Neutral Citation: 1995 ONICDRG 200
File No. A-008778
ONTARIO INSURANCE COMMISSION
BETWEEN:
RUTH ROBERTS
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ASSESSMENT OF EXPENSES
Issues:
An arbitration hearing in this matter was held on November 14, 15 and 16, 1994. In a decision, dated January 26, 1995, I denied Ms. Roberts' claim for additional benefits, but ordered that the State Farm Mutual Automobile Insurance Company ("State Farm") pay her expenses related to the arbitration. The parties were able to agree on Ms. Roberts' expenses, with the exception of three items. The parties provided written submissions with respect to the following expenses:
Witness fee of Ms. Malka Cohen-Nehemia
Report and consultation by Dr. Raymond D. Leibl
Clinical notes and records of Dr. S. Lavi
Result:
State Farm is required to pay the following expenses to the extent that they have not already been paid:
$303 for the attendance of Ms. Cohen-Nehemia on November 16, 1994; and,
$150 for the clinical notes and records of Dr. S. Lavi.
Reasons for Decision:
1. Witness fee of Ms. Cohen-Nehemia
According to section 282(11) of the Insurance Act1, arbitrators are limited to awarding the expenses set out in the regulations. Ontario Regulation 664 sets out the expenses in a schedule ("Dispute Resolution Expenses"). Witness fees are set out in section 5(1) of the schedule, as follows:
5-(1) The amount of the following witness fees paid by or on behalf of the insured person may be awarded:
For the attendance of witnesses, in accordance with subsection (2).
For the attendance of an expert witness who gives opinion evidence at an arbitration or hearing or whose attendance is necessary, in accordance with subsection (3).
(2) The maximum amount that may be awarded for the attendance of a witness is the amount of the attendance allowance for the witness that may be allowed under Rule 58.06 of the rules of court as a disbursement.
(3) The maximum amount that may be awarded for the attendance of an expert witness is $200 per hour of attendance, up to a maximum of $1600 per day.
In the arbitration, Ms. Roberts claimed accident benefits for individual sessions provided by Grace Miyagawa, a practitioner of the Mitzvah Technique. State Farm argued that these sessions were unnecessary, and also challenged the legitimacy of the Mitzvah Technique as a method of rehabilitation. Ms. Cohen-Nehemia, one of the co-founders of the Mitzvah Technique, testified about its development and practice. She was not involved in Ms. Roberts' rehabilitation, but presented her opinion about the appropriateness of the services that Ms. Roberts received and the cost of those services.
Following the hearing, Ms. Cohen-Nehemia submitted an invoice to Ms. Roberts' representative, requesting fees as an expert witness, as follows:
Fee: for attendance as expert witness
Monday November 14, 1994
9:30 a.m. - 4:30 p.m.
Wednesday November 16, 1994
9:00 a.m. - 12:00 p.m.
total 10 hrs. at $200/hr. =
$2000.00
7% G.S.T.
$ 140.00
$2140.00
Expenses
Parking
$ 8.00
Meal
$ 6.00
Amount due
$2154.00
State Farm claims that Ms. Cohen-Nehemia was not formally qualified as an expert at the hearing and, in fact, is not an expert within the meaning of section 5(1)2. Therefore, her expenses should be limited to the general attendance allowance in section 5(2) of $50 plus $3.00 for travel for each day of necessary attendance. State Farm also claimed that Ms. Cohen-Nehemia's attendance on November 14, 1994, was unnecessary as she only testified on November 16, 1994.
Arbitration hearings are not bound by the strict procedural rules of the courts and, therefore, I do not regard the failure to formally qualify Ms. Cohen-Nehemia as an expert witness as fatal. She provided factual and opinion evidence about the Mitzvah Technique, and its use for someone in Ms. Roberts' situation. For the reasons set out in my decision, I did not accept State Farm's position that the Mitzvah Technique should not be recognized as a legitimate rehabilitation technique. I conclude, therefore, that for the purposes of this assessment, Ms. Cohen-Nehemia should be treated as an expert witness.
I have concerns, however, about other aspects Ms. Cohen-Nehemia's expenses. I accept that she was at the hearing site on November 14, 1994, the first day of the hearing, from 9:30 a.m. to 4:30 p.m. However, she did not participate in the hearing until November 16, 1994, when she was called as a witness. The start of this hearing was significantly delayed due to Ms. Roberts' failure to produce the clinical notes and records of her psychiatrist, Dr. Leibl, as she had been ordered to do. Dr. Leibl arrived late and then the parties needed time to review his records. Ms. Roberts did not start presenting her case until after 2:30 p.m.
The parties have an obligation to organize their cases in order to minimize the cost of the hearing to the extent possible. Arbitrators recognize the need for reasonable flexibility to facilitate the calling of witnesses. In my view, it was unnecessary to have Ms. Cohen-Nehemia sit outside of the hearing room during the lengthy delay and then during Ms. Roberts own testimony. This is particularly so given the fact that Ms. Cohen-Nehemia's office, as listed on her invoice, is quite close to the hearing site. I am not prepared, therefore, to award any expenses for her attendance on November 14, 1994.
It was submitted on behalf of State Farm that Ms. Cohen-Nehemia's hourly rate as an expert should be considerably less than the $200 per hour that she billed. I was referred to two arbitration decisions in which the hourly rate of a general practitioner was set at $150 per hour.2 I agree that in the absence of formal, recognized qualifications, Ms. Cohen-Nehemia's hourly rate should be less than that of general practitioner. In my opinion, $100 per hour is an appropriate rate in this case.
Finally, State Farm submitted that expenses for expert witnesses under section 5(3) do not include meals or parking. It is not clear to me from the invoice submitted to State Farm that these amounts are being claimed, but I will assume that they are. I dealt with this issue in Frank Donohue and State Farm Mutual Insurance Company, February 7, 1995, OIC File No. A-006756, as follows:
I also conclude that a fair reading of the Regulation, particularly section 5 and the Summons to Witness form, is that the travel expenses of witnesses are to be dealt with according to Tariff A to the Rules of Civil Procedure. If an applicant issues a Summons to Witness to an expert witness and pays the appropriate attendance money, I would expect that the attendance money could be recovered as "out-of-pocket expenses incurred in furtherance of the arbitration, appeal or variation hearing" (section 4, paragraph 4, of Regulation 664).
Tariff A to the Rules of Civil Procedure provides:
Attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:
Attendance allowance for each day of necessary attendance..............$50
Travel allowance, where the hearing or examination is held,
(a) in a city or town in which the witness resides, $3.00 for each day of necessary attendance;
(b) within 300 kilometres of where the witness resides, 244 a kilometre each way between his or her residence and the place of hearing or examination;
(c) more than 300 kilometres from where the witness resides, the minimum return air fare plus 244 a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.
- Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay....................................$75
Although Ms. Cohen-Nehemia was not served with a summons, I see no reason why her travel expenses should not be recognized at the tariff rate. The tariff, however, does include parking or meals. I conclude, therefore, that travel expenses of $3.00 should be included for her attendance on November 16, 1994.
2. Report and consultation by Dr. Raymond D. Leibl
Based on the pre-hearing letters, dated June 20, 1994 and October 18, 1994, I find that State Farm asked Ms. Roberts to produce the clinical notes and records of her psychiatrist, Dr. Raymond D. Leibl. Ms. Roberts resisted this request, but the pre-hearing arbitrator ordered that she produce his records. I would have no hesitation in finding in Ms. Roberts favour if she were claiming the reasonable cost of obtaining Dr. Leibl's records. However, that is not her claim.
Dr. Leibl submitted two invoices. One is for $250 for a "Letter on behalf of claimant." The second is for $100 for a "Consultation with Gary Spector", Ms. Roberts' representative, on October 20, 1994. The letter may have been provided to State Farm, but was not introduced as an exhibit. Further, Dr. Leibl did not testify at the hearing. I am not persuaded that these expenses were necessary and, therefore, I am not prepared to order that State Farm pay them.
3. Clinical notes and records of Dr. S. Lavi
State Farm claims that it should not be required to pay Ms. Roberts for the cost of obtaining the clinical notes and records of Dr. S. Lavi ($150). The arbitration decision in Glenn M.J. Epps and Co-operators General Insurance Company, September 3, 1993, OIC File No. A-002340, was cited for the proposition that an applicant should not be reimbursed for expenses incurred for medical records "if they are not referred to in the hearing nor are they marked as an exhibit or produced to the insurer."
In my opinion, this case is clearly distinguishable from the situation in Epps. The deciding factor in the Epps case was that the records had not been produced to the insurer. My understanding is that State Farm was given Dr. Lavi's clinical notes and records, although neither party decided to introduce them as exhibits. I am also prepared to infer from the pre-hearing letter, dated June 20, 1994, that State Farm asked for these records, and Ms. Roberts either agreed to produce them, or was required to do so by the pre-hearing arbitrator.
I see no basis upon which State Farm can object to including the cost of obtaining the clinical notes and records of Dr. Lavi within her expenses. I conclude, therefore, that State Farm is required to pay Ms. Roberts $150 for the cost of obtaining these records.
Order:
State Farm is required to pay the following expenses to the extent that they have not already been paid:
$303 for the attendance of Ms. Cohen-Nehemia on November 16, 1994; and,
$150 for the clinical notes and records of Dr. S. Lavi.
David R. Draper Arbitrator
Date
Footnotes
- R.S.O. 1990, c.I.8, as amended
- Glenn M.J. Epps and Co-operators General Insurance Company, September 3, 1993, OIC File No. A-002340; and Frank Donohue and State Farm Mutual Automobile Insurance Company, February 7, 1995, OIC File No. A-006756.