Neutral Citation: 1992 ONICDRG 24

File Nos. A-000301, A-000325 and A-000384

BETWEEN:

CARLOS FERREYRA and BLANCA FERREYRA

Applicants

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The Applicants, Carlos Ferreyra, and Blanca Ferreyra, were injured in a motor vehicle accident on July 4, 1990. They were further injured in a subsequent motor vehicle accident on July 22, 1990. The Applicants were insured under an automobile owner's standard policy issued by the Insurer. They applied for weekly income benefits and other benefits, payable under Ontario Regulation 273/90 ("the No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle liability policy provides these benefits.

Following the accident, the Applicants hired their 17½ year old son to drive them to and from medical and physiotherapy appointments, to assist in keeping their apartment clean, to assist in preparing meals for the family, and to transport his younger brothers to and from their recreational activities, as well to accompany them to and from school. As a result of this activity by their son, Alejandro Ferreyra, the Applicants claim reimbursement of the sum of $6,000.00 pursuant to Sections 6(1)(d), 6(1)(f), or 7(1)(b) of the No-Fault Benefits Schedule.

After the Insurer denied this claim, the Applicants applied for mediation with respect to this issue. Mediation failed to resolve the disagreement and the Applicants applied for the appointment of an arbitrator.

In April and May 1991, counsel for the Applicants requested Dr. J.T. Bertoia, an orthopaedic specialist, to examine each applicant and provide a report. The Applicants forwarded these reports to the Insurer, together with the invoices for the reports, which the Insurer has refused to pay. This issue also was not resolved at mediation and the Applicants applied for arbitration.

The issues to be determined in this arbitration were:

Are the Applicants entitled to reimbursement of $6,000.00 for 24 weeks of services provided by Alejandro Ferreyra between July 27, 1990 and March 1, 1991?
Are the Applicants entitled to reimbursement for the cost of the medical reports obtained from Dr. J.T. Bertoia, dated April 3, 1991 and May 14, 1991?

The Applicants also claim their expenses incurred in respect of this arbitration.

The decision is:

The Applicants are entitled to reimbursement of the sum of $2,880.00 ($6.00 x 20 hours x 24 weeks) for compensable services provided by Alejandro Ferreyra to them between July 27, 1990 and March 1, 1991.
The Insurer will pay the sum of $650.00 on account of the report of Dr. J.T. Bertoia dated April 3, 1991 and a further $650.00 on account of the report of Dr. J.T.Bertoia dated May 14, 1991.
The Applicants are entitled to their expenses incurred in respect of this arbitration under section 282(11) of the Insurance Act and Regulation 275/90.

An arbitration hearing was held at North York, Ontario, on April 28 and 29, 1992, before me, K. Julaine Palmer, arbitrator.

Present at the hearing were:

Applicants:

Blanca Ferreyra

Carlos Ferreyra

Applicants' Representative:

Altor Shields Barrister & Solicitor

Insurer:

Represented by:

Lynda Shaw, Adjuster

Insurer's Representatives:

John J. Aikins Barrister & Solicitor

Helene M. Silveira

Barrister & Solicitor

The following gave evidence, under oath or solemn affirmation, at the hearing:

Carlos Ferreyra

Blanca Ferreyra

Alejandro Ferreyra

Lynda Shaw, Adjuster

Forty exhibits were filed by the parties, consisting of various correspondence, medical reports, invoices, and other material.

The evidence of Carlos Ferreyra and Blanca Ferreyra was given in Spanish and interpreted by Margarita Feliciano.

Legislation:

Portions of Ontario Regulation 273/90, the No-Fault Benefits Schedule, and the Insurance Act, R.S.O. 1990, c. I.8, which are particularly relevant to this arbitration are set out in Appendix 2 of this decision.

Evidence of the Applicants:

Blanca and Carlos Ferreyra, now ages 41 and 42 respectively, came to Canada in 1982 from Uruguay. They are the parents of three sons: Alejandro (known as Alex), now age 19; Darilo, now age 10; and Dennis, now 7 years of age. Darilo and Dennis attend a school located less than two blocks from the Ferreyra's apartment building.

Before the accidents of July 4 and 22, 1990, Carlos Ferreyra had been employed as a truck driver for two and a half years by a cartage company. He had earned almost $46,000 in the 52 weeks preceding the first accident. Previously, Mr. Ferreyra had worked as a cleaner after coming to Canada. Mr. Ferreyra customarily worked a 50 to 60 hour week, leaving home about 6:30 a.m. and returning approximately 5:00 p.m. each day.

Prior to the first accident, Blanca Ferreyra worked as an office cleaner. She worked an average of 50 hours per week, in the evenings and during the night, holding down both a part-time and a full-time cleaning job, five nights each week. In the year before the first accident, she earned approximately $36,000. In addition to her employment outside the home, Blanca Ferreyra performed virtually all of the home-making activities for the family, including caring for the children, house-cleaning, laundry and ironing, meal preparation and clean-up, and walking Darilo and Dennis to and from school each day.

The family's major recreational activity involved the sport of soccer. Mr. Ferreyra coached Darilo's team and also began coaching Alejandro's team in June of 1991. All three boys played soccer and were required to practice twice weekly as well as participating in games on the weekend. In the winter, they played indoor soccer.

At the time of the accidents, Alejandro Ferreyra was 17½ years of age. He had left school approximately one year before after Grade 10 to work full-time. At the time of the first accident, Alejandro was unemployed; he had not decided whether to continue working or return to school. Eventually, in September 1991, Alejandro did return to school for a short time, but he left school again and is now employed in a bakery. At the time of the accident, Alejandro had a driving license which required that he be accompanied by a licensed driver at all times (a learner's permit). Alejandro testified that he received his full driver's license in November 1990.

Following the second accident of July 22, 1990, there was great disruption in the Ferreyra household, because of the serious injuries which Mr. and Mrs. Ferreyra received. Darilo Ferreyra was also injured in that accident. The Ferreyra parents came to rely on Alejandro to perform many duties around the apartment and to assist in the care of his younger brothers.

I heard a great deal of evidence over two days of how the accidents of July 4 and 22, 1990 impacted upon the family's day-to-day activities.

Throughout the 32 weeks from July 27, 1990 to March 1, 1991, when Alejandro was receiving a weekly payment of $250.00 from his father, he did not work for anyone else. The Applicants claim reimbursement of $6,000.00 (24 weeks) paid to Alejandro. [The Applicants are not claiming for 8 weeks during this period, for reasons which will be described below.]

After the accident, Carlos Ferreyra testified he was no longer able to drive for more than 20 to 25 minutes at one time. He also lost some confidence in his ability to drive. Carlos Ferreyra would often begin to drive on an excursion, then request his son to take over. Blanca Ferreyra does not drive.

Following the accident of July 22, 1990, Blanca Ferreyra testified she was not able to do the physical housework that she had done before the accident; she also stated that psychologically she was "in bad shape". Throughout the 1990-91 school year, Dennis Ferreyra attended school only in the afternoon. Accordingly, he required care during the morning. As well, Darilo came home from school for his noon meal.

Neither Carlos nor Blanca Ferreyra has worked outside the home since the day following the accident of July 4, 1990.

The list of services which Alejandro Ferreyra provided for the family is set out in Exhibit 19, which is attached to this decision as Appendix 1.

There was no evidence before me as to the author of Exhibit 19. Alejandro Ferreyra was not questioned about the calculation of the amount of time specified for each activity. He was not asked the details of his daily housekeeping and meal preparation tasks. He was, however, cross-examined closely with respect to several of the activities listed, such as the transportation of his brothers to and from Spanish school.

Evidence of Royal Insurance:

Lynda Shaw, a claims adjuster, gave evidence on behalf of Royal Insurance. She has had responsibility for payment of the Applicants' weekly income benefits and other no-fault benefits since the accidents. On August 9 and 24, 1990, she met personally with the Applicants at their home.

Lynda Shaw described her confusion in September 1990 when she learned from Carlos Ferreyra that he was receiving a disability benefit from Metropolitan Life through an employee group policy. At that time, she had already received Exhibit 17, an employer's report, which indicated that Mr. Ferreyra was not entitled to any supplementary benefits. For a several months, Carlos Ferreyra received benefits from both Metropolitan Life and Royal Insurance Company, such that he was receiving a weekly amount of $1,650, when formerly his weekly gross earnings had been less than $1,000. Blanca Ferreyra had no other loss-of-income plan.

From the exhibits filed by the parties and from Lynda Shaw's testimony, I learned that weekly income benefits were paid to Carlos Ferreyra and Blanca Ferreyra in blocks of payments, from four weeks to fourteen weeks in one cheque. Accordingly, there were long gaps of time between cheques received from Royal Insurance.

Submissions:

The Applicant's solicitor submitted that the hiatus in payment of benefits to both Applicants coincided dramatically with the predictions in the reports of Dr. Stubbs as to when he felt they should return to work. If there was a problem at Royal Insurance that caused a delay in payments, it's not a situation where the insureds should be put to expense.

With respect to the services of Alex Ferreyra, the obligation of the insured is to satisfy the arbitrator that the services were reasonably necessary and were performed and the costs were reasonable. If the Applicants were physically incapable of doing it themselves, then it falls upon the insurer to pay, because they are all services required because of the accident.

The Insurer's solicitor submitted with respect to the reports of Dr. Bertoia that the reports did not relate to the delay in providing benefits. He submitted that the medical report fees are not covered under s. 6(1)(f) of the Schedule. The Applicants could have got a standard medical report.

With respect to the housekeeping claim, the Insurer's counsel submitted that it was clear that although Alex Ferreyra helped a lot, he didn't help to the extent on paper. He submitted it was not established that the son spent 39 hours per week working. He further submitted that the Applicants needed to become more active as part of their therapy. As a care benefit, the Insurer's counsel submitted that it was not reasonable to pay the son to drive if he did not lose a job in order to do this. In the event the arbitrator awards something, then it should be significantly less.

Findings:

I. Payments to Alejandro Ferreyra

Sections 6 and 7 of the No-fault Benefits Schedule provide a scheme of payment of certain reasonable expenses resulting from an accident to defined maxima, within defined time periods. The care benefits and supplementary medical and rehabilitation benefits provided under the No-fault Benefits Schedule are designed to provide benefits "with respect to each insured person who sustains...injury" after a motor vehicle accident.

The services Alejandro Ferreyra provided to his family following the motor vehicle accidents are set out in Appendix 1 to this decision. In my view, some of the services which Alejandro Ferreyra provided for his parents following the accidents could be said reasonably to be included in section 6(1) (f) of the No-Fault Benefits Schedule as "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident". The services could also be said to be care expenses covered by s. 7(1)(b) of the Schedule. I have reviewed 12 medical reports which outline the Applicants' physical condition and treatment since the motor vehicle accidents. It is clear on the medical evidence that for a period of months following the accident, neither Blanca Ferreyra nor Carlos Ferreyra could have been expected to participate greatly in ordinary, but necessary housekeeping, meal preparation, laundry or shopping activities. In his report of November 27, 1990, Dr. Stubbs diagnosed Blanca Ferreyra's injuries as follows:

Chronic cervical strain with associated headaches and dizziness.
Fibromyositis of the lateral cervical musculature.
Chronic rotator cuff lesion of the both shoulder joints.
Chronic dorsal spine strain.
Chronic lumbar spine strain.
Plantar fascitis of both feet.

He noted movement of her cervical spine was 30% of normal.

In his report of November 26, 1990, following his examination of Carlos Ferreyra, Dr. Stubbs' diagnosis was as follows:

Chronic cervical strain with associated headaches and dizziness.
Bilateral rotator cuff lesion of the shoulder joints.
Fibromyositis of the lateral cervical musculature.
Chronic dorsal spine strain.
Chronic lumbar spine strain.

He also stated:

This man feels somewhat depressed and worried about his condition and has had persistent pain and disabilities in the areas described. Progress is slow in spite of physiotherapy.

I find it is reasonable for the insurer to pay to provide these housekeeping, meal preparation, laundry and shopping services for the Applicants as "reasonable expenses resulting from the accident" or as "care services" during the summer, fall and early winter of 1990.

Neither Carlos nor Blanca Ferreyra is confident or fluent in the English language. Following the accident, Alejandro Ferreyra acted as an interpreter for his parents to assist them at medical appointments and occasionally at a physiotherapy clinic. In my view, the expense of providing Alejandro as an interpreter on these occasions could also properly be seen to fall under section 6(1)(f) or under s. 7(1)(b) of the Schedule. I find it is also reasonable for the insurer to pay a reasonable amount for these services.

The principal focus of the No-Fault Benefits Schedule is on the needs of the insured person who sustained injury, not generally on replacement of the services formerly provided by the insured person who sustained injury. Thus, in my view, the cost of providing replacement transportation for Dennis and Darilo Ferreyra to soccer practices and games following the accidents is not an expense which is compensable under section 6(1) (nor section 7) of the No-Fault Benefits Schedule. Similarly, the cost of any replacement transportation for the boys to their Spanish school is, likewise, not covered by the Schedule. In my view, it cannot be said that any extra expenses incurred to transport the children was a service "which the insured person requires because of the accident". These expenses were not characterized as incurred to transport Carlos Ferreyra to the soccer games; the evidence before me indicated that after the accidents Carlos Ferreyra participated much less in his coaching activities and that he did not attend the team's practice sessions.

The situation is different, however, with respect to transportation of the Applicants to physiotherapy and medical appointments. I heard no testimony that the Applicants have claimed any expense for transportation to and from physiotherapy treatment or medical appointments other than that imputed in their payment to Alejandro of a salary as their chauffeur. There was evidence before me that the Insurer was prepared to pay a kilometre allowance to the Applicants for such travel. I heard no evidence as to the cost of alternate taxicab or public transportation to these appointments. The Applicants took physiotherapy treatment at a clinic located at Yonge Street and Eglinton Avenue and the treating physician's office was located at Yonge Street and St. Clair Avenue. Often Carlos Ferreyra would have a different time for his appointments than Blanca Ferreyra. Dr. Weinstock, the Applicants' treating physician, wrote in support of Mr. Ferreyra's claim that he could not sit longer than 10 to 15 minutes in one position, including driving. In his letter of March 18, 1991, Dr. Weinstock wrote that "Mr. Ferreyra has hired his son to drive for him, and I am writing this letter to inform you that the reason is medically justified."

In all of these particular circumstances, then, it is my view that in this case it is reasonable to pay for the transportation of the Applicants to physiotherapy treatments and medical appointments in the summer, fall or winter of 1990 by the means of reimbursement of part of the salary paid to their son to act as chauffeur from August 1990 until March 1991.

With respect to housekeeping, meal preparation, laundry and shopping services provided by Alejandro Ferreyra, it is necessary to attempt to separate the services provided by him for those two insured persons who sustained injuries as a result of the accidents from the total services provided. This is a difficult task, because home-making activities like meal preparation and cleaning are not easily divided or compartmentalized. For example, if Alejandro prepared an evening meal in August 1990 for the whole family, what is the time spent preparing the meals of Carlos and Blanca Ferreyra, the insured persons who were injured in the accidents, compared to the total time spent? There are similar difficulties in calculating the time spent to care for the Applicants by cleaning, doing their laundry and shopping.

Further, as Carlos Ferreyra, especially, became more able (as is traced in the medical reports) by the spring of 1991, he was fit to assume most of the required housekeeping, meal preparation, laundry, shopping and transportation duties. The medical condition of Blanca Ferreyra also improved somewhat as time passed. The compensable value of Alejandro Ferreyra's services, then, in my view, diminishes substantially by March 1991.

In all of the circumstances, I am prepared to allow an average of 20 hours per week over the 24 weeks claimed during the period July 27, 1990 to March 1, 1991 to the Applicants as reasonable expenses for the salary of Alejandro Ferreyra to provide services which, in my view, are compensable under Section 6(1) (f) and Section 7 of the No-Fault Benefits Schedule. I make no allowance for the transportation of the younger Ferreyra boys to and from soccer activities nor for their transportation to and from Spanish school.

In calculating the average number of hours per week, I allow the full 6 hours per week claimed in connection with medical and physiotherapy appointments and the full 2 hours for shopping services. I allow an average of 12 hours per week for housekeeping, meal preparation and laundry services provided for the Applicants over the period claimed. I allow these expenses at the rate of $6.00 per hour rather than the $6.41 claimed. The services provided by Alejandro Ferreyra were not in the nature of professional cleaning or other services. The rate awarded corresponds to the minimum wage rate for adults in place in Ontario since November 1991. I repeat my observation that as the year 1991 progressed, both applicants became capable of assuming many of the duties performed earlier by Alejandro Ferreyra.

No payment is sought for the weeks September 7 - October 19, 1990 because during that period of time a cleaning woman and babysitter had been hired by Blanca Ferreyra, the cost of which was reimbursed by the Insurer.

II. Payment of Dr. Bertoia's Medical Reports

Through the evidence of Lynda Shaw, adjuster and the evidence of Carlos Ferreyra and Blanca Ferreyra, I learned that the Applicants' weekly income benefits were paid in blocks of benefits ranging from four to fourteen weeks at one time, not in the manner prescribed in s. 24(3) of the Schedule. That section provides that such payments are to be delivered "at least once every second week while the insurer remains liable to the insured person".

The Schedule also provides at s. 14 that the insurer will pay full benefits under Part IV (weekly income benefits) until the insured person receives payments that would reduce the insurer's obligation, such as the payments received by Carlos Ferreyra from Metropolitan Life. Repayment by the insured person of any overpayment created by this provision is required by s. 27(3) of the Schedule.

The following table sets out the relevant information regarding the weekly income benefit cheques received by Carlos and Blanca Ferreyra in the weeks preceding and following the reports obtained from Dr. Bertoia:

Ex. No.	Date of Letter or Cheque	No. of Weeks of Benefits	Rate per Week	Amount of Cheque	Benefits Paid Until
CARLOS FERREYRA
8	Jan.30/91	6	$750.00	$4,500.00	Feb.5/91
9	Apr. 9/91	6	$750.00	$4,500.00	Apr.16/91
12	June 5/91	8	$750.00	$6,100.00 $100.00	June 11 int.

Ex. No.	Date of Letter or Cheque	No. of Weeks of Benefits	Rate per Week	Amount of Cheque	Benefits Paid Until
BLANCA FERREYRA
1	Jan.30/91	6	$547.13	$3,282.78	Feb.2/91
2	Feb.20/91	4	$547.13	$2,188.52	Mar.5/91
3	June 5/91	14	$547.13	$7,659.82 $ 132.00	June 11 int.

The assessment of Carlos Ferreyra was requested on April 2, 1991 according to Dr. Bertoia's report of the same date (Exhibit 13). At that time, Carlos Ferreyra had received no weekly income benefits from the Insurer for 8 weeks. Further, the report commissioned by the Insurer from Orthopaedic Surgeon, Dr. J. Stubbs, dated November 26, 1990 (Exhibit 22) predicted that the male Applicant should return to work at the end of February 1991. The Insurer had sent a copy of the Stubbs report to the counsel for the Applicants on January 30, 1991. The memorandum which accompanied the report states as follows:

"Kindly advise your client we expect him to follow Dr. Stubs' (sic) recommendations, in an effort to live up to the doctor's prognosis. Dr. Stubs feels he should be back to full time employment by the end of 3 months, which is the end of Feb/91." (Ex. 8)

Given the tenor of the memorandum from the insurer and the fact that by April 2, 1992 weekly income payments to Carlos Ferreyra were grossly overdue, in my view, the male Applicant was entirely justified in seeking an expert orthopaedic opinion to prove he remained entitled to weekly income benefits under the Schedule. Carlos Ferreyra never received any notice he had been "cut off" benefits by the Insurer, but the passage of time with no explanation by the Insurer amounted to a constructive termination of benefits, in my view.

Similarly, on May 2, 1991 when a report was requested of Dr. Bertoia relating to Blanca Ferreyra, Mrs. Ferreyra's benefits had not been paid for more than 8 weeks. She also had been seen by Dr. Stubbs on November 27, 1990, at which time Dr. Stubbs reported to the Insurer:

"This patient is certainly not fit for work at the moment and should continue physiotherapy for three months and after that time she should be able to get back to at least some part time work and then after another six weeks she can commence working full time." (Ex. 23)

This prognosis by Dr. Stubbs translated into Mrs. Ferreyra resuming part-time work by the beginning of March 1991 and full-time work by mid-April 1991.

Indeed, on January 30, 1991 the adjuster wrote to the counsel for the female Applicant as follows:

"Enclosed please find a copy of the report from Dr. Stubs (sic) of the Riverfront Medical Centre. Kindly advise your client we expect her to follow his suggestions, in an effort to live up to his prognosis. According to Dr. Stubs, she should be fit for part time employment very shortly." (Ex. 1)

The adjuster wrote again to the solicitors for the female Applicant on February 20, 1991:

"Mrs. Ferreyra needs a good exercise program with a qualified therapist. Many of the Toronto hospitals carry these programs, which we might add are covered by OHIP.

We would suggest that you supply Mrs. Ferreyra's doctor with a copy of Dr. Stubbs' report, and have him refer his patient to the appropriate establishment.

We do not wish to come up against a problem which may result in discontinuing benefits. It is necessary for you to follow the recommended treatment and make sure that your client gives a supreme effort of getting well again."

(emphasis added)

In my view, it was reasonable for Blanca Ferreyra to request a narrative report from an orthopaedic surgeon of her choice, Dr. Bertoia, in May 1991 when she had not received weekly income benefits since March 5, 1991 and when she knew Dr. Stubbs' report contained estimated dates for her return to employment, which had already passed.

It is correct that a Form 4 report might have been solicited from Dr. Bertoia in an effort to keep the cost of providing a current orthopaedic opinion to the Insurer at a minimum. However, in my view, in light of the Insurer's gross delay in payment of the weekly income benefits owing to the Applicants, in clear violation of s. 24(3) of the Schedule, it is repugnant for the Insurer to deny reimbursement of the cost of the self-help remedy undertaken by them.

Under s. 23 of the Schedule, the Insurer is obliged to pay the reasonable cost of examinations of persons making claims under Part IV, in defined circumstances, and also to pay the cost of "all certificates" (s. 23(4)) obtained "from a qualified medical practitioner....of the insured person's choice as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan" (s. 23(1)). Certainly, the reports of Dr. Bertoia fulfil the stated criteria of the "certificate" as set out in s. 23(1) of the Schedule. Although Form 4 under the Schedule is the form prescribed by the regulation to fulfil the requirements of s. 23(1) where such is required by the insurer, the regulation does not prohibit other forms of report, such as Dr. Bertoia's narrative report. Section 23(3) also contemplates more than one examination being possible.

There was no evidence before me to disclose whether the $650 fee charged by Dr. Bertoia related solely to the narrative report provided by him, or to provision of both the examination and the report. Similarly, there was no evidence before me to disclose whether the cost of the examination was "payable under any insurance plan or law or under any other plan or law" (s. 23(3)). If the account relates both to the service of providing the examination as well as the report, then the "reasonable cost" of the examination itself would be fully payable by the Insurer.

Each report is a full and complete recitation of the history of the patient, the findings on examination, diagnosis and recommendations for treatment and is of 9 or 11 pages in length, which further adds to my finding that the account is reasonable.

Subsequent to the receipt of the reports of Dr. Bertoia, the insurer had both Applicants re-examined by another orthopaedic surgeon of its choice pursuant to s. 23(2) of the Schedule. Clearly, there were medical problems here that were complex enough to warrant expenditures for expert opinions.

The only explanation offered by the Insurer for its failure to pay weekly income benefits as provided by s. 24(3) of the Schedule was that Lynda Shaw was personally overloaded with work and there was restructuring and reorganizing taking place in the corporation. I accept Lynda Shaw's evidence that there was no singling out of the Ferreyra claims in this staffing and overload situation and that the interruption of weekly income payments only by chance coincided with the recommendations of Dr. Stubbs' report regarding the Applicants' progress and anticipated return to work dates. However, from the Applicants' point of view, they had no knowledge of the corporate difficulties and no obligation to accept the gross delays in payment.

Section 282 of the Insurance Act empowers an arbitrator to award a penalty against an insurer in circumstances where the insurer has unreasonably withheld or delayed payments. Despite the fact that some interest was paid in June 1991 as is required by s. 24(4), I consider the delays in the spring of 1991 in weekly payments to the Applicants reprehensible. However, because there is no amount now owed to the Applicants in weekly income benefits, I have no basis on which to award any lump sum penalty. Although I have found that the accounts rendered by Dr. Bertoia should be paid by the Insurer, the issue of the Insurer's liability to pay these particular accounts is genuine and novel. Similarly, the dispute regarding the reimbursement of payments to Alejandro Ferreyra is a unique and difficult issue. I decline to award a penalty against the Insurer with respect to the delay in weekly income payments by basing the lump sum on these other amounts I have found to be owing. In this case, I am able only to request that the Director of Arbitrations, Ontario Insurance Commission, review this decision pursuant to section 288 of the Act:

The Director shall review arbitration orders and may recommend to the Superintendent that the Superintendent investigate the business practices of an insurer if the Director is of the opinion that any arbitration or appeal from an arbitration reveals unfair or deceptive business practices. 1990, c. 2, s. 65, part.

If I am in error with respect to the payment by the Insurer of the accounts of Dr. Bertoia under s. 23(3) and (4) of the Schedule, then I would allow the accounts as expenses in this arbitration as provided in Ontario Regulation 275/90 and Schedule 1 of the Dispute Resolution Practice Code. Although the reports were presumably not initially obtained to be used in an arbitration proceeding, they were necessary and useful to me in understanding the medical condition of the Applicants. Their provision to me also saved the expense of calling Dr. Bertoia to testify as an expert witness.

Expenses:

The Applicants seek an award of the expenses they have incurred in this arbitration. An award for expenses may be made under s. 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 275/90 "Schedule".

In the McCormick vs. Economical Mutual Insurance Company case (O.I.C. No. A-000139), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Applicants are entitled to their expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

The Applicants are entitled to reimbursement of the sum of $2,880.00 ($6.00 x 20 hours x 24 weeks) for compensable services provided by Alejandro Ferreyra to them between July 27, 1990 and March 1, 1991.
The Insurer will pay the sum of $650.00 on account of the report of Dr. J.T. Bertoia dated April 3, 1991 and a further $650.00 on account of the report of Dr. J.T.Bertoia dated May 14, 1991.
The Applicants will have their expenses of this arbitration.

July 9, 1992

K. Julaine Palmer Arbitrator

Date

[EXHIBIT 19]

APPENDIX 1

CARLOS FERREYRA and ROYAL INSURANCE

MVA. JULY 4 and 22, 1990

BREAKDOWN OF SERVICES PROVIDED

BY ALEJANDRO FERREYRA

Note: All claims fall within the provisions of s. 6(1)(d), s. 6(1)(f) and 7(1)(b) of the No-Fault Regulation.

	WEEKLY HOURS
(a) Time for transportation of Carlos & Blanca Ferreyra to and from doctor's office and physiotherapist/chiropractor, including attending in offices to act as an interpreter (on average 3 trips per week)
Travel time (1/2 hour each way)	3
Attendance time (1 hour each trip)	3
(b) Time for transportation to and from shopping (Knob Hill Farms, Weston & 401) and time spent shopping (average 1 trip per week)
Travel time (15 min. each way)	.5
Shopping time	1.5
(c) Time for transportation of siblings to and from soccer practice and games (indoor and outdoor) and time spent waiting at practice and games; (facilities located at (i) Sheppard & Keele; (ii) Sheppard & Weston; (iii) Jane & Finch; (iv) Keele & Wilson; (v) Jane & Driftwood) 3 trips per week
Travel time (15 min. each way)	1.5
Attendance time (2.5 hours each trip)	7.5
(d) Housekeeping services provided include vacuuming, dusting, making beds and changing linen, some cooking, washing clothes, ironing, cleaning wash-room toilet, sink and bathtub, daily sweeping and wet-mopping of kitchen and washroom floors, assisting siblings to dress and bathe, walking siblings to and from school, washing windows as required (average time spent 4 hours per day, 5 days per week)	20
(e) Transportation of siblings to and from Spanish school, attendance waiting
Travel time (1/2 hour each way)	1
Attendance time	1
TOTAL HOURS PER WEEK	39

Monies paid each week $250.00 -- Average wage rate $6.41 per hour.

APPENDIX 2

The following sections of Ontario Regulation 273/90 - the "No-Fault Benefits Schedule" and the Insurance Act are particularly applicable to this claim:

Section 6.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;...

(3) For the purposes of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:

Ten years.
Twenty years less the age of the insured person on the day of the accident.

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

(5) A person qualified to practise as a chiropractor may sign a statement required under subsection (4) in respect of chiropractic services under clause(1)(a).

(6) A person qualified to practise dentistry may sign a statement required under subsection (4) in respect of dental services and dentures under clauses(1)(a) and (b).

Section 7

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, the for care, if any, required by the insured person.

(a) the reasonable cost of a professional care-giver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

(2) The maximum amount payable per month under this section is $3,000 a month with respect to each insured person.

Section 14

(1) The insurer will pay full benefits under this Part until the insured person receives payments that would reduce the insurer's obligation through the operation of subsection 12(4) or 13(3) if the insured person has applied to receive the payments.

(2) The insurer will pay benefits under this Part even though the insured person is entitled to, or has received, benefits under an Act administered by the Ministry of Community and Social Services for Ontario or under similar legislation in another jurisdiction.

Section 23

(1) Unless waived by the insurer, the insured person or the person otherwise entitled to make a claim under Part IV shall furnish a certificate from a qualified medical practitioner or psychological advisor of the insured person's choice as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan.

(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

(3) The insurer will pay the reasonable cost of examinations under subsection (1) if the cost is not payable under any insurance plan or law or under any other plan or law.

(4) The insurer will pay the cost of all certificates under subsection (1) and for all examinations and certificates under subsection (2).

Section 27

(3) A person must repay to the insurer any benefit received under sections 12 and 13 to the extent of any payments received by the person that are deductible from benefits under subsection 12(4) or 13(3).

Section 29

(3) A certificate required by subsection 23(1) shall be in Form 4.

The following sections of the Insurance Act, R.S.O. 1990, c. 1.8, are applicable:

Section 282

(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 No-Fault 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.

Section 288

Ferreyra v. Royal Insurance Company of Canada, 1992 ONICDRG 24

Case Summary