Neutral Citation: 1997 ONICDRG 232

A96-001923

ONTARIO INSURANCE COMMISSION

BETWEEN:

ANDREAS KOSMOPOULOS

Applicant

and

VICTORIA INSURANCE COMPANY OF CANADA Insurer

DECISION

Issues:

The Applicant, Andreas Kosmopoulos, was injured in a motor vehicle accident on April 10, 1991. He applied for and received statutory accident benefits from the Insurer, Victoria Insurance Company of Canada ("Victoria") payable under Ontario Regulation 672.¹ This arbitration concerns an application by Mr. Kosmopoulos for various supplementary medical and rehabilitation benefits under section 6 of the Schedule, as detailed in the decision.. While some of the section 6 claims were mediated, a number of them were not. Victoria consented to inclusion in the arbitration of the section 6 claims which were not mediated. Although subsection 281(2) of the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act") requires that an issue be mediated before it is arbitrated, subsection 282(3) of the Act authorizes an arbitrator to decide all issues in dispute. Arbitrators have held that this authority permits them, with the consent of the other party, to hear issues not previously mediated.

Mr. Kosmopoulos also claims a special award under subsection 282(10) of the Act on the basis that Victoria unreasonably withheld or delayed his benefit payments.

Mr. Kosmopoulos was involved in a previous arbitration which fact is relevant to the issues Mr. Kosmopoulos raised in the current arbitration. On April 4, 1992 Victoria terminated the weekly income benefits Mr. Kosmopoulos received pursuant to section 12 of the Schedule. He applied under the Act for arbitration of the issue of his entitlement to further weekly income benefits. By decision dated November 10, 1993, (OIC A-002264) the arbitrator denied his claim.The arbitrator also decided in favour of Victoria in its claim against Mr. Kosmopoulos for a repayment of benefits. He appealed the arbitration decision and by decision dated May 14, 1996 (OIC P-002264), the Director's delegate dismissed the appeal. Mr. Kosmopoulos has apparently initiated judicial review proceedings in respect of the arbitration and appeal decisions.

The issues in this hearing are:

1. Can Mr. Kosmopoulos raise issues at this arbitration which have not been mediated?

2. Is Mr. Kosmopoulos entitled to various supplementary medical and rehabilitation benefits, under section 6 of the Schedule as detailed in the decision?

3. If Mr. Kosmopoulos is entitled to an award of section 6 benefits, is Victoria entitled to set this award off against the repayment imposed on Mr. Kosmopoulos by the previous arbitration and appeal decisions?

4. Is Mr. Kosmopoulos entitled to a special award under section 282(10) of the Act on the basis that Victoria unreasonably withheld or delayed benefit payments?

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

Result:

1. Mr. Kosmopoulos is not entitled to supplementary medical and rehabilitation benefits under section 6 of the Schedule for any of the expenses he has claimed.

2. Mr. Kosmopoulos is not entitled to a special award under subsection 282(10) of the Act.

3. Mr. Kosmopoulos is not entitled to his expenses incurred in respect of the arbitration proceeding under subsection 282(11) of the Act.

Hearing:

The hearing was held before me, Beth Allen, Arbitrator, on November 3, 1997 at the offices of the Ontario Insurance Commission.

Present at the Hearing:

Applicant:

Andreas Kosmopoulos

Insurer's

Gregg Heckel

Representative:

Barrister and Solicitor

Witnesses:

For the Applicant:

Andreas Kosmopoulos

Court Reporter:

Catherine Boyle

Rosenberger and Weir

Special Examiners Office

Exhibits:

Exhibits are listed on Schedule A

Legal Authorities Submitted by Victoria:

White and Pilot Insurance Company (June 6, 1995), OIC A-008462. Boodhai and Allstate Insurance Company of Canada (June 14, 1995), OIC A-00400; upheld on appeal (September 18, 1996), OIC P-004002

Preliminary Matters:

The issues to be arbitrated

Mr. Kosmopoulos was not legally represented at the hearing. I explained to him the purpose and procedure of the hearing. Mr. Kosmopoulos sought to include in the arbitration eight issues which had not been previously mediated. He listed these issues in his letter dated October 14, 1997 (Exhibit 7) as follows:

1. weekly benefits from January 1, 1994 to the present under the statutory accident benefits schedule which came into effect January 1, 1994.

2. medical expenses

3. travel and other expenses.

4. care benefits for Mr. Kosmopoulos and his wife

5. lawyer's expenses

6. an award for delayed payments

7. an award for physical, psychological and medical problems

8. award for important sexual problems

Victoria submits that the issue of his entitlement to section 12 weekly income benefits between April 17, 1991 and April 4, 1992 has already been arbitrated and accordingly cannot be arbitrated again. It further argues that the schedule of benefits under which insured persons are permitted to make accident benefit claims is determined by the date of their accidents. Mr. Kosmopoulos' accident, Victoria argues, occurred on April 10, 1991 and accordingly he is not entitled to bring his claim under the Schedule that came into effect after his accident. Regarding the section 7 care benefits issue, Victoria submits that this issue was not mediated and furthermore, Mr. Kosmopoulos has presented no evidence to substantiate this claim. Accordingly, Victoria does not consent to including this issue for arbitration. The claim for lawyer's expenses, Victoria argues, relates to lawyer's expenses for a past arbitration and as such are not compensable in this arbitration. The claim for awards for physical, psychological and sexual problems, Victoria asserts, are more appropriate to a tort action and not an application for statutory accident benefits.

I conclude that I do not have the authority to hear the eight issues Mr. KosmopouIos seeks to raise in the arbitration because the issues were not previously mediated and Victoria did not consent to their inclusion in the arbitration. As noted earlier, subsection 281(2) of Act requires that issues be mediated before they can be arbitrated; and while subsection 282(3) permits arbitrators to decide all issues in dispute, arbitrators have held that they cannot hear issues not previously mediated without the consent of the other party.

During opening submissions, Mr. Kosmopoulos sought to add a number of additional section 6 claims. Victoria consented to having these items added to the arbitration. I will therefore decide Mr. Kosmopoulos' entitlement to expenses for the following items:

1. medication expenses

2. transportation expenses

3. the cost of orthopaedic shoes

4. housekeeping and home maintenance services such as window cleaning, grass cutting, house painting, gardening, mopping and dishwashing.

A production matter

Mr. Kosmopoulos also raised a production issue. He brought to the hearing a large assortment of loosely organized documents. He claims that at the pre-hearing on April 23, 1997 he requested from Victoria a number of documents and Victoria has not produced these for the hearing. Mr. Kosmopoulos referred to requests for copies of cheques; doctors' forms; his own notes and letters to the Insurer; the OHIP report; and various receipts he sent to the Insurer. Regarding the OHIP report, Mr. Kosmopoulos admitted that he had received it three or four weeks before the hearing, but complained he should have received it earlier so he would have time to read it.

Victoria submits that it has already produced all documents relevant to this proceeding.

In his submissions on production, Mr. Kosmopoulos spoke in general terms, mainly identifying broad categories of documents he wished Victoria to produce. While he stated that he had requested documents from Victoria, he did not provide evidence of specific requests he made before the hearing. I conclude on the whole that Mr. Kosmopoulos' submissions on this matter were unclear and not sufficiently specific. For this reason, I will not order Victoria to produce further documents. Regarding the OHIP report, he admitted he had received it three or four weeks before the hearing. I find this was a reasonable period of time before the hearing for Mr. Kosmopoulos to have read it.

The Law:

Section 6 of the Schedule provides that an insurer is required to pay for the reasonable and necessary medical and rehabilitation expenses incurred by an insured person as a result of the accident. The relevant part of section 6 states as follows:

6.—(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection 3 for,

(d) transportation for the person to and from treatment, counselling and training session,

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

(4) Subject to subsection (5) and (6), the insurer, before making a payment for an expense under subsection 1, may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psycho logical advisor stating that the expense is necessary for the insured person's treatment and rehabilitation.

Mr. Kosmopoulos claims the expenses for orthopaedic shoes and some of his home maintenance and housekeeping expenses under paragraph 6(1)(f). However, the Schedule places a limit on the goods and services that are compensable under paragraph 6(1)(f). The arbitrator in Plows and Jevco Insurance Company case² outlines the following criteria that must be met before an insurer will be required to pay an expense for goods and services under paragraph 6(1)(f) of the Schedule:

(1) it must be an expense from the accident

(2) it must be required because of the accident

(3) a medical practitioner must, if the insurer so requires, provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation.

Evidence and Arguments:

Mr. Kosmopoulos'injuries

Mr. Kosmopoulos was involved in an accident on April 10, 1991 in which another vehicle rear-ended his vehicle while he was making a left turn. He did not go to the hospital after the accident. Days later, he attended his family doctor, Dr. J. O'Byrne, complaining mainly of pain in his lower thoracic and lumbo-sacral spine and pain in his neck and head. X-rays of Mr. Kosmopoulos' spine were negative. Dr. O'Byrne diagnosed lumbo-sacral back strain. Medical evidence reveals that Mr. Kosmopoulos has a previous history of back injury. About nine months before the accident, in June 1990, he sustained an employment-related back injury for which he claimed and received Workers' Compensation Board benefits. In Dr. O'Byrne's clinical notes and records (Exhibit 5, tab 17) he diagnosed chronic low back back pain and prescribed pain medication.

Supplementary medical and rehabilitation expenses:

Transportation expenses

Mr. Kosmopoulos claims, under paragraph 6(1)(d) of the Schedule, the expenses he incurred for transportation to and from medical appointments. He also claims an expense related to the repair of his car. He calculates that Victoria owes him $2,250 plus interest for mileage, a $4.00 expense for parking at the Commission offices and a $23 expense for a fan belt which broke while he was attending a medical appointment. Mr. Kosmopoulos submitted copies of receipts for the latter two expenses (Exhibit 1). He relies on the medical visits recorded in the OHIP report (Exhibit 2) to arrive at the $2,250 mileage expense. He claims $.50 per kilometre and estimates that he made about 300 visits to medical appointments that were on average 15 kilometres from his home.

Victoria argues that Mr. Kosmopoulos has provided inadequate documentary support for his travel expenses.Victoria submits that the data on the OHIP report do not prove that the medical visits were related to the accident.

I agree with Victoria's position on the transportation expense. Mr. Kosmopoulos did not sufficiently substantiate his claim. The OHIP report is not sufficient proof that the medical visits are related to the accident. Furthermore, his assessment of the number of medical visits and the distance of these appointments from his home is based on speculation rather than on factual data. Further, the parking expense is not related to a medical appointment, but rather to an attendance at the Commission. The fan belt expense, in my view, is not the type of expense contemplated by paragraph 6(1)(d) in the sense that it was not reasonably incurred as a consequence of Mr. Kosmopoulos' accident. Accordingly, Victoria is not required to pay the expense claimed for transportation.

Expenses for medications

Mr. Kosmopoulos filed a number of documents (Exhibits 3 and 4) which, he argues, substantiates, for the purposes of paragraph 6(1)(f) of the Schedule, his claim for medication expenses. Under cross-examination by Victoria about the medical purpose for a number of the medications, he admitted that he did not know. He admitted that some of the prescriptions were for his asthma condition and for colds. He pointed out, however, that his family doctor prescribed medication for back pain. Mr. Kosmopoulos referred to a medical note from his family doctor, Dr. Seong D. Choe, dated September 10, 1996 (Exhibit 1, item 12), where he prescribes Voltaren for back and elbow pain. Mr. Kosmopoulos submits that Victoria is obligated to pay for the Voltaren prescriptions. Mr. Kosmopoulos filed into evidence a number of prescriptions for Voltaren.

Victoria submits that Mr. Kosmopoulos has not provided proof that the prescription receipts he has submitted into evidence were for medications reasonably necessary as result of injuries sustained in the accident. Regarding the Voltaren prescription, Victoria points out that Mr. Kosmopoulos suffered from pre-accident back pain. It submits that, although the Voltaren prescription is for back pain, Dr. Choe's note does not indicate whether the medication is for an accident-related condition.

I agree with Victoria's position on this matter. Mr. Kosmopoulos has not adequately substantiated that the medication expenses he incurred were reasonably and necessarily required as a result of injuries he sustained in the accident. Victoria is therefore not obligated to pay Mr. Kosmopoulos' medication expenses.

Expense for orthopaedic shoes

Mr. Kosmopoulos also claims, under paragraph 6(1)(f) of the Schedule, the cost of orthopaedic shoes. He refers to a note from Dr. Choe dated June 5, 1996 (Exhibit 1, item 11) where Dr. Choe indicates that Mr. Kosmopoulos needs orthopaedic shoes due to leg and back pain. Mr. Kosmopoulos also submits a receipt dated November 11, 1995 in the amount of $149.50 for orthopaedic shoes. Victoria referred to Mr. Kosmopoulos' pre-accident back condition and argues that this note does not support Mr. Kosmopoulos' claim that the shoes are required as a result of an injury sustained in the accident.

I accept Victoria's position on this issue. Mr. Kosmopoulos has not sufficiently established that Dr. Choe prescribed the orthopaedic shoes as a result of an accident-related injury. Although the note indicates that Mr. Kosmopoulos is still disabled, it does not specify that his condition results from the accident. I therefore decline to order Victoria to pay the expense for the orthopaedic shoes.

Expenses for home maintenance and housekeeping

Mr. Kosmopoulos did not make the claim for home maintenance and housekeeping expenses under a particular paragraph of section 6. However, paragraphs (e) and (f), which respectively deal with home renovations and other goods and services, are arguably appropriate provisions under which to make these claims.

Mr. Kosmopoulos submitted a number of receipts for the costs of various types of home maintenance (Exhibit 1, item 18). These include: a receipt dated September 14, 1997 in the amount of $735 for landscaping; a receipt dated March 15, 1997 in the amount of $725 for painting the interior of the house; a receipt dated May 12, 1997 in the amount of $190 for window cleaning; a receipt dated April 29, 1992 in the amount of $825 for aluminum sofit and fascia installation; and a receipt dated June 9, 1992 in the amount of $1,284 for landscaping.

Victoria argues that Mr. Kosmopoulos failed to establish that the home maintenance expenses were reasonably and necessarily required as a result of the accident. Victoria submits that Mr. Kosmopoulos provided no medical evidence to support his claim that these services were required as result of the accident; or that having these services performed by others assisted in his rehabilitation. Accordingly, Victoria submits it is not obligated to pay for these expenses.

I accept Victoria's position on this issue. Mr. Kosmopoulos did not provide evidence to support his claim that Victoria is obligated to pay for these expenses. Victoria indicated in its submissions, in accordance with subsection 6(4), that it requires medical certification that these services were required by Mr. Kosmopoulos as a result of the accident for his treatment and rehabilitation. Mr. Kosmopoulos provided no such medical certification from his doctors. For this reason, he has not met his obligation to establish his need for home maintenance services as a result of the accident. I therefore decline to order Victoria to pay the expenses claimed.

Mr. Kosmopoulos presented no documentary or oral evidence to support his claims for the housekeeping services of mopping the house and dishwashing. I therefore decline to consider this aspect of his claim.

Special Award:

In view of my decision, I am not required to consider Mr. Kosmopoulos' claim under subsection 282(10) of the Act for a special award.

Expenses:

In view of my decision on Mr. Kosmopoulos' supplementary benefits claims, I exercise my discretion under section 282(11) of the Act to deny him his expenses incurred in respect of the arbitration proceeding.

Order:

1. I decline to order Victoria to pay Mr. Kosmopoulos' claims for supplementary medical and rehabilitation benefits under section 6 of the Schedule.

2. I decline to order Victoria to pay a special award under subsection 282(10) of the Act.

3. I decline to order Victoria to pay under subsection 282(11) of the Act for Mr. Kosmopoulos' expenses incurred in relation to the arbitration proceeding.

Beth Allen Arbitrator

Date

SCHEDULE A

Exhibit 1

A package of 26 numbered documents from Applicant, with index (60 pages)

Exhibit 2

OHIP List of Providers for Andreas Kosmopoulos dated May 21, 1997

Exhibit 3

Three pages: on page 1- shoe receipt dated November 11, 1995, two prescription receipts, both dated dated October 11, 1995; on page 2 and 3, ten prescription receipts dated: July 27, 1995 (2); September 16, 1995 (2); September 10, 1995 (2); March 24, 1995 (1); and February 25, 1995 (3).

Exhibit 4

Twelve prescriptions dated from January 2, 1995 to June 14, 1997 and two pages containing the same medical note from Dr. Seong D. Choe, dated June 5, 1996.

Exhibit 5

Insurer's Arbitration Brief

Exhibit

6 Report of Independent Medical Examiners dated July 4, 1991

Exhibit 7

Letter from Applicant to Insurer's legal representative dated October 14, 1997

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term '"Schedule' will be used to refer to Regulation 672.
2. 2(January 16, 1992), OIC A-000715 (upheld on appeal).