Neutral Citation: 1998 ONICDRG 46, 1998 ONFSCDRS 46

FSCO A97-001239

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TOULA ATHANASIADIS

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Toula Athanasiadis, was involved in a motor vehicle accident on July 22, 1995. On November 20, 1995, she applied for income replacement benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich denied Mrs. Athanasiadis weekly income replacement benefits on December 8, 1995, on the basis that the accident did not cause her any injury which prevented her from performing the essential tasks of her employment. The parties were unable to resolve their disputes through mediation and Mrs. Athanasiadis applied for arbitration on July 8, 1997, at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Athanasiadis entitled to receive a weekly income replacement benefit from November 9, 1995 and ongoing pursuant to section 7 of the Schedule on the basis that she suffers a substantial inability to perform the essential tasks of her employment?

2. What is the amount of the weekly income replacement benefit that Mrs. Athanasiadis is entitled to receive pursuant to section 10 of the Schedule?

3. Zurich liable to pay Mrs. Athanasiadis' expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

4. Is Mrs. Athanasiadis liable to pay Zurich's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Mrs. Athanasiadis also claims interest on any amounts owing.

Result:

1. Mrs. Athanasiadis is not entitled to receive a weekly income replacement benefit.

2. The amount of Mrs. Athanasiadis' weekly income replacement benefit, if payable, is $169.37.

3. Mrs. Athanasiadis is not entitled to her expenses incurred in this arbitration.

4. Zurich is entitled to its expenses in this arbitration except for its expenses incurred, including preparation time, for August 21, 1998.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 4, 5 and 21, 1998, before me, Joyce Miller, Arbitrator.

Present at the Hearing:

Applicant:

Toula Athanasiadis

Mrs. Athanasiadis'

Ava M. Hillier

Representative:

Barrister and Solicitor

Zurich's

Darrell P. March

Representative:

Barrister and Solicitor

Witnesses:

Toula Athanasiadis

Exhibits:

17 exhibits were filed, including three medical and documentation briefs

Evidence:

On July 22, 1995, Mrs. Athanasiadis was driving on Highway 401, with her son as a passenger in the front seat. The traffic was heavy. The cars were moving slowly in a "stop and go" rhythm. Suddenly, the car behind Mrs. Athanasiadis struck and pushed her car into the car ahead. Mrs. Athanasiadis testified that she was wearing a seat belt and that the impact forced her body sharply forward and back. She stated that she may have hit her chest against the steering wheel.

Although the car was damaged on impact (repairs estimated at $2,500), Mrs. Athanasiadis was able to drive to the Collision Centre to report the accident. She testified that she did not require any medical assistance and went to work that evening on her usual shift as a waitress at Swiss Chalet, where she had been working since 1992.

Mrs. Athanasiadis testified that her regular shift was Monday to Friday from 12:00 p.m. to 2:00 p.m.; Monday, Tuesday and Saturday from 6:00 p.m. to 11:00 p.m.; and Thursday and Friday from 5:00 p.m. to 10:00 p.m. She stated that the essential tasks of her job consisted of setting tables, seating customers, taking orders, bringing food to the table (appetizers and water were carried on a tray, dinner plates were carried by hand, but no more than three plates at a time), clearing and wiping tables and dealing with payment of bills. She also had to cut frozen pies, make salads and carry heavy trays of silver.

Mrs. Athanasiadis testified that after the accident she continued to work full time. She also continued to work on home renovations that began before the accident. She stated that she did not seek medical attention for her injuries from the accident until July 26, 1995, because she rested on Sunday and when she dropped by her doctor's office on the Monday and Tuesday following the accident, her doctor was busy and she did not want to wait.

On July 26, 1995, Mrs. Athanasiadis saw Dr. Moll, who was replacing her regular family physician. Her chief complaint was a stiff neck and generalized musculo-skeletal pain. Dr. Moll recommended physiotherapy. Mrs. Athanasiadis testified that she also complained of abdominal pain and Dr. Moll sent her for a CT scan. Although Mrs. Athanasiadis denied that she had abdominal pains prior to the accident, the clinical notes and records of her family physician, Dr. R. Dahl, show that in the several years proceeding the accident she had complained of abdominal pains. As well, in the year prior to the accident she had an ultrasound on her abdominal area, including her liver.

On August 31, 1995, Mrs. Athanasiadis saw Dr. Dahl. His clinical notes of that day show two diagnoses: one which was attributed to the motor vehicle accident, left dorsal flank pain; and the other diagnosis was a "hepatic (simple) cyst."

Mrs. Athanasiadis began physiotherapy for her back pain on September 1, 1995 at an OHIP-funded clinic, The Doctor's Office, next door to where she works. The clinical evaluation report of that date recorded that Mrs. Athanasiadis had left lower back pain that went under her ribs. She described the pain as an "ache" that was sharper when she was tired.

Mrs. Athanasiadis underwent passive physiotherapy three times a week from September 1, 1995 to October 13, 1995 and continued working full-time at her job.

On a referral by Dr. Dahl, the cyst on Mrs. Athanasiadis' liver was diagnosed by Dr. E. Bekier, an internist, as a portal systemic fistula. In her report of October 14, 1995, without stating the basis for her opinion, Dr. Bekier opined that there was a possibility that the fistula was related to Mrs. Athanasiadis' car accident. She stated that she had booked Mrs. Athanasiadis for "... a spiral CT with angiogram for a better assessment of the lesion."

Dr. K. Cranstoun, a radiologist, performed the CT scan on November 1, 1995. In his report of November 3, 1995 he stated:

[Diagnostic considerations would include post-traumatic lesion and congenital abnormality. While this patient has a history of trauma, it was apparently very mild trauma with no direct blunt or penetrating injury to the liver and no symptoms or treatment at the time, which makes the possibility of the lesion visualized being post-traumatic less likely.

Dr. Cranstoun further stated that consideration should be given to a surgical consultation as there was a chance that the lesion could haemorrhage.

On November 9, 1995, Mrs. Athanasiadis stopped work. She applied for income replacement benefits on November 20, 1995. The Health Practitioner's Certificate which accompanied her application stated that her primary diagnosis was left dorsal paraspinal myofascial strain and left flank soft tissue injury. As a secondary diagnosis, Dr. Dahl noted "(Query) Hepatic Portal Systemic Fistula."

Dr. Bekier referred Mrs. Athanasiadis to Dr. S. Gallinger, a surgeon, who in a report on December 6, 1995 recommended that Mrs. Athanasiadis not be treated surgically for her fistula. Instead, he recommended a radiologic approach and referred Mrs. Athanasiadis to Dr. M. Asche, a medical imager.

On December 12, 1995, Mrs. Athanasiadis underwent a laparotomy to treat the fistula. The procedure was performed by Dr. Asche on an outpatient basis. The procedure was considered a success and Mrs. Athanasiadis was discharged the next day after being kept overnight for observation. In his report of December 12, 1995, Dr. Asche noted that Mrs. Athanasiadis told him that "... the right upper quadrant [abdominal]³ pain she initially had is no longer present."

Mrs. Athanasiadis testified that after resting for a few weeks she returned to work on January 29, 1996. She stated, however, that since the procedure on her liver she continues to have right upper abdominal pain and as a result she tires very easily and has only been able to work about 20 hours a week.

On May 16, 1996, Mrs. Athanasiadis saw Dr. Gallinger regarding her abdominal pain. In his report to Dr. Bekier of the same date, Dr. Gallinger stated that the "[p]hysical exam reveals her to be very sensitive to palpation throughout the entire upper abdomen but most of this appeared to be voluntary guarding." Dr. Gallinger concluded that the pain is "primarily a musculo-skeletal problem" and he recommended that she see a chiropractor. No evidence was presented that she followed this recommendation.

On June 12, 1996, Mrs. Athanasiadis was examined by Dr. B. Langer, a surgeon. In his report of the same date to Zurich, Dr. Langer stated that "[h]er reaction to abdominal examination appears out of proportion to her physical findings."

Dr. Langer stated that he reviewed Mrs. Athanasiadis' CT scans with Dr. S. Wilson, head of the ultrasound department at the Toronto General Hospital. He stated that Dr. Wilson agreed with him that the pre-accident ultrasound images were not of adequate quality or completeness to conclude that the fistula in Mrs. Athanasiadis' liver was not present at that time. He also stated that they had both noted that there were no signs in the liver or its surrounding area that one would expect to see in a patient who had an injury severe enough to cause liver damage and a vascular fistula. Dr. Langer concluded that the fistula had been present for a long time and was not a result of any injury from the car accident.

In her own report of June 13, 1996, Dr. Wilson stated that it was her impression that the fistula was a developmental lesion and it was unlikely that it would occur following a blunt abdominal trauma.

Mrs. Athanasiadis saw Dr. Gallinger on July 19, 1996. In his report of the same date to Dr. Bekier, he stated that Mrs. Athanasiadis' abdominal pain may be related to her gallbladder, but that her symptoms were not at all typical. He stated that there was an "outside chance" that her symptoms were related to "atypical biliary colic" and that the only way to confirm this was by taking out her gallbladder.

Dr. Gallinger also stated that some of her symptoms were "likely" to be musculo-skeletal in nature and she may benefit from a more formal assessment. Dr. Gallinger, however, did not comment on what the cause of her symptoms was or whether they were substantially disabling her from performing the essential tasks of her job.

On September 24, 1996, Mrs. Athanasiadis underwent a physiotherapy assessment at The Doctor's Office. A report of the same date noted that she complained of right mid-back pain, which she described as an "ache" that had been going on for one year. No mention was made as to the cause of this pain or whether it was substantially disabling and preventing her from working. Mrs. Athanasiadis underwent passive physiotherapy three times a week from September 25, 1996 until November 12, 1996.

Mrs. Athanasiadis saw Dr. Gallinger on October 2, 1996 and in a report to Dr. Bekier he stated that Mrs. Athanasiadis still had "right upper quadrant [abdominal] pain" but that "she thinks that she has improved a fair bit." He stated that he did not carry out a physical examination, but that he was more certain that her symptoms were not from her gallstones but were "abdominal wall in nature." He thought physiotherapy to strengthen her abdominal wall might help. He also stated that it was unlikely that the procedure on her liver was contributing to her symptoms. Again, he did not comment on whether her pain was substantially disabling and preventing her from working.

October 2, 1996 was the last time Mrs. Athanasiadis saw Dr. Gallinger.

On November 4, 1996, Dr. Gallinger wrote to Mrs. Athanasiadis' lawyer stating that since the procedure on her liver, he has reviewed the reports of Dr. Langer and Dr. Wilson, as well as the medical literature. He stated that he now concluded that Mrs. Athanasiadis' fistula was probably not related to the accident. As well, her abdominal pain was not related to her fistula. It seemed to him, however, that her "right upper quadrant [abdominal] pain" was related to the accident. Dr. Gallinger did not say how he arrived at this latter conclusion, nor did he state whether the pain was substantially disabling and preventing her from working.

Dr. Dahl's records show that Mrs. Athanasiadis last saw him in April 1996 regarding a trauma to her left wrist. There was nothing in the Medical Brief submitted by Mrs. Athanasiadis which indicated that she had seen any other family physician or specialist for any medical reason until October 1997.

On October 29, 1997, Mrs. Athanasiadis was seen by Dr. M. Elkashab, a specialist in gastroenterology and hepatology. In a letter to Mrs. Athanasiadis' lawyer, dated July 27, 1998, Dr. Elkashab stated: "[t]he normal abdominal ultrasound in July 1994 and the temporal relationship between the motor vehicle accident and the onset of abdominal pain suggests a casual relationship between the accident and the onset of symptoms."

In arriving at her conclusion Dr. Elkashab did not mention whether she had reviewed the reports and opinions of Drs. Langer and Wilson or the pre-accident clinical notes and records of Dr. Dahl. She also did not indicate whether Mrs. Athanasiadis had been treated for her alleged abdominal pain. As well, Dr. Elkashab did not comment as to whether Mrs. Athanasiadis was substantially disabled from performing the essential tasks of her employment.

ANALYSIS AND FINDINGS

1. Entitlement

Subsection 7(1) of the Schedule provides that an insured person who sustains an impairment is entitled to a weekly income replacement benefit if:

The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

In order to succeed in her claim, Mrs. Athanasiadis must prove, on a balance of probabilities, that she was injured in the accident on July 22, 1995 and that because of this injury, she is substantially disabled from performing the essential tasks of her pre-accident employment. The onus is on Mrs. Athanasiadis to present objective, reliable evidence to support her claim. For the following reasons, I find that Mrs. Athanasiadis has not discharged her burden.

It was never clear from Mrs. Athanasiadis' evidence what injury or injuries she received as a result of the accident. She presented three injuries - a liver ailment, abdominal pain and left lower back soft tissue injury - and submitted that it was not necessary to attribute anyone in particular to the accident in order to find that she was substantially disabled from preforming the essential tasks of her pre-accident employment. While I disagree with Mrs. Athanasiadis' latter submission, nevertheless, for the sake of completeness, I will deal with each of her physical complaints.

(a) Liver Ailment

In my view, Mrs. Athanasiadis did not present sufficient credible evidence to link her liver ailment to the accident. Although Mrs. Athanasiadis testified that she never had any abdominal pain prior to the accident, this testimony is contradicted by Dr. Dahl's clinical notes and records. His records show that Mrs. Athanasiadis had complained of pain in the abdominal area prior to the accident and had several ultrasounds on her abdominal area.

I accept the medical opinions of Drs. Langer, Wilson and Gallinger that the car accident did not cause Mrs. Athanasiadis' liver fistula. I note that Dr. Gallinger, who first opined that the car accident may have caused the fistula, later changed his opinion after reviewing the medical literature and the opinions of Drs. Langer and Wilson. Most important, even if the accident caused the fistula, I received no evidence, other than Mrs. Athanasiadis' subjective opinion, that the fistula substantially disabled her from performing the essential tasks of her job.

(b) Right Side Abdominal Pain

I give little weight to Dr. Gallinger's opinion of November 4, 1996 that Mrs. Athanasiadis' abdominal pain is musculo-skeletal and is a result of the car accident. Dr. Gallinger, whose expertise is in hepatobiliary surgery and surgical oncology, did not substantiate or provide any basis for his conclusion. The last time Dr. Gallinger physically examined Mrs. Athanasiadis on July 19, 1996 he opined that some of her symptoms could be related to "atypical biliary colic." In his report of November 4, 1996 he never commented as to why he had ruled out the latter diagnosis and how, instead, he concluded that Mrs. Athanasiadis' "right upper quadrant [abdominal] pain" was musculo-skeletal.

I also give little weight to Dr. Elkashab's opinion that there was a causal relationship between the accident and the onset of Mrs. Athanasiadis' abdominal pain. Dr. Elkashab, who saw Mrs. Athanasiadis for the first time in October 1997, more than two years after the accident, provided no basis for her opinion. There was no indication in Dr. Elkashab's report that she had reviewed the medical reports of Drs. Langer and Wilson, the physiotherapy reports or the clinical notes and records of Dr. Dahl before coming to her conclusion. I find that her opinion was a mere speculation based on limited medical evidence.

Even if Mrs. Athanasiadis' abdominal pain could be attributed to the car accident I was not presented with any evidence, other than Mrs. Athanasiadis' subjective opinion, that this pain substantially disabled her from performing the essential tasks of her pre-accident employment.

(c) Soft-Tissue Injury

In my view, if Mrs. Athanasiadis received any injury from the car accident, it was a soft tissue injury. The Health Practitioner's Certificate which accompanied Mrs. Athanasiadis' application for accident benefits stated that her primary diagnosis was left dorsal paraspinal myofascial strain and left flank soft tissue injury.

I note that about six weeks after the accident Mrs. Athanasiadis began passive physiotherapy for an "ache" in her lower back, mainly on the left side, and that this persistent ache was attributed to the car accident. However, I was not presented with any evidence that this "ache" prevented her from substantially performing the essential tasks of her employment. Mrs. Athanasiadis' testimony was that she continued to work full time at her job while undergoing physiotherapy.

Except for Mrs. Athanasiadis' subjective opinion, I was not presented with any clear evidence that any injury she sustained as a result of the accident substantially disabled her from performing the essential tasks of her employment. Having some corroborating medical evidence on disability is crucial to an applicant's claim for accident benefits. Mrs. Athanasiadis' subjective opinion that she is substantially disabled from performing the essential tasks of her job is not sufficient.

In summary, I find that when Mrs. Athanasiadis stopped working on November 9, 1995, it was because she needed treatment for her liver ailment which I find was unrelated to any injury she may have received from the car accident. No reliable evidence was presented to link Mrs. Athanasiadis' right upper quadrant [abdominal] pain to the car accident. Even if the pain could be linked to the car accident I was not presented with any objective evidence that the pain substantially disabled her from performing her pre-accident employment. And finally, I find that if Mrs. Athanasiadis suffered any injury in the car accident it was to the left side of her lower back and this injury, which was treated with passive physiotherapy, did not prevent her from working full time.

Accordingly, I find that Mrs. Athanasiadis is not entitled to income replacement benefits pursuant to subsection 7(1) of the Schedule.

2. Quantum

Mrs. Athanasiadis claims that the amount of weekly income replacement benefit that she is entitled to is $395.86. Although I have decided that Mrs. Athanasiadis is not entitled to income replacement benefits, to be complete, I will deal with this issue.

Subsection 10(1) of the Schedule states that:

The amount of weekly income replacement benefits shall be 90 per cent of the insured person's net weekly income from employment determined in accordance with section 81 or 82.

Subsection 7(2) of the Schedule states that:

Subject to subsection (3), a person who applies for benefits under paragraph 1 or 2 or subsection (1) shall designate one of the following time periods:

1. The four weeks before the accident.

2. The fifty-two weeks before the accident.

3. The 156 weeks before the accident.

The onus rests with Mrs. Athanasiadis to present objective reliable evidence to support her position that she is entitled to a weekly income replacement benefit in the amount of $395.86 ($195.40 net weekly income x 90% = $175.86 + $220.00 gross weekly tips). I find that Mrs. Athanasiadis has not discharged her burden.

Mrs. Athanasiadis' evidence on quantum was not clear. Mrs. Athanasiadis claimed income replacement benefits based on the 52 weeks prior to the accident and listed her "Net Reported Income" reported on her tax returns for 1993 to 1995. However, it was not clear what period of time she was actually relying on and how she arrived at her figure of $195.40. In short, I received no evidence as to what her gross or net earnings were in the 52 weeks preceding her accident on July 22, 1995.

Mrs. Athanasiadis, however, did present an Employer's Confirmation of Income which stated that she had been working at her job since 1992 and that she earned a gross salary of $11,600 a year. I accept Mrs. Athanasiadis' Employer's Confirmation of Income as the best and most reliable evidence regarding her gross income for the 52 weeks proceeding the accident. I, therefore, find the amount of Mrs. Athanasiadis' weekly income replacement benefit is $169.37. ($11,600 divided by 52 weeks = $223.08 gross weekly income, which converts to $188.19 net weekly income pursuant to the Net Weekly Income Table - Other Than Self-Employment, multiplied by 90 per cent = $169.37).

Mrs. Athanasiadis did not present any objective or corroborating evidence to support her claim that she received tips of $220 a week. While one can reasonably expect that tips are part of the remuneration of a waitress' job, it is insufficient for an applicant to merely state an amount without providing some supporting evidence.

Mrs. Athanasiadis testified she could not verify the amount of her tips because she had not declared these earnings in her tax returns. However, she could have presented other evidence, such as bank statements, or called witnesses, like co-workers or her manager to present some corroborating evidence. Without any objective corroborating evidence, I find that Mrs. Athanasiadis' claim for tips cannot be included as part of her income in calculating the amount of her income replacement benefit.

Accordingly, I find the amount of Mrs. Athanasiadis' weekly income replacement benefits is $169.37.

Expenses:

Pursuant to subsection 282(11) of the Insurance Act, both Mrs. Athanasiadis and Zurich claim their expenses in this arbitration.

This is the first decision on expenses under the new regulations which gives an arbitrator the discretion to award an insurer expenses beyond its assessment. For this reason I think it is important to briefly set out the evolution of the practice of awarding expenses for arbitration as a background to my interpretation of this new subsection.

In 1990, under the No-fault Benefits, an arbitrator's discretion to award arbitration expenses was limited to the insured person. Subsection 282(11) of the Insurance Act provided:

The arbitrator may award 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 legislation.

In the November 1991 arbitration decision, McCormick and Economical Mutual Insurance⁴Arbitrator Susan Naylor held that when awarding expenses, an applicant with a legitimate claim can expect to recover his or her expenses, win or lose, except where the applicant's conduct is unreasonable. She stated that:

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.

In February 1992, this statement was adopted "in the main" by the Director in the appeal decision, Calogero and The Co-operators General Insurance.⁵

In the appeal decision, Allison and Markel,⁶ Director's Delegate Susan Naylor reaffirmed the general principle in McCormick and pointed out that this principle had been uniformly accepted by arbitrators. However, she also pointed out that when it came to denying expenses arbitrators have built on the three criteria set out in McCormick.

For example, expenses have been denied to an applicant where the claim was found to have been without merit,⁷ or in the case of fraud,⁸ or dishonesty,⁹ or when documents have been fabricated.¹⁰ Director's Delegate Naylor stated that she agreed with this case-by-case development and commented that:

This case-by-case development is to be expected in an evolving adjudication process as individual arbitrators bring their perspectives to bear on the numerous fact situations presented. It seems to me that the general thrust of these decisions is reasonable and consistent with the purpose and scheme of the legislation. It balances the need for access to the system, with a relatively mild deterrent to undeserving claims or undesirable behaviour.

Effective January 1, 1994 subsection 282(11) of the Insurance Act was amended so that an arbitrator's discretion to award expenses for arbitration was expanded. Subsection 282(11.2) provided that:

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.

Succinctly, in very limited circumstances, subsection 282(11.2) allowed an arbitrator to award an insurer an amount that did not exceed its assessment fee.

In 1996, an arbitrator's discretion to award expenses was again expanded. Effective November 1, 1996 subsection 282(11) of the Insurance Act was amended and provides that:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. [Bill 59 s.38(4)]

This significant change in the amended expense regulation expands an arbitrator's discretion to award an insurer its expenses beyond that of reimbursing its assessment fee. Although this recent amendment has broadened the scope of an arbitrator's discretion, that discretion must be exercised in accordance with the criteria set out in the Regulation.¹¹These criteria, which have been incorporated into Section 73 of the Dispute Resolution Practice Code, provides that:

73.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 73.2. The items and amounts which may be awarded are found in Rule 76 and the Schedule to the Expense Regulation found in Section F of the Code.

73.2 The adjudicator will consider the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(b) conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders;

(c) whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process;

(d) the degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding;

(e) at the request of either party, any written offer to settle made in accordance with Rules 74 and 75, having regard to the outcome of the proceeding;

(f) any other matter related to the proceeding that the adjudicator considers relevant to the issue of whether an award of expenses is justified.

I choose to interpret the new expense regulation as being consistent with the purpose of the legislation, namely, to facilitate access to inexpensive, speedy and informal adjudication of disputes regarding statutory accident benefits, while deterring undeserving claims or undesirable behavior.

In my view, the new regulation does not depart from the fundamental objectives of the dispute resolution system as outined in the McCormick case, and affirmed on appeal in the Calogero and Allison cases. The principles outlined in these latter cases have been uniformly accepted by the arbitrators as the guiding principles in exercising their discretion when awarding expenses.

Accordingly, I do not view the regulation in a light that restricts an arbitrator's discretion to award applicants their expenses in unsuccessful cases. Instead, I interpret the regulation as broadening an arbitrator's discretion not only to disallow applicants their expenses in certain circumstances, but also to award expenses to insurers. When and why an arbitrator will exercise his or her discretion in this manner will depend on the facts of each particular case in light of the new regulation.

In this case, for the following reasons, I exercise my discretion to disallow Mrs. Athanasiadis her expenses and require her to pay Zurich a part of its expenses.

Mrs. Athanasiadis' Expenses

For the reasons stated in my decision, I find that Mrs. Athanasiadis' claim for income replacement benefits had no merit. Mrs. Athanasiadis' evidence on the injury she allegedly incurred as a result of the accident was unclear. She presented no reliable evidence on disability. When claiming accident benefits, something more is required than a person's subjective opinion that as a result of an accident, he or she was substantially disabled from performing the essential tasks of his or her employment.

At the time Mrs. Athanasiadis applied for arbitration on July 8, 1997, she did not have any medical evidence to support her claim that she was disabled. Mrs. Athanasiadis has had the same family doctor, Dr. Dahl, for many years and she has been seen by numerous other medical specialists, including Drs. Gallinger, Bekier and Elkashab, any one of whom could have written a report or appeared as a witness to comment on her level of disability. However, no report was presented and no medical witness was called.

In the end, I can only conclude that Mrs. Athanasiadis, who had a liver ailment and some right upper abdominal pain, shifted the responsibility for these medical problems to the minor car accident of July 22, 1995, in order to claim accident benefits. In proceeding to arbitration, I find that Mrs. Athanasiadis subjected Zurich to unnecessary legal expenses.

Accordingly, I find that pursuant to subsection 282(11) of the Insurance Act, Mrs. Athanasiadis is not entitled to her expenses incurred in respect of this arbitration.

Zurich's Expenses

For the reasons stated above, I find that Mrs. Athanasiadis subjected Zurich to the expenses of an unnecessary arbitration. In my view, this was an abuse of the arbitration process. I, therefore, find that Mrs. Athanasiadis is required to pay Zurich its expenses in this arbitration. However, I exercise my discretion to disallow Zurich its expenses, including preparation time, for August 21, 1998.

In my view, Zurich unnecessarily prolonged the proceeding by presenting numerous repetitive preliminary issues. Despite my ruling that the hearing would not adjourn, Zurich kept insisting that it could not proceed because Mrs. Athanasiadis had not responded to its many requests for relevant productions. In fact, it turned out that some of the productions requested were in the possession of Zurich. But for the unnecessary prolongation by Zurich, this hearing, which only had one witness, could have easily concluded within the two days allotted. I find that the resumption on August 21, 1998 was not necessary and, therefore, I find that Zurich is not entitled to its expenses, including preparation time, incurred for that day.

Accordingly, I find that pursuant to subsection 282(11) of the Insurance Act, Zurich is entitled to its expenses in this arbitration except expenses, including preparation time, incurred for August 21, 1998.

Order:

1. The arbitration is dismissed.

2. Mrs. Athanasiadis shall pay Zurich its expenses in respect of this arbitration except for expenses, including preparation time, incurred for August 21, 1998.

October 2, 1998

Joyce Miller Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3Throughout the evidence, testimony and medical reports, Mrs. Athansiadis' abdominal pain has alternatively been referred to as right upper quadrant pain
4. 4McCormick and Economical Mutual Insurance Company (OIC A-000139, October 2, 1991)
5. 5Calogero and The Co-operators General Insurance Company (OIC P-000251, February 13, 1992)
6. 6Allison and Markel Insurance Company of Canada (OIC P-001231, August 21, 1996)
7. 7Boateng and CUMIS General Insurance Company, (A-006279, August 29, 1995), upheld on appeal, (OIC P-006279, July 22, 1996); Cooper and Jevco Insurance Company, (OIC A-005905, April 12, 1994)
8. 8Richardson and Royal Insurance company of Canada, (OIC A-001141, November 3, 1992); Kosmopoulos and Victoria Insurance Company of Canada, (OIC A-002264, November 10, 1993), upheld on appeal (OIC P-002264, May 14, 1994)
9. 9Tagiran and Simcoe & Erie General Insurance Company, (OIC A-004660, August 15, 1994), upheld on appeal (OIC P-004660, February 26, 1996); Khanna and State Farm Mutual Automobile Insurance Company, (OIC A-001665, January 26, 1994), upheld on appeal (OIC P-001665, October 9, 1996)
10. 10Ferrari and Royal Insurance Company of Canada, (OIC A-007313, September 8, 1994).
11. 11Ontario Regulation 664 ( Expense Regulation), R.R.O. 1990, as amended by Ontario Regulation 464/96 made under the Insurance Act.