Neutral Citation: 1994 ONICDRG 84
File No. A-006964
ONTARIO INSURANCE COMMISSION
BETWEEN:
DAVID J. McNUTT
Applicant
and
METROPOLITAN LIFE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, David J. McNutt, was injured in a motor vehicle accident on June 21, 1991. He applied for statutory accident benefits from the Insurer, Metropolitan Life Insurance Company ("Metropolitan") payable under Ontario Regulation 6721. He received benefits, including transportation expenses for medical attendances, under section 6 of the Schedule. He claims that his transportation expenses should be paid at a higher rate. He also claims benefits under section 6 or 7 of the Schedule for his wife, who drove him to and from medical attendances between July 1992 and June 8, 1994.
The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
What is the appropriate amount of transportation expenses to which Mr. McNutt is entitled under section 6(1)(d) of the Schedule?
Is Mr. McNutt entitled to expenses pertaining to his wife's driving services under section 6 or 7 of the Schedule? If so, what is the appropriate amount of benefits?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is entitled to transportation expenses at the rate of 30 cents per kilometre. The Insurer has paid 15 cents per kilometre for 8,897.4 kilometres, and 25 cents per kilometre for 2,235 kilometres. The Applicant is entitled to be paid the difference of $1,446.36.
Mr. McNutt is entitled to expenses of $1,743.46 ($6.35 per hour, for 274.56 hours) for his wife's driving services.
Interest is payable on benefits owing, as provided under section 24 of the Schedule.
Mr. McNutt is entitled to his expenses in the proceeding.
Hearing:
The hearing was held in Hamilton, Ontario, on August 15 and 16, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
David J. McNutt
Applicant's Representative:
Rhona Waxman Barrister and Solicitor
Insurer's Representative:
Claude Blouin Barrister and Solicitor
Insurer's Officer:
Patricia Bennett
Witnesses:
Maria (Mary) McNutt, the Applicant's wife Dr. S.A. Dziurdzy, the Applicant's psychiatrist Dr. J. McCully, the Applicant's psychologist David McNutt, the Applicant Roger G. Brown, Manager, Transportation Division, Runzheimer Canada Inc.
Exhibits and other documents before the Arbitrator are listed in Appendix A.
Cases referred to by the parties are listed in Appendix B.
1. Transportation Expenses:
Following the accident of June 21, 1991, the Insurer paid the Applicant's transportation expenses for visits with his family doctor, psychiatrist, psychologist, internist, chiropractor and physiotherapy clinic. Until August 1993, the Insurer paid 15 cents per kilometre for 8,897.4 kilometres of travel. Between August 1993 and May 31, 1994, the Insurer paid 25 cents per kilometre for 2,235 kilometres. The total amount paid, to May 31, 1994, is $1,893.36, for 11,132.4 kilometres.
The Applicant claims 47.85 cents per kilometre. This rate recognizes the cost of fuel (10.6 cents per kilometre), maintenance (estimated at three cents per kilometre), insurance (5.6 cents) and lease payments of $531.98 for 20 months and $400 for 10 months (28.65 cents, as of July 1, 1994).
The Insurer contends that 15 cents per kilometre is a reasonable reimbursement for Mr. McNutt's vehicle costs, and relies on the evidence of Mr. Roger G. Brown of Runzheimer Canada Inc. Mr. Brown testified at the hearing, and his report, dated August 8, 1994, was entered into evidence (Exhibit 13).
In his report, Mr. Brown described Runzheimer Canada Inc. ("Runzheimer") as "an international management consulting firm specializing in primary data research with respect to the operating and fixed costs involved in vehicle ownership".
Mr. Brown testified that vehicle costs can be broken down into operating costs (fuel, oil, maintenance and tires), which are higher the more the vehicle is driven, and ownership costs (insurance, licensing, taxes and financing), which are fixed and do not depend on distance driven.
Runzheimer was asked to give an opinion on the cost of operating the vehicle Mr. McNutt obtained in February 1992 -- a 1992 Ford Aerostar XLT 4X4 Extended Wagon, with specified options. It was assumed that the vehicle would be driven 24,000 kilometres per year over a four year retention cycle. Because the Applicant moved from Burlington, Ontario to Camrose, Alberta in March 1994, Mr. Brown determined the vehicle costs for both locations.
It is undisputed that at the time of the hearing, the vehicle had been driven about 51,000 kilometres. The Applicant claims that medical attendances necessitated 11,132.4 kilometres -- about one-fifth of the total. Mr. Brown testified that since the van was driven for non-medical purposes four-fifths of the time, it was a personal vehicle. It was his opinion that additional use of a personal vehicle for medical attendances increases operating costs, but not ownership costs. As he stated in his report, the Applicant's fixed costs, would not have increased as a direct result of driving additional kilometres in his personal vehicle to receive ongoing medical care. For example, the insurance, financing, and licence/registration costs remain static regardless of the additional kilometres driven. In the case of Mr. McNutt, there is a leasing arrangement in place wherein the amount of kilometres allowed under the lease is unlimited and as a result no additional kilometre charge would be levied for his medical travel by the leasing company.
According to Mr. Brown, the operating cost for the Applicant's vehicle was 9.25 cents per kilometre in Burlington, Ontario and 8.95 cents in Camrose, Alberta. Mr. Brown would also allow 5.2 cents per kilometre for accelerated depreciation, in recognition of the possibility that medical attendances would take the Applicant over the 24,000 kilometre a year average on which the calculations were based. The total of the operating cost and the accelerated depreciation cost is 14.45 cents (Burlington) and 14.15 cents (Camrose). On this basis, the Insurer was prepared to allow 15 cents per kilometre.
Section 6(1)(d) of the Schedule requires the Insurer to reimburse an insured person for "all reasonable expenses" for travel to and from medical attendances. The Schedule does not set out a specific rate per kilometre, or a method of calculating that rate. I note that recent statutory amendments affecting accidents on or after January 1, 1994, restrict transportation expenses to expenses for "fuel, oil, maintenance, tires and parking".
I am not persuaded that it is unreasonable for an Insurer to recognize ownership costs in determining the rate for transportation expenses. I do not accept Mr. Brown's assumption that every vehicle can be classified as a personal vehicle or a vehicle used primarily for medical (or business) purposes. An insured person who is injured in an accident may need a vehicle for medical attendances, even though the vehicle is used for other purposes most of the time. I think it is at least equally reasonable to reimburse both ownership and operating costs.
The Insurer referred to the decision in Dyck et al. v. State Farm Mutual Automobile Insurance Company (October 9, 1990), St. Catharines 0047/90 (OCGD Sm. Claims Court). In that case, another Runzheimer representative gave evidence very similar to Mr. Brown's. Kingstone, Prov. J., found that this evidence was "conclusive" and accepted the argument of the insurer in that case that 13.2 cents per kilometre was a reasonable mileage rate.
I am not bound by that decision. In my view, there may be more than one reasonable rate for transportation expenses. A range of rates are accepted in the insurance industry.
In this case, the Applicant claims his actual vehicle costs, which he sets at 47.85 cents per kilometre. He testified that he leased the new van in February 1992, because he had been involved in two accidents in the old van, and he hoped that replacing it might make driving easier. I am not satisfied that Mr. McNutt required this particular vehicle as a result of the accident. Further, I find that 47.85 cents per kilometre is an exorbitant and unreasonable rate, and does not fall within the generally acceptable range of compensation for vehicle costs.
The Applicant also contended that his ownership costs were higher than Mr. Brown's figures of 21.57 cents (Burlington) and 18.82 cents (Camrose) because financial hardship resulting from the accident forced him to renegotiate a longer lease. The Applicant agreed that he was receiving weekly income benefits of $600 per week at that time. I heard no other evidence about his income and expenses after the accident. The onus is on the Applicant to establish entitlement to benefits. I am not satisfied that the Applicant's increased ownership costs resulted from financial hardship caused by the accident. Moreover, section 6 provides for reimbursement of "reasonable" transportation expenses, not "actual" expenses.
At the hearing, the Insurer's counsel cross-examined the Applicant about the possibility of using taxi-cabs or public transit for medical attendances. The Applicant had enjoyed the benefits of having a vehicle before the accident. The Schedule does not require that he use the cheapest form of transportation, regardless of time or inconvenience. In my view, it was entirely reasonable for him to continue to use his own car after the accident for medical attendances.
Schedule 1 of the Dispute Resolution Practice Code (Ontario Regulation 664, R.R.O. 1990) sets out the expenses an arbitrator may award an applicant in an arbitration proceeding. Parties and witnesses are granted transportation expenses at the rate of 30 cents per kilometre. I find 30 cents per kilometre to be a reasonable rate for the Applicant's transportation expenses in this case. Mr. Brown conceded that the Income Tax Act allows employers to pay employees 32 cents on the first 5,000 kilometres of business travel, and 25 cents on kilometres over 5,000. Furthermore, in his report, he calculated the ownership and operating costs for a 1994 Chevrolet Cavalier RS four door sedan, as 31.48 cents per kilometre; he agreed that these represented average vehicle costs. Finally, he calculated the Applicant's total vehicle cost, without considering the renegotiated lease, at 30.82 cents per kilometre (Burlington) and 27.77 cents (Camrose).
The Applicant is entitled to transportation expenses at the rate of 30 cents per kilometre.
2. Services Provided by Mrs. McNutt:
The Applicant claims that he developed a driving phobia in the months after the second accident. His condition deteriorated, and by early 1992, he was unable to operate a vehicle or ride as a passenger. He claims that he remains unable to drive, but by June 1994, he could ride as a passenger with certain trusted drivers. He claims $14,850 for his wife's assistance in driving him to and from medical attendances between July 12, 1992, when Mrs. McNutt contends she was cleared to return to work following the 1991 accident, and June 8, 1994, when she returned to work.
The Applicant and his wife testified about the Applicant's condition. Their evidence was substantially consistent, detailed, and plausible. It was corroborated by the Applicant's psychologist, Dr. McCully, and his psychiatrist, Dr. Dziurdzy. I accept the evidence presented on behalf of the Applicant.
David McNutt testified that he continued to drive after the December 4, 1990 accident, but he was quite anxious, and drove more cautiously than before. He "surrendered the wheel" to his wife "a lot of times". The second accident, on June 21, 1991, occurred just after Dr. Durcan, his family doctor, had cleared him to return to work. After the second accident, he continued to drive for some months. However, he could only drive with the help of anti-anxiety medication, and was "very anxious" while driving, even with the help of the medication. As time went on, he drove less and less often. He did not dispute the Insurer's counsel's contention that an investigator observed him operating the van on October 10, 11, 17 and 18, 1991. Mrs. McNutt testified that she and her husband "took turns" driving after the second accident until the end of 1991.
The Applicant and his wife testified that Mr. McNutt did not drive the family vehicle after a driving incident at the end of 1991. Although there was some variation in their evidence about the nature of this incident, I accept that the Applicant became increasingly anxious about driving, and that by early 1992, he could no longer operate a vehicle. He replaced the family vehicle with a new leased van in February 1992, but he was only able to drive it "once or twice". Otherwise, he did not drive in 1992.
Mr. McNutt also had difficulty riding as a passenger, and could not ride with anyone other than his wife. His wife was the only one whose driving he trusted. They would take a familiar and lightly travelled route, and would have to take a rest break during any longer trips -- for example, the 30 or 40 minute drive to Dr. McCully's office. Mr. McNutt testified that he could not get into the car at all if the weather or road conditions were difficult. He could not wear a seat belt because of his anxiety about being trapped in the car, and he had a legal exemption from Dr. Durcan. If he thought the car he was in was about to be hit, he would jump out. He was verbally abusive to any driver who drove in a manner he considered unsafe, and occasionally left his car to yell at other drivers. Mr. McNutt testified that on a few occasions, his wife was unable to coax him back into the car, and he walked home.
In June 1992, Mr. McNutt was referred to Dr. Jane McCully, a psychologist with Schneider-Dvali Psychological and Rehabilitative Services, for treatment of his driving phobia. Dr. McCully testified at the hearing, and her reports, dated January 20, 1993, April 27, 1993, September 13, 1993, November 18, 1993, February 1, 1994 and May 30, 1994, were filed (Exhibit 1, Tab 1). Dr. McCully assessed Mr. McNutt on June 25, 1992. She concluded that he suffered a severe driving phobia, and treated him with relaxation therapy, driving desensitization therapy and talk therapy.
Dr. McCully testified that driving desensitization began in July 1992, with Mr. McNutt sitting in the passenger seat, with the engine off; he was heavily medicated. He could not tolerate the engine being turned on until May 1993. By October, Dr. McCully could drive him a short distance ("50 feet") in the parking lot. In December, Mr. McNutt began riding on quiet streets, then on busier streets, with Dr. McCully driving.
Mr. McNutt testified that over Christmas 1993, he visited relatives out west, and was able to ride with them. He is still unable to operate a vehicle himself. In January 1994, Dr. McCully took him for a ride in a taxi-cab. However, he was not able to continue because he had no confidence in the driver's driving skills. In February 1994, he rode alone with another taxi-cab driver for about 20 minutes, but he had to take a break mid-way through the trip. However, by early 1994, he could accept a ride from certain trusted drivers – his brother-in-law, sister-in-law, and a friend. In early March 1994, Mr. and Mrs. McNutt moved to Camrose, Alberta. Since the move, Mr. McNutt has been able to take taxi-cabs. He explained that Camrose is a smaller place, with less traffic, and only two taxi-cab drivers, both of whom are familiar with his problem.
I am satisfied that Mr. McNutt remains disabled from operating a vehicle. I also accept that he was substantially unable to ride with any driver other than his wife until early March 1994, when they moved to Alberta. Until that time, aside from his desensitization sessions with Dr. McCully and occasional rides with relatives and friends, he was able to use a vehicle only when his wife was driving.
Mr. McNutt began seeing Dr. S.A. Dziurdzy, a psychiatrist, on November 8, 1990, about one month before the first motor vehicle accident. Dr. Dziurdzy diagnosed major depression with bipolar features, and medication was prescribed. Dr. Dziurdzy testified at the hearing, and his report, dated May 24, 1994, was filed (Exhibit 1, Tab 2). Dr. Dziurdzy testified that Mr. McNutt first complained of being afraid to drive on June 27, 1991, two days after the second accident. He diagnosed driving phobia and post-traumatic stress disorder, and prescribed medication. Dr. Dziurdzy continued to see Mr. McNutt about once a month. It was Dr. Dziurdzy's opinion that Mr. McNutt still suffered from driving phobia and post-traumatic stress disorder when he was last seen on January 10, 1994.
Dr. Dziurdzy testified that the driving phobia and post-traumatic stress syndrome for which he treated the Applicant following the second accident were problems of a different nature, and required different treatment, from the depression he diagnosed before the first accident. Dr. Dziurdzy agreed that the Applicant's symptoms were typical of driving phobia.
Dr. McCully agreed that the Applicant suffered from a driving phobia resulting from the second accident. She thought it significant that the second accident occurred on the very day Mr. McNutt had been cleared to return to work, thus increasing his frustration and feeling of loss of control. She did not find it unusual that he continued to drive for some months afterwards. She testified that this was common in driving phobia cases. Moreover, Mr. McNutt had only been able to drive with medication and for short distances.
I heard no evidence to suggest that the Applicant suffered from driving phobia before the first accident. I find that Mr. McNutt suffered from a pre-existing depression which made him especially vulnerable to injury and disability. I accept Dr. McCully's evidence that the role of the first accident was to sensitize the Applicant. I find that the second accident significantly and materially contributed to the driving phobia from which he subsequently suffered.
The Applicant brought his claim alternatively under sections 6 and 7 of the Schedule. Section 7 provides for care benefits as follows:
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, for the 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.
(3) The maximum amount payable under this section is $500,000 with respect to each insured person. O. Reg. 273/90, s. 7.
Mrs. McNutt did not provide her services as a "professional care-giver" under section 7(1)(a). The Applicant contends that benefits should be awarded under the "lost income" provision of section 7(1)(a).
Before the accident, Mr. and Mrs. McNutt were occupied as independent distributors for National Safety Association ("NSA"), a wholesale distributor of air and water filters. Mrs. McNutt testified that she worked a maximum of 20 or 25 hours a week, and earned between $250 and $300 a week, depending on sales. Remuneration was on a straight commission basis. Her duties involved sales, picking up, delivering and installing NSA filters, recruiting new distributors and paperwork.
I am not satisfied that Mrs. McNutt lost income as a result of the accident in caring for the Applicant. The only documentary evidence of the McNutts' NSA income is a single remittance advice sent with the Applicant's cheque of May 10, 1991; all the NSA cheques were made payable to Mr. McNutt only. Mrs. McNutt testified that she received the profits on her sales. However, no documentary evidence was provided for her income. Furthermore, the Applicant's counsel conceded at the hearing that Mrs. McNutt had no job at NSA to go back to after the accident, because of the Applicant's disability. I find that if Mrs. McNutt lost income, it was not because she was busy caring for her husband, but because her job no longer existed.
I heard no evidence to suggest that the Applicant's need for care prevented Mrs. McNutt from starting a job to which she was entitled. However, she may have lost the opportunity of looking for work, as a result of needing to care for the Applicant. Unfortunately, the Schedule does not compensate for future economic loss, or loss of opportunity.
The Applicant argued in the alternative that Mrs. McNutt is entitled to benefits under section 7(1)(b), "reasonable expenses resulting from the accident in caring for the insured person", or under section 6(1)(f), which provides as follows:
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,
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
A number of arbitration decisions have considered the relation between these two sections of the Schedule. I do not find it necessary to deal with those decisions in this case. I find that Mrs. McNutt is entitled to reasonable benefits for her services in driving the Applicant to and from medical attendances, under either section 6(1)(f) or section 7(1)(b). I accept that the Applicant needed someone to drive him to and from medical attendances. If his wife had not been able to do it, reasonable alternatives might have included hiring a driver. Having Mrs. McNutt do the driving was both more convenient and more appropriate for the Applicant, because he trusted her driving.
I do not accept the Applicant's contention that Mrs. McNutt is entitled to be paid $10 an hour for her services. For the reasons given above, I do not accept that Mrs. McNutt lost income of $10 an hour in caring for the Applicant. Further, the services she provided were not in the nature of professional services. Her services were limited to driving the family vehicle; she knew how to drive, and did drive the family vehicle, before the accident. I find that the Applicant should be reimbursed for Mrs. McNutt's services at the rate of $6.35 an hour, which was the minimum wage rate for adult workers in Ontario between November 1, 1992 and January 1, 1994.
Nor do I accept the number of hours claimed for Mrs. McNutt's services.
Mrs. McNutt is not entitled to benefits for attending with her husband at Dr. Durcan's office. She testified that she attended at Dr. Durcan's request. However, this evidence was uncorroborated, and I heard no evidence that the Applicant is unable to direct his own medical care. Although Mrs. McNutt's concern for the Applicant's care is admirable, I am not satisfied that it was necessary as a result of the accident, for her to be present when he saw Dr. Durcan.
Mrs. McNutt is not entitled to benefits for waiting time. She testified that she sometimes did errands, like getting groceries, while she waited for the Applicant. While these visits involved some time and inconvenience for her, I am not satisfied that she was providing a service during this time.
Mr. and Mrs. McNutt also testified that treatment has been interrupted by surgeries and vacations. In June 1993, the Applicant interrupted treatment for three weeks to visit his sister in Prince Edward Island. This interruption is reflected in Dr. McCully's list of treatment sessions (Exhibit 3).
In July 1993, the Applicant had surgery; for the next several weeks, he had no medical attendances, other than a post-operative visit with the surgeon. Neither the Applicant nor his wife could be specific about the duration of the recovery period. I prefer to rely on the list of Dr. McCully's treatment sessions, which is the only information provided to me which was prepared by a third party. Dr. McCully's list indicates that she did not see the Applicant between July 7 and September 2, 1993, a period of about eight weeks.
Another interruption in treatment occurred through the last half of December 1993 and early January 1994, when the Applicant visited family in British Columbia. Relying on Dr. McCully's list of treatment sessions, I find that Mrs. McNutt's services were not required for four weeks.
Finally, I find that Mrs. McNutt's services have not been required since she and the Applicant moved to Alberta in early March 1994. Mrs. McNutt testified that Camrose is a small town, with no heavy traffic, and only two taxi-cab drivers. The distance between the McNutts' home and the business district is about three kilometres. According to Mrs. McNutt, her husband has been able to take taxi-cabs to medical attendances. In her words, "he doesn't have to rely on me". She has driven him only "on occasion" in Alberta. His children drive him sometimes.
In summary, I find that Mrs. McNutt is entitled to be compensated for the following attendances, in the 77 weeks between June 1, 1992 and March 1, 1994, during which I find that the Applicant had medical attendances:
Dr. Durcan (family doctor): Mrs. McNutt testified that the Applicant saw Dr. Durcan about twice a week. The Applicant testified that he saw his family doctor about once a week on most weeks, sometimes more, sometimes less. I will use an average of once a week. Mrs. McNutt testified that the trip was 7.5 kilometres altogether, and took about five to eight minutes each way; I find a figure of eight minutes more reasonable for a distance of 7.5 kilometres. Subtotal: 77 weeks x 16 minutes = 20.53 hours
Dr. Higgins (chiropractor): Mr. and Mrs. McNutt testified that the Applicant received chiropractic treatment about three times a week, from early 1992. It was about 4.2 or 4.5 kilometres round trip, and took about five minutes each way. Subtotal: 77 weeks x 10 minutes x 3 visits = 38.5 hours
Dr. Dziurdzy (psychiatrist): According to Dr. Dziurdzy, the Applicant saw him 11 times between June 1992 and July 1994. Mrs. McNutt testified that his office was about 10 minutes away. However, in cross examination, she accepted that this was a round trip of about 5.6 kilometres, and stated that Dr. Dziurdzy's office was a little further than that of Dr. Higgins. I allow six minutes each way.
Subtotal: 11 visits x 12 minutes = 2.2 hours
Dr. McCully (psychologist): By agreement, the parties introduced a list of Dr. McCully's appointments prepared by Dr. McCully. There are 84 visits between June 25, 1992 and February 21, 1994. The Applicant and Mrs. McNutt testified that it took about half an hour to get to Dr. McCully's office, excluding a short coffee break to allow the Applicant to relax.
Subtotal: 84 hours
Mrs. McNutt testified that the Applicant had also seen Dr. McCully once in July and once in August of this year. I heard no evidence as to where Mr. and Mrs. McNutt were staying on these visits to Ontario; accordingly, I allow 15 minutes each way for these two attendances. Subtotal: 1 hour
Burlington Rehabilitation Services (physiotherapy): The Applicant and his wife testified that he received physiotherapy treatment daily, Monday to Friday, most of the time, from early 1992. The trip took about 10 minutes each way. Subtotal: 77 weeks x 5 days x 20 minutes = 128.33 hours
Grand total: 274.56 hours
I am concerned that the Applicant did not present detailed evidence of medical attendances. The onus of proof is on the Applicant. However, the Insurer paid for all attendances as claims were submitted (Exhibit 5). The issue of the number of kilometres and attendances claimed did not arise until the Insurer raised it at the pre-hearing in response to the Applicant's claim. I found the Applicant and his wife to be open and truthful in their testimony, and I am prepared to accept that the claim is substantially legitimate. However, in the absence of detailed documentation provided by either party, my findings are necessarily the result of a fairly rough estimate.
The Applicant is entitled to the sum of $1,752.79 (276.03 hours x $6.35 per hour) as reimbursement for the Applicant's driving services.
Expenses:
Under subsection 282(11) of the Insurance Act, an arbitrator has discretion to award the Applicant his expenses, as set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
I find it appropriate in this case to exercise my discretion to award the Applicant his expenses. His application was partially successful on both points. Both parts of the claim raise legitimate issues about how the Schedule should be interpreted. I find nothing improper in the Applicant's conduct of the case.
Order:
The Applicant is entitled to transportation expenses at the rate of 30 cents per kilometre. The Insurer has paid 15 cents per kilometre, for 8,897.4 kilometres, and 25 cents per kilometre, for 2,235 kilometres. The Applicant is entitled to be paid the difference of $1,446.36.
Mr. McNutt is entitled to expenses of $1,743.46 ($6.35 per hour, for 274.56 hours) for his wife's driving services.
Interest is payable on benefits owing, as provided under section 24 of the Schedule.
Mr. McNutt is entitled to his expenses in the proceeding.
September 20, 1994
Nancy Makepeace Arbitrator
Date
APPENDIX A - THE RECORD
Exhibits:
Exhibit 1
Applicant's Experts Brief
Exhibit 2
Document entitled "Claim For Services Provided By Mary McNutt" (prepared by the Applicant)
Exhibit 3
Document entitled "David McNutt" "Dates of Treatment Sessions" (provided by Dr. McCully)
Exhibit 4
Curriculum vitae of Dr. Stanley Andrew Dziurdzy
Exhibit 5
Agreed statement of transportation allowance paid
Exhibit 6
Lease documents regarding a 1992 Ford Aerostar, Extended 4x4 Wagon, dated January 31, 1992 and September 30, 1993
Exhibit 7
Document entitled "Car Expense Calculations" (prepared by the Applicant)
Exhibit 8
Letter from Luke Haze, General Manager, Blue Line Transportation Ltd., to Rhona L. Waxman, dated August 12, 1994
Exhibit 9
Letter from Pat Bennett, Claim Manager, to the Applicant, dated August 31, 1993
Exhibit 10
Remittance advice from National Safety Associates Ltd., cheque dated May 10, 1991
Exhibit 11
Curriculum vitae of Dr. Jane McCully
Exhibit 12
Curriculum vitae of Roger G. Brown, Manager, Transportation Division, Runzheimer Canada Inc.
Exhibit 13
Report of Roger G. Brown, dated August 8, 1994
Other Documents Before the Arbitrator:
Report of Mediator dated November 29, 1993
Application for Appointment of an Arbitrator dated January 6, 1994
Insurer's Response dated February 14, 1994
Letter dated March 14, 1994, regarding a pre-hearing discussion of March 9, 1994
APPENDIX B - CASES REFERRED TO
The parties referred to the following decisions in their submissions:
Bush and Pilot Insurance Company, April 25, 1994, OIC File No. A-004687
Correal and Jevco Insurance Company, May 6, 1993, OIC File No. A-001994
Dyck et al. v. State Farm Mutual Automobile Insurance Company, October 9, 1990, S.E. Kingstone, Prov. J., Ontario Court (General Division) (St. Catharines Small Claims Court)
Edwards and State Farm Mutual Automobile Insurance Company, July 12, 1993, OIC File No. A-001707
Ferreyra and Royal Insurance Company of Canada, July 19, 1992, OIC File Nos. A-000301, A-000325 and A-000384
Gazzola and The Canadian Surety Company, July 24, 1992, OIC File No. A-000324
A. Le and Wellington Insurance Company, November 25, 1992, OIC File No. A-000920
Park and Citadel General Assurance Company, August 23, 1993, OIC File No. A-003410
Plows and Jevco Insurance Company, July 25, 1994, OIC File Nos. A-000175, A-000588 and A-003502
Youkhaneh and Prudential Assurance, now operating as General Accident Indemnity Company, February 21, 1994, OIC File No. A-002021