Neutral Citation: 1995 ONICDRG 79
File No. A-008498
ONTARIO INSURANCE COMMISSION
BETWEEN:
SHELLEY L. P.
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Shelley L. P., was injured in a motor vehicle accident on November 16, 1990. She received weekly benefits from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 6721, until the Insurer ceased payments on January 31, 1993. On February 9, 1994, Senior Arbitrator Rotter determined that Shelley L.P. was not eligible for further weekly benefits. The matter is currently in appeal before the Director of Arbitrations (OIC File No. P-002235).
After the first arbitration hearing, Shelley L.P. submitted a number of other expenses, which Royal denied. One of the disputed expenses is $16.59 for the cost of a television rental while Shelley was in hospital during November 1993. The dispute was not resolved through mediation, and Shelley L.P. applied to have an arbitrator determine the matter, in accordance with the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the television rental a reasonable expense of the November 16, 1990 accident?
Shelley L.P. also claims interest on any amounts owing, a special award, and her expenses incurred in the hearing.
Result:
The television rental is not a reasonable expense of the accident.
Hearing:
Submissions by teleconference were heard on January 18, 1995, before me, Fred Sampliner, arbitrator. Shelley L.P. was represented by her father, Myles G.P. Royal was represented by Alexander Demeo, Barrister and Solicitor.
Shelley L.P.'s representative submitted a five page summary of argument, which included the last page of the Mediation Report and a letter from Royal's representative, dated October 17, 1994. Royal submitted copies of the parties' correspondence dated October 19, 1993, January 7, 1994, January 19, 1994 and July 9, 1994.
I have also considered the Report of Mediator, Application For Appointment of an Arbitrator, Response By Insurer, Reply By Insured Person, and the decision in Shelley L.P. and Royal Insurance Company of Canada, February 9, 1994, OIC File No. A-002235.
Evidence and Findings:
This matter is quite unusual. I am presented with a claim for reimbursement of a very modest $16.59 expense for rental of a television during the Applicant's hospitalization three years after the accident. However, the Applicant has not provided me with proof of the expense. No bill or invoice for the television rental, or check or receipt showing payment was provided to me at the hearing.
An expense for rental of a television to an insured person who is recovering from accident injuries in hospital might qualify under section 6(1) (f) of the Statutory Accident Benefits Schedule, which provides for payment of expenses for:
other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
The Application For Appointment of an Arbitrator reads:
$16.59 cost of TV rental while in hospital after a suicide gesture plus penalties, costs, interest, and expenses. This was a legitimate cost that should have been paid pending the results of arbitration A002235.
Royal did not contest the existence of this expense and I am therefore willing to accept it without the usual documentation.
The connection between the hospitalization which gave rise to the television expense and the accident is not obvious. Mr. Myles G.P., the Applicant's representative, submitted that the bill was dated November 27, 1993. However I was not provided any evidence about Shelley L.P.'s hospitalization, her treatment or diagnosis. Thus, I have no evidence in this arbitration to suggest any causal link between the accident and the television expense, occurring over three years after the initial injury.
Another arbitrator in this forum decided Shelley L.P.'s entitlement to weekly income benefits from this accident (OIC File No. A-002235). Senior Arbitrator Rotter heard expert medical and psychological evidence at a hearing on July 26, 27, and 28, 1993. She had an opportunity to hear, review, and analyze the experts' medical and psychological records. Considering this evidence, Arbitrator Rotter concluded that the accident did not play a significant role in Shelley L.P.'s disability after January 1993.
Although the test for entitlement to weekly benefits is different than the test for payment of supplementary medical and rehabilitation benefits under section 6 of the Schedule, it is quite clear that a claimant must demonstrate a causal relationship of the expense to the accident injuries. Section 6(1) states:
The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,....
In short, Shelley L.P. must prove that the $16.59 television rental in November 1993 is related to her injuries from the November 16, 1990 accident.
In the present matter, the facts as presented by the Applicant's representative do not demonstrate any obvious or natural causal connection. Further, I have no expert evidence to connect this expense to the accident three years earlier. Consequently, Shelley L.P. has failed to prove the requisite causal link between the claimed expense and the accident. Since she has failed to establish this essential element, I find that the $16.59 television rental is not a reasonable expense.
Shelley L.P. argues that Royal should have paid this claim pending the resolution of the dispute, in accordance with section 6(7) of the Schedule:
In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.
However this item qualifies as "other goods and services, whether medical or non-medical" under section 6(1) (f) of the Schedule, and it does not qualify as an item which the insurer must pay pending resolution of the dispute, under section 6(7). Therefore, I find that Royal was not obligated to pay the television rental pending the outcome of this arbitration.
Expenses:
Generally, applicants can expect to be awarded their expenses of the arbitration process, whether they succeed or fail on their claim. This limited assurance that some portion of arbitration expenses are reimbursed is intended to provide access to insured people seeking resolution of statutory accident benefits. However, an applicant who seeks reimbursement of expenses should prepare for the hearing.
In this matter, Shelley L.P.'s representative introduced two letters of communications between the parties and a written summary of the Applicant's arguments along with the last page of the Report of Mediator. These six pages of material are the only evidence before me, and as previously stated, do not address Shelley L.P.'s recent condition, treatment, or the relationship of this expense to the November 16, 1990 accident. While I recognize that Shelley L.P.'s representative does not have legal training, he was involved in the earlier weekly benefits claim, and has acquired knowledge of this process. In my view, Shelley L.P.'s representative did not provide me with any relevant evidence with which to determine the issue. In this circumstance, it is not reasonable to allow compensation for the representative's time, the filing fee or other expenses associated with this process.
In addition, there is ample evidence to suggest that Shelley L.P. is utilizing multiple proceedings to attempt to force Royal to pay claims. The mediator's report states that during January 1994, Shelley L.P. filed four separate applications for mediation concerning twelve different expenses. On January 7, 1994, Shelley L.P.'s representative wrote Royal a letter containing the following statements:
I today submitted the necessary forms for four (4) separate mediations covering each of the above expenses. I have requested that they be dealt with as four (4) separate items, even on four (4) separate occasions if they wish. I will meet with the mediator only once for each item, and if I do not receive 100% satisfaction, I will immediately apply for arbitration on each item.
Pure and simple, you are obligated to pay these bills, failing that we go to mediation. If mediation fails, I will immediately pay my $50.00 and you your $1,000.00 and we will await arbitration. Please calculate the cost to yourselves. I have a pad of fifty (50) mediation forms...and I do not require a solicitor.
Despite the Applicant's objections, the Registrar's Office consolidated these applications into one mediation. Eleven of the 12 claimed expenses were not resolved through mediation, and on April 19, 1994 Shelley L.P. filed for arbitration of the $16.59 television rental alone.
It appears that none of the other claims have been brought forward to arbitration. However, in July 1994, Shelley L.P. threatened Royal with legal action:
I am no longer prepared to go through The Ontario Insurance Commission, and I will be filing several Small Claims Court Actions [sic] against you to recover expenses due. These I might add, will be adequately spaced so that no two may be heard the same day. I might point out I have almost a decade of Finance Company experience and am well versed in Small Claims. Might I suggest this could get costly for you, there is another way, we can come to the table and talk.
The open threats in these letters, together with the multiple mediation applications clearly demonstrate, in my view, Shelley L.P.'s intent to orchestrate multiple claims thereby increasing Royal's costs. As a result, I find that Shelley L.P. intends to abuse the process in order to force Royal to pay her claims.
Section 282(11.2) of the Insurance Act grants discretion to the arbitrator to order an applicant to pay the insurer's assessment fee ($1,000 in this case) if the claim is frivolous, vexatious or an abuse of process. In Wayne Harmon and Co-operators General Insurance Company, June 5, 1995, OIC File No. A-002468, the applicant filed six mediations, three arbitrations, and brought other claims before Small Claims Court. I agree with Arbitrator Palmer that tactical manoeuvres to create a multiplicity of proceedings may lead an arbitrator to find abuse of process.
In this instance, although Shelley L.P. filed multiple mediations, she has only applied for one arbitration. Since the telephone submissions, the Applicant's representative has undertaken that Shelley L.P. would commence no further Court or Ontario Insurance Commission actions, pending the outcome of this arbitration and the previously instituted appeal, unless necessary to preserve statutory time limitations. Considering this undertaking, I am not willing to impose the assessment. However, I caution that another hearing officer may take a less liberal view in future proceedings.
Order:
- Royal is not required to pay any amount to Shelley L.P arising out of this proceeding.
June 22, 1995
Fred Sampliner Arbitrator
Date