Michael P. Gosling v. Zurich Insurance Company, 1997 ONICDRG 231

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 231

OIC A96-001277

BETWEEN:

MICHAEL P. GOSLING Applicant

and

ZURICH INSURANCE COMPANY Insurer

DECISION

Issues:

The Applicant, Michael P. Gosling, was injured in a motor vehicle accident on October 15, 1994. At this time he is receiving loss of earning capacity benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Mr. Gosling asked Zurich to buy him a laptop computer to assist with his rehabilitation, pursuant to section 40 of the Schedule. Zurich agreed that he needed a computer but refused to pay for the particular one he wanted on the basis that it was neither reasonable or necessary for his rehabilitation. The parties were unable to resolve their dispute through mediation, and Mr. Gosling applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What type of computer does Mr. Gosling reasonably require for his rehabilitation pursuant to clauses 40(5)(b) and (e) of the Schedule?

2. Is Mr. Gosling entitled to a Special Award pursuant to subsection 282(10) of the Insurance Act because the Insurer unreasonably delayed payment for the computer?

Mr. Gosling also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Mr. Gosling reasonably requires an IBM-compatible laptop computer and software and accessories as listed in this decision and is to be paid the cash value of such specified, with interest from March 1, 1996.

2. Mr. Gosling is entitled to a Special Award equivalent to 25 percent of the value of the amount awarded above, inclusive of interest.

3. Mr. Gosling is entitled to be reimbursed for items found to be reasonably required for which he has already incurred expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on July 14 and 15, 1997, before me, Susan Sapin, Arbitrator. Those present at the hearing and the exhibits filed, are listed at the end of this decision.

Evidence and Findings:

Background

Mr. Gosling is a 47-year old gentleman who, prior to his accident, worked as an installer of television broadcasting stations. He suffered serious injuries as a result of the accident and is unable to return to his previous employment. He testified that both his kneecaps were smashed and required surgery. His left hip was fractured and developed complications requiring a full hip replacement. He broke his nose when he hit the windshield. He uses a cane. He is unable to crouch or kneel, has difficulty bending and climbing stairs, and cannot sit or stand for prolonged periods. He is currently receiving loss of earning capacity benefits (LECBs).

He completed Grade 13, studied audiovisual technology at Humber College for one year and completed a course in microcomputer technology at Herzing Institute in 1991. He wants to become a computer programmer and has been taking upgrading courses since 1995 at the University of Toronto on a part-time basis to meet the acceptance requirements for the four-year Computer Specialist degree programme. Zurich has agreed to pay a full year’s tuition at the University of Toronto.

The Applicant's Claim

The parties agree that Mr. Gosling needs a computer for his university studies. They disagree about the type of computer system that is reasonably necessary for this purpose. Mr. Gosling wants a portable one that runs the MacIntosh platform, with several extras. The Insurer’s position is that an IBM-compatible desktop model meets the requirements of a university student studying computer science. The differences in price and capability of the systems proposed vary considerably.

Mr. Gosling first asked the Insurer for a computer in the spring of 1995, and testified that he initially obtained verbal approval from the Insurer to "go ahead and get what he needs." He felt what he needed was a laptop, as opposed to a desktop computer, because his accident injuries left him with restricted mobility. In the fall of 1995 he submitted a written request and estimates to the Insurer for an Apple Powerbook laptop computer plus additional hardware and software, altogether worth approximately $19,000.²

This was clearly not what the Insurer had in mind. Zurich was willing to pay for something more along the lines eventually recommended by its own consultant, in a report dated July 2, 1997 - a less powerful IBM-compatible desktop model worth approximately $4,000, including software.³

A July 11, 1997 supplement to the consultant's report describes six notebook computers comparable to the desktops recommended in the original report, ranging in price from $4,667 to $9,734. It recommends those in the lower end of the range as suitable for Mr. Gosling's needs, should it be found that a laptop is in fact required.

In January 1997, prior to enrolling in his first computer programming course at the University of Toronto and still without a computer, Mr. Gosling purchased a second-hand IBM-type desktop computer, plus accessories, for $7,874.⁴ He did not however submit a claim or invoices to Zurich until the matter came up on the first day of the hearing.

Mr. Gosling testified in some detail about how the computer he originally asked for in 1995 is now out of date and would not be usable. I therefore asked for, as part of the Applicant’s written submissions, a written proposal and estimated cost for an updated version. Mr. Gosling submitted a proposal for an Apple Powerbook 3400c/240 laptop computer and associated hardware, software and peripherals worth $11,583.⁵

This is the amount that Mr. Gosling now claims, together with $3,402 for accessories he has already purchased which can be used with it. He also asks that the Insurer either reimburse him for half of the cost of the items he has already purchased and which he would not be able to use with the new Powerbook ($1,858.50), or alternatively, that the Insurer reimburse him 100 percent for the unusable items and take those items back as "salvage."

As the parties cannot agree on what Mr. Gosling reasonably requires, I must decide whether Mr. Gosling is entitled to a laptop or a desktop computer, whether it should be a MacIntosh or an IBM-type, the speed and capacity of the basic unit, the software and peripherals that should reasonably go with it, and identify a suitable package from the various proposals listed above.

The Law:

Mr. Gosling's claim is based on section 40 of the Schedule, which provides as follows:

40--(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) To reduce or eliminate the effects of any disability resulting from the impairment; and

(b) To facilitate the insured person's reintegration into his or her family, the labour market and the rest of society.

Subsection (2) provides that the payments include payment for vocational rehabilitation measures that are reasonably necessary to enable the person to engage in employment as similar as possible to their pre-accident employment and must take into account the insured person's personal and vocational characteristics.

Subsection (5) provides that the payments also include payment of reasonable expenses incurred by or on behalf of the insured person for, amount other things, academic training and "other goods and services that the insured person required."

What is "reasonable" has been dealt with in many decisions by arbitrators beginning with Senior Arbitrator Rotter in Plows,⁶ where she adopted the Oxford English dictionary definitions of 'reasonable', which are: "In accordance with reason; not absurd;" and "Within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair." This definition and the language of section 40 taken together provide sufficiently clear criteria for determining whether or not a rehabilitative measure is reasonable given the particular circumstances of each individual case.

Is a laptop computer a reasonable expense for the purposes set out in subsection 40(1)?

Mr. Gosling believes that a laptop is necessary to allow him to complete his course work both at home and at the university because of the restricted mobility he suffers as a result of his accident injuries. I agree and find that a laptop computer satisfies the criteria discussed above.

At home

Mr. Gosling testified that he cannot sit comfortably for more than an hour and a half without suffering pain to his left hip and buttock. At home he has a special wing chair with a feather cushion provided by the Insurer. It is six inches taller and four inches wider than a regular chair and so does not fit under the desk he would normally use for a computer. That desk is currently being used by his 17-year old son for his own computer, in a separate room. Mr. Gosling feels that a laptop computer would be more reasonable as he could work sitting or standing anywhere in the house and would not have to compete with his son for the same computer work space, something that he, his wife and his son all testified has been an ongoing source of stress for the whole family.

At school

There are no formal requirements for students to own their own computers as part of the university's computer science programs.⁷ Students have access to on-campus computer facilities for homework assignments. However, due to the lineups and the uncomfortable chairs at the workstations,⁸ it is difficult for Mr. Gosling to use the computer lab. With his own computer and appropriate software, he could complete his assignments at home and avoid both the lineups and the hour and a half commute to the University. With a laptop, he could work or access the computers from any location on or off campus.

Inge Martin, an occupational therapist consultant at the University of Toronto's Special Services to Persons with a Disability, supports a laptop as opposed to a desktop home computer for Mr. Gosling. He first consulted her in January 1997. At that time, she noted that "...he was having some difficulties sitting through lectures because of the poor ergonomic quality of the chairs provided in most lecture halls. This problem is also evident when accessing the computer lab facility as well as during study periods at home."⁹ In her July report she assessed Mr. Gosling's situation as follows: "In terms of the computer lab, computers are available on a first-come-first serve basis, and as Mr. Gosling's sitting tolerance is limited he needs to be able to get up, stretch and walk around while working. This is not possible as he will lose access to the lab-computer as soon as he leaves the desk. A laptop computer will enable him to work from home as well as on campus between lectures."

Mr. Gosling detailed other ways a laptop would assist his studies. He could type his notes in class, rather than writing them down longhand and then later typing them into the computer. He would have access to all of his notes in one place without having to carry around heavy binders full of notes, particularly up and down stairs, which he finds difficult to navigate. This would alleviate stress to his knees and hips. The same would be true for textbooks and library books. With a laptop and a scanner, he could scan relevant portions of text into his computer for quick access later. He could then do his writing and word processing in the library (where he says the chairs are more comfortable), or at home, and not have to carry books back and forth. With special permission and an "ethernet card" he could log on to the University's library computer from any location.

Mr. Gosling also consulted Laurie McArthur, an occupational therapist at the University’s Adaptive Technology Resource Centre, who reviewed with him the technology available which would facilitate his studies in a manner that would best accommodate his physical needs. Her letter of June 30, 1997 also supports the use of a laptop computer and scanner.

Findings

I accept Mr. Gosling's description of his present physical limitations and what he requires to accommodate them. Although prone to exaggeration in other areas, I found this part of his testimony realistic, credible and reasonable. It was also supported by the University’s occupational therapists. No medical evidence was presented to contradict his testimony, and nothing in cross-examination caused me to doubt his testimony as to his limitations and needs. I find that his physical limitations present him with distinct disadvantages as a student of computer science at the University, and that the mobility and flexibility of a laptop computer and a scanner would make up for these disadvantages and would significantly reduce the effects of his impairment.

I note also that Mr. Gosling is a mature student without any previous university background who is attempting a rigorous and challenging academic program after many years in the workforce. These are "personal and vocational characteristics" of Mr. Gosling which subsection 40(3) of the Schedule requires be taken into account when considering what rehabilitation measures are required. I find that a scanner will assist Mr. Gosling to make efficient use of his time as a student and will also cut down on the amount of time he must spend sitting. I therefore find that this is a reasonable measure to reduce the effects of his accident-related disabilities. A portable computer would also allow him to make the best use of his time while on campus and help cut down on unnecessary commuting.

MacIntosh or IBM?

Mr. Gosling wants a MacIntosh computer powered by Apply Computer's "PowerPC" processor as opposed to an IBM-compatible machine which would use the Intel "Pentium" microprocessor. He testified that the MacIntosh microprocessor technology is superior to that used by IBM and that its operating system is more intuitive and easier to use than the "Windows" operating system. He states that the MacIntosh takes less time to complete applications due to its faster " clock speed" and that it has the capacity, with appropriate software, to run both MacIntosh and Windows programs. IBM-type machines do not have this last capability, which he needs because he has approximately 600-700 diskettes at home, about three quarters of which are in the MacIntosh format. A MacIntosh computer with a 'Softwindows' software program could translate these for use in Windows, which is the system used at the University of Toronto computer facility. He says his diskettes contain notes from courses he took at Herzing in 1991 and some reusable reports that can be re-submitted for the university courses he will be taking.

MacIntosh computers are quite a bit more expensive than comparable IBM-type machines. Zurich filed two reports prepared by Richard W. Robertson,¹⁰ a computer consultant. His opinion was that all of the computer science course work could be done on an IBM-type system. He recommended a reasonably high-end Pentium business computer with a few additions as suitable for Mr. Gosling's requirements as a computer science student.

I prefer Mr. Robertson's evidence that an IBM-type system is reasonable, for several reasons. First of all, Mr. Robertson has a Bachelor of Engineering degree in computers and is involved with computer hardware and software requirement specifications in his day to day work as an in-house systems analyst for his employer. I agree with the Insurer's submission that Mr. Robertson is more qualified with respect to computers than any other individual whose evidence was provided at the arbitration aside from the Undergraduate Secretary at the University of Toronto computer science department.

Secondly, Mr. Robertson was specifically asked to "provide specifications of a computer system which would be adequate for completion of the Computer Science course work" at the University of Toronto.¹¹ Although he did not actually speak to either Mr. Gosling or anyone from the University, he did review and comment on Mr. Gosling’s original proposal to Zurich, the Department of Computer Science course calendar, the correspondence from the University of Toronto referred to above, and, most importantly, each individual course description. I find that his conclusion that Microsoft Windows applications will do everything a student would need to do at the junior and senior undergraduate levels was a sound one based on a careful review of the relevant facts.

Lastly, I found his detailed refutation of Mr. Gosling's arguments about the superiority of the MacIntosh "platform" more objective and therefore more convincing than Mr. Gosling’s evidence, which disclosed a desire for such a system based more on his preferences than his actual needs.

I found Mr. Gosling’s evidence on these points to be less reliable. Clearly a highly intelligent individual with a passionate interest in computers, he has taught himself a great deal about them, building on his previous technical background and keeping up with developments by reading trade magazines. He readily admits, though, that he is not an expert. I found that his very definite opinions and preferences about the myriad of choices available in terms of hardware, software, operating systems, accessories, etc. and his stated desire for the best, the fastest, the most powerful computer available with the latest technology, largest amount of random access memory and all the "bells and whistles" were coloured more by his boundless enthusiasm than by a realistic appreciation of what was reasonably required. I found he had difficulty applying his considerable knowledge of computers to the specific issue of the type of computer he would reasonably need, given his physical restrictions, to study computer science at the University of Toronto. In addition, his testimony was at times contradictory. For example, in spite of his insistence throughout that only the latest model computer would do, he did admit that his son's eight-year old machine was adequate to complete his introductory computer course. Furthermore, when he did finally go out and buy himself a computer, it was a used IBM-type machine that he bought, with less speed and memory than any recommended by Mr. Robertson.

Mr. Gosling also testified that his studies required a computer with superior graphics capabilities, a feature MacIntosh computers are known for. However, it is clear from a review of the course descriptions that even the higher-level courses do not require the sophisticated graphics and other capabilities that he says he needs. I find that Mr. Gosling has not established that the more expensive MacIntosh computer is reasonably related to his needs as a computer science student.

Speed and Capacity

It is clear from the evidence that to study computer science, Mr. Gosling requires the equivalent of a reasonably "high-end" laptop computer designed for business use, with certain extras that will allow him to make the best use of it. On this point I agree with Mr. Gosling that he should have a machine that offers the best combination of the most amount of RAM, the biggest hard drive, the fastest speed that is available, and the best upgrade ability at a reasonable price. I find that the machines referred to in paragraphs 3, 4 and 5 of Mr. Robertson's second report, which lists several types of laptop comparable to the desktops he originally recommended, with a price range of $6,585 to $9,734,¹² meet these criteria. In fact, they exceed the specifications of the computer that was actually purchased by Mr. Gosling, which he now says does not meet his requirements, in part because it is too slow.

Software

Mr. Robertson’s report states that the following software specified by Mr. Gosling - virus scanner, hard disk tool kit, Norton Utilities, software for converting various file formats - is necessary, that Mr. Gosling requires a C language compiler and that the Microsoft Office Suite is a suitable package for the completion of course assignments and presentations. Accordingly, I find that these items are reasonably required by Mr. Gosling. In addition, I find the "Netscape Communicator" to be reasonably necessary, in the event no such service is provided with the computer upon purchase, and also the "WebBuddy," a device that automates its functions and so saves time. I do not find the other software items claimed to be necessary.

Peripherals and accessories

It is clear from the evidence that Mr. Gosling requires a modem for remote access to the computer facilities and electronic news, which the student handbook points out is used by many courses to communicate with students.¹³ He also testified that an "ethernet card" would allow him access to both the university library computers and the Internet, from which he says students are expected to obtain certain information. I find that he requires an "ethernet card." I find also that he will need such items as a carrying case, batteries, etc., as discussed by Mr. Robertson in his report in addition to items normally required in the set-up and use of a computer such as cables, mouse, speakers, etc. As well, Mr. Robertson specifically mentions the "100MB Iomega Zip drive" as a suitable item and I find both it and the battery pack to be reasonably necessary.

I find that the Visioneer Paper Port and the ArtZ II Graphics Tablet were not established by the evidence to be reasonably necessary for Mr. Gosling’s studies.

Having now owned and used a computer for his course work, I find that Mr. Gosling is in the best position to choose the particular type of laptop computer best suited to his needs from those listed in paragraphs 3, 4 and 5 of Mr. Robertson's second report.¹⁴ I order Zurich to pay him the value of the computer and accessories he identifies at the actual prices quoted in the report. Mr. Gosling is also entitled to interest on these amounts as the applicable rate from March 1, 1996.¹⁵ Mr. Gosling can then take this money and shop around for the best price on a computer and accessories that meet the criteria specified in this decision, from a supplier of his choice.

Must the expense be "incurred" before it is payable?

Subsection 40(5) provides as follows:

The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for the purpose referred to in clause (1)(a) or (b) for,

(b) Vocational rehabilitation, including employment, counselling, vocational assessments, vocational training, academic training, workplace modifications and workplace devices to accommodate the needs of the insured person and communications aids for the insured person's employment

(Emphasis added)

The Insurer takes the position that although subsection 40(5) has yet to be interpreted with respect to whether an expense must be incurred in order to be recovered, the language is clear and unambiguous and clearly states the legislature’s intention that an expense must first be incurred before it can be claimed under this subsection. In support of this position, the Insurer relies on cases where arbitrators have interpreted similar provisions under Bill 68,¹⁶ where it was not clear that an expense must first be incurred by the insured in order to be payable by the insurer. They held that if it were the intent of the legislature that an expense must be incurred in order to be recovered, such an intention would be clearly stated.¹⁷ The Insurer submits that the legislature, when writing Bill 164, had the benefit of this case law and therefore the fact that the term "incurred" appears in section 40(5) manifests the intention that an expense must be incurred to be payable

Section 40 of the Schedule provides that the Insurer "shall pay" for "reasonable measures" and subsection 40(1) describes the purposes of these rehabilitation benefits. Nowhere does it say in that subsection that the expense of a reasonable measure must be incurred before it is payable. Subsection 40(5) states that, "The payments required under this section [meaning section 40] include payment of all reasonable expenses incurred by or on behalf of the injured person...for..."(emphasis added) a detailed list of specific items. In my view, subsection 40(5) expands the definition of "reasonable measures," clarifying in concrete terms the types of expenses that are included in the term. Each of the subsections is clearly intended to elaborate and expand upon the term "reasonable measures" and subsection 40(5) is no exception. The language of subsection 40(5) is clearly inclusive and expands rather than restricts the term "reasonable measures."

Is Mr. Gosling entitled to be reimbursed for the computer he has already purchased himself?

The Insurer submits that I should disregard the Applicant's invoices for the computer equipment he purchased, which were attached to the Applicant's submissions. These were not admitted as evidence in the arbitration hearing and were not submitted to the Insurer prior to the hearing. In fact the matter came up in the course of Mr. Gosling's testimony on the first day of the hearing. When asked why he did not present the invoices to the Insurer for payment at the time of the purchase, Mr. Gosling replied that he did not think they would pay for it. He also testified that he bought the best second-hand desktop that he could afford, because the MacIntosh laptop he wanted was "way over his budget," and because he needed a computer for the Computer Science 148H course referred to above. He also said he has since determined that the computer he bought is not suitable for his needs, in part because it is too slow and does not do the things he needs it to do.

The Insurer argues that it is prejudiced in that it did not have an opportunity to cross-examine on the reasonableness of the items purchased. I accept this argument. While it may well be that the items are reasonably necessary, the matter is not before me. I make an exception, however, for those items already purchased that Mr. Gosling testified about and which are included in the items I have already found to be reasonable; these items he is entitled to be reimbursed for. Mr. Gosling is not precluded from arbitrating the issue of any remaining items if the parties cannot resolve the matter between themselves.

Special Award:

Mr. Gosling asked for a special award pursuant to subsection 282(10) of the Insurance Act, on the basis that the Insurer's delay in providing him with a computer was not reasonable and that it has jeopardized his academic studies because he did not have an opportunity to practise typing or other computer skills in preparation for his computer science courses.

Subsection 282(10) of the Act requires an arbitrator to order a special award should the arbitrator find that an insurer has unreasonably withheld or delayed payments.

Zurich maintains not only that Mr. Gosling’s original request for a computer was unreasonable, but that there is no evidence that any of the upgrading courses he has taken to date requires a computer at all. At the hearing, Mr. Gosling indicated that he has yet to be admitted into the Computer Science program itself. Zurich pointed out that his current grade point average at the time of the hearing was not high enough for admittance.

At the time of the hearing, Mr. Gosling was taking Computer Science Course 148H, which is described in the Undergraduate Handbook¹⁸ as "...quite a difficult course. It has a heavy workload and quickly covers challenging topics such as recursion (subprograms that call themselves), pointer-based data structures (linked lists and trees), mathematical proofs or program correctness, and analysis of program efficiency." It is the first of the courses he must pass in order to get into the Computer Science Program. I find that Mr. Gosling needs a computer for this course.

I find that Zurich’s delay in providing Mr. Gosling with a computer was unreasonable, for the reasons set out below.

Mr. Gosling first expressed an interest in computer training soon after his accident. A vocational assessment done on June 8, 1995 indicates this is something he is capable of pursuing. Zurich agreed at mediation to pay a year's university tuition. It’s Mr.Gosling's uncontradicted evidence that he got "verbal authority and confirmation" from Zurich for a laptop and was told to go ahead and "go out and see what you think you need." He says he was not told that he would need to consult experts. Zurich agreed at the outset of the hearing that he needs a computer. There was no evidence to indicate what steps it took in response to Mr. Gosling’s request after it received Mr. Gosling's written proposal in November of 1995. The September 3, 1996, letter from Mr. J.N. Clarke, the Undergraduate Secretary appears to be addressed to a representative of the Insurer and appears to be in response to a request about computer requirements. Although it confirms the University's position that there is no requirement that a student own their own computer, it is clear that Mr. Clarke did no rule out the need for a computer for Mr. Gosling.

The only evidence suggesting that Zurich took any steps to attempt to determine what a reasonable computer might be are two quotes from Ontario Office Outfitters¹⁹ dated October 24, 1996, for both a desktop and a laptop IBM-type computer. These two quotes describe "the most requested configuration....by our customers." I find both of these models to be inadequate in terms of speed and capacity compared with the higher-end models eventually recommended by Mr. Robertson, Zurich's consultant.²⁰ Also, given that the quotes are dated almost a year after Mr. Gosling's original request, they are hardly a timely response. The Insurer presented no evidence that it made any efforts to communicate or cooperate with Mr. Gosling to get him a suitable computer. Mr. Gosling was still without a computer by the time he took his upgrading courses in 1996.

The computer is claimed pursuant to subsection 40(5)(b) of the Schedule, which is a "pay-pending-dispute" provision. That is to say, pursuant to subsection 40(7) of the Schedule, "...the insurer shall pay an expense under subsection (5) pending resolution of a dispute relating to the expense..." (Emphasis added). An insurer who decides not to pay for a particular item on the basis that it is not reasonable takes the risk that an arbitrator will find that the item is in fact reasonable, and opens itself up to the possibility of a special award. I note that Zurich did in fact eventually obtain, less than two weeks prior to his hearing, what turned out to be a very helpful consultant's report containing much of the information needed to make an informed decision about an appropriate computer system. Given the somewhat novel idea of a computer as a rehabilitative measure and the Insurer's stated continued willingness to provide one I fail to understand why it could not have retained the assistance of someone trained in the field earlier in the process. Had a report such as Mr. Robertson's been obtained within a reasonable time frame of Mr. Gosling’s original November, 1995 request, there would have been more opportunity for an earlier resolution of this matter.

From the beginning, the Insurer acknowledged the legitimacy of Mr. Gosling's request for a computer, yet it has presented no evidence to indicate that it made any efforts to work with his original proposal; instead it appears to have concentrated its energies simply in finding ways to oppose it. As Arbitrator Rotter said in Plows,²¹ "Arbitrators have frequently repeated the view ²² ...that parties must work together co-operatively in order to best meet the rehabilitation requirements of the injured person." Although I find that Mr. Gosling's initial written request was neither realistic nor reasonable, and that he may have presented as a somewhat intractable client, this does not excuse the Insurer from the requirements of subsection 40(7) of the Schedule. I find that the Insurer’s behaviour was imprudent. It ignored the pay pending provision and failed to take reasonable steps to cooperate with Mr. Gosling, and by its actions has needlessly frustrated Mr. Gosling’s efforts to rehabilitate himself. I find therefore that a special award is warranted.

A special award is limited to a maximum of "50% 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." I do not find that the maximum amount is warranted; the Insurer’s conduct, though unreasonable in my view, does not amount to bad faith. I find that an award of 25 percent of the total amount of the benefit is appropriate in this case, inclusive of interest.

When is the benefit payable?

Mr. Gosling testified that he first verbally requested a computer in the spring of 1995 and his written proposal with estimates is dated November, 1995. It appears from his University of Toronto transcript that he was taking pre-university courses, including an introductory computer programming course, through Woodsworth College in the 1996 winter term. I find that although it would be reasonable for him to have had a computer for this course, the Insurer needed some time to investigate and respond to his written request. I find that three months is a reasonable time frame for this and that therefore Mr. Gosling was entitled to his computer as of the beginning of March, 1996.

Who should retain title to the computer?

In its submissions, the Insurer raised for the first time the notion that if it were found that Mr. Gosling is entitled to a computer, the Insurer should retain title to the computer until such time as Mr. Gosling fully completes his degree, on the basis that he has not yet been accepted into the Computer Science program and has also dropped courses for which the Insurer had paid. No evidence was presented to indicate whether this type of arrangement was considered at any time since Mr. Gosling first requested a computer, or how it would work. I do not find this to be a reasonable solution, particularly given the impact on Mr. Gosling of the Insurer's conduct to date. Neither do I find it to be necessary. Mr. Gosling testified as to the reasons he felt he had to drop certain courses and I found his explanations to be satisfactory. Mr. Gosling was entitled to a computer, at the Insurer's expense, some time ago, and he did not get one in time for his studies.

I do not find that it is reasonable for the Insurer to now attempt at this late date to attach conditions with respect to ownership of the computer.

Expenses:

In light of my findings I am exercising my discretion and awarding Mr. Gosling his expenses of the arbitration.

Order:

1. Mr. Gosling is entitled to the cost of an IBM-compatible laptop computer with software and accessories as specified in this decision.

2. Mr. Gosling is entitled to a special award equivalent to 25 percent of the value of the amount awarded above, inclusive of interest.

3. Mr. Gosling is entitled to his expenses of the arbitration.

Susan Sapin Arbitrator

Date

APPENDIX

Present at the Hearing:

Mr. Gosling's Representative: Dave Muttart Barrister and Solicitor

Zurich's Representative: Aldo Picchetti Barrister and Solicitor

Witnesses: Michael Gosling, Viera Gosling and Peter Gosling

Exhibits:

Exhibit 1 Mr. Gosling's transcript for University of Toronto courses for the 1996 academic year

Exhibit 2 Estimates for computer system requirements submitted by Mr. Gosling to Suilan Lue 15/11/95

Exhibit 3 Specifications and cost of computer system purchased by Mr. Gosling, July 11, 1997

Exhibit 4 Five photographs depicting the computer workstation and chairs at the University of Toronto.

Exhibit 5 Letter from J. N. Clarke, Undergraduate Secretary, Department of Computer Science, University of Toronto, September 6, 1996

Exhibit 6 Letter from Laurie McArthur, B.Sc (OT), OT(c), Acting Assistant Manager, Adaptive Technology Resource Centre, University of Toronto, June 30, 1997

Exhibit 7 Letter from Inge Martin, Occupational Therapist Consultant, University of Toronto Special Services to Persons with a Disability, July 10, 1997

Exhibit 8 Ontario Office Outfitters price quote, desktop, October 24, 1996

Exhibit 9 Ontario Office Outfitters price quote, portable, October 24, 1996

Exhibit 10 Supplementary report of Richard Robertson, dated July 11, 1997

Exhibit 11 MacWarehouse catalogue

Exhibit 12 University of Toronto Department of Computer Science Undergraduate Handbook 1996 - 1997

Exhibit 13 Assessment of Computer Requirements report prepared by Richard W. Robertson, P.Eng., dated July 2, 1997

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. 2Exhibit 2
3. 3Exhibit 13
4. 4Exhibit 3
5. 5Appendix
6. 6And Jevco Insurance Company (July 25, 1994), OIC A-000175, OIC A-000588, OIC A-003502
7. 7September 6, 1996 letter from J.N. Clarke, Undergraduate Secretary, Department of Computer Science, University of Toronto, Exhibit 5.
8. 8See photographs, Exhibit 4.
9. 9Report dated July 10, 1997 - Exhibit 7
10. 10Exhibits 10 and 13
11. 11Exhibit 13, page 1
12. 12There appear to be calculation errors in these figures
13. 13Student Handbook, Exhibit 12, page 13
14. 14Exhibit 10
15. 15See page 16 for an explanation of this date.
16. 16Sections 6(1), (2) and (7)
17. 17Plows (see note #6) and Book and Bertie and Clinton Mutual Insurance Company (April 17, 1996), OIC A-013497
18. 18At page 42
19. 19Exhibits 8 and 9
20. 20In his reports dated July 2 and 11, 1997, Exhibits 13 and 10, respectively.
21. 21Plows (see note #6),p.18
22. 22"...enunciated by Arbitrator Palmer in Gaba and Allstate Insurance Company (August 21, OIC A-000624).