Claudio Vial v. Ontario Insurance Commission (MVACF), 1995 ONICDRG 164

Neutral Citation: 1995 ONICDRG 164

File No. A-010539

ONTARIO INSURANCE COMMISSION

BETWEEN:

CLAUDIO VIAL

Applicant

and

ONTARIO INSURANCE COMMISSION (MVACF)

Respondent

DECISION

Issues:

The Applicant, Claudio Vial, was found lying unconscious and injured on a Toronto sidewalk on September 26, 1993. He applied for statutory accident benefits, payable under Ontario Regulation 672¹ from the Insurer, MVACF. However, he never received any benefits. The parties were unable to resolve their dispute 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:

1. Did Mr. Vial suffer injuries on September 26, 1993 as a result of an "accident", as defined in the Schedule?

2. If so, what is the amount of weekly income benefits to which he is entitled and for what length of time?

3. Is Mr. Vial entitled to the supplementary medical and rehabilitation benefits which he claims?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Vial did suffer injuries on September 26, 1993 as a result of an "accident", as defined in the Schedule.

2. He is entitled to $61.63 per week in income benefits, from October 4, 1993 to July 15, 1994.

3. Mr. Vial is entitled to supplementary medical and rehabilitation benefits in the sum of $4,734.00 for physiotherapy, and $500 for stress management counselling, psychological and neuropsychological testing by Dr. Mester to April 1, 1994.

4. Mr. Vial is entitled to interest, pursuant to section 24 of the Schedule, on both his weekly income benefits and supplementary medical and rehabilitation benefits and to his expenses of the arbitration.

Hearing:

The hearing was held in North York on September 20 and 21, 1995, before me, K. Julaine Palmer, arbitrator.

Present at the Hearing:

Applicant:

Claudio Vial

Applicant's Representatives:

Ian Little Barrister and Solicitor

Olivia Akotoye Student-at-law

Insurer's Representatives:

Barry Brown Barrister and Solicitor

Jeff Couch Student-at-law

Insurer's Officer:

Sheila Blanchet Senior Examiner

Witnesses:

Claudio Vial, Gonzalo Zalazar, Demetrios Kokkinakis, Tom Hancock, Willem Vanblitterswyk

Interpreter services for Gonzalo Zalazar were provided by Ernesto Carrillo, interpreter of Spanish and English.

The parties filed 19 exhibits at the hearing.

Evidence and Findings:

Background

Claudio Vial, the Applicant, was found unconscious, lying on a Toronto sidewalk. He believes he was injured in a motor vehicle accident; the Respondent does not.

The Law

In the present case, the first issue is whether the Applicant was injured as a result of an accident as defined in section 2 of the Schedule. The word "accident" is defined, as follows at section 2 of the Schedule:

2. In this Schedule,

"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 prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;

Section 12(1) of the Schedule describes the circumstances in which an insurer must pay weekly income benefits. The law provides that, in order to recover weekly income benefits, Mr. Vial must prove that he has sustained a "physical, psychological or mental injury as a result of an accident" which substantially disabled him from performing the essential tasks of his employment. In this case, the parties agree that Mr. Vial suffered serious injuries as a result of an incident which occurred on September 26, 1993. The first point in dispute is whether the use or operation of an automobile caused his injuries, either directly or indirectly.

The Facts

Mr. Vial was found lying on his back, on the west sidewalk bordering Mt. Pleasant Avenue in Toronto at about 6:25 a.m. on a misty Sunday morning, September 26, 1993, by an off-duty firefighter. The firefighter, Demetrios Kokkinakis, testified at the hearing. Blood was flowing from Mr. Vial's face and mouth. His head was pointed in a northeasterly direction, at an angle to the road, just south of a light standard. One of his shoes lay near his body on the road not more than a metre from the curb. Mr. Vial started to spit up blood after Mr. Kokkinakis nudged him with his foot and tried to find his pulse. Mr. Kokkinakis rolled Mr. Vial into a recovery position. Then Mr. Kokkinakis flagged down a passing motorist to call 911.

A fire department vehicle was first at the scene, followed shortly by an ambulance and a police cruiser. Constable Tom Hancock of the Metropolitan Toronto Police Services testified at the hearing. Cst. Hancock observed a strong odour of alcohol around Mr. Vial. He was seriously concerned about whether Mr. Vial would live and was interested in discovering the source of his injuries—whether he was involved in a "hit and run" automobile accident, a homicide, or perhaps a serious assault. By 7:10 a.m. Cst. Hancock was at the hospital and found that Mr. Vial had no wallet or identification on his person. The police officer was advised by the attending physicians that Mr. Vial had a severe head injury with bleeding from both the mouth and ears, and possibly had other internal injuries. He also suffered from "road burn" or skin abrasions on the left side of his face, which was consistent with having been struck by a vehicle and coming into contact with a road or sidewalk surface. "road burn" is not typically an injury which might result from an assault.

Cst. Hancock contacted detectives of the central "hit and run" unit as well as criminal division detectives from his own division. Several officers attended at the scene and patrolled the surrounding residential area. Included among them were Detective Cst. Vanblitterswyk, who testified at the hearing.

Cst. Hancock testified that before leaving the scene the first time, he had checked for accident debris and found none. He observed no skid marks on the damp road surface. Unfortunately, a street cleaning machine swept and washed the area near where Mr. Vial was found shortly after he was taken away by the ambulance. In addition, Detective Cst. Vanblitterswyk testified that the fire department had hosed down the area as well, before his arrival later that morning.

When he had finished his investigation of the surrounding area, Cst. Hancock returned to the hospital to speak to Mr. Vial. He spoke with him very briefly and learned Mr. Vial had no recollection of what had occurred other than that he and a friend, Carlos Tapia, had been drinking alcohol with Mr. Vial's father. He believed he had been at an apartment in the Wellesley and Church Street area. Cst. Hancock then completed his incident report and had nothing more to do with the case.

Detective Cst. Vanblitterswyk collected the Applicant's clothing and personal effects from the hospital and sent them to the Centre for Forensic Sciences, requesting that they be examined for traces of contact with an automobile. The report results read as follows:

The entire left sleeve and side of the shirt are missing. The shirt is blood-soaked and there are blood deposits on the rest of the clothing.

There are no tears, abrasions or paint smears on the shirt or pants. Debris was collected from items C1 to C8. A few small glass fragments are present. No paint or other material that could be related to a motor vehicle was found in the debris.

[emphasis added]

That is the extent of the forensic testing evidence. No further comment was made about the glass fragments—whether they were found on the clothing or on the shoes. The report does not state whether it could be determined what type of glass fragments were present. The forensic examiner did not testify.

Detective Cst. Vanblitterswyk concluded, based on his investigation of the scene, that he was not dealing with a hit and run accident. He did not think Mr. Vial had been thrown from a moving vehicle. The detective believes that Mr. Vial was injured in a fall after attempting to let himself down from the railing of a fence in a backyard 15 to 20 feet above the sidewalk bordering Mt. Pleasant Ave. The detective did not contact Mr. Vial later to determine if he had regained any memory of the incident that caused his injuries. Detective Cst. Vanblitterswyk did not know that one of Mr. Vial's shoes had been found on the roadway.

Mr. Vial testified that late on September 25, 1993 he was visiting his father, Vincente Vial. One of his friends, Carlos Tapia, joined them at his father's apartment. Mr. Tapia had recently visited their native country, Chile, and had returned with some Chilean rum. The three men drank the rum, talked, and watched television. Early on the morning of September 26th, the two younger men decided to visit Claudio Vial's friend, Gonzalo Zalazar, who lived in an apartment in downtown Toronto, on Wellesley Street, between Church and Jarvis Streets. Mr. Zalazar had been asleep, but he got up, and they talked together. The three men drank some brandy which Mr. Zalazar offered and they talked for a couple of hours. As they were speaking quite loudly, and Mr. Zalazar was concerned they might awaken his girlfriend, they went to the coffee shop across the street from his apartment. At the coffee shop they continued their discussion and each drank two cups of coffee.

Mr. Vial testified that he wished to purchase some gum before returning home. He left his friends and walked out of the coffee shop to look for a store. He saw a few variety stores that were closed. Mr. Vial believes that he left the coffee shop about 6:00 a.m. that Sunday morning. He walked for a time. He kept to the main streets, so that he would not get lost, because he did not know the area. It started to rain and he had no jacket. He decided to return to the coffee shop, because he was getting quite far away from it. He knew the shop was located south from where he was. He was walking on the sidewalk. He remembers stopping at an intersection, that it was dark, and that cars were passing by. He remembers that he reached a street and heard engine noises and the noise of tires and brakes behind him, on the left side. Mr. Vial stated that he had regained some memory of these events since the day of the accident. Mr. Vial's next memory is waking up at the hospital.

Mr. Gonzalo Zalazar testified at the hearing. Mr. Carlos Tapia did not testify—the Applicant said Mr. Tapia had moved to Mississauga and they had not been in touch for a few months. Mr. Zalazar confirmed that Mr. Vial and Mr. Tapia arrived at his apartment some time after 2:00 a.m. on September 26, 1993. He offered them some brandy and they talked for about two hours. Then, they moved on to the coffee shop, where they drank two cups of coffee each over a further period of about two hours. Mr. Vial said he wanted to get some chewing gum and left the shop. His friends waited for some time, then went out looking for him. They returned to the coffee shop. While they were standing in the doorway, they heard tires screeching and braking to the east of Jarvis Street. They saw an ambulance travelling south on Jarvis, but they did not see Mr. Vial. At the time, they did not associate either of these incidents with their friend. Later that morning, Mr. Zalazar saw Mr. Vial at the hospital.

Mr. Zalazar testified through an interpreter. He has lived in Canada for six years. He and Mr. Vial first met at English classes. Mr. Zalazar knew Carlos Tapia, by sight, as a friend of Claudio Vial. In addition to his testimony, a statutory declaration which Mr. Zalazar swore on March 21, 1994 was also presented. Mr. Zalazar's sworn statement differed from his testimony in several respects. He declared in his statement that they stayed at the donut shop approximately one hour and that Mr. Vial left at approximately 4:30 a.m. At the hearing, he testified that they were in the shop approximately two hours and that Mr. Vial left at about 5:30 a.m. or 6:00 a.m., but he wasn't sure, because he wasn't wearing a watch. Mr. Zalazar swore in his declaration that he heard loud squealing and skidding of tires from a vehicle and that he 'rushed outside to see what happened and saw an ambulance taking and rushing Mr. Vial from the scene of the accident." At the hearing, Mr. Zalazar maintained that he had heard such noises, to the north and east of Jarvis street and that he also saw an ambulance thereafter, southbound on Jarvis street, but he did not see Mr. Vial until later at the hospital. He stated that, later at the hospital, he decided that the noises and the ambulance must have been connected with Claudio, because of the timing.

The parties filed a street map of downtown Toronto. They agree that Mr. Vial was found on Mt. Pleasant Ave, approximately two kilometres north of Wellesley and Jarvis Streets. Wellesley Street is located four short blocks south of Bloor Street, a main east-west thoroughfare. One block south of Bloor Street, Jarvis Street divides, and to continue north, one must travel on Mt. Pleasant Ave. Several witnesses testified about the configuration of Mt. Pleasant Ave., north of Bloor Street. They testified that the roadway cuts through a valley or ravine in which there are no stores abutting the sidewalk, only retaining walls.

Conclusion

Mr. Vial is not held to proving to a certainty that he was injured in an accident.²He need only persuade the arbitrator on a "preponderance of evidence" or "balance of probability". The famous English judge, Lord Denning, expressed the degree of persuasion in civil cases this way, in a passage that is often quoted:

That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not," the burden is discharged, but, if the probabi lities are equal, it is not.³

The famous Canadian judge also explained the civil burden of proof in a useful way:

...such a preponderance of evidence as to shew [sic] that the conclusion he seeks to establish is substantially the most probable of the possible views of the facts.⁴

Finally, the High Court of Australia also has written about this issue:

The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be

reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.⁵

After hearing the witnesses and reviewing the documents filed in this case, including the photographs, I am satisfied that it is more likely than not that Claudio Vial was injured in an "accident", as it is defined in the Schedule, on September 26, 1993. Mr. Vial was found unconscious, on the sidewalk bordering Mt. Pleasant Ave, about 6:30-6:35 a.m. that morning. He was bleeding heavily from the head. One of his shoes was lying on the street. Shortly after the accident, Mr. Vial did not remember anything about drinking coffee in the donut shop: he remembered drinking with his father and Carlos Tapia and about being in an apartment in the Wellesley and Church Street area. Later, he remembered waiting for cars at an intersection and hearing motor sounds, brakes, and tires screeching behind him and to his left. He recalls walking only along main streets.

Mr. Vial suffered road burn on his face, consistent with a forceful impact with the sidewalk or asphalt. He suffered an impact or impacts sufficient to fracture his eye socket and his jaw. His right wrist was broken. He suffered bruising to his knees and muscle strain in his neck and back. In my view, these injuries are consistent with the theory advanced by Mr. Vial's counsel, that Mr. Vial was hit on the left side of his head by a portion of a motor vehicle, perhaps a protruding mirror on a truck, as he walked south on Mt. Pleasant Road or while crossing that road.

The police investigation was substantially hampered by the sweeping and washing of Mt. Pleasant Ave. just after the ambulance took Mr. Vial to hospital. The investigation was further disrupted by the fire department cleaning the sidewalk and area surrounding the accident scene minutes later. I find that the forensic investigation of the police was flawed by the failure to deliver to the forensic scientist the entire left sleeve and left side of Mr. Vial's shirt and their failure to inquire about the glass fragments present in the debris collected from Mr. Vial's clothing. I find that when the forensic investigation did not support any obvious motor vehicle involvement, the "hit and run" unit concluded its investigation without further contacting Mr. Vial.

I was impressed by Mr. Vial as a witness. He has little memory of the hours before the accident, but, in my view, he was honest in his recollection of hearing motor sounds, and the sound of tires and brakes. I have scrutinized the evidence carefully. In my view, it is more likely than not, that Mr. Vial walked further in his quest for a package of gum than he first realized, and finding himself in the Mt. Pleasant Ave. and Roxborough Street area, with a rain beginning, he turned back south toward his friends.

The police theory that Mr. Vial was injured when he dropped himself, jumped or fell from the railing of the retaining wall at the back of a Crescent Road house is, in my view, considerably less plausible than the theory that his injuries resulted from a motor vehicle accident. Mr. Vial testified at the hearing that he kept to the main roads when he went for a walk that morning. I find it highly unlikely that he would have walked into a residential neighbourhood, then returned to a main thoroughfare by walking into a private yard, climbing onto a storage shed and attempting to drop to the sidewalk several metres below.

Entitlement to Weekly Income Benefits and Amount

Mr. Vial testified that, after the accident, his knees were so swollen that he could not walk for almost a month. He had suffered a fractured j aw, a severe injury to his left eye in which the optical nerve was severed by a broken bone from the eye socket, and a fractured right wrist. He felt pain in his back and neck. He had problems with his balance, because he had lost the vision in his left eye. He suffered from headaches. Mr. Vial testified that he spent one week in hospital receiving treatment for his eye injury and undergoing plastic surgery to repair his fractured jaw. His right wrist was casted. He attended physiotherapy at Bloor Park Physiotherapy for almost one year, where he received treatment to his left shoulder, knees, neck and back. He was under the care of a psychologist, Dr. Mester, for more than a year; Dr. Mester helped Mr. Vial to rebuild his self-confidence, after the loss of vision in his left eye.

The emergency department medical records from St. Michael's Hospital were requested for the hearing, but did not arrive. The evidence relating to Mr. Vial's injuries came from Mr. Kokkinakis, Cst. Hancock, and the police photographs of Mr. Vial's face, Mr. Vial himself and reports by Dr. Vadasz and Dr. Mester.

Mr. Vial testified that at the time of the accident he was working at Ontario Bus Industries as a quality control inspector in the electrical assembly area. He testified that he checked the electrical panels and systems of transit buses, and had been doing this since 1989. He worked eight hours per day, from Monday to Friday each week. He filed a physical demands analysis of his work prepared by his employer.

Mr. Vial testified that after the accident he could perform some of the tasks of his job. He felt, however, that he could not, as a result of his injuries, lift more than 15 pounds. Heavy lifting, he testified, was a substantial part of the job. Mr. Vial was required to lift wiring harnesses, engine boxes, and panels weighing more than 10 pounds. He testified that he believed he was capable of performing the remainder of the work since July 1995. Mr. Vial testified that he received long-term disability benefits through his employment until June 24, 1995 at a rate of 66-2/3% of his salary to a maximum of $424.00 gross per week. Mr. Vial stated that after Ontario Bus Industries closed in the summer of 1994, he received severance pay of $8,379.13 gross ($6,700 net). Mr. Vial also testified that he pursued a full-time, 10-month course in accounting and business management at Toronto School of Business, beginning in mid-1994.

Although a physical demands analysis was filed, the job description as supplied does not accord with Mr. Vial's brief testimony about the nature of his work as a quality control inspector. The physical demands analysis, attached to the Employer's Confirmation of Income form, lists Mr. Vial's occupation as "electrical assembler" and describes work which is performed seated using fine finger movements and air tools, such as air crimpers, air screw drivers, air drills, and air impact guns. The job description suggests that lifting, carrying, pushing and pulling are performed with low frequency, less than once per hour. The description of the work states "panel wiring, shortening wires out to a terminal block, crimping and screwing on to a panel." The "weight" column of the physical demands analysis, showing maximum and usual weights involved, has not been completed.

The evidence detailing the essential tasks of the work actually performed by Mr. Vial prior to the accident is somewhat contradictory, since the job description/physical demands analysis provided relates only to the work of an electrical assembler, not a quality control inspector. I have no evidence whether Mr. Vial performed both jobs— at times, the work of an assembler and, at times, the work of an inspector. The assembler job appears to be a less active job, comprised of three to four hours of seated activity each day. I conclude that the essential tasks of Mr. Vial's job were to perform the work of an "electrical assembler," using air tools to shorten wires, connect them to a terminal block and screw them to a panel and to lift and inspect wiring harnesses, engine boxes, and panels weighing more than 10 pounds.

The records of Bloor Park Medical Rehab Services Limited relating to Mr. Vial's attendance there were filed. He was first evaluated in November 1993 and attended 70 sessions until his discharge on July 15, 1994. The physiotherapist characterized Mr. Vial's response to treatment as "well motivated but attended irregularly". This program comprised manual therapy, active exercises, functional and work conditioning. At discharge, Mr. Vial's patient self-evaluation read as follows:

Both knees, right wrist and left shoulder i’s much better. Major problem in his low back with pain that persists and affects his function. He also has slightly limited function of his right hand. He has improved balance and spatial orientation with regards to loss of vision in his left eye.

The physiotherapist recommended that Mr. Vial continue with active exercises and a program such as hydrotherapy.

A narrative report of Dr. Gabriel Vadasz dated May 10, 1994 was filed. Form reports filed at approximately two-month intervals to Prudential Insurance until June 22, 1995 were also provided. A consultation report from Dr. Mester to Dr. Vadasz, dated May 8, 1994 was also filed, as well as a letter from Dr. Mester to a rehabilitation consultant dated April 1, 1995.

Dr. Vadasz's clinical notes of July 13, 1994 indicate that Mr. Vial was ready to be admitted into a work-hardening program, with a functional capacities evaluation to follow. It would appear that this program was never attempted, perhaps because Mr. Vial was attending school full-time in the late summer and fall of 1994 and his job no longer existed, in any event.

I have some difficulty with the recommendations of Dr. Vadasz' reports of October 7, 1994 addressed to the income continuation plan insurer (Prudential) which concluded that Mr. Vial was not ready to return to work and that he was in need of full-time rehabilitation — Mr. Vial was attending school full-time at that point and had ceased his physiotherapy treatment in July 1994, according to his evidence. Further, Dr. Vadasz' report of March 30, 1995 again advises that his patient is attending active physiotherapy, although that is not the evidence I received from Mr. Vial at the hearing. Mr. Vial testified that he took physiotherapy for "almost a year after the accident ", which accords better with the Bloor-Park evidence of a discharge date of July 15, 1994 after the September 26, 1993 accident, than March or April 1995.

Mr. Vial testified that he believed he was capable of performing his job for two months prior to the hearing. His only problem prior to this was lifting more than 15 pounds, which he testified was a substantial part of the job. In my view, Mr. Vial's substantial inability to perform the essential tasks of his employment does not extend into 1995, as he has suggested. In my opinion, on the evidence presented in his case as to his essential job tasks and his medical and psychological injuries, he is entitled to weekly income benefits only to the time of his discharge from physiotherapy and his commencement of full-time schooling. Mr. Vial admits that as of August 1995 he believes he could have returned to his work as a quality control inspector. It does not appear from the evidence before me that over the period July 1994 - August 1995, Mr. Vial's physical condition improved more than marginally. I note only that in July 1995 Mr. Vial's supplementary health insurance income replacement benefits were terminated.

Amount of Weekly Income Benefit

Mr. Vial did not testify about his gross income from employment for the four or 52 weeks preceding the accident. However, he filed an Employer's Confirmation of Income form, which showed he earned $31,566.04 in the 41 weeks he worked in the year before the accident. The form also showed he earned nothing in the two weeks prior to the accident and $636.40 in each of the third and fourth weeks before the accident. I understand that Mr. Vial received 66-2/3% of his regular gross weekly rate ($636.40) or $424.00 per week from the income continuation plan which was a benefit of his employment. Mr. Vial netted $340.40 per week from that payment, since $83.60 was deducted in tax.

I have expressed my views in a previous decision⁶ with respect to the manner in which an insured person's gross weekly income under section 12(7) of the Schedule should be calculated when that person did not work the entire year prior to the accident. My view is that the insured person's average gross weekly income should be calculated over the 52 week period, even if he had no income from his employment during some of those weeks. I also expressed my view of the proper manner in which collateral benefits should be deducted in the Bush case. I concluded that the deduction of gross payments more likely reflects the intent of the legislation, than the deduction of net payments. I have not changed my view with respect to that issue.

Accordingly, I find that Mr. Vial is entitled to the following in weekly income benefits over the period October 4, 1993 to July 15, 1994: $31,566.04 x 80% × 52 ÷ $485.63 per week less $424.00 in payments for loss of income = $61.63 per week. Mr. Vial is also entitled to interest on those payments, according to the provisions of section 24 of the Schedule.

Severance Pay

The Insurer submitted that the severance pay received by Mr. Vial in the sum of $8,379.13 gross ($6,700.00 net) is deductible from weekly income as a payment for loss of income, under section 12(4)(b)(i) of the Schedule. The Applicant submitted that although this payment is not specifically dealt with in the Schedule, the Statutory Accident Benefits Schedule—Accidents after January 1, 1994 at section 87 makes it clear that such payments are not deductible. The Applicant submitted that such a payment was in lieu of notice of termination and not a payment for loss of income. For the reasons expressed in my decision in the case of Diana C Wessels and CAA Insurance Company (Ontario), June 14, 1995, OIC File No. A-013676, I find that such a payment is not deductible under section 12(4)(b) of the Schedule.

Supplementary Medical Expenses

Mr. Vial is entitled to his expenses of attendance at physiotherapy in the sum of $4,734.00, plus interest according to section 24 of the Schedule, provided that these expenses are first presented to the supplementary health insurer (in the event they have not already been so presented) for the payment of any portion of those expenses available under that insurance plan. Similarly, he is entitled to the psychological services provided by Dr. Mester, as provided under section 6(1)(a) of Part II of the Schedule, which were proven in the amount of $500.00, if no portion of those expenses are available under the collateral insurance plan.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 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 F of the Dispute Resolution Practice Code—1995 and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the Ralph McCormick and Economical Mutual Insurance Company case, October 2, 1991, OIC File No. A-000139, Sr. 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 Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

The Applicant is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code—1995. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Registrar for assessment of the expenses.

Order:

1. Mr. Vial is eligible for benefits under the Schedule, since he did suffer injuries on September 26, 1993 as a result of an "accident", as defined in the Schedule.

2. He is entitled to $61.63 per week in income benefits, from October 4, 1993 to July 15, 1994.

3. Mr. Vial is entitled to supplementary medical and rehabilitation benefits in the sum of $4,734.00 for physiotherapy and $500 for stress management counselling, psychological and neuropsychological services of Dr. Mester to April 1, 1994, to the extent payment for these services is not available from the Prudential Insurance Company of America under policy number 71607.

4. Mr. Vial is entitled to interest, pursuant to section 24 of the Schedule, on both his weekly income benefits and supplementary medical and rehabilitation benefits, and is entitled to his expenses of the arbitration.

November 14, 1995

K. Julaine Palmer Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term 'Schedule" will be used to refer to Regulation 672.
2. 2In this decision, the word "accident" means an accident as defined in the Schedule.
3. 3Miller v. Min. Of Pensions, [1947] 2 All E.R. 372, 374 (K.B.)
4. 4Duff, J. in Clark v. R. (1921) 1921 CanLII 603 (SCC), 61 S.C.R. 608, 616.
5. 5(1965), 39 A.L.J.R. 177, 178.
6. 6See Joseph N. Bush and Pilot Insurance Company, April 25, 1994, OIC File no. A-004687