Neutral Citation: 1995 ONICDRG 147
File No. A-013578
ONTARIO INSURANCE COMMISSION
BETWEEN:
DAVID FREEMAN
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, David Freeman, is the son of Abraham Freeman who was involved in motor vehicle accidents on December 13, 1992 in Pennsylvania and December 18, 1992 in Florida. At the time of the December 13 accident, Mr. Abraham Freeman was driving an automobile owned and insured by his son, Mr. David Freeman. At the time of the December 18 accident, Mr. Abraham Freeman was driving an automobile which he had rented in Florida. Mr. Abraham Freeman died on June 1, 1993. At all material times an Ontario Automobile Policy issued by the Insurer to Mr. David Freeman was in force. It was agreed that Mr. Abraham Freeman was an insured person within the meaning of the policy with respect to the Pennsylvania and the Florida accidents.
Mr. David Freeman, on behalf of his deceased father, is seeking weekly benefits from the time of the accidents in December 1992 until his father's death in June 1993, and is also seeking death and
funeral benefits. The parties agreed that if I found funeral expenses to be payable, the amount of such expenses would be $3,000.00 plus interest. They also agreed that if a death benefit was payable, the amount of such benefit would be $25,000.00 plus interest.
The parties were unable to resolve their disputes through mediation and Mr. David Freeman applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Did Mr. Abraham Freeman die as a result of injuries he sustained in one or both motor vehicle accidents so as to entitle his survivors to death benefits and funeral expenses under sections 10 and 11 of Ontario Regulation 6721?
Following the December 13 and 18, 1992 accidents, was Mr. Abraham Freeman unable to perform the essential tasks in which he normally engaged so as to entitle him to weekly benefits under section 13 of the Schedule?
Is the Applicant entitled to a special award?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Abraham Freeman was entitled to weekly benefits of $185.00 per week for the period December 26, 1992 until April 19, 1993 plus interest.
The Applicant is not entitled to funeral expenses.
The Applicant is not entitled to death benefits.
The Applicant's request for a special award is denied.
The Applicant is entitled to his expenses of this arbitration.
Hearing:
The hearing was held in Ottawa, Ontario on May 15, 19, and June 7, 1995 before me, David K.L. Starkman, Arbitrator.
Present at the Hearing:
Applicant:
David Freeman
Applicant's Representative:
Allan Lutfy Barrister and Solicitor
Insurer's Representative:
Stephen J. Kelly Barrister and Solicitor
Witnesses:
Mrs. Freeman,
Dr. Elkin
Dr. Bormanis
Dr. T. Mendis
Dr. van der Jagt,
Dr. Giulivi
Mr. David Freeman.
The exhibits and cases referred to are listed at Appendix "A" to this decision.
Evidence and Findings:
Mr. Abraham Freeman was in excellent health when he and his wife left Ottawa, Ontario on December 13, 1992 to drive to Florida. At approximately 1:30 p.m. that day they were involved in a motor vehicle accident in the state of Pennsylvania when their vehicle was struck by a cube van. Mr. Freeman was shaken, upset and bruised from the accident, and complained to his spouse of back pain. He did not attend hospital.
Mr. Freeman's vehicle was totally smashed in the accident and he and his wife flew to Florida on December 15, 1992 where he rented an automobile.
On December 18, 1992 Mr. Freeman was involved in a second motor vehicle accident and he was taken by ambulance to hospital. He had a large haematoma on his chest from the accident, but was released from hospital after one and one-half hours.
Following the second accident, according to the testimony of his wife, Mr. Abraham Freeman became withdrawn, sad, and depressed. He would not eat and complained of pain. He could not sleep and moved to a separate bedroom. He went each day for physiotherapy for back pain. For the first week he was able to drive himself and after that he was driven by members of his family who were visiting from Canada.
According to his wife, he could no longer golf or go for his daily walks. They ate primarily at home and had occasional visitors.
While in Florida, Mr. Freeman saw Dr. Altbuch on January 13, and 22 and February 2, 1993. Dr. Altbuch advised that Mr. Freeman's symptoms were related to trauma from the car accident and that he would improve with the passage of time. Although they had rented accommodation in Florida for a four month stay, Mr. Freeman and his wife returned to Ottawa on February 5, 1993 because Mr. Freeman was not feeling well.
Mr. Freeman saw his family physician, Dr. Elkin, on February 8, 1993. Dr. Elkin testified that he felt Mr. Freeman was suffering from a musculo-skeletal strain as a result of an accident. At that time Mr. Freeman complained of the haematoma, had lost about twenty pounds and was taking Tylenol for discomfort and pain.
Thereafter Mr. Freeman's health deteriorated rapidly and he died on June 1, 1993.
Issue of Causation
Considerable detailed and at times conflicting medical opinion was presented as to whether the automobile accidents were a contributing factor in Mr. Freeman's death. Dr. Elkin, in correspondence dated October 12, 1993, describes Mr. Freeman's condition as follows:
Abraham Freeman has been my patient since October 15, 1991. He suffered polycythemia which is a condition of the bone marrow causing over production of red cells. He was living comfortably with this condition and it was controlled by medication. He also had mild hypertension and mild, adult onset, diabetes also controlled by medication.
Aside from these conditions he was a healthy, vigorous, 73 year old who was alert, lucid and in good spirits. My last visit with him prior to the accident was November 16, 1992. There were no significant changes in his health status noted on that date.
My first visit with Mr. Freeman following the accident was February 8 he [sic] was alert and looked well but described in detail his injuries including large haematoma on the chest. He had also lost 20 lbs since the accident and showed decrease in range of motion of the back . . . By February 22 he required a cane, physiotherapy and was treated with supplemental vitamins. On March 5 his weight was down to 146 lbs, he was complaining his legs went numb and that he lost his balance and required a walker. He had several falls at home. I diagnosed post traumatic depression and arranged Home Care, physiotherapy and nursing services . . . Because of back pain he was referred to the Canadian Back Institute where he attended on March 23 for management of his persistent back pain. On Mr. Freeman's last office visit to me on April 16 he was anorexic, depressed and now had a left C7 cervical nerve root deficit with no grip strength in the left hand. He was unable to control his bowels and his wife could no longer manage him at home. He was admitted to the Queensway Carleton Hospital on April 19, 1993 under the care of Doctor Farook Tareen.
While in hospital, Mr. Freeman was examined by Dr. H. Rabinovitch, neurologist, who could find no evident neurological explanation for his condition and suggested a CAT scan and EMG study.
He was also examined by Dr. B.H. Schowalter, psychiatrist, who concluded that Mr. Freeman was having an adjustment reaction with depressed mood.
Mr. Freeman had a portable chest x-ray on April 19. The radiology report of Dr. C.D.B. Cunningham states as follows:
There does not appear to be any marked abnormality of heart or mediastinum and pulmonary vaculature is within normal limits.
Peripheral lung fields appear clear.
There is a large sail-like shadow across the superior mediastinum. With the clinical information of large haematoma in this area anteriorly, I presume this is the cause of the shadow and not a mediastinal mass.
On May 7 he was examined by Dr. R. J. Webster, gastroenterologist, who wrote that:
The possibility that he may have malignancy or a malignancy associated para neoplastic syndrome to account for some of his weakness is probably also worth considering although colon is not a common source for this. In any event I will arrange for his flexible sigmoid next week.
On May 18 Mr. Freeman again had a chest x-ray and Dr. D.G. Gray, radiologist, reported as follows:
Allowing for the AP film the heart is normal in size and shape.
There has been improvement in the pneumonic shadowing in the right lower zone since the examination of May 13 and this area is now virtually clear. There are one or two small areas of linear shadowing at the left base.
The large diamond shaped shadow is again projected over the upper mediastinum. This is unchanged since the initial examination of April 19, 1993 and I think it is unlikely that this is a haematoma. It is more probable that this is an anterior mediastinal mass.
There is an area of destruction in the 4th right rib posteriorly and there is almost certainly destruction of a segment of the lateral margin of the right scapula. The rib fractures on the left, although probably traumatic may well in part be pathological and rib views should be done for further evaluation.
The discharge summary from the Queensway-Carleton Hospital signed by Dr. F. Tareen states as follows:
Chest x-ray previously showed fractured ribs and a haematoma over the sternum. This was felt to be probably residual of the motor vehicle accident. However, the last chest x-ray showed a metastatic lesion in the fourth rib and the scapula and the profound weakness may, in fact, be due to metastatic carcinoma, primary unknown.
The mediastinal shadow is, in fact, due to mediastinal haematoma and possibly not due to the mediastinal mass. The patient also had profound weakness which is probably due to diabetic neuropathy. He was just managed on diabetic diet. His platelets were falling and the Hydroxyurea was gradually discontinued. The patient had to be transfused because of low haemoglobin....
FINAL CLINICAL IMPRESSION:
Profound weakness, possibly due to metastatic carcinoma, primary unknown.
History of thrombocytosis.
Dr. J. Bormanis, clinical haematologist, wrote an opinion letter concerning the cause of Mr. Freeman's death. In that correspondence of October 19, 1993 he states that:
. . . I last assessed him on the 17th of November 1992. At that time, he felt very well and on examination I did not find any new changes. His haematology was also very good and he was booked for a phlebotomy prior to leaving. It was anticipated that he would not require any significant monitoring or therapy while in Florida. In essence, Mr. Freeman went to Florida in good stable health with no medical restrictions to his activities.
I reassessed Mr. Freeman next in March of 1993 on his return from Florida. There was clearly a very dramatic change in him. His affect was very flat and he was obviously very depressed due to the severe limitations he had as a consequence of his two motor vehicle accidents. Mr. Freeman from that point, continued to decline in his medical condition culminating in his death a few months afterwards. The clinical course following return from Florida was disproportionate to what I would expect from his polycythemia and much more attributed to the tissue injuries he sustained in his motor vehicle accidents.
At the hearing, Dr. Bormanis described the history of Mr. Freeman's polycythemia rubra vera and concluded that this blood ailment could not explain Mr. Freeman's rapid physical deterioration and death. Dr. Bormanis stated that Mr. Freeman died from multi-organ failure and that there was no other explanation for the rapid deterioration other than there being some connection with the motor vehicle accidents.
Dr. A. Giulivi, haematologist, in correspondence dated December 22, 1993 stated as follows:
I saw Mr. Freeman for the first time in April 1993 at the Queensway-Carleton Hospital as he had been admitted due to depression due to the fact that he was unable to walk. I was called upon to see if the polycythemia vera could be the cause for these ailments. The result of my consultation was that polycythemia was not the cause for these ailments and that there were most likely due to his motor vehicle accidents and tissue injuries that he sustained from these accidents. The thrombocytosis which was found during my investigation was mostly due to trauma Mr. Freeman suffered from the accidents. Mr. Freeman's depression, haematoma, and fractured ribs were due to the motor vehicle accidents. I followed Mr. Freeman's case from April 1993 until his death. Mr. Freeman was placed on palliative treatment and home care. Mr. Freeman died in his home.
While in the hospital, multiple investigations were done to see why his medical health was declining. These investigations included internist and neurologist consults. Both consults suggested that Mr. Freeman's neuropathy and depression were caused from the motor vehicle accidents trauma.
Dr. Richard H.C. van der Jagt, haematologist, reviewed the medical history of Mr. Freeman and in correspondence dated March 17, 1995 concluded that: "there is nothing other than the temporal sequence of events to indicate that this patient's [Mr. Freeman's] demise might be related to his motor vehicle accident. As mentioned above, the temporal sequence indicated a correlation but is not necessarily proof of causation."
In his evidence at the hearing Dr. van der Jagt reviewed Mr. Freeman's medical history from the time of the motor vehicle accidents in December 1992 until his death in June 1993. He noted that Mr. Freeman lost almost forty pounds in this period, had depression, abnormal liver enzymes, a lithic lesion on his rib and scapula and a lax sphincter and concluded that, in light of all the evidence, the motor vehicle accidents are not the most likely cause of his death.
In response to questions from the Applicant's counsel, Dr. van der Jagt acknowledged that some of Mr. Freeman's deterioration was related to the motor vehicle accident, but reiterated that his death was not related to the accident. In particular Dr. van der Jagt thought that the lesions indicated a latent malignancy which was the primary contributor to Mr. Freeman's death.
Evidence was also given by Dr. T. Mendis, psychiatrist and neurologist. In a report dated April 18, 1995, Dr. Mendis, after reviewing Mr. Freeman's medical history, concluded that "a causative link between the motor vehicle accidents and Mr. Freeman's eventual death have not been established based on the medical facts available at this time. It appears that a link between the motor vehicle accidents and death has been assumed on the basis of a temporal relationship between the two. It is my opinion that such an assumption is not warranted."
Dr. Mendis stated that Mr. Freeman's rapid loss of weight from 186 pounds in September 1992 to 146 pounds in March 1993 could not be attributed to depression caused by the motor vehicle accident. At page five of his August 18, 1995 report he stated:
- Depression - Mr. Freeman was being treated for depression and the medical records indicate that his weight loss was ascribed to depression and anorexia. Such a profound weight loss in a short period of time is however unusual with a clinical depression. Furthermore, Dr. Showalter's assessment indicated a diagnosis of adjustment reaction with depression. This terminology usually implies that the patient was depressed as a result of some other process, in this case a severe medical illness. This is to differentiate what is termed major depression, which is regarded as a primary disorder which may in turn lead to physiological changes including weight loss, sleep disturbance, changes in energy levels, as well as a subjective depression of mood. My assessment of the medical records leads me to believe that a diagnosis of depression made prior to Mr. Freeman's admission to the Queensway-Carleton Hospital led to other causes of weight loss (such as an underlying malignancy or infection) being overlooked.
Dr. Mendis also noted a number of tests which could have been done to clarify the situation which included (i) a CAT scan of the chest which would have better defined the mass, and of the lumbarosacral spine which would have helped identify whether there were lesions in the spine causing the back pain, (ii) a bone scan would have clarified whether the rib fracture involving the left fourth rib was pathological or not and (iii) an EMG test which specifically addressed the possibility of a C7 nerve root lesion.
A similar conclusion was reached by Dr. Lynne MacGregor who in correspondence dated March 20, 1995 reviewed the history of Mr. Freeman's illness and concluded as follows:
COURSE OF EVENTS ON RETURN TO OTTAWA:
Mr. Freeman was seen by his family physician Dr. Elkin upon his return and had regular follow up visits with him between the 8th of February 1993 and the 16th of April 1993. Dr. Elkin's clinical notes were reviewed in detail and I will briefly summarize his pertinent observations during this period.
Visit number 1 - 8th of February 1993: Dr. Elkin notes that he looked well and was alert and complained of the haematoma on his anterior chest and that he had lost twenty pounds and was taking Tylenol for the discomfort.
Visit number 2 - 15th of February 1993: Reportedly feeling well, but had decreased appetite and weight loss and complained of low back pain and seemed depressed.
Visit number 3 - 22nd of February 1993: There was a recommendation recording using a cane because of increasing mobility problems and a referral to physiotherapy was recommended and he was prescribed some vitamins.
Visit number 4 - 5th of March 1993: Weight loss of up to forty pounds in total recorded. Patient complained of numbness in his legs and increasing falls, difficulty with his balance and was now requiring a walker for ambulation. He was given some Prozac for depression and a referral to psychiatry was initiated as was home care.
Visit number 5 - 17th of March 1993: Urinary incontinence noted.
Visit number 6 - 23rd of March 1993: Referred to Canadian Back Institute for low back pain.
Visit number 7 - 16th of April 1993: The patient was anorexic, depression was noted and he appeared to have some decreased grip strength in the left arm and there was some concern about a possible neuromuscular disorder. He also noted bowel incontinence at this point.
In summary I would like to state the facts presented strongly indicate that this gentlemen had an underlying malignancy causing a rapid decline post motor vehicle accident. I certainly do not feel that this gentleman's major demise was based on the injury sustained in the motor vehicle accident. My chart review indicates that the problems associated with his MVA were minor, and it is the coincidental timing that is causing the confusion about cause and effect. I think it is important to point out that his work up seemed significantly delayed to me and incomplete for a work up that one would perform for a probable malignant disorder...
The Legislation
There was considerable discussion at the hearing as to precisely what the Applicant was required to demonstrate in order to succeed in this application. Accident is defined in the Schedule as:
"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prothesis, denture, prescription eyewear, hearing aid or other medical or dental device;
Mr. David Freeman is alleging that as a result of the motor vehicle accidents in December 1992, Mr. Abraham Freeman was entitled to a weekly indemnity benefit pursuant to section 13 of the Schedule, and that Mr. Abraham Freeman's estate is entitled to funeral and death benefits pursuant to sections 10 and 11 of the Schedule.
With respect to these claims there is no issue that Mr. Abraham Freeman was involved in incident(s) involving the use of an automobile in December 1992. The only issue is whether these incidents either directly or indirectly resulted in physical, psychological or mental injury so as to cause Mr. Freeman to be substantially unable to perform the essential tasks in which he would normally engage, and whether the injuries ultimately caused his death.
Counsel for the Applicant submitted that the Applicant had an obligation to make a prima facie case that the accident caused the death of Mr. Freeman and that once he had made such a case, the onus shifted to the Insurer to offer evidence to demonstrate that the motor vehicle accident was not a cause of Mr. Freeman's death.
After reviewing the cases referred to in Appendix 'A', I am satisfied that the Applicant bears the normal civil law burden of proof, which is to demonstrate on the balance of probabilities that Mr. Abraham Freeman's motor vehicle accidents, as defined in the legislation, caused or contributed to Mr. Freeman's substantial inability to perform the essential tasks in which he normally engaged and ultimately caused his death.
Did the motor vehicle accidents in December 1992 cause an interruption in Mr. Freeman's life and/or cause his death?
The Applicant is claiming benefits under section 13(1) of the Schedule which provides that:
13(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
The Applicant is also claiming death benefits under section 11 of the Schedule which provides that certain benefits are payable "if, as a result of an accident, an insured person dies within the benefit period set out in subsection (3)" . . .
(3) For the purposes of subsection (1) and (2), the benefit period is,
(a) 180 days from the day of the accident unless clause (b) applies; or
(b) 156 weeks from the day of the accident if during that period there has been continuous disability as a result of the accident.
It was not disputed that Mr. Abraham Freeman's death occurred during the benefit period as defined in section 11(3) of the Schedule.
Mr. Freeman's first motor vehicle accident was on December 13, 1992 in Pennsylvania. His automobile was struck on the throughway by a cube van and spun around. The motor vehicle was destroyed. Mr. Freeman was shaken up. He did not go to hospital and apparently suffered no other injuries.
The second motor vehicle accident occurred on December 18, 1992. Following the accident, the evidence is clear that Mr. Freeman was suffering from a certain amount of pain. He stopped driving about a week following the accident; he went for physiotherapy; his regular sleep and eating patterns were interrupted. He no longer went for walks or played golf. These changes occurred immediately following the second automobile accident and persisted into January, February and March, 1993. Based on this evidence I am prepared to conclude that, on the balance of probabilities, Mr. Freeman's condition resulting in the disruption of his normal activities of daily living was caused by the automobile accidents of December 1992.
In February, 1993, Mr. Freeman returned home to Ottawa and was examined by his family physician, Dr. Elkin. At that examination it was noted that Mr. Freeman had lost weight, and was complaining of pain.
Between February 8 and March 5, Mr. Freeman's health deteriorated and he was no longer able to look after himself. Dr. Elkin ordered nursing care.
On April 19, 1993, Mr. Freeman was admitted to hospital. He was weak upon entering the hospital and his health continued to deteriorate. He was so weak that it was not possible to perform some of the suggested tests which would have helped to determine the cause of Mr. Freeman's deterioration, and more specifically, to determine whether Mr. Freeman was suffering from a mediastinal mass.
The correspondence from Drs. van der Jagt, MacGregor and Mendis all conclude that the motor vehicle accidents did not cause the death of Mr. Freeman, although neither of these physicians are able to state with any authority precisely what the cause of death was. During the course of the hearing it was referred to generally as multiple organ failure.
The question I must answer is whether the Applicant has demonstrated, on the balance of probabilities, that the motor vehicle accidents indirectly caused the death of Mr. Abraham Freeman. The Insurer, in arguing against the application, essentially submitted that the relatively minor nature of the December 1992 automobile accidents, the paucity of medical treatment or attention in the weeks following the accident while in Florida, the passage of some six to eight weeks from the December 18 accident until the onset of serious symptoms in March 1993, the loss of more than forty pounds of weight in a very short period of time, and the May 1993 x-ray suggesting a mediastinal mass, all indicate that the motor vehicle accidents did not play a part in Mr. Freeman's death.
In assessing this matter I am mindful of the definition of accident in the Schedule and have taken the words 'indirectly caused' to mean that the motor vehicle accident needs to be a significant factor in the death although there may be other significant factors as well.
The oral evidence of Mrs. Freeman, and the evidence from Dr. Elkin's clinical notes make it clear that Mr. Freeman became depressed, complained of back pain and had interrupted sleeping and eating patterns which began almost immediately following the accident and which persisted and worsened until the time of his death.
The pathology or cause of these problems remains unknown or unexplained despite quite extensive investigations by a number of trained and qualified medical practitioners.
There is evidence, however, suggesting that Mr. Freeman had a mediastinal mass. Based on the shadow observed on the AP x-rays, one radiologist suggested that Mr. Freeman was suffering from a cancerous tumour which would explain all of his symptomatology. It must be noted however that the May 18 x-rays were not the most conclusive views and that x-rays of this sort are very difficult to read even by qualified radiologists. The x-rays taken in April 1993 and December 1992 did not disclose, or were not interpreted by the radiologists as disclosing, the existence of a mediastinal mass.
While the motor vehicle accidents could explain the existence of such a shadow on the x-ray, they could not, in my opinion, explain Mr. Freeman's symptomatology from his admission to hospital in April 1993 until his death. While the onset of such a tumour in the months immediately following the December 1992 motor vehicle accidents may be coincidental, I find it is the most likely explanation for Mr. Freeman's rapid decline and death. Regrettably, the examining physicians, in the weeks and months following the motor vehicle accidents, did not for the most part attribute Mr. Freeman's condition to a tumour. On the contrary, they suggested that his condition was somehow linked to the trauma he sustained in the motor vehicle accidents.
The motor vehicle accidents, however, were relatively minor. I heard no evidence to suggest that the injuries Mr. Freeman sustained in them were such as would cause death from multiple organ failure some six months later. Mr. Freeman lost considerable weight, became profoundly weak and incontinent. It is hard to attribute these symptoms to injuries from the motor vehicle accident. Mr. Freeman was discharged from the Queensway-Carleton Hospital for palliative care.
After considering and reviewing all of the medical evidence, I have determined that the Applicant has not demonstrated, on the balance of probabilities, that the automobile accidents of December 1992 directly or indirectly caused Mr. Freeman's death in the sense that the automobile accidents set in motion a chain of events which resulted in death. However, the accident did interfere with Mr. Freeman's ability to perform the essential tasks in which he normally engaged.
Mr. Freeman was in good health prior to his accident. The accidents were very upsetting to him. His eating and sleeping habits changed following the accident. He was experiencing back pain. He could no longer play golf, drive or go for walks. He became depressed.
The onset of the depression, eating disorder, mood changes, and back pain began immediately following the motor vehicle accidents and are almost certainly related to the accidents. Mr. Freeman's condition remained somewhat stable in the weeks following the December 18 accident up until mid to late February 1993. There was no evidence to suggest that he was getting better, only that he was not deteriorating during this period.
Following his return to Ottawa in February 1993, Mr. Freeman saw his family physician on a number of occasions. He continued to complain of back pain, a bad appetite and depression. His physical condition then began to deteriorate rapidly, resulting in his admission to hospital on April 19, 1993 and his ultimate death in June 1993.
Several of the physicians who have commented on this sequence of events have stated that other than the temporal connection, nothing suggests that the motor vehicle accidents caused or contributed in any way to Mr. Freeman's demise. They have suggested that a mediastinal chest mass is the most likely explanation for Mr. Freeman's symptomatology and demise. Other physicians have noted that there is nothing to explain the rapid deterioration and death of an otherwise healthy individual than the fact of the two automobile accidents.
It is not my role to determine with certainty the cause of Mr. Freeman's death. Based on the evidence presented to me however, I have concluded that, on the balance of probabilities, the motor vehicle accidents were not a direct or indirect cause of his demise. The Applicant is, however, entitled to weekly benefits for the period December 26, 1992 until his admission to hospital on April 19, 1993. This date has been chosen because it represents my best estimate of the dividing line between the impact on Mr. Freeman's condition that can be attributed to the motor vehicle accidents and those which are attributable to other causes.
Is the Applicant entitled to a special award?
The Applicant has requested a special award under section 282(10) of the Insurance Act which states that:
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.
Counsel for the Applicant submitted that the Insurer had an obligation to investigate the matter once it was brought to its attention and that the Insurer had failed in this obligation.
The Applicant did not make a claim for accident benefits until December 1993, almost six months after Mr. Abraham Freeman's death. The Applicant's solicitor wrote to the Insurer in February, March, April, May and June, 1994, requesting a reply from the Insurer concerning the application for benefits. It was not until September 1994 that the Insurer responded that the claim for benefits was denied.
This was a difficult issue for the Insurer to evaluate, particularly when the claim for benefits was made some six months after the death of Mr. Abraham Freeman. While it would have been preferable for the Insurer to have responded in a more timely manner and to have provided a more detailed explanation for its decision, I have concluded that, in all the circumstances, the Insurer did not unreasonably withhold or delay payment so as to entitle the Applicant to a special award.
Funeral Expenses
For the reasons discussed above I have concluded that the motor vehicle accidents in December 1992 were not a significant contributing factor to Mr. Abraham Freeman's death and therefore the Applicant is not entitled to funeral expenses.
Expenses
The Applicant has requested his expenses of the hearing, including expenses for medical witnesses and reports. An insured person may be awarded expenses incurred as a result of an arbitration proceeding under section 282(11) of the Insurance Act.
Arbitration have consistently awarded expenses to insured persons unless their claims were manifestly frivolous or vexatious, or their conduct unreasonably prolonged the arbitration proceedings. In this case, I am satisfied that the Applicant is entitled to his expenses. The parties may apply for an assessment of the expenses in the event that they are unable to agree about the amount payable.
Order:
Mr. Abraham Freeman was entitled to weekly benefits of $185.00 per week for the period December 26, 1992 until April 19, 1993 plus interest.
The Applicant is not entitled to funeral expenses.
The Applicant is not entitled to death benefits.
The Applicant's request for a special award is denied.
The Applicant is entitled to his expenses of the arbitration.
October 16, 1995
David K.L. Starkman Arbitrator
Date
APPENDIX A
The following documents were introduced into evidence at the hearing:
Exhibit 1
Agreed statement of facts
Exhibit 2
Police report concerning the Pennsylvania accident
Exhibit 3
Police report concerning the Florida accident
Exhibit 4
Applicant's medical brief
Exhibit 5
Curriculum Vitae of Dr. Giulivi
Exhibit 6
Exchange of correspondence between Mr. Freeman, his counsel and the Insurer
Exhibit 7
Insurer's medical brief
Other documents which were part of the record were:
Report of mediator, dated November 22, 1994
Application for Appointment of an Arbitrator, dated November 28, 1994
Response to an Application for Arbitration, dated December 30, 1994
Letter of pre-hearing, dated February 15, 1995
The following cases were referred to:
Re: Issue of Causation
Lupia v. Imperial Life Assurance Co. of Canada, 1993 CanLII 8579 (ON CTGD), 13 O.R. (3d) 156;
Voison v. Royal Insurance Co. of Canada, 1988 CanLII 4736 (ON CA), 66 O.R. (2d) 45 (Ont. C.A.);
Pipes v. CNA Assurance Company, (1982) 43 N.B.R. (2d) 161;
Nasib S. Mander and Wellington Insurance Company, September 24, 1993, OIC File No. A-002057;
Brian Portch and Markel Insurance Company of Canada, March 20, 1995, OIC File No. A-007701;
Gordon McAllister and Dominion of Canada General Insurance Company, December 3, 1992, OIC File No. A-00926;
Jagdishar Singh and Kingsway General Insurance Company, January 29, 1993, OIC File No. A-000890; and
Claude Morin and Lumbermens Mutual Casualty Company, June 16, 1993, OIC File No. A-001311.
Re: Special Award
Louise-Ann Dugas and Wellington Insurance Company, February 10, 1994, OIC File No. A-003517;
Wayne Allan Plowright and Wellington Insurance Company, October 29, 1993, OIC File No. A-003985;
Michael S. MacDonald and Pilot Insurance Company, March 3, 1995, OIC File No. A-008372;
Imelda Gazzola and Canadian Surety Company, July 27, 1992, OIC File No. A-000324; and
Branden K. Hui and Security National Insurance Company, November 15, 1991, OIC File No. A-000055.
Re: Expenses
Inna Levitan and Liberty Mutual Fire Insurance Company, April 12, 1995, OIC File No. A-008191;
Lawrence Reid and Co-operators General Insurance Company, April 11, 1995, OIC No. A-005291; and
Carlota Guzman and Dominion of Canada General Insurance Company, April 24, 1995, OIC No. A-007209.