Richard Zettler v. Pilot Insurance Company, 1997 ONICDRG 65

Neutral Citation: 1997 ONICDRG 65

OIC A95-000682

ONTARIO INSURANCE COMMISSION

BETWEEN:

RICHARD ZETTLER

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Richard Zettler, was injured in a motor vehicle accident on June 23, 1994. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule¹ The parties were unable to resolve their disputes through mediation, and Mr. Zettler applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Hearing:

The hearing commenced in Walkerton, on July 8, 1996. When the arbitration hearing commenced, several issues were in dispute. On the first day of the hearing, I heard evidence with respect to a cellular telephone package and other issues. The parties settled many of the issues in dispute, and the hearing was adjourned at the request of the Applicant. The parties then requested further adjournments with a view to resolving all of Mr. Zettler's claims. I was informed on March 13, 1997, that counsel for the Applicant requested a decision with respect to the cellular telephone package. There was also agreement that Mr. Zettler was entitled to his expenses in respect of the arbitration, however, the amount of those expenses had not as yet been resolved. All other issues have been resolved by the parties.

The remaining issue in this hearing is:

1. Is Mr. Zettler entitled to the amount of $19.99 per month or $39.99 per month for a cellular telephone package under section 40 of the Schedule?

Mr. Zettler claimed his expenses in respect of the arbitration hearing.

Result:

1. Mr. Zettler is entitled to the amount of $19.99 per month for a monthly cellular telephone package under section 40 of the Schedule.

2. Mr. Zettler is entitled to his expenses as agreed upon or as assessed.

Evidence and Findings:

Richard Zettler was seriously injured in a motor vehicle accident on June 23, 1994. His injuries included a closed head injury, the loss of his left eye, extensive burns to the left side of his face, neck, chest, left arm and right ring finger, a fractured lower right jaw, a separated right shoulder, bilateral rib fractures, bilateral pulmonary contusions and hypothermia.

At the time of the accident, Mr. Zettler, together with his father and brother, farmed three parcels of land, totalling 520 acres in Walkerton. Mr. Zettler's ability to move is restricted by his injuries. He is susceptible to fatigue, and sensitive to dust, sunlight, heat and cold. Despite his injuries, Mr. Zettler is determined to continue farming.

Mr. Zettler claimed the cost of a cellular telephone, together with incidental costs, as a rehabilitation benefit under section 40 of the Schedule. The parties agreed that a cellular telephone and necessary incidental costs were an appropriate rehabilitation expense.

Mr. Zettler needed a cellular telephone so that he could respond quickly and appropriately to emergencies which occurred while farming. These emergencies might involve his own health - such as a seizure, damaged equipment - such as a flat tire on a tractor while putting in a crop, or cattle calving. Mr. Zettler was no longer able to independently perform a number of tasks because of his injuries. At times he has encountered difficulty performing tasks which he could have done by himself prior to the accident. His rehabilitation worker encouraged Mr. Zettler to call for help in such situations, before his safety was jeopardized. A cellular telephone would also permit Mr. Zettler's family to return to normal routines, while being assured of his safety.

Mr. Zettler requested a monthly cellular telephone package which cost $39.99. Pilot disputed that the cost of the cellular telephone package claimed by Mr. Zettler was reasonable. Pilot offered to pay for a monthly package costing $19.99.

Mr. Zettler testified that he expected that he would make four telephone calls on average per day. On some days he would make no telephone calls; on other days he anticipated that he would need to make perhaps 20 calls. Mr. Zettler anticipated that he could need to call his wife, father, brother, an ambulance, the fire department or the police, depending on the nature of the emergency. He believed that the $39.99 package would allow him to call more than one telephone number and use up to 60 minutes of airtime per month, before incurring additional charges.

Mr. Zettler testified that given the disputes he had experienced in the past with Pilot, he anticipated an argument every month with Pilot in order to sort out which telephone calls were legitimate. He testified that he was "basically dead" while in the hospital, yet Pilot had refused to pay for long distance calls made by his family. In light of this experience, he questioned whether Pilot would understand that because of his injuries, a call for help made because he had a flat tire on a tractor, while out in the field, was an emergency and a legitimate expense. He did not wish to be subjected to monthly disputes. Mr. Zettler believed that the calls he would need to make would be covered by 60 minutes of airtime per month which were included in the $39.99 package. He could therefore avoid the monthly disputes with Pilot.

Ms. Edgar, a kinesiologist, who lives on a farm, and is familiar with farming operations, testified at the hearing. Ms. Edgar recommended that Mr. Zettler have a cellular telephone, and the $39.99 cellular telephone package, as an appropriate rehabilitation expense.

When Ms. Edgar recommended the $39.99 cellular telephone package, 60 minutes of airtime per month between 8:00 a.m. and 6:00 p.m. were included, without additional charges. In her opinion, this would encourage Mr. Zettler to work routine hours and take specific rest breaks, as he would work when the "free" airtime was available. Ms. Edgar noted that it seemed to be particularly important to Mr. Zettler that he not engage in monthly discussions with Pilot about the cellular telephone call charges. She described this as an aspect of his desire to be independent. Ms. Edgar supported this desire to be independent as a rehabilitation goal.

There was little evidence with respect to the $19.99 cellular telephone package. Mr. Zettler testified that he believed that the $19.99 package would cover the cost of calls made to one telephone number. Ms. Edgar testified that the $19.99 package would also include the cost of calls made for emergency services such as the police, fire and ambulance services.

Ms. Edgar testified that at the time of the hearing, neither package provided "free" airtime between 8:00 a.m. and 6:00 p.m. The $39.99 package now provides "free" airtime in the evenings and on weekends, with a flat rate for calls between 8:00 a.m. and 6:00 p.m.

The features of the cellular telephone packages have changed between the time of Ms. Edgar's original investigation and the date of the hearing. At the time of the hearing, neither package had been purchased. This raises the question, not argued before me, of whether reasonableness should be determined in the context of circumstances which existed at the time the benefit was claimed, or at the time of the hearing.² However, because of the gaps in the evidence I do not need to decide this issue.

I heard no evidence with respect to the amounts of the flat rate charges which would be incurred with either package, or other evidence which would assist me in determining if the $39.99 package better met Mr. Zettler's rehabilitation needs. I am therefore unable to find that the more costly package is reasonable. Since Pilot agreed that a cellular telephone package together with incidental costs was an appropriate rehabilitation expense, and since Pilot offered to pay for the $19.99 package, I conclude that Pilot should pay $19.99 per month in respect of Mr. Zettler's cellular telephone package.

Expenses:

Pilot agreed that Mr. Zettler was entitled to his expenses in respect of the arbitration. In the event that the parties are unable to agree on the amount of Mr. Zettler's expenses, either party may request an assessment.

Order:

1. Mr. Zettler is entitled to payment of $19.99 per month for a cellular telephone package.

2. Mr. Zettler is entitled to his expenses in respect of the arbitration as agreed upon or assessed.

April 16, 1997

Suesan Alves Arbitrator

Date

APPENDIX A

Present at the Hearing:

Applicant: Richard Zettler

Mr. Zettler's Representative: Robert W. Garcia Barrister and Solicitor

Pilot's Representative: Grant E. Black Barrister and Solicitor

Witnesses:

Richard George Zettler Brenda Marie Edgar

Exhibits:

Exhibit 1 Summary of Injuries sustained by Mr. Zettler

Exhibit 2 Copy of invoice dated July 2, 1996 for installation of the dust collection system

Exhibit 3 Copy of receipt for router table fence

Exhibit 4 Invoice from Welbeck Sawmill Ltd.

Exhibit 5 Copies of receipts for A& B gravel dated April 1995 and May 29, 1995, cheque dated April 18, 1995, invoices for lumber, trusses, cladding and supplies purchased for construction of hayshed

Other Documents Before the Arbitrator:

Pre-hearing letter Letters from counsel for the Applicant dated October 9, 1996, October 11, 1996 and November 6, 1996

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents After December 31, 1993 and Before November 1, 1996, Ontario Regulation 776/93, as amended.
2. 2Section 40(7) of the Schedule provides that this is an expense which, subject to certain provisos, is required to be paid by the Insurer pending resolution of the dispute. In similar circumstances, Insurers have been required to pay a special award. In this case, however, Mr. Zettler, withdrew his claim for a special award.