Carmen Palumbo v. Dominion of Canada General Insurance Company, 1995 ONICDRG 35

Ontario Insurance Commission

Neutral Citation: 1995 ONICDRG 35

File No.: A-007314

Between:

Carmen Palumbo, Applicant

and

Dominion of Canada General Insurance Company, Insurer

Decision

Issues:

The Applicant, Carmen Palumbo was injured in a motor vehicle accident on February 13, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly benefits were paid by the Insurer from February 20, 1991 to October 22, 1993. Mr. Palumbo claims to be entitled to further weekly 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.

At the outset of the hearing, counsel for Mr. Palumbo raised two preliminary issues which I dealt with at the hearing.

The issues in this hearing are:

1. Is Mr. Palumbo entitled to weekly benefits under section 12 (income benefit) or section 13 (benefit if no income) of the Schedule?

2. Is Mr. Palumbo entitled to these weekly benefits from October 22, 1993 to February 21, 1994?

3. Is Mr. Palumbo entitled to a special award?

4. Is Mr. Palumbo entitled to interest and expenses?

Result:

1. Mr. Palumbo is not entitled to section 12(1) weekly income benefits.

2. Mr. Palumbo is not entitled to section 13(1) weekly benefits from October 22, 1993 to February 21, 1994.

3. Mr. Palumbo is not entitled to a special award.

4. Mr. Palumbo is entitled to his expenses of this hearing as prescribed under Ontario Regulation 664.

Hearing:

The hearing was held in North York, Ontario, on March 27, 28 and April 3, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant: Carmen Palumbo

Applicant's Representative: Altor Shields Barrister and Solicitor

Insurer's Representatives: William G. Scott Barrister and Solicitor

Steven G. Mason Barrister and Solicitor

Witnesses:

For the Applicant: Mr. Carmen Palumbo Dr. Denise Cole Dr. Lynne McNiece

For the Insurer: Dr. Dana Wilson

Exhibits: 11 exhibits were filed. The Insurer presented a case brief.

Preliminary Matters

1. Section 12(1) or Section 13(1)?

This issue was not mediated. The parties were unable to agree as to which section was applicable, therefore, they agreed that an issue in dispute at the hearing would be:

Is Mr. Palumbo entitled to weekly benefits under section 12 (income benefit) or section 13 (benefit if no income) of the Schedule?

2. Benefits Post-156 Weeks

Mr. Shields submitted that weekly benefits post-156 weeks should be included as an issue in dispute at the hearing. He stated that this was not a new issue, that it was a question of the continuation of benefits, a matter of duration. In his view there was no difference between entitlement to pre-156 week benefits and post-156 week benefits.

Mr. Scott objected to this issue being included because it had not been mediated, nor was it reflected in the pre-hearing letters, dated April 20, and May 13, 1994. He pointed out that the test for benefits pre- and post- 156 weeks from the anniversary of the accident were in fact different and required different evidence to be led. Because he was not warned that this would be an issue in dispute, he did not have the relevant vocational and medical evidence that he would need to deal with this issue.

At the hearing I ruled in favour of Dominion and reserved my reasons. These are my reasons:

Mediation of disputes regarding no-fault benefits is mandatory under the legislation. Section 281(2) of the Insurance Act bars litigation or arbitration until mediation has taken place. In the cases of DeCicco² and Kotsiakos³, the arbitrators declined to include issues in a hearing, as within the jurisdiction of an arbitrator, unless the issue had been mediated or the parties otherwise consented to their inclusion.

Senior Arbitrator Naylor in DeCicco held that:

... defining the jurisdiction of an arbitrator by the strict terms of the application [for arbitration] would encourage formality and technicality in the process. This would be inconsistent with the purpose of arbitration, which is intended to be informal and accessible.

... the scope of the issues before the arbitrator should not be defined in a narrow and technical way. The authority of the arbitrator extends to anything that reasonably and consequentially flows from the issues that are before her.

[Emphasis added]

Arbitrator Manji in Kotsiakos reviews DeCicco and states that when looking at what "reasonably and consequentially flows from the issues" one must look at "... the nature of the Arbitrator's inquiry and the type of evidence which may be led by the parties in respect of the issues...".

The relevant sections setting out entitlement to weekly benefits are the following:

12.-(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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

12.-(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

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).

13.-(8) The insurer is not required to pay a weekly benefit under this section,

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.

[Emphasis added]

In reviewing the law, it is clear that whether it is section 12 or section 13 that is in dispute, the test for benefits after 156 weeks is different than the test prior to the 156 week anniversary of the accident. The evidentiary burden is not only stricter, but different. It therefore follows that the evidence to be led by the parties would be different.

Since the issue of benefits post-156 weeks has not been mediated, and Dominion does not consent to it being determined at the hearing, and since the test for such benefits is a different test which would require different evidence, I find that the issue of benefits post-156 weeks does not reasonably or consequentially flow from the issue of benefits prior to that point. Therefore, weekly benefits post-156 weeks is not an issue to be determined at the hearing.

The Evidence

Mr. Palumbo is a 48 year old widower. When he graduated from the University of Toronto, he went to England to study film and ended up working in the theatre. In 1975, he returned to Canada and worked as a stage technician. In 1980, he sustained a work-related back injury and was declared to be 10 per cent permanently disabled. He was awarded a monthly pension and workmen's compensation paid for a three year course in film and television production at Humber College. When Mr. Palumbo graduated in 1984, he was unable to find a job in this field. His wife, Sharon Nelson, with whom he had been living since 1980, convinced him to join her in the editing and book production field.

Although theatre was his first love, in 1985 Mr. Palumbo began to work with his wife out of their home as a freelance editor. Mr. Palumbo was primarily responsible for editing books, while his wife focused on book production and making contacts for jobs.

Mr. Palumbo stated that his work as an editor required him to sit in the same physical position for hours at a time, especially if there was a deadline to meet. Generally he worked for a two hour stretch, with a 15 minute break. If he got "on a roll" he could work for six hours straight, without eating or going to the washroom. At times, he worked for 18 to 20 hours on a job, even up to 24 hours. Much of the work he did was within very tight deadlines, at a ratio of four deadline jobs to one that was not.

The texts he worked on were mostly technical books which required a great deal of mental alertness to edit. He also needed to have a number of reference books close by so that he could refer to them quickly. As well, his work required him to do layout, and to proofread galleys. This was done at a drafting table, standing up.

Mr. Palumbo stated that he and his wife obtained work for their business by socializing and networking.

In 1987, Mr. Palumbo's wife was diagnosed with cancer. At the beginning of her illness they tried to continue on with their work as usual. However, as his wife's disease progressed and she was unable to work, Mr. Palumbo began to carry her share of the work. As time went on and the need to take care of his wife became greater, he had to cut down on the work he was doing. At times he had to subcontract work in order to get it finished. By April 1990, he let go the person who was working for him, and sent any work coming his way to others. He stopped working to care for his wife full-time. On July 25, 1990, Ms. Nelson died.

After her death, Mr. Palumbo experienced acute bereavement over the loss of the person whom he considered to be his best friend. During this period of grieving, he was counselled by Dr. Lynn McNiece, a medical doctor, with degrees in social work and counselling. Mr. Palumbo had been seeing Dr. McNiece since 1989, to help him cope with the illness and expected loss of his wife.

Although it is noted in Mr. Palumbo's medical history that he had suffered from depression in the past and that in 1965 he had attempted suicide, Dr. McNiece testified that Mr. Palumbo was not experiencing depression after his wife died, but the normal shock, anger, denial, sadness and grief which accompanies a significant loss.

Following his wife's death, Mr. Palumbo did not return to work, but applied for and received social assistance. However, sometime in the fall he did a small indexing job which took about 60 hours and for which he received $800.00. He did not report this income, which was paid in cash, to either social assistance or Revenue Canada. Neither did he declare it to Dominion when he applied for no-fault accident benefits. He stated that he had no record of this work because it was on the hard drive of his computer and his computer was broken.

By December 1990, he discussed with Dr. McNiece the possibility of beginning to socialize and get back to work. In January 1991, he began to take a sculpting course. He said he took this course because he wanted something as far away from editing and thinking as possible.

Mr. Palumbo testified that as of the date of the motor vehicle accident on February 13, 1991, he was not working nor had he lined up any contract for work. He stated that if he had received work in February, he would have been able to complete it with the equipment that he had. He did state, however, that in February 1991 he was almost in the same position in starting up his business as he and his wife were when they first started the business in 1985.

On February 13, 1991, Mr. Palumbo went out socially for the first time since his wife had died. He attended a play written and directed by a friend of his. After the play he socialized with people he knew.

Mr. Palumbo testified that he left the party early, at about 10:30 p.m., because he did not want to overdo it. It was then that the accident occurred. While crossing on a green light, he was struck by a car. Mr. Palumbo was facing the car when he was hit. The bumper of the car hit his knees, he fell on the hood of the car and was then thrown down on the pavement on his back. He stated that his glasses had stayed on and he was able to record the license plate as the car drove off.

As a result of the accident, Mr. Palumbo suffered both physical and psychological injuries. Physically, he suffered from severe headaches for about six months after the accident, as well as pain in his knees, neck and back. The consensus of the medical evidence was that Mr. Palumbo had sustained soft tissue injuries. He was treated for these injuries by his family doctor, Dr. Cole. Psychologically, the accident precipitated a clinical depression for which he was treated by Dr. McNiece.

After the accident, Mr. Palumbo received weekly benefits of $185.00 from Dominion, pursuant to section 13 of the Schedule until October 22, 1993.

In August 1992, a report⁴ of Norma Burwash, a rehabilitation counsellor employed at Nancy Haston and Associates, notes that although Mr. Palumbo still had lower back pain, he was ready to resume work depending on whether Dominion would purchase a laptop computer for him. The report recommended that Dominion fund a trip for Mr. Palumbo to travel to Vancouver Island for the burial of his wife's ashes.

Dominion funded the trip to Vancouver Island. In another report⁵ by Ms. Burwash, she noted that the trip, which took place in the end of November 1992, was restorative in finalizing Mr. Palumbo's mourning period. The report also noted that Dr. McNiece was of the opinion that Mr. Palumbo was ready to return to work and that it was only the economic climate which would prolong the time he needed to find employment. The report also discussed various options for employment that Mr. Palumbo could investigate.

Sometime in January or February 1993, Mr. Palumbo submitted to Ms. Burwash an estimate for a laptop computer and a chair which was to be passed on to Dominion. In the spring of 1993, Mr. Palumbo contacted Ms. Burwash about the computer and chair and she told him that she had not heard from Dominion and therefore assumed that they must have dropped it. Mr. Palumbo did not pursue this matter any further with Dominion.

On January 18, 1993, Mr. Palumbo was seen by Dr. Dana Wilson, an orthopaedic surgeon. Dr. Wilson specializes in back problems. 95 per cent of his patients have back-related injuries. 80 percent have lower back problems.

Dr. Wilson reviewed Mr. Palumbo's x-rays from February 1991. The x-rays showed a mild degenerative disk disease on the lower three disks. Dr. Wilson diagnosed that Mr. Palumbo was having mechanical back pain on the basis of the degenerative disc disease which was exacerbated by the blow of being struck by the car. He believed, however, that Mr. Palumbo could return to working on a computer, as long as he could get up and move around to spread the stresses on his lower back⁶.

In May 1993, Dr. McNiece gave Mr. Palumbo a video editing job to test his concentration. She found that within his physical limits he was able to do the job and that emotionally he was able to concentrate, although fatigue was a problem. She also explored the possibility of a job in research for Mr. Palumbo at Toronto's Hospital for Sick Children.

By late spring or early summer of 1993, Mr. Palumbo's clinical depression had lifted and his only remaining physical problem was lower back pain. Mr. Palumbo stated that he could only sit for 30 minutes without pain.

Dr. Cole testified that in her view, by October 1993, Mr. Palumbo was able to perform the essential tasks of daily living. She agreed that Mr. Palumbo should go back to work. She believed that going back to work would help Mr. Palumbo both physically and psychologically, to cope with the pain and build up his self-esteem. She added, however, that her agreement that Mr. Palumbo was ready to go back to work was premised on his getting a supportive chair.

Dr. McNiece testified that by October 1993, Mr.Palumbo could carry out his normal daily activities and that psychologically nothing prevented him from going back to work. He still had back pain and was fatiguable, but she believed that Mr. Palumbo had the skills and motivation to return to work, however he needed financial facilitation to start his work up. The chair and computer which had been recommended would have helped him to begin his work much sooner. It would also have helped him to complete his work much faster and make him more competitive.

Dr. Wilson testified that a soft tissue injury should be able to resolve within 18 months to two years after the injury. If pain continues on after two years, it then becomes a chronic situation. Chronic pain is an inorganic pain as opposed to an organic pain which is structural in origin. Dr. Wilson explained that after two years, treatment of back pain based on a soft tissue injury should shift from physical treatment to psychiatric treatment, pain management, and behavioural modification. He stated that normal management for someone who had difficulty in sitting was to vary the stress. While pain does interfere with concentration, shifting the body around or changing one's position usually alleviates the pain.

Analysis and Findings

1. Is Mr. Palumbo entitled to weekly benefits under section 12 (income benefit), or section 13 (benefit if no income) of the Schedule?

I find that Mr. Palumbo is not entitled to section 12(1) weekly income benefits.

The evidence reveals that after the accident, Mr. Palumbo was paid section 13(1) benefits until October 21, 1993. The issue at mediation dealt with section 13(1) benefits. In Mr. Palumbo's application for arbitration, Mr. Shields states that weekly benefits of $185.00 were in dispute. Although the first pre-hearing letter was ambiguous in that it did not indicate whether section 12 or 13 was applicable, the second letter seemed to indicate that the issue to be dealt with at the hearing was benefits under section 13(1).

The fact that Mr. Palumbo was paid benefits under section 13 does not in itself establish that this was correct. Similarly, just because Ms. Burwash, the rehabilitation counsellor, focused on trying to reintegrate Mr. Palumbo to the work force, does not establish that section 12 is the applicable section. What is needed is an objective and reasoned interpretation as to which section is applicable.

Section 12(2) sets out the qualifications for entitlement to section 12(1) benefits. It states:

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

Mr. Palumbo in his evidence claimed that at the time of the accident he was a self-employed freelance editor. However, in order to find that Mr. Palumbo was self-employed and not unemployed at the time of the accident, I must first find, either that the business of Mr. Palumbo and his wife was in existence at the time of the accident, or that he had started up another business by that time.

Mr. Shields submitted that the fact that Mr. Palumbo had worked for one week in September on an indexing job and that on the night of his accident he had been socializing to make work contacts, is proof that Mr. Palumbo had remained self-employed and was working at the time of the accident.

Mr. Scott, in lengthy and detailed submissions, outlined his reasons for considering that Mr. Palumbo's business had ceased in April 1990, and that he was neither self-employed nor working at the time of the accident.

Mr. Scott stated that Mr. Palumbo's business was a legal partnership with his wife. Their tax returns had been filed jointly as a business partnership⁷. He noted that Mr. Palumbo and his wife, although sometimes overlapping, performed different tasks for the business. Mr. Palumbo focused on editing books, while his wife focused on book production and contacts for jobs.

When his wife became ill, Mr. Palumbo tried to keep up the business by doing some of her work and hiring someone to help out. But by April 1990, he let the employee go and any ongoing business was transferred out.

Mr. Scott pointed out that a principle of common law states that a partnership automatically ceases on the death of a partner. He stated that as of April, the business had effectively come to an end, and that at the death of Mr. Palumbo's wife, it had legally ended. The business for all intents and purposes had ceased.

Mr. Scott noted that in August 1990, after his wife died, Mr. Palumbo applied for and received social assistance. Although Mr. Palumbo did an indexing job for one week in September, nothing else suggests that he was carrying on a business. Although some friends called to see how he was and whether he was working, Mr. Palumbo had indicated to them that he was not ready to do any work. In January 1991, he had begun a sculpting course. He testified that he had no desire at that time to do any editing or hard thinking.

Mr. Scott submitted that it was stretching it to say that on the evening of the accident Mr. Palumbo had begun to start working by trying to make contacts. This was the first social evening out since his wife had died. He had attended at a friend's play and had left the party early. He had made no contacts for work.

Mr. Scott relied on the Raickovic⁸ case to support his position that Mr. Palumbo was not self-employed at the time of the accident. In that case, Arbitrator Palmer held that the applicant was not self-employed. She came to this conclusion because the applicant had not brought evidence to show that his business had continued in any manner during the two-year period when he was not working. Mr. Scott stated that similarly, Mr. Palumbo had not brought any evidence, such as a telephone directory listing or business records to show that his business was ongoing and viable. He noted that Mr. Palumbo, himself, had stated that in February 1991 he was in a situation similar to the start up of his business in 1985.

I agree with Mr. Scott's submissions and conclusions.

It is not always necessary for a person to actually be working in his business in order to be found self-employed: at times because of illness or a downturn in the economy, a person may not be able to work. Nevertheless, something more is needed than a subjective intention, or the declaration of a person that he is self-employed.

To use the words of Arbitrator Palmer in Sharma⁹, what is required is "an objective, reasoned interpretation of the individual circumstances" at the time of the accident. With this in mind, I find that a reasonable, objective interpretation of the evidence reveals that although Mr. Palumbo had the skills of a freelance editor, he was not, at the time of the accident, carrying on the business that he and his wife were engaged in before her death, nor was he carrying on any other business. I therefore find that Mr. Palumbo was not self-employed at the time of the accident.

Section 12(3) qualifies a person as employed if they have worked for any 180 days in the 12 month period before the accident. The evidence in this case reveals that Mr. Palumbo stopped working in April 1990, that he only worked one week in September 1990, and that the accident occurred in February 1991. I therefore find that Mr. Palumbo did not work for 180 days within 12 months of the accident, and therefore does not qualify as an employed person for purposes of section 12.

For all of the above reasons, I find that Mr. Palumbo is not entitled to section 12(1) weekly income benefits.

2. Is Mr. Palumbo entitled to section 13(1) weekly benefits from October 22, 1993 to February 21, 1994?

Having heard the testimony of Drs. Cole, McNiece and Wilson, and having reviewed the medical and rehabilitation reports, I find that Mr. Palumbo is not entitled to section 13(1) benefits from October 22, 1993 to February 21, 1994.

In order to be eligible for weekly benefits under section 13(1) of the Schedule, the insured person must suffer an injury in an accident which causes a "substantial inability to perform the essential tasks in which he or she would normally engage". The test is not some inability to perform essential tasks, but a substantial or sizeable inability to perform these tasks¹⁰. The experience of pain itself is not compensated under the Schedule, except in a case where pain impairs function to such a degree that the person is substantially unable to perform his essential tasks¹¹.

In evaluating the essential tasks that Mr. Palumbo would normally engage in, Mr. Shields submitted that Mr. Palumbo's skills as a freelance editor should be included in his essential tasks under section 13(1). I reject Mr. Shields' submission. To include Mr. Palumbo's occupation skills under section 13(1) is to do away with the fundamental distinction between section 13 and section 12.

The evidence reveals that as early as the fall of 1992, Mr. Palumbo was considering a return to work¹². In April 1993, Dr. Sober, an orthopaedic surgeon, reported¹³ that he found that Mr. Palumbo's back problems were relatively minor and did not appear to be disabling. In his view, Mr. Palumbo did not require any further physiotherapy or medication. He stated that nothing would be more therapeutic for Mr. Palumbo than a return to his editing work.

Dr. McNiece testified that by May 1993, Mr. Palumbo's clinical depression had lifted and that Mr. Palumbo had successfully completed a video editing job for her.

In a report dated August 9, 1993¹⁴, Ms. Burwash acknowledged Dr. Cole's agreement with the medical examination reports of Dr. Wilson and Dr. Sober that Mr. Palumbo had reached the stage in his recovery where he was physically capable of returning to a productive lifestyle, including employment.

In their testimony both Dr. Cole and Dr. McNiece stated that by October 1993, Mr. Palumbo was able to perform the essential tasks of his normal daily activities.

Although Mr. Palumbo still suffers chronic low back pain when he extends himself too much in walking, standing or sitting, I find, in assessing the evidence as a whole, including the testimony of his own doctors, that by October 1993, if not before, Mr. Palumbo was capable of performing the essential tasks of his normal living activities. I come to this conclusion, not only because of the medical evidence presented, but because as early as 1992, Mr. Palumbo was considering returning to work. If Mr. Palumbo was able to consider returning to work, it follows that as a minimum requirement, he would have at least been able to carry out the essential tasks of his daily living¹⁵.

For all of the above reasons I find that Mr. Palumbo is not eligible for section 13(1) benefits from October 22, 1993 to February 21, 1994.

3. Is Mr. Palumbo entitled to a Special Award?

Mr. Shields submitted on behalf of Mr. Palumbo that Dominion should be ordered to pay a special award under section 282(10) of the Insurance Act because it unreasonably refused to provide Mr. Palumbo with a computer and chair which would have enabled him to resume his profession as a freelance editor. Section 282(10) states:

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 Statutory Accident 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.

An arbitrator has an inherent jurisdiction to consider a claim under section 282(10) of the Insurance Act once she finds that an insurer has acted unreasonably, whether or not such a claim has been raised in the Application for Appointment of an Arbitrator, Reply by Insurer, at the pre-hearing conference, or otherwise.

A special award is based on the amount owing at the time of the award. Because I have concluded that no benefits are owing, I have no authority to order a special award in this case. Even if I had authority to order a special award, I conclude that Dominion did not behave unreasonably in not providing Mr. Palumbo with a computer or chair.

In Plowright¹⁶, Arbitrator Palmer made the following comments with respect to what can be considered to be unreasonable behaviour on the part of an insurer:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

The evidence reveals, that Mr. Palumbo gave Ms. Burwash an estimate of the cost for a computer and chair in January or February 1993, but did not follow up this request with Dominion. He did not raise the issue of the computer and chair at mediation as an issue to be dealt with at the arbitration hearing. In the April 20, 1994 pre-hearing letter, it was noted that supplementary medical and rehabilitation benefits were not being claimed. At the commencement of the arbitration hearing, Mr. Shields raised two new issues, however, he did not raise the issue of the refusal by Dominion of a computer or a chair. Nevertheless, Mr. Shields made the issue of the computer and especially the chair the focus of his evidence and suggested that Dominion, by not providing these items, had prevented Mr. Palumbo from returning to work.

I find that before the hearing Dominion had no reason to believe that the computer and the chair were important for Mr. Palumbo's rehabilitation. I, therefore, find that Dominion did not behave unreasonably in not providing Mr. Palumbo with a computer or chair.

For all of the above reasons, I find that Mr. Palumbo is not entitled to a special award.

4. Expenses

Mr. Palumbo seeks an award of the expenses he has incurred in this arbitration. In accordance with section 282(11) of the Insurance Act and the case law that has evolved, I find that Mr. Palumbo is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

1. Mr. Palumbo is not entitled to section 12(1) weekly income benefits.

2. Mr. Palumbo is not entitled to section 13(1) weekly benefits from October 22, 1993 to February 21, 1994.

3. Mr. Palumbo is not entitled to a special award.

4. Mr. Palumbo is entitled to his expenses of this hearing as prescribed under Ontario Regulation 664.

April 13, 1995

Joyce Miller Arbitrator

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. 2Rosa DeCicco and State Farm Mutual Automobile Insurance Company, December 18, 1991, OIC File No. A-000277.
3. 3Peter Kotsiakos and State Farm Mutual Automobile Insurance Company, July 26, 1994, OIC File No. A-002354.
4. 4Exhibit 1, Tab 7
5. 5Exhibit 1, Tab 8
6. 6Exhibit 1, Tab 13. See also Exhibit 2, Tab 6.
7. 7Exhibit 1, Tabs 12 to 16. The name of the partnership is indicated as Phoenix Productions International.
8. 8Ranko Raickovic and Gore Mutual Insurance Company, May 26, 1993, OIC File No. A-002533.
9. 9Rajinder Sharma and Cooperators General Insurance Company, February 7, 1994, OIC File No. A-003840.
10. 10Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024.
11. 11Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064.
12. 12Exhibit 1, Tabs 6 and 7.
13. 13Exhibit 1, Tab 11.
14. 14Exhibit 1, Tab 14.
15. 15Exhibit 1, Tabs 5 and 11 outline Mr. Palumbo's activities of daily living.
16. 16Wayne Allen Plowright and Wellington Insurance Company, October 29, 1993, OIC File No. A-003985.