Neutral Citation: 1995 ONICDRG 98 File No. A-003996

BETWEEN:

JOHN GOULIAEFF Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY OF CANADA Insurer

The Applicant, John Gouliaeff, was injured in a motor vehicle accident on August 17, 1990. He applied for statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. The Insurer paid weekly income benefits of $330.40 until August 18, 1993, when benefits were terminated. The Insurer has also paid medical and rehabilitation benefits. The Applicant claims further benefits. The parties were unable to resolve their disputes 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:

Is the Applicant entitled to weekly income benefits after August 18, 1993?
Is the Applicant entitled to weekly income benefits in an amount greater than $330.40?
Is the Applicant entitled to reimbursement of expenses relating to housekeeping services, purchase of an orthopaedic bed, chiropractic treatment and related taxi expenses?
Is the Insurer entitled to repayment of benefits overpaid for taxi expenses?
Is the Applicant entitled to be reimbursed for his expenses incurred in the proceeding?
Is the Applicant required to reimburse the Insurer for its filing fee of $1,000, under section 282(11.2) of the Act, as amended?

The Applicant also claims interest on any amounts owing.

Result:

The Applicant is not entitled to weekly income benefits after August 18, 1993.
The Applicant is not entitled to weekly income benefits at a rate higher than $330.40 per week.
The Applicant is not entitled to further medical and rehabilitation benefits.
The Insurer is entitled to repayment of taxi expenses overpaid in the amount of $4,726, with interest as provided under section 27 of the Schedule.
The Applicant is not entitled to his expenses incurred in the proceeding.
The Applicant is required to reimburse the Insurer for its filing fee of $1,000.

Hearing:

The hearing was held in North York, Ontario, on July 4, 1995, before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Insurer's Representative: Ruth Henneberry Barrister and Solicitor

Paul Lee Barrister and Solicitor

Insurer's Officer: Mary Kelly Claim Representative

No one appeared on behalf of the Applicant. There were no witnesses.

Exhibits and other documents before the arbitrator are set out in an appendix to the decision.

An extensive case brief was filed.

The proceedings were recorded by Ray Macdonald, of Rosenberger, Weir, Macdonald, Court Reporters.

Preliminary Issues:

(i) Choice of forum

The Applicant applied for appointment of an arbitrator on April 21, 1993. The Insurer moved for dismissal of the arbitration because the Applicant had previously commenced, and had not withdrawn, an action against the Insurer in civil court for the same (statutory accident) benefits.

Section 281(1) of the Act is as follows:

If mediation fails, the insured person may bring a proceeding in a court of competent jurisdiction or may refer the matter to an arbitrator.

Pursuant to this provision, an insured person may proceed through the courts or through the arbitration process, but cannot use both procedures with regard to the same claim for statutory accident benefits. In a preliminary decision in this matter, Arbitrator David Draper found that by applying for arbitration, the Applicant had elected to proceed by way of arbitration, rather than court. He ordered that the Applicant could proceed to arbitration, "provided he withdraws his related court action forthwith".²

When the Applicant did not withdraw his court action, the Insurer renewed its motion for dismissal of the arbitration. In a second preliminary decision, Arbitrator Draper dismissed the Insurer's motion. However, he required the Applicant's counsel to prepare a motion to dismiss the civil action "immediately" and to set it for an "early" date available to the Insurer's counsel.³

The Notice of Discontinuance in the Applicant's court action was issued on November 15, 1994.

Accordingly, there is no outstanding jurisdictional problem.

(ii) Settlement discussions:

This matter was previously scheduled to be heard beginning May 8, 1995. On that morning, the parties engaged in settlement discussions and appeared to settle the matter. A release, disclosure notice, and consent to dismiss were signed by both parties.⁴

Subsection 9.1(3) of Ontario Regulation 780/93 provides that an insured person may rescind a settlement "within two business days...by delivering a written notice to the insurer."

At 5:18 p.m. on May 10, the Applicant, who had been unrepresented on May 8, faxed a handwritten letter to the Insurer's counsel in which he advised:

Due to my conversation with Jim Malcolm [Registrar, Dispute Resolution] and my tentative legal representitive [sic], I have decided to rescind [the Insurer's] offer.

The Applicant concluded, "Please inform me of the date of the arbitration hearing." The note was dated May 10, 1995.⁵ The Commission's file confirms that the Applicant had spoken to Mr. Malcolm by telephone earlier on May 10, with regard to his wish to rescind the settlement. In her submissions, the Insurer's counsel advised that she did not receive the Applicant's faxed note until May 11.

The Applicant's note was faxed from the office of Mr. D. Robert Findlay, a lawyer who represents him in another matter. On May 12, the Insurer's counsel wrote Mr. Findlay asking whether he represented the Applicant in this matter.⁶ In her submissions at the hearing, the Insurer's counsel stated that she received no reply.

Initially, the Insurer took the position that "the attempted rescission is not valid as it was sent more than 48 hours after our settlement offer was accepted".⁷ However, the conduct of both parties after May 10, 1995 indicates that they intended to proceed to a hearing on the merits, and considered the purported settlement of May 8 to be dead. At the hearing, the Insurer made no submissions and presented no evidence as to the validity of the purported settlement and rescission. I accept that the Applicant rescinded the settlement.

(iii) The Applicant's failure to appear:

The Applicant did not appear at the hearing, and no one appeared on his behalf. Mr. Palios, his former counsel, had previously withdrawn from the record. The Applicant appears not to have retained another lawyer.

The Notice of Hearing in this matter was issued on May 23, 1995. Commission staff left information as to the time, date and place of the hearing on the Applicant's answering machine on that day. Earlier that day, Commission staff had spoken to the Applicant at the same telephone number, in order to confirm his address and get directions for courier delivery. In the end, a courier could not be used because the Applicant lives in a rural area, and the Notice was sent by regular mail to the address confirmed by the Applicant.

The Commission has received no correspondence or telephone messages from the Applicant since May 23, 1995. Commission staff attempted to reach him by telephone on the morning of the hearing, but with no success. After waiting 45 minutes beyond the scheduled hearing time, I invited the Insurer to proceed.

Section 15.3 of the Dispute Resolution Practice Code provides as follows:

15.3 (a) Where a Notice has been given to a party and the party does not attend at the hearing, the arbitrator may proceed with the arbitration in the absence of the party and he or she is not entitled to any further notice in the proceedings.

(b) An arbitration order shall not be made against a party solely on the failure of a party to attend at the hearing.

The first part of this provision is reiterated in the Notice of Hearing, which says, "If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings."

In accordance with the Code, I ruled that I would proceed with the hearing in the Applicant's absence, but would not dismiss the matter based only on his failure to appear. However, I indicated that I would draw an adverse inference from the Applicant's failure to present any evidence on his behalf. Further, I would consider the Applicant's failure to appear in regard to expenses.

At the conclusion of the hearing, I made an oral ruling. My reasons follow.

Weekly income benefits after August 18, 1993:

An insured person is entitled to weekly income benefits following an accident if, because of his accident-related injuries, he is unable to perform the essential tasks of his pre-accident employment or occupation.⁸ After 156 weeks, the insured person is entitled to ongoing benefits only if his injuries continuously prevent him from engaging in any employment or occupation for which he is reasonably suited by education, training or experience.⁹

Since the Applicant did not appear, and no evidence was filed on his behalf, my findings about the accident and his injuries are based on the documents filed by the Insurer. I do not accept that the Applicant is unable to work as an apprentice electrician, or (after 156 weeks) in any other suitable job, as a result of the accident.

On August 17, 1990, the Applicant was riding his bicycle when a van passed him and turned right, cutting him off. He struck the right side of the van.¹⁰

In his Application for Accident Benefits, the Applicant said, "I cannot carry things. I cannot use my bicycle. I cannot engage in any type of physical work or activity". He described the physical tasks of his job as "lifting, climbing ladders, pulling wires".

After the accident, the Applicant rode his bike to Hamilton General Hospital, where he was seen in Emergency, complaining of pain on the left side of his neck, numbness in his left wrist, palm and third finger, and pain on the left side of his chest. He reported that he had struck his left shoulder against the van and fallen off the bicycle. He had abrasions on the left side of his neck, as well as tenderness and reduced range of movement in his shoulder and wrist. X-rays of the left wrist, left clavicle, and left shoulder were negative. The x-ray of the cervical spine showed no fracture or other abnormality, although there were suggestions of muscle spasm and limited movement. The Applicant was sent home with his left arm in a sling, and was given a prescription for Tylenol 3.¹¹

The Form 4 report of Dr. W.J. Bulger, his family doctor, described his injuries as follows: "left shoulder tenderness and limitation of motion, left wrist tenderness." Dr. Bulger's diagnosis was left rotator cuff strain and left wrist sprain. He instructed the Applicant in passive range of motion exercises.¹²

The Applicant's description of the accident and his injuries appears to have changed over time. In his Application for Accident Benefits, dated November 15, 1990, the Applicant described his injuries as "minor abrasions, bruised collar bone, slightly dislocated shoulder". I found no medical evidence in support of the Applicant's claim that he suffered a dislocated shoulder, and I do not accept it. In December 1990, the Applicant is reported to have told Dr. Jeremias, an orthopaedic surgeon he saw at the Insurer's request, that he "went over the handle bars" and may have lost consciousness. In June 1993, Dr. Ameis reported: "[t]he patient did not have a bike helmet on, unfortunately, and there does appear to have been a head injury."¹³ The hospital emergency report specifically notes "no head injury, no LOC [loss of consciousness]". I do not accept that the Applicant suffered a head injury in the accident.

The Notice of Loss form, which was prepared by the Insurer based on information obtained from the driver of the van, indicates that there was "no damage" to the van.¹⁴ The Applicant was able to ride his bicycle to the hospital. This evidence of the relatively minor nature of the accident supports the medical evidence, which indicates that the Applicant suffered uncomplicated soft tissue injuries.

On December 7, 1990, the Applicant was examined by Dr. G. Jeremias, an orthopaedic surgeon, at the Insurer's request. Dr. Jeremias gave the following opinion:

Clinically, he has had a contusion of his left shoulder and a contusion of his left sterno-clavicular joint and a minor cervical and lumbo-sacral strain, involving soft tissues only. He is improving. He does need a continued exercise programme for his left shoulder. I don't think he is suitable for work at the present time, as far as his left shoulder is concerned. I think, in a six week period, he should be able to return back to full and active activities. I encouraged him to increase his activity level and specifically, to do exercises for his left shoulder. [emphasis added]¹⁵

This is the first reference on the file to low back problems. Dr. Jeremias also reported: "He also has some low back symptoms. This is not daily, but is especially there in the mornings." On examination of the low back, Dr. Jeremias found no tenderness, restriction in range of motion, or other sign of injury.

The Applicant first saw Dr. H. Cohen, who succeeded Dr. Bulger as his family doctor, on April 30, 1992. Dr. Cohen's medical-legal report was filed.¹⁶ The Applicant complained to Dr. Cohen about "severe" low back pain radiating into both legs, and numbness in his fingers. These symptoms were worse when he last saw Dr. Cohen on March 3, 1993. Dr. Cohen reported that EMG and nerve conduction studies of the cervical spine were negative (June 24, 1992). Nerve conduction studies of the lumbar spine were negative, but "mild EMG changes suggesting the possibility of an L4 root lesion" were present. However, a CT scan of the lumbar spine was negative. Dr. Cohen opined that the Applicant's pain "appears to be more of the muscle strain pattern", and was unexplained by organic pathology. He thought permanent disability unlikely.

On June 15, 1993, the Applicant was examined by Dr. A. Ameis, a physiatrist, at the Insurer's request. A functional capacity evaluation, ordered by Dr. Ameis,¹⁷ indicated "slightly limited" range of motion of the cervical spine, and "somewhat more restricted" lumbar motion. The assessor felt that the Applicant did not give his best effort in shoulder movement. There was "large variation" in repetitions of the Jamar dynamometer grip test, suggesting "an unacceptable inconsistency of effort". The assessor also felt that the Applicant did not make a full effort on the push/pull test. Cardiovascular conditioning was poor. There was no problem with sitting tolerance. Ms. Ameis concluded that the Applicant "is certainly capable of sedentary, light or medium work". She recommended a cardiovascular fitness program.¹⁸

On examination, Dr. Ameis felt that the Applicant had suffered a left rotator cuff injury or acromioclavicular joint injury. As a result, there was mild impairment of left shoulder external rotation and full rotation. He did not think this would restrict the Applicant's activities. He also said it was "unusual" to see a shoulder problem persist so long.

According to Dr. Ameis (June 1993), the Applicant's low back had become significantly problematic within several months of the accident, and was now the Applicant's "most significant complaint". Dr. Ameis could find nothing objectively wrong with the Applicant's low back. He did not accept that the EMG test showed an L4 radiculopathy, because the Applicant's complaints did not correspond to L4 distribution; he suggested that this result might be a false positive. Dr. Ameis believed that the Applicant's low back problem was either "entirely psychogenic" or attributable to causes unrelated to the motor vehicle accident.

Dr. Ameis reported a number of inconsistencies between the Applicant's complaints and his objective examination. He felt that the Applicant's complaints were best explained by "behavioural" and "motivational" issues, a "passive/aggressive" personality, or "conversion disorder". I place little weight on Dr. Ameis' psychiatric diagnoses, which fall outside his expertise as a physiatrist.

As well as the reports filed at the hearing, Dr. Ameis also reviewed a report by Dr. J. Trotter, a physiatrist (October 15, 1991), and some unidentified information from Dr. R. Koch, the Applicant's chiropractor. No clinical notes or reports from these practitioners were filed. According to Dr. Ameis, the Applicant's complaints to Dr. Trotter were focused on low back pain. Dr. Trotter found no "significant abnormalities" in lumbar range of motion. She could find no "specific pathological diagnosis'" for the lumbar pain. She recommended a behavioural approach to chronic pain management.

Dr. Ameis made further comments on the medical documentation in his follow-up report of June 30, 1993. Notably, he opined, on the basis of the hospital emergency report, that there was a possibility of "well below 10%" that the Applicant suffered a "serious back injury" in the accident, given that he immediately rode his bicycle to the hospital, where he did not complain of low back pain. The probability falls to less than .1%, in Dr. Ameis' opinion, considering that the Applicant did not complain of low back pain by the third day post-accident.¹⁹

The Insurer filed a number of investigators' reports.²⁰ The Applicant has been observed on several occasions walking with a cane in his left hand. He has sometimes been seen to walk with a limp. On one occasion, he dropped the cane while climbing the stairs outside his chiropractor's office. The investigator reported that he slowly descended the stairs to retrieve it, showing "noticeable strain".

However, on other occasions, he has been observed holding the cane without using it for support. Sometimes he was seen to hold it in his right hand. Sometimes he walked without a cane. He sometimes had a limp, but not always. The Applicant has also been observed "running", walking quickly, going up and down stairs quickly, and walking with a cane in his left hand and two pitbull terriers on leash in his right hand. He has been seen sitting, bending at the waist, twisting his upper body, turning his head, and lifting and carrying a sheet of metal or plastic.

Investigators reported that the Applicant has recently bought and licensed a motorcycle, and several neighbours have seen him driving it. That the Applicant is able to drive is confirmed by his driving record, which indicates a number of moving violations since the accident.²¹ Neighbours also reported to investigators that the Applicant has often been seen walking without a cane or a limp, as well as swimming at the beach near his home.

The investigation reports indicated that videotape footage was obtained, but it was not filed before me. The reliability of the investigation reports is affected by the fact that I did not see the videotape, and did not hear oral evidence from the investigators or the people they interviewed. Most importantly, I did not have the benefit of the Applicant's response to this evidence. However, the Applicant bears the onus of proving that he is entitled to benefits. In this case, the investigation reports raise troubling questions about the Applicant's credibility, questions which were not answered because of the Applicant's decision not to attend the hearing.

The Applicant claims that he suffers ongoing low back pain which varies in severity and sometimes requires the use of a cane. For the reasons given above, I am not satisfied that the Applicant is disabled by pain. In any event, I am not satisfied that any problems he has are a result of the accident. Low back pain was not a significant problem for the Applicant until some months after the accident. He did not report low back problems to hospital emergency staff on the day of the accident, to Dr. Bulger, three weeks later (September 11, 1990), or to the Insurer, on his Application for Accident Benefits form, dated November 15, 1990. Dr. Jeremias' report (December 7, 1990) suggests that the Applicant's low back complaints were not yet disabling. I agree with Dr. Ameis that an accident-related low back problem of any significance would very likely appear almost immediately after the accident.

The investigation reports contain no suggestion of any ongoing neck, shoulder, or upper back problem. These complaints appear to have substantially resolved by the time the Applicant saw Dr. Ameis in June 1993.

For these reasons, I find that the Applicant is not entitled to weekly income benefits after August 18, 1993.

The Amount of the benefit:

Subsection 12(2) 1 .iii of the Schedule provides that an insured person will be deemed "employed" if, at the time of the accident, he was "entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing".

The Applicant claims that at the time of the accident on August 17, 1990, he had accepted an offer to begin full-time work as an electrician for Enzo Electric Ltd. The only evidence filed with respect to the alleged offer is a letter, dated June 18, 1992, from Enzo Giammichele, President of Enzo Electric.²²The letter states that in July 1990, Mr Giammichele "verbally retained" the Applicant to begin work "in early September 1990 as a sub contractor" electrician at $25 per hour ($1,000 a week, exclusive of overtime).

In the absence of adequate corroborating evidence, I do not accept that the Applicant had accepted a valid offer of employment at the time of the accident. First, in his June 18, 1992 letter, Mr. Giammichele refers to a previous letter, but none was filed, and the Insurer's counsel advises that she has not seen any other letter. Second, the 1992 letter was written almost two years after the accident. I do not need to decide whether the Schedule requires that an offer be "evidenced in writing" by a document prepared before the accident. The long delay between the alleged offer and Mr. Gouliaeff's letter substantially reduces the reliability of the letter, especially in the absence of corroborating evidence. Third, the letter gives no details about the duration of the Applicant's work or the projects he would be working on. Finally, I heard no explanation how the Applicant could work as a sub contractor electrician when he did not yet have his electrician's "ticket" (qualification) .²³ In a letter dated December 12, 1991,²⁴ the Applicant's former counsel, J. David Helson, stated that the Applicant was "currently planning to enrol at Mohawk College to complete the academic portion of his apprenticeship as he is still not able to work."

The Applicant's last day of work before the accident was July 16, 1990. He had worked for Dominion Power Press Equipment Limited ("Dominion") as an apprentice industrial electrician for about 28 weeks. ²⁵The Insurer did not challenge the Applicant's claim as to his income and dates of employment in the 52 weeks prior to the accident.

The Insurer initially paid benefits of $185 per week under section 13 of the Schedule because the Applicant was not working at the time of the accident.²⁶ In July 1993, the Insurer made a lump sum payment to the Applicant to bring his benefits up to the 156 week point, at the rate of $330.40 per week.²⁷

This amount was based on the Applicant's gross income from Dominion for the 52 weeks before the accident ($11,564.02), averaged over the 28 weeks the Applicant actually worked, following the formula set out in the Scavuzzo decision.²⁸ Initially, the Insurer submitted at the hearing that the Applicant's income in the year before the accident should have been averaged over 52 weeks, following the formula set out in the Vo decision.²⁹ This would entitle the Applicant to weekly benefits at the minimum level of $185.60 per week. The Insurer also requested repayment of the resulting overpayment.

I invited the Insurer to make submissions with regard to my previous decisions on "the Scavuzzo/Vo issue". ³⁰ I also asked for submissions as to whether repayment should be ordered in any event. Subsection 27(1) of the Schedule provides that 27.--(1) A person must repay to the insurer any benefit received under this Regulation that is paid to the person through error or fraud.

In Levenson,³¹ Senior Arbitrator Susan Naylor held that benefits overpaid are recoverable under section 27(1) of the Schedule if the overpayment is "attributable in some material way to the actions of the applicant." I agree with this approach, which has been followed in many arbitration decisions. In this case, it appears that it was the Insurer's decision to use the Scavuzzo calculation.

The Insurer withdrew its submission on this point.

Medical and Rehabilitation Benefits:

The Report of Mediator dated April 14, 1993, states that the Insurer agreed to pay for an orthopaedic mattress on receipt of a medical report confirming the medical necessity of the mattress and the type of mattress required, and that the mattress is required as a result of the Applicant's accident-related injuries; the Insurer also required two quotes. The Insurer also agreed to pay "for all accident related prescriptions". Finally, the Insurer agreed to resume paying the Applicant's taxi expenses relating to chiropractic treatment on the following conditions:

The insured's representative will provide a report from Dr. Koch stating the number of visits required per week and the length of time for which chiropractic treatment is needed.
Taxis will be paid for transportation to and from Dr. Koch's office for chiropractic treatment based on the number of treatments required (as stated in the above-mentioned report) for a period of two months or until Dr. Trotter's report is received (see below), whichever is sooner.
The insured's representative will provide a report from Dr. Trotter outlining a treatment plan, the cost of such treatment, the best provider of such treatment and the length of the course of the treatment.
Taxis will be paid for a trip to and from Dr. Trotter's office so that the required report can be prepared.
The need for taxis will be re-assessed ont [sic] the recommendations for treatment made by Dr. Trotter.

I received no evidence that the Applicant has satisfied the requirements set out in the agreement reached at mediation.

Subsection 6(1) of the Schedule provides that the Insurer will pay "all reasonable expenses resulting from the accident" for medical and rehabilitation goods and services. Under subsection 6(4), the Insurer may require supportive medical documentation before paying.

Dr. Ameis opined that the Applicant did not require further treatment as a result of the accident. No evidence was filed in support of the Applicant's claims for ongoing medical and rehabilitation benefits, and I do not accept them.

The Report of Mediator, dated December 7, 1994, and the pre-hearing letter, dated February 2, 1995, indicate that the Insurer would continue to pay chiropractic treatment and related taxi expenses, after March 1993, pending resolution of the dispute, pursuant to subsection 6(7) of the Schedule. The Insurer did not request repayment of all benefits paid after March 1993.

However, the Insurer requested repayment of benefits paid for taxi expenses in the amount of $5,226.80. The Insurer filed a computer printout prepared by Dr. Koch's office, listing the dates of the Applicant's visits.³² The Insurer also filed some of the original taxi receipts submitted by the Applicant, for which he was reimbursed by the Insurer,³³ and for which the Insurer now seeks repayment.³⁴

A few of the receipts indicate that the Applicant travelled to and from his lawyer's office, or other destinations unrelated to treatment and rehabilitation.

Most of the receipts indicate that the Applicant travelled between his home and Dr. Koch's office on days when there is no record of a visit on Dr. Koch's printout. All of the receipts appear to have been signed by the Applicant. Since no evidence was filed to explain this discrepancy, I find that these expenses are not accident-related.

On five days when the Applicant did have an appointment with Dr. Koch, he submitted three taxi receipts per day, rather than two. The Insurer seeks repayment of the benefits paid relating to all three trips on these five days. I accept that the Applicant was entitled to take a taxi to and from Dr. Koch's office on those days. I find that the third trip on each of these days was unrelated to the accident. The repayment order will be adjusted accordingly.

I find that the Applicant was overpaid as a result of the inaccurate taxi receipts he provided to the Insurer. Accordingly, I order the Applicant to repay the Insurer $4,726, with interest as provided under subsection 27(4) of the Schedule, from the date of this decision.

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 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, 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.

Subsection 282(11.2) of the Act, as amended, provides as follows:

(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

I find it appropriate in this case to deny the Applicant his expenses incurred in the arbitration proceeding, for the following reasons.

(i) Delay in discontinuing the court action

In his second preliminary decision, Arbitrator Draper commented that the Insurer had been subjected to time and expense to resolve the problem caused by the Applicant's seeking benefits in two forums. He stated, "[t]his may well be relevant to any request for expenses in the arbitration hearing and will be dealt with at that time."³⁵ The Notice of Discontinuance was not filed until November 1994.

I agree with Arbitrator Draper's remarks with regard to expenses. I heard no explanation as to why it took the Applicant more than a year after Arbitrator Draper's first order, and ten months after the second order, to withdraw the action.

(ii) The Applicant's failure to disclose documents:

In a letter of February 2, 1995, the pre-hearing arbitrator ordered the Applicant, on consent, and at the Insurer's expense, to provide the Insurer with a number of documents, including hospital records, the clinical notes and records of the Applicant's treating physicians, chiropractor, and physiotherapy clinic, employment records, school records, income tax records, and social assistance, unemployment insurance, and workers' compensation records.

Despite the Insurer's repeated request for documents, the only information that had been provided to the Insurer by the time of the July 4, 1995 hearing was the OHIP order which was issued by the arbitrator on the Applicant's consent.

(iii) The Applicant's failure to appear or file evidence:

After rescinding his settlement agreement, and requesting a hearing, the Applicant did not appear at the hearing, and no evidence was filed on his behalf. I found his application to be of very little merit. The Insurer was put to a great deal of effort to respond to this application.

For these reasons, I do not find it appropriate to order the Insurer to reimburse the Applicant for his arbitration expenses. I also find it appropriate to order the Applicant to reimburse the Insurer for its $1,000 filing fee.

Order:

The Applicant is not entitled to weekly income benefits after August 18, 1993.
The Applicant is not entitled to weekly income benefits at a rate higher than $330.40 per week.
The Applicant is not entitled to further medical and rehabilitation benefits.
The Insurer is entitled to repayment of taxi expenses overpaid in the amount of $4,726, with interest as provided under section 27 of the Schedule.
The Applicant is not entitled to his expenses incurred in the proceeding.
The Applicant is required to reimburse the Insurer for its filing fee of $1,000.

July 24, 1995

Nancy Makepeace Arbitrator

APPENDIX

Exhibits:

Exhibit 1 Disclosure Statement, Full and Final Release and Consent, signed May 8, 1995

Exhibit 2 Handwritten facsimile from Mr. Gouliaeff to Ms. Henneberry, dated May 10, 1995

Exhibit 3 Letter from Ms. Henneberry to Mr. Findlay, dated May 12, 1995

Exhibit 4 Insurer's Brief on Preliminary Issue (9 tabs)

Exhibit 5 Assessment of Claim by Insurer, dated February 25, 1993

Exhibit 6 Assessment of Claim by Insurer, dated May 27, 1992

Exhibit 7 Application for Appointment of a Mediator, dated February 1993

Exhibit 8 Letter from Ms. Henneberry to Mr. Palios, dated July 5, 1993

Exhibit 9 Application for Appointment of a Mediator, dated November 1993

Exhibit 10 Response by Insurer, dated December 1, 1993

Exhibit 11 Application for Appointment of a Mediator, dated September 1, 1994

Exhibit 12 Receipts for expenses paid by Commercial Union

Exhibit 13 List of appointment dates on which Applicant saw Dr. Koch

Exhibit 14 Letter from Ms. Henneberry to Dr. Koch, dated May 31, 1994

Exhibit 15 Binder of taxi receipts with summary

Exhibit 16 Notice of Loss

Exhibit 17 Letter from Insurer to Applicant, dated October 3, 1990

Exhibit 18 Letter from Insurer to Applicant, dated November 27, 1990

Exhibit 19 Letter from Insurer to Applicant, dated December 20, 1990

Exhibit 20 Letter from Mr. Helson to Insurer, dated May 22, 1991

Exhibit 21 Letter from Mr. Helson to Insurer, dated December 12, 1991

Exhibit 22 Letters (8) from Innovative Rehabilitation to Insurer and Applicant, dated February 19, 1992, March 6, 1992, March 16, 1992, April 8, 1992, May 22, 1992, July 13, 1992, November 18, 1992, and February 24, 1993

Exhibit 23 Letter from Insurer to Mr. Palios, dated November 16, 1992

Exhibit 24 Letter from Ms. Henneberry to Mr. Palios, dated February 15, 1993

Footnotes

Prior 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.
John Gouliaeff and Commercial Union Assurance Company, August 26, 1993, OIC File No. A-003996
John Gouliaeff and Commercial Union Assurance Company, January 18, 1994, OIC File No. A-003996
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 3
Section 12(1) of the Schedule
Section 12(5) of the Schedule. I heard no submissions as to when the 156 weeks referred to in section 12(5) expires.
Exhibit 4, Tab 6, Application for Accident Benefits, dated November 15, 1990
Exhibit 4, Tab 5
Exhibit 4, Tab 6, dated September 11, 1990
Exhibit 4, Tab 5, report dated June 15, 1993 of Dr. A. Ameis
Exhibit 16
Exhibit 4, Tab 5, report of December 7, 1990
Exhibit 4, Tab 5, dated March 25, 1993
Report of Nancy Ameis, physiotherapist, dated June 15, 1993
Exhibit 4, Tab 5
Dr. Bulger's September 11, 1990 Form 4 report makes no mention of low back problems.
Reports dated November 30, 1992, April 30, 1993, June 24, 1993, October 30, 1993, November 30, 1993, January 31, 1994, March 16, 1994, July 19, 1994, and January 18, 1995: Exhibit 4, Tab 9.
Investigation Report of July 19, 1994, and Statements of Driving Record: Exhibit 4, Tab 9
Exhibit 4, Tab 7
Mr. Giammichele is reported to have told the Insurer's investigator that he could have done so, even without his "ticket". (Report dated October 30, 1993, Exhibit 4, Tab 9)
Exhibit 21
Exhibits 20 and 21
Exhibit 5
Exhibit 8, $25,862.40
Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, upheld on appeal, June 19, 1992, OIC File No. P-000626
Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777 (under appeal)
Rajbir Singh and Wellington Insurance Company, June 24, 1994, OIC File No. A-004139; Antonio Ferrari and Royal Insurance Company, September 8, 1994, OIC File No. A-007313.
Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260, upheld on appeal, September 29, 1992, OIC File No. P-000260
Exhibits 13 and 14
The Insurer has paid almost $33,000 in taxi expenses throughout the claim: Exhibit 12
Exhibit 23
John Gouliaeff and Commercial Union Assurance Company, January 18, 1994, OIC File No. A-003996

John Gouliaeff v. Commercial Union Assurance Company of Canada, 1995 ONICDRG 98

Case Summary