Neutral Citation: 1998 ONICDRG 80, 1998 ONFSCDRS 80

FSCO A97-002059

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ROZA KOLONJARI

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION on INTERIM BENEFITS

Issues:

The Applicant, Roza Kolonjari, was injured in a motor vehicle accident on May 6, 1995. She applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ Co-operators terminated weekly income replacement benefits on April 22, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Kolonjari applied for arbitration 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 Ms. Kolonjari entitled to interim income replacement benefits and medical-rehabilitation expenses pursuant to section 279(4.1) of the Insurance Act?

2. Is the Insurer liable to pay a special award pursuant to section 282(10) of the Insurance Act?

Neither party sought their expenses at the motion for interim benefits.

Result:

1. Ms. Kolonjari is entitled to interim income replacement benefits at a rate of $235.74 per week from the date of this order to the date of a final determination of Ms. Kolonjari's entitlement to ongoing income replacement benefits.

2. Ms. Kolonjari is entitled to interim benefits for housekeeping (at a rate of $75 per week) and transportation (being the reasonable costs of taxis to and from Ms. Kolonjari's medical appointments) from the date of this order until a final determination of Ms. Kolonjari's entitlement to these items.

3. The issues of a special award and arbitration expenses are reserved to the arbitrator hearing the merits of the application.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 28, 1998. Surveillance videotapes were received September 2, 1998.

Present at the Hearing:

Applicant: Roza Kolonjari

Ms. Kolonjari's Representative: David S. Wilson Barrister and Solicitor

Co-operators' Representative: Philippa G. Samworth Barrister and Solicitor

Witnesses and Exhibits:

The motion for interim benefits proceeded on the basis of Affidavits from Ms. Kolonjari and Ms. Morag Durdle of the Insurer, as well as three document briefs and an updated medical report from Dr. Peter Rothbart. Three surveillance videotapes were also submitted.

Evidence and Findings:

The Criteria for Awarding Interim Benefits

Section 279(4.1) of the Insurance Act establishes an arbitrator's authority to make interim orders in the course of a proceeding. Arbitration decisions have established a number of principles in relation to the making of interim orders for benefits.³ The principles relevant to the current application may be summarized as follows:

1. Generally, an insured person's entitlement to benefits is to be determined after a full hearing of all of the evidence.

2. Interim benefits are only to be awarded in unusual circumstances.

3. An interim order is intended to cover a short period of time between the making of the order and the final order.

4. The insured bears the onus of establishing that the merits of the case for entitlement, coupled with the urgency of the situation, are such as to justify an interim order of benefits.⁴

Regarding this last criterion, most cases have held that an insured need only establish a prima facie case for entitlement, that is, to "produce evidence which, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement."⁵ However, in at least one case,⁶ it was held that the "prima facie" standard was too low, and that an arbitrator hearing an application for interim benefits must have a very positive view of the merits of the case, finding it very probable, on all of the evidence presented, that the applicant will be found to be entitled to the benefits sought.

In my view, the nature of interim benefit applications favours an interpretation more consistent with that set out in the Cripps decision. If questions of entitlement are normally to be heard after hearing all of the evidence, and if interim orders are only to be made in unusual circumstances and for short periods of time, then the onus on an applicant seeking interim benefits must be more than simply establishing a prima facie case (in which the applicant's evidence is essentially untested). I agree with the Cripps decision that an interim order must be made after "considering] the evidence of both sides," not simply the applicant's ("unanswered") evidence. If a "prima facie case" were to be the standard (in which motions for interim benefits are decided on an applicant's materials alone), then, instead of determining questions of entitlement on full evidence and ordering benefits in unusual circumstances, such matters would be determined on significantly deficient information and ordered in quite routine situations. In my view, the "prima facie" standard would undermine the process for determining questions of entitlement and would be inconsistent with the nature of interim benefit orders as an extraordinary remedy.

However, while a number of the cases have invoked the "prima facie" standard, they have also appeared to determine the question of interim benefits on the basis of a consideration of both parties' evidence. I note, in this regard, the decision of Ms. Z and Dominion of Canada General Insurance Company,⁷ in which, after considering the evidence of both parties, the question of entitlement to interim benefits was posed as whether "on a prima facie basis, that is, at first glance" the applicant was entitled to weekly income benefits. While this approach would appear to be inconsistent with the nature of "prima facie" determinations as considerations of issues on the basis of the uncontested evidence of the applicant, it is, in my view, a more appropriate approach in the context of interim benefit applications.

Related to the issue of the standard of proof is the question of urgency. The cases establish that the urgency need not be financial in nature.⁸ Whether financial or not, urgency should be clearly established given the temporary and extraordinary nature of interim benefit orders. This is particularly true if the standard of proof is the lower "prima facie case," and if that standard is understood as simply focussing on the uncontested evidence of the applicant. However, given the discretionary nature of interim benefit orders, an arbitrator, in my view, has the authority to tailor an award to the particular circumstances of the case and need not make an "all-or-nothing" finding in respect of an applicant's request for interim benefits.

Therefore, in my opinion, interim benefits should only be ordered in cases of clear financial or other need and where, after hearing from both parties, an arbitrator is satisfied that the applicant will probably be successful at a full hearing on the merits. An arbitrator also has a discretion to award less than full interim benefits if appropriate in the circumstances.

Ms. Kolonjari's Entitlement to Interim Benefits - Income Replacement Benefits

At the time of the accident (May 1995), Ms. Kolonjari was a student at York University, finishing the last major assignment of the academic year. She had planned on returning to York University in September 1995 to complete her four-year honours B.A. programme. She had also held a part-time job as a bookkeeper and cashier at a Dominion Store for the previous seven years. In addition, she was about to commence a full-time summer position with the TTC as a summer student and was also to begin work four nights a week as a bartender at the Vatican Club. She had started the job as a bartender on April 28, 1995. Following the accident, Ms. Kolonjari continued to attend school, but on an intermittent basis, due to her post-accident medical condition. She was only able to complete the course work required for a three-year B.A. degree. She did not continue at any of her places of employment.

Ms. Kolonjari was injured in an accident on the Q.E.W. in Mississauga. She suffered a contusion to her forehead, a whiplash injury to her cervical spine and a lumbar sprain. She now claims to suffer constant pain in her neck, shoulders and back. She has also complained of leg pain, with increasing intensity in the right knee. Ms. Kolonjari claims to have suffered psychological, cognitive and emotional difficulties following the accident, including feelings of depression, diminished memory and cognitive abilities, sleep disturbances and fatigue, migraine and less severe throbbing headaches, dizziness, chest tightness and cramping. She has been variously diagnosed as suffering from depression, post-traumatic stress disorder, chronic pain syndrome and post-concussion syndrome. Ms. Kolonjari enjoyed excellent health prior to the motor vehicle accident.

Ms. Kolonjari has received various forms of medical and rehabilitation treatment for her symptoms. For example, in the spring of 1998, Ms. Kolonjari underwent a "discogram" in Minneapolis to provide objective evidence of cervical disc damage. A procedure known as "percutaneous facet denervations" was also conducted in early 1998 to relieve the pain in Ms. Kolonjari's cervical spine, and a further denervation was to take place in late 1998. Despite these and other treatments, Ms. Kolonjari maintains that she continues to be in constant pain and is completely unable to return (on either a full- or part-time basis) to any of her three jobs.

Ms. Kolonjari relied on a number of medical reports in support of her application for interim benefits. For example, in April 1996, Dr. Shery Zener, a psychiatrist to whom the Insurer had referred Ms. Kolonjari, reported that she was not psychologically capable of returning to her employment at the TTC (although Dr. Zener later modified her opinion to suggest that once Ms. Kolonjari's medications were adjusted and stabilized, she could attempt to return to work at the TTC on a part-time basis initially, with the assistance of an occupational therapist). In June 1996, Dr. Peter Rowsell, a psychiatrist, concluded that, due to severe depression and chronic pain, Ms. Kolonjari was not at all fit to return to work. Dr. Rowsell noted that, at one point, Ms. Kolonjari experienced suicidal ideation so severe that he had to have her admitted to hospital. In June 1996, Dr. M.B. Weber, a neurologist, reported that consistent with her having suffered from post-concussion syndrome, Ms. Kolonjari was incapable of performing any of her three pre-accident jobs. In May 1998, Dr. Charles Tator, a neurosurgeon, reported that Ms. Kolonjari was unable to work due to accident-related headaches and neck pain. In June 1998, Dr. Graham Vanderlinden, another neurosurgeon, reported that Ms. Kolonjari was substantially unable to perform either full- or part-time work due to cervical and lumbar strain, depression, impaired memory and lack of motivation.

In July 1998, Dr. Peter Rothbart, a pain management specialist, concluded that Ms. Kolonjari was incapable of performing the essential tasks of her employment. Dr. Rothbart was also highly critical of the medical-rehabilitation Designated Assessment Centre ("DAC") report prepared in July 1996, noting that the report assumed that Ms. Kolonjari had not suffered objective physical damage in the accident when, according to the discogram, she had. Dr. Rothbart also felt that the DAC report demonstrated a serious lack of understanding of the medication his clinic was providing.

Drs. Rowsell, Rothbart and Vanderlinden also concluded that surveillance showing Ms. Kolonjari dancing at two clubs was not at all inconsistent with her physical and psychological condition, particularly since Ms. Kolonjari intentionally ingested large amounts of medication and alcohol in order not to feel any pain at those times, and then suffered significant pain in the following days.

The Insurer relied on various other reports. For example, in June 1996, Dr. Robert Grossman, a general practitioner and a "Designated Assessor for Disability for the Ontario Insurance Commission,"⁹ reported that Ms. Kolonjari did not have a musculoskeletal impairment, but had developed chronic pain syndrome, post-traumatic stress disorder and depression. Dr. Grossman did not comment specifically on her ability to return to work, but did state that increased activity would be therapeutic for Ms. Kolonjari. Dr. Grossman also recommended a change in her treatment and medication regimen, concluding that they had led to a harmful substance dependency on Ms. Kolonjari’s part.

In December 1995, Dr. Michele Macartney-Filgate, a neuropsychologist, found that credibility problems precluded an accurate assessment of Ms. Kolonjari’s condition. She nevertheless felt that Ms. Kolonjari’s symptoms were consistent with post-traumatic stress disorder, but advised further assessment on this issue. In early 1996, Dr. Macartney-Filgate reported that she was unable to assess Ms. Kolonjari’s physical ability to return to work, but that from a psychological perspective, there were no "absolute contraindications" to her returning to her previous employment.

The July 1996 medical-rehabilitation DAC (performed by Dr. Carlan Stants, a certified chiropractic rehabilitation doctor, Dr. D. Prendergast, a psychologist, and Dr. Gord Sawa, a neurologist) found that there was no significant physical pathology precluding Ms. Kolonjari from resuming her pre-accident employment, that she suffered from post-traumatic stress disorder, and that the only treatment and services she required were psychiatric counselling and taxi transportation to attend these sessions. Dr. Stants noted that disability issues were outside the scope of the DAC's "medical/rehabilitation assessment."

In November 1996, Dr. Peter Watson, a neurologist, concluded that Ms. Kolonjari was suffering from significant muscular pain and significant emotional disturbance. He nevertheless felt that Ms. Kolonjari was not physically impaired from performing her job at the TTC. He recommended psychological treatment coupled with a different pharmacologic regimen, one that would, in part, alleviate Ms. Kolonjari's substance dependency.

Finally, in August 1998, Dr. T.O. Gyenes, a rheumatologist, concluded that Ms. Kolonjari did not exhibit any objective signs of physical impairment precluding a return to work. Dr. Gyenes was also unable to determine the cause of Ms. Kolonjari's non-organic symptoms, but stated that this was beyond her area of expertise.

On the basis of this evidence, I am satisfied that Ms. Kolonjari would probably be successful in establishing her entitlement to income replacement benefits at a full hearing on the merits. In my view, the diagnoses of Ms. Kolonjari's condition are largely consistent with each other, and on the whole, establish significant impairment with respect to the various employment and academic activities in which she was involved at the time of the accident. The medical reports currently relied on by the Insurer do not, in my opinion, adequately address the different aspects of Ms. Kolonjari's symptoms and their effects on her ability to return to her various pre-accident functions. There may be differences between some of the physicians as to the appropriateness of Ms. Kolonjari's treatment to date, but, in my view, these do not significantly diminish her claim of disability or that the accident materially contributed to her current medical condition.

While the evidence raises some questions as to Ms. Kolonjari's credibility (which will be the subject of further scrutiny at the main hearing), I am satisfied on the evidence before me that Ms. Kolonjari's symptoms and impairments are largely as they have been described by her. I am, in particular, not satisfied that the surveillance substantially affects her claim of ongoing and disabling physical, emotional and cognitive difficulties.

Finally, I do not accept the Insurer’s suggestion that the motion for interim benefits was premature given Ms. Kolonjari's alleged unwillingness to attend some of the medical examinations. In my view, there was ample evidence on which to consider the merits of the application for interim benefits. In any event, the Insurer did not provide adequate evidence on which to determine the issue of non-attendance. Similarly, I do not accept the Insurer's submission that the potential for further medical inquiry in this case, or the fact that some of the experts currently disagree with each other, is sufficient to deny Ms. Kolonjari’s request for interim relief. While some of the issues in this case are contentious (for example, whether Ms. Kolonjari did, in fact, suffer an organic brain injury in the accident), I do not find them so complex (or, as in the case of the brain injury, so germane to the issue of entitlement) as to preclude a preliminary determination for the purposes of interim benefits. Finally, I reject the Insurer’s suggestion that a motion for interim benefits should not be allowed where a DAC supports the Insurer’s position. As acknowledged by the DAC itself, its function was to assess Ms. Kolonjari’s entitlement to medical and rehabilitation benefits, not to determine the extent of her disability for the purpose of deciding her entitlement to income replacement benefits. Further, as with a hearing on the merits, a DAC report is to be considered in the context of, and on the same footing as, all of the medical evidence in the case. As suggested above, I do not find the DAC’s conclusions sufficient to deny Ms. Kolonjari’s request for interim relief.

Urgency - Income Replacement Benefits

Prior to the accident, Ms. Kolonjari received a considerable income from her various jobs. Following the accident, the Insurer paid Ms. Kolonjari income replacement benefits at a rate of $471.48 per week. Following the termination of benefits in the spring of 1997, Ms. Kolonjari had to apply for social assistance. She is currently in receipt of social assistance benefits in the amount of $414 per month. She has also applied for additional disability benefits, but has not yet received a response. She lives with her mother and younger sister in a condominium, but is unable to make any significant contributions to the ongoing condominium expenses. Her mother is apparently no longer employed. In the fall of 1997, Ms. Kolonjari incurred just under $10,000 in debts. Ms. Kolonjari states that she has little or no money with which to purchase clothing or incur any other expenses. Ms. Kolonjari also submitted that her financial situation is urgent given the amount of time it will take to conclude the arbitration proceeding.

Ms. Kolonjari has experienced a significant change in her financial circumstances since the Insurer terminated income replacement benefits in April 1997. Her monthly income is very small and is less than a quarter of what it used to be, she is no longer capable of contributing significantly to the upkeep of her family's residence (which is particularly important in light of her mother's financial situation), she has little or no income to address certain of her basic needs and she has incurred significant debts. In my view, these are factors which need to be addressed on an urgent basis. However, Ms. Kolonjari is only currently obligated to repay one of the debts she has incurred and there is no direct evidence of the consequences Ms. Kolonjari's family will suffer as a result of her inability to contribute more significantly to the ongoing condominium expenses, although it is reasonable to infer that Ms. Kolonjari may incur additional debts to cover these items.

In these circumstances, while I am satisfied that Ms. Kolonjari has established the urgency of her situation, I am not prepared to make an interim order for the full amount of her income replacement benefits. I am only prepared to order the Insurer to pay half of the previous benefit rate, namely, $235.74 per week. In making this order, I am also cognizant of the fact that should Ms. Kolonjari not be successful on the merits of this arbitration, she may be required to repay the interim benefits she has received, a situation which may prove to be overly onerous for Ms. Kolonjari. This is particularly true if, as submitted by Ms. Kolonjari, it takes a significant amount of time to complete the arbitration.

Finally, Ms. Kolonjari sought reinstatement of benefits from the date of termination. In my view, such an order would be inconsistent with the established principle that interim benefits are intended to cover a short period of time following the making of an order. I am, therefore, only prepared to order interim income replacement benefits at a rate of $235.74 per week from the date of this order until a final determination of Ms. Kolonjari's entitlement to ongoing income replacement benefits.

The Insurer expressed concern that if interim income replacement benefits were ordered, this might trigger obligations for it under the Schedule concerning loss of earning capacity benefits. In my view, an order of interim benefits is designed to address the personal situation of the applicant in light of a preliminary determination of the merits of the case. It does not set in motion any process with respect to ongoing benefits, particularly where the nature and scope of such benefits can only be determined after a full arbitration hearing.

Entitlement and Urgency - Medical and Rehabilitation Benefits

Ms. Kolonjari seeks interim benefits to cover the following medical and rehabilitation items:

• a discogram in the United States, plus transportation costs - $3053.84

• the past and future services of the Whitman Neuro Rehab clinic - $11,336.11 plus future costs

• the past and future services of Rehabilitation Management Inc. ("RMI") - $8,027.30 plus future costs

• past and future housekeeping services - $4,600 plus $75 per week

• an orthopaedic mattress and bed - $913

• prescription drugs - $2,385.32 plus future costs

• transportation - future costs

A number of these items concern expenses already incurred by Ms. Kolonjari as opposed to future services she requires on an urgent basis. This would include the discogram, the past services of Whitman Neuro Rehab and RMI, past housekeeping services, an orthopaedic mattress and bed, and prescription drugs. While there may be legitimate issues concerning the Insurer’s refusal to pay these items, in my view, such expenses are more appropriately dealt with at the hearing on the merits, particularly where, as here, there is no evidence that they need to be covered on an urgent basis. However, even if these items could be considered under the "pay now - dispute later" provisions of the Schedule (in this case, sections 36(4) and 40(7)), the past expenses sought have been the subject of a medical-rehabilitation DAC. Therefore, pursuant to sections 39(11)(b) and 45(11)(b), which state that the "pay now - dispute later" provisions do not apply to expenses that have been the subject of a DAC, the matter of past med-rehab expenses should be reserved for the main arbitration hearing. In addition, at the interim benefits hearing, I was advised that the matter of the discogram had not been identified as one of the med-rehab items to be addressed at the main arbitration hearing. Therefore, while this particular expense was not addressed by the DAC, I am not prepared to consider it in the context of the motion for interim benefits.

What remains is the future services of RMI, Whitman Neuro Rehab, housekeeping services, prescription drugs, and transportation expenses. On the basis of the material before me, I find that Ms. Kolonjari is only entitled to housekeeping services and transportation expenses on an interim basis.

Regarding RMI's services, they provided a wide range of services from March to December 1996. Ms. Kolonjari deposed that the continued involvement of RMI was imperative because she had seen a number of different physicians and required the services of someone she could deal with on a regular basis. This varies significantly from the reason Dr. Rothbart gave for the reinstatement of RMI’s services, namely, that due to her brain injury, Ms. Kolonjari was incapable of organizing her day-to-day affairs, including making it to her various medical appointments. Dr. Safieh simply stated that RMI's involvement was reasonable without providing an explanation. While Dr. Weber stated that RMI's involvement was needed to coordinate the rehabilitation services recommended by RMI, Drs. Macartney-Filgate and Grossman, as well as the DAC assessors, recommended a significant shift in the course of Ms. Kolonjari's treatment. In my view, the evidence at this point regarding both RMI's general involvement and their specific recommendations is not sufficient to establish that Ms. Kolonjari will probably succeed on this issue at the main hearing, or that the need for RMI is urgent. This matter requires significantly more development at a full hearing on the merits.

Similarly, the need for continued rehabilitation treatment through Whitman Neuro Rehab is currently problematic. Dr. Safieh recommended continued treatment, but did not provide an explanation, other than to refer to RMI's report. Dr. Rothbart indicated that further treatment was required because of Ms. Kolonjari's brain injury. However, Dr. Rowsell stated that it was to provide Ms. Kolonjari with someone whom she could trust and who could help her maintain her morale. The DAC assessors concluded that continued services were not required, in part due to the fact that Ms. Kolonjari had not suffered a brain injury. Drs. Watson and Fulton also concluded that Ms. Kolonjari had not suffered a brain injury. In my view, the issue of a possible brain injury is currently far from settled and is important to determining both the need for and the scope of any additional services from Whitman Neuro Rehab. I also note that the initial services of Whitman Neuro Rehab were focussed primarily on the completion of particular school assignments while Ms. Kolonjari was at university. Therefore, on the basis of the materials before me, I am not satisfied as to the scope of the services sought from Whitman Neuro Rehab, that any services are required on an urgent basis or that Ms. Kolonjari will probably succeed on the issue at a full hearing on the merits.

Regarding the need for the Insurer to fund Ms. Kolonjari's prescription drug needs, there is a significant debate within the materials as to the appropriateness of the medications prescribed to Ms. Kolonjari. As many as six physicians (including Dr. Sawa in the DAC report) have taken issue with the pharmacologic regimen set out for Ms. Kolonjari by Dr. Rothbart. Under these circumstances, I am not prepared to order the Insurer to fund these prescriptions. In any event, the drugs are currently being covered by social assistance.

As a corollary to my earlier findings on the question of Ms. Kolonjari's general entitlement to income replacement benefits, I find that she is entitled to both housekeeping services and transportation expenses on an interim basis. While the physicians are not unanimous on these matters, I find the weight of medical evidence establishes, on a preliminary basis, that her physical and psychological injuries require her to have assistance in performing housekeeping tasks around her condominium, and that it would be significantly more beneficial for her to take taxis to her medical appointments than to take arduous and lengthy bus rides. Regarding the use of public transportation, I note that Dr. Prendergast relies on the surveillance tapes to conclude that Ms. Kolonjari is capable of taking the bus to her medical appointments. As indicated earlier, I am not at this stage prepared to find that the surveillance significantly undermines Ms. Kolonjari’s claim of ongoing physical and psychological disability. I am also not satisfied that the surveillance establishes Ms. Kolonjari’s ability to take public transportation on a regular basis to her medical appointments. Finally, while there is some question as to the appropriateness of Ms. Kolonjari’s treatment to date, I am not satisfied that this is sufficient to preclude her from obtaining the required transportation expenses. In light of her general physical and psychological needs, I find it reasonable that she be provided transportation assistance pending a final determination of the appropriateness of her medical treatment. I find that Ms. Kolonjari is entitled, on an interim basis, to the reasonable costs of taking taxis to and from her medical appointments.

Special Award

At the interim benefits motion, Ms. Kolonjari raised the issue of a special award. While this had been raised earlier in the context of the main arbitration, the Insurer was not aware that this would be an issue at the interim benefits motion. It was agreed that Ms. Kolonjari would make her submissions with respect to her entitlement to a special award and that, subject to my decision on the merits of the motion, the Insurer would then be given an opportunity to make its submissions with respect to the special award.

While I have found Ms. Kolonjari entitled to partial interim income replacement benefits and interim benefits for housekeeping and transportation, I regard it as premature to consider the issue of a special award. I did not find Ms. Kolonjari's financial situation to be sufficiently precarious to order full income replacement benefits and the housekeeping and transportation expenses were two relatively small items in the context of the whole application for interim medical and rehabilitation benefits. At this point, in my view, these circumstances do not justify a full inquiry into the reasonableness of the Insurer's conduct in this matter. It is also doubtful whether an Insurer could be found to have unreasonably withheld or delayed payments for the purposes of what is a significant punitive measure against it, in the context of a preliminary proceeding involving an inevitably superficial consideration of the evidence. In my view, therefore, the whole question of a special award (with respect to all of the income replacement and medical-rehabilitation benefits) is more appropriately reserved to the arbitrator hearing the matter on its merits.

Expenses:

As indicated at the outset of this decision, neither party sought their expenses at the motion for interim benefits. This issue is reserved to the arbitrator hearing the main application.

Order:

1. The Insurer shall pay Ms. Kolonjari interim income replacement benefits at a rate of $235.74 per week from the date of this order to the date of a final determination of Ms. Kolonjari's entitlement to ongoing income replacement benefits.

2. The Insurer shall pay Ms. Kolonjari interim benefits for housekeeping (at a rate of $75 per week) and transportation (being the reasonable costs of taxis to and from Ms. Kolonjari's medical appointments) from the date of this order until a final determination of Ms. Kolonjari's entitlement to these items.

3. The issues of a special award and arbitration expenses are reserved to the arbitrator hearing the merits of the application.

November 18, 1998

Eban Bayefsky 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. 3These have been enumerated most recently in the case of Ms. Z and Dominion of Canada General Insurance Company, (FSCO A98-000124, September 25, 1998), under appeal on other issues.
4. 4A further basis upon which interim benefits may be awarded is that the Insurer has exhibited a blatant disregard for the requirements of the Schedule. This ground was not strenuously pursued by Ms. Kolonjari and, in any event, there was no evidence that the Insurer blatantly disregarded its statutory obligations under the Schedule.
5. 5See, for example, Simpson and Trafalgar Insurance Company of Canada, (FSCO A98-000215, July 16, 1998), under appeal.
6. 6Cripps and Axa Insurance (Canada), (OIC A-013360, August 8, 1997).
7. 7Supra, note 3.
8. 8See, for example, Malaban and Canadian General Insurance Company, (OIC A96-000084, July 26, 1996).
9. 9Dr. Grossman's letter of October 23, 1995.