OFFICE OF THE DIRECTOR OF ARBITRATIONS
Neutral Citation: 1995 ONICDRG 177
File No. P-006234
BETWEEN:
SUSAN JESSO (DIMOU)
Appellant
and
ALPINA INSURANCE COMPANY, LIMITED
Respondent
Before:
David R. Draper, Director's Delegate
Counsel:
Stephen D. Braithwaite (for the Appellant)
Joan Takahashi (for the Respondent)
APPEAL ORDER
I. BACKGROUND
On February 24, 1991, the Appellant was injured in an automobile accident. She received weekly income benefits of $600 per week from Alpina until July 27, 1993, when they were terminated on the basis that she was substantially able to perform the essential tasks of her pre-accident employment as a legal secretary. The Appellant claimed that she was entitled to ongoing weekly income benefits, including benefits based on the stricter post 156-week test in section 12(5)(b) of the Schedule1.
A five day arbitration hearing took place in January 1995. The Appellant was represented by counsel throughout the hearing, but she did not personally attend. In a decision, dated July 12, 1995, the arbitrator concluded that the Appellant was not entitled to weekly income benefits after July 27, 1993, that she had to repay an overpayment of $1,797 arising from post-accident income, and that she was entitled to only one-third of her arbitration expenses.
According to her Notice of Appeal, the Appellant is seeking an order that she is entitled to weekly income benefits of $600 per week until February 1994, and that she is not required to make any repayment to Alpina. The only reasons given are as follows:
The Arbitrator failed to consider that the appellant is disabled from being able to continue her employment. The arbitrator failed to consider that the appellant was not paid for some time submitted for part time work.
The Appellant asked for an oral rehearing, and an order staying the arbitration order. In a letter, dated October 20, 1995, I denied the stay request, finding nothing in the material to warrant such an order. At that point, the Appellant was well beyond the time period set out in the Dispute Resolution Practice Code for filing her documents and written submissions. She was given until November 6, 1995 to file her material, but nothing was received. In the circumstances, I decided that the appeal would proceed on the record. The parties were advised of this decision by letter, dated November 9, 1995.
II. REASONS FOR DECISION
Based on the definition of "the record" in the Practice Code, I considered the arbitration exhibits, the Notice of Appeal, and Alpina's Response, including its lawyer's letter, dated October 3, 1995.
I am unable to find any merit in this appeal. The arbitrator carefully reviewed the voluminous medical information, including material from the Appellant's own medical team. Not only are the arbitrator's findings supported by the evidence, it is difficult to imagine a different conclusion.
Alpina has asked for a monetary award against the Appellant. The combination of sections 282(11.2) and 284(5) of the Insurance Act authorize the Director to make an award where an insured person commences an appeal that is frivolous, vexatious, or an abuse of process. The award is limited to the amount of the insurer's assessment fee, or $500 in this case.
In my opinion, an award of $500 is warranted in this case. The appeal raises no serious question about the arbitration decision. It appears to be based solely on the Appellant's dissatisfaction with the result of a hearing that she chose not to attend. Further, she did not pursue her appeal beyond the filing of a perfunctory Notice of Appeal.
II. ORDER
The arbitration order, dated July 12, 1995, is hereby confirmed.
The Appellant is required to pay an award of $500 to Alpina Insurance Company, Limited.
December 6, 1995
David R. Draper
Director's Delegate
Date