Marek T.M. Tenerowicz v. Allianz Insurance Company of Canada, 1997 ONICDRG 229

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 229

OIC A97-000621

BETWEEN:

MAREK T.M. TENEROWICZ

Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Marek T.M. Tenerowicz was struck by an automobile on June 7, 1994 while riding his bicycle. He applied for and received from Allianz Insurance Company of Canada ("Allianz") other disability benefits ("ODBs") under section 19 of the Schedule¹ Allianz commenced paying weekly benefits in June 1994 and terminated payment on June 30, 1995. Mr. Tenerowicz claims ongoing ODBs from the termination date onwards on the basis that he suffers a partial or complete inability to carry on a normal life. He also claims, under section 36 of the Schedule, medication and transportation expenses. The section 36 issues were not mediated; however, Allianz consented to these issues being heard in this proceeding. Arbitrators are given the authority under section 282(3) of the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act") to determine all issues in dispute whether the issues are raised by the insured person or the insurer.

Allianz argues that the arbitration should be dismissed. Allianz submits that section 281 of the Act bars Mr. Tenerowicz from commencing an arbitration because he had previously commenced a court action. He commenced an action before the Ontario Court (General Division) on May 7, 1996 and brought an Application for Arbitration undated but date-stamped by the Commission on April 8, 1997.

The parties were unable to resolve their disputes through mediation, and Mr.Tenerowicz applied for arbitration under the Act.

The issues in this hearing are:

1. Is Mr. Tenerowicz barred from proceeding to arbitration because he commenced an action before the Ontario Court (General Division)?

Depending on the decision on the preliminary issue:

1. Is Mr. Tenerowicz entitled under section 19 of the Schedule to ongoing ODBs from June 30, 1995 onwards on the basis that he suffers a partial or complete inability to carry on a normal life?

2. Is Mr. Tenerowicz entitled under paragraph 36(1)(c) of the Schedule to his medication expenses?

3. Is Mr. Tenerowicz entitled under paragraph 36(1)(g) to transportation expenses?

Mr. Tenerowicz also claims interest on any amounts owing and his expenses incurred in the arbitration proceeding.

Result:

1. Mr. Tenerowicz is not barred from proceeding to arbitration by reason of commencing an action before the Ontario Court (General Division).

2. Mr. Tenerowicz is not entitled to ODBs under section 19(1) of the Schedule after June 30, 1995 on the basis that he does not suffer a partial or complete inability to carry on a normal life as a result of the accident; nor is he entitled under paragraph 19(7)(c) to ODBs more than 104 weeks after the accident on the basis that he does not suffer a complete inability to carry on a normal life as a result of the accident.

3. Mr. Tenerowicz is not entitled under paragraph 36(1)(c) of the Schedule to payment of medication expenses.

4. Mr. Tenerowicz is entitled under paragraph 36(1)(g) to payment of transportation expenses.

5. Mr. Tenerowicz is entitled under section 282(11) of the Act to his expenses incurred in respect of the arbitration proceeding

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on October 21 and 22, 1997, before me, Beth Allen, Arbitrator.

Present at the Hearing:

Applicant:

Marek T.M. Tenerowicz

Allianz's

Edmund Kent

Representative:

Barrister and Solicitor

Allianz's

Lisa Trabucco

Officer:

Claims Specialist

Witnesses:

For the Applicant:

Marek T.M. Tenerowicz

Interpreter:

Dana Berent

OmniCom Professional Language Services Ltd.

Court Reporter:

Nancy Lowry

Rosenberger & Weir Official Examiner's Office

Procedural Matters:

The hearing commenced on October 21, 1997. Mr. Tenerowicz was unrepresented by legal counsel, and required the services of a Polish interpreter. I found that the initial interpreter, Ms. Irena Rychalska of OmniCom Professional Language Services, did not properly interpret the proceedings, requiring me to dismiss her on October 21, 1997. I adjourned the proceeding and started a fresh hearing on October 22, 1997 with the services of a new interpreter.

Because Mr. Tenerowicz lacked legal representation, I explained in some detail the purpose and procedure of the arbitration proceeding, and clarified the issues that I would be deciding. Mr. Tenerowicz objected to Allianz raising the preliminary issue. He stated that he would not participate in the arbitration if I permitted Allianz to raise this issue. The essence of Mr. Tenerowicz's objection seemed to revolve around his lack of understanding as to the relevance to the arbitration proceeding of his court action. I explained that Allianz brought the preliminary issue to challenge his right to arbitrate his accident benefit issues when he had previously commenced a court action. I pointed out that subsection 282(3) of the Act gives me the authority to decide all issues before me whether raised by the insured person or the insurer. I further explained that both parties to an arbitration have the right to raise any issue disclosed by the facts and permitted by the governing legislation. Allianz raised the preliminary issue at the pre-hearing and it was included as an issue for the arbitration proceeding.

Evidence and Findings:

Is Mr. Tenerowicz barred from proceeding to arbitration?

Allianz argues that Mr. Tenerowicz is barred by subsection 281(1) of the Act from applying for arbitration of his accident benefit claims because on May 7, 1996 he commenced a tort action before the Ontario Court (General Division) against Allianz and the driver of the car who struck him, and subsequently applied for arbitration about one year later making a claim for accident benefits under the Schedule. Allianz brought a motion on November 14, 1996 for dismissal of the court action for the Plaintiff's failure to deliver an Affidavit of Documents in accordance with the Rules of Civil Procedure. The Court dismissed the action by order dated December 13, 1996.² Mr. Tenerowicz called no evidence and made no submissions on the preliminary issue.

I conclude for the following reasons that Mr. Tenerowicz is not precluded by section 281 of the Act from proceeding to arbitration. subsection 281(1) of the Act provides:

281. (1) Subject to subsection (2),

(a) the insured person may bring a proceeding in a court of competent jurisdiction;

(b) the insured person may refer the issues in dispute to an arbitrator under section 282; or

(c) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991. [emphasis added]

Sections 279 to 288 of the Act set out the procedures that govern disputes over statutory accident benefits between insured persons and insurers. Section 281 provides an insured person, making a claim for statutory accident benefits, with the option of bringing an action for statutory accident benefits before a court of competent jurisdiction, before an arbitrator appointed under section 282 of the Insurance Act or (with the agreement of the insurer) before an arbitrator under the Arbitration Act, 1991. The intention of section 281 is to preclude insured persons from bringing a multiplicity of actions in relation to statutory accident benefit claims. This provision does not prevent an insured person injured in an automobile accident from concurrently arbitrating an accident benefit claim and bringing a court action in negligence arising from the accident. For this reason, Mr. Tenerowicz is not barred from proceeding to arbitration of his accident benefit claims.

Entitlement to ODBs under section 19 of the Schedule

About seven years before the accident, Mr. Tenerowicz immigrated to Canada from Poland. He is a sculptor, painter and musician, but was not gainfully employed in any occupation at the time of the accident. He has been in receipt of social assistance from about January 1990 to the present. Mr. Tenerowicz has been homeless since about January 1997.

Mr. Tenerowicz was 39 years of age at the time of the accident. He testified that he was knocked unconscious but was able to speak to the police after the accident and subsequently went home. He went from his home to St. Joseph's Hospital later that evening. Mr. Tenerowicz mainly complained of dizziness, headaches and stomach, neck and back pain. He testified that following the accident, he had difficulty lifting objects and moving his body due to pain. He stated that his wife helped him until their relationship broke up one-and-a-half years after the accident.

Some time after the accident, Mr. Tenerowicz started complaining of numbness in both hands, which radiated up his forearms. He is right-hand dominant. Dr. Veidlinger, a neurologist, ordered four EMG nerve conduction studies to assess his complaints. An EMG study done on October 8, 1994 reported median and ulnar nerve entrapment. An EMG study conducted on July 15, 1995 recorded mildly abnormal motor and sensory functions and also diagnosed carpal tunnel syndrome. An EMG study dated November 18, 1995 recorded mildly abnormal sensory entrapment in both hands and diagnosed early carpal tunnel syndrome. The latter report added that his work (I assume his ceramics work) and his music playing was contributing to the ongoing syndrome. A further EMG study, submitted into evidence by Mr. Tenerowicz, was conducted on October 11, 1997. This study reported distal nerve entrapment involving right and left hand median sensory conduction and noted that the right side is slightly improved from the last study. The Final Report by Active Physiotherapy dated December 7, 1994 notes Mr. Tenerowicz' complaints of persisting right-hand numbness and limitations with lifting over 30 pounds. However, I heard no evidence that Mr. Tenerowicz requested or received further physiotherapy treatment.

A Health Practitioner's Certificate dated June 23, 1994 by Mr. Tenerowicz's treating physician, Dr. R. Jato-Rodriguez, confirmed Mr.Tenerowicz complaints of dizziness, headaches and stomach, moderate neck and back pain. He prescribed Tylenol II for pain. Dr. Jato-Rodriguez also reported that x-rays performed on Mr. Tenerowicz' cervical and dorsal spine on June 9, 1994 were negative. He referred Mr. Tenerowicz to physiotherapy at Active Physiotherapy Rehabilitation Group ("Active Physiotherapy") and estimated that Mr. Tenerowicz should be able "to return to normal daily activities in a few weeks and to go to work in a few more weeks." An Assessment of Disability (Health Practitioner) dated November 21, 1994, by Dr. Jato-Rodriguez, indicated that Mr. Tenerowicz was continuing with his physiotherapy, but was not yet feeling well enough to work; however, Dr. Jato-Rodriguez reported that he was able to undertake his personal care and household activities.

Mr. Tenerowicz testified that he attended physiotherapy for several months and voluntarily left because the treatment improved his condition and the clinic showed him how to use a heat pack and to exercise on his own. He explained that walking is part of this exercise because he feels that walking is better for his health than sitting around. The Final Report and Discharge Summary by Active Physiotherapy dated December 7, 1994 confirmed Mr. Tenerowicz' voluntary withdrawal from the program. The report recorded his previous good attendance and the progress he achieved during the latter part of his treatment.

Allianz claims that, since the termination of Mr. Tenerowicz' benefits on June 30, 1995, he has not suffered a partial or complete inability to engage in his activities of normal life. Dr. Cameron, an orthopaedic surgeon, conducted a Designated Assessment Centre assessment on June 7, 1995. Dr. Cameron's report recorded that Mr. Tenerowicz continued to complain of occasional headaches, upper back and neck pain and numbness in two fingers of his left hand. He no longer complained of stomach pain. However, Dr. Cameron assessed Mr. Tenerowicz' pain as not disabling and concluded that he is "fit to return to any activity which he would desire. He requires no further treatment."

Allianz also relies on the report by Dr. Watson, a neurologist, dated March 25, 1996. In this report Dr. Watson reviewed the reports and opinions of Dr. Veidlinger, Dr. Cameron and Active Physiotherapy and observed that the first complaint by Mr.Tenerowicz of numbness in his hands and fingers is recorded five months after the accident in one of Dr. Veidlinger's EMG reports. Dr. Watson suggested, due to the late onset of the complaints, that it was improbable that the hand and finger numbness condition is accident-related. He agreed with Dr. Cameron that Mr. Tenerowicz is capable of returning to his normal activities.

Analysis of Mr. Tenerowicz'entitlement to ODBs

Mr. Tenerowicz provided evidence of desperate and needy financial circumstances and, in part, pleaded these circumstances as a basis for his claim to accident benefits. I find that he credibly and honestly presented this evidence. However, I do not have the authority to award accident benefits based on the financial need of the insured person. Insured persons seeking weekly benefits must establish that they meet legislatively prescribed disability tests.

In his testimony, Mr. Tenerowicz seemed to be most concerned about his headaches and the numbness in his hands and fingers. To succeed in his claim, he has to establish on the balance of probabilities that he suffers a partial or complete inability to engage in the normal activities of his life. Subsection 19(1) of the Schedule provides:

19.- (1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly disability benefit if the insured person, as a result of the accident and within two years of the accident, suffers a partial or complete inability to carry on a normal life;

Paragraph 19(7)(c) provides that the disability test after 104 weeks following the accident becomes more stringent and requires that the insured person suffer a complete inability to engage in a normal life. This provision states :

19.- (7) No weekly disability benefit is payable under this section

(c) more than 104 weeks after the insured person first qualified for weekly disability benefits, weekly income replacement benefits or weekly caregiver benefits, unless the insured person is suffering a complete inability to carry on a normal life as a result of the accident.

The phrase "partial inability to carry on a normal life" is defined in section 2 of the Schedule as a substantial inability to engage in:

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

Subsections 2 (a), (b) and (c) are most pertinent to Mr. Tenerowicz' disability claim. He claims that before the accident he walked his daughter to school, assisted with shopping and housework, rode his bike, and searched for a job. He testified that he can take care of his personal hygiene activities and is able to walk around on his own, and in fact does this for exercise. He indicated that since the separation from his wife, he has generally taken care of his needs. However, he did not specifically testify about his ability to perform household duties and provided no evidence of barriers to this type of activity before losing his home. Mr. Tenerowicz did not provide evidence of whether he has the responsibility of walking his daughter to school since the breakup of his family; nor did he testify about whether he rides his bike. He did indicate that since the accident he did some art work for no pay. This suggests that he has the ability to obtain some work. I heard no evidence that he is unable to do any of these activities.

Mr. Tenerowicz is an artist and understandably he is very concerned about the numbness in his hands and fingers, and the effect this condition has on his art. However, the medical evidence I have before me suggests, based on the apparent delay in Mr. Tenerowicz' complaints, that this condition might reasonably be related to post-accident causes. Mr. Tenerowicz provided no medical evidence to refute this opinion by Dr. Watson.

On the whole, I find that Mr. Tenerowicz did not establish that his accident caused him to suffer a partial or complete disability to engage in his normal pre-accident activities. He therefore is not entitled to receive weekly ODBs after Allianz terminated his benefits on June 30, 1995.

Entitlement to benefits for medications

Mr. Tenerowicz acknowledged that as a recipient of social assistance he holds a drug card and that any medications he has required since the accident have been financially covered by the Ministry of Community and Social Services. Mr. Tenerowicz testified that he has purchased vitamins that were not covered by the social assistance plan. However, he presented no particulars for or proof of this claim, or evidence that these expenditures were reasonably required as a result of the accident. Accordingly, I find that Allianz is not required to cover the medication expenses Mr. Tenerowicz has claimed under paragraph 36 (1)(c) of the Schedule.

Entitlement to benefits for transportation expenses

Mr. Tenerowicz claims under paragraph 36(1)(g) of the Schedule his expenses incurred in taking public transportation to and from his appointments with his general practitioner and Active Physiotherapy, which are located on the same premises. In his Health Practitioner's Certificate dated June 23, 1994, Dr. Jato-Rodriguez certified the need for physiotherapy treatment. In light of Mr. Tenerowicz' medical complaints and his doctor's recommendation, I find that the physiotherapy treatment and his visits to his treating doctor were reasonable and necessary for his recovery and I accept as reasonable his need to travel to these appointments.

The evidence of the transportation expenses appears on two Applications for Expenses, the first dated July 19, 1994 in the amount of $80.00, and the second dated August 9, 1994, in the amount of $60.00. The entries for these expenses are clearly marked as to date, destination, amount, and note the unavailability of receipts for the fares paid. The reports of Active Physiotherapy substantiate Mr. Tenerowicz's regular attendances at the clinic during this period. I accept that there are no receipts available for this expense. I therefore find that the Applications and the Active Physiotherapy reports are sufficient proof that Mr. Tenerowicz incurred the expense claimed attending the clinic and his doctor during the period in question.

There appear to be notations on the August 9, 1994 Application for Expenses which suggest that a portion of the expense on this Application might have been paid. Allianz is therefore required to pay under paragraph 36(1)(g) of the Schedule the total transportation expense of $140.00, or the balance owed to Mr. Tenerowicz if Allianz has already reimbursed any portion of this amount.

Expenses:

I exercise my discretion under paragraph 282 (11) of the Act to award Mr. Tenerowicz the expenses he incurred in the arbitration proceeding.

Order:

1. Allianz shall reimburse Mr. Tenerowicz, under paragraph 36(1)(g) of the Schedule, for the total transportation expense of $140.00, or the balance Allianz owes to Mr. Tenerowicz if it has already reimbursed any portion of these expenses, including interest on the outstanding amount.

2. Allianz shall pay Mr. Tenerowicz, under section 282(11) of the Act, his expenses incurred in respect of the arbitration.

Beth Allen Arbitrator

Date

Schedule "A"

Exhibits:

Exhibit 1

Insurer's Document Brief

Exhibit 2

Statement of Service by Insurer October 20, 1997 with attached letter to Mr. Tenerowicz dated September 2, 1997

Exhibit 3

EMG Nerve Conduction Study dated October 11, 1997

Exhibit 4

Letter from the Ministry of Correctional Services dated October 10, 1997

Exhibit 5

Letter from Ministry of Community and Social Services dated May 5, 1997

Exhibit 6

Print-out of medical prescriptions from June 20, 1992 to July 24, 1995

Exhibit 7

One page of Mr. Tenerowicz' Toronto Dominion bankbook showing entries dated August 29, 1997 to September 22, 1997

Exhibit 8

Order of Ontario Court (General Division), Court File No. 96-CU-103717 dated December 13, 1996.

Legal Authority:

Citadel General Assurance Co. v. Gogna, [1992] O.J. No. 1996 (Ont. Ct. Gen. Div.) (unreported).

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2Although Allianz referred in its submissions to the Order of the Ontario Court (General Division), Court File No. 96-CU-103717, Allianz did not file the Order as an exhibit at the hearing. Allianz filed a copy of the Order with the Commission on October 29, 1997. I have marked it as Exhibit 8.