julia Gordyukova and Dominion of Canada General Insurance Company
FSCO A08-002589
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
FSCO, Sivakumaru Sinnapu and Economical Mutual Insurance Company
FSCO A09-000900
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
- A special award is unique to the arbitration process. It is a statutory award that is outlined in subsection 282 (10) of the Insurance Act
- The threshold for such an award, reasonableness, is rather low and is merely triggered by a withholding or delay of payments that is unreasonable. No ill-will, no intent to harm an insured, delay, or intentionally withhold payments is necessary, merely that the delay or withholding be "unreasonable."
- I find that there is no specific evidence of malice or intent to harm. Nor indeed was any specific malice alleged by Mr. Sinnapu. Rather, I find it more likely that Economical's efforts to adjust this file for some unknown reason went off the rails at the two-year mark, and as a result decisions were taken that ignored Mr. Sinnapu's reality and caused much tribulation to a vulnerable person.
- I find that in accepting Dr. Lexier's conclusions on employment, in the face of contradictory evidence from experts in that field, Economical acted unreasonably. It made no apparent attempt to reconcile conflicting reports, or to weigh the value of Dr. Lexier's opinion in an area that was clearly outside his claimed expertise.
- The decision to discontinue benefits, based on this opinion, was unreasonable, a conclusion that in accordance with subsection 282 (10) of the Insurance Act mandates a special award.
- Failure of the Insurer to comply with the Schedule in discontinuing benefits. While there may well still be the possibility of entitlement to ongoing benefits in the face of a flawed discontinuance of payments, what is important in the context of this special award is whether or not an insurer should have known that it was obliged to reinstate until such time as the defective notice is properly addressed. Given the inconsistencies in the jurisprudence and this most recent statement from the Court of Appeal, I cannot accept that the Insurer can be somehow deemed to have such knowledge. Consequently, a withholding of benefits in the face of a flawed termination process need not necessarily be found unreasonable and so attract a special award.
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