Bruno Sollazzo v. Zurich Insurance Company, 1999 ONFSCDRS 188

Neutral Citation: 1999 ONFSCDRS 188

FSCO A99-000862

BETWEEN:

BRUNO SOLLAZZO

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

David Evans

Heard:

By telephone conference call on September 9, 1999.

Appearances:

Luigi DiPierdomenico for Mr. Sollazzo J. Claude Blouin for Zurich Insurance Company

Issue:

The Applicant, Bruno Sollazzo, was injured in a motor vehicle accident on December 12, 1995. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich has paid a number of statutory accident benefits to Mr. Sollazzo. In April 1999, Mr. Sollazzo and his wife booked a flight to Italy to visit his family. On July 26, 1999, he submitted an application for expenses claiming the extra expense of upgrading his and his wife's airline tickets for the trip from coach to first class and for the cost of two hotel rooms while they visit his relatives. On the same date, he applied for mediation on this issue. The mediation was conducted on September 1, 1999, and the mediator's report indicating that the mediation failed is dated September 2, 1999. The report also indicates that Zurich raised preliminary issues to the effect that the mediation could not proceed. Mr. and Mrs. Sollazzo left for Italy on September 7, 1999. Mr. Sollazzo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Sollazzo has brought a motion pursuant to section 65 of the Dispute Resolution Practice Code — Third Edition for interim benefits to be paid to him pending the resolution of his dispute with Zurich.

The issue on this motion is:

Is Mr. Sollazzo entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act for the extra expense of upgrading his and his wife's airline tickets for a trip to Italy from coach to first class and for the cost of two hotel rooms while they visit his relatives pursuant to either Part VII or Part VIII of the Schedule?

Mr. Sollazzo also claims interest on any amounts owing and his expenses incurred on this motion.

Result:

Mr. Sollazzo is not entitled to interim benefits.
The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter, but, as stated by Arbitrator Wilson in Ampong,² "resort to such remedies is restricted to cases of merit, need and urgency."

In April 1999, Bruno and Maria Sollazzo made arrangements to fly to Italy on September 7, 1999. Mr. Sollazzo has been receiving benefits from Zurich since shortly after his accident. He has also been treated by Dr. Carol Franklyn, a clinical psychologist, as well as other medical professionals. On June 28, 1999, counsel for Mr. Sollazzo, Mr. DiPierdomenico, wrote to Dr. Franklyn asking to be advised of the "developments to date with respect to Mr. Sollazzo."

Dr. Franklyn replied by letter dated July 22, 1999. She wrote that due to the effects of his Traumatic Brain Injury (TBI) Mr. Sollazzo required supervision and should not travel alone. She also wrote that he needs to leave the Windsor area periodically, "if for no other reason than to distract himself from the constant reminders of his accident and the TBI sequelae." She then recommended that if he travels a long distance outside the country, he needs to be seated in the least stimulating area of the transportation, which is usually first class. She also wrote:

In terms of accommodations, he will also require a place to which he could "withdraw" or retire as necessary. I have communicated to the Sollazzos that they should stay at a hotel if travelling to see family in Europe, since the inability to "escape" the stimulation of large groups would negatively impact Mr. Sollazzo's functioning.

On July 26, 1999, Mr. DiPierdomenico wrote to Zurich by facsimile transmission notifying them for the first time of the trip and requesting funding for the upgrade to first class and for hotel accommodation. (The letter does not give the exact date for the trip, simply indicating that it was scheduled for September 1999.) On the same date, he applied for mediation.

Mr. Sollazzo is seeking these benefits as either a supplementary medical benefit (Part VII) or a rehabilitation benefit (Part VIII).

On July 28, 1999, Ms. Frances Cleary of Zurich responded to Mr. DiPierdomenico enclosing a copy of her request for a "Disability Certificate" that she had sent directly to Dr. Franklyn for a statement that the expense requested was reasonable and necessary as a result of the accident and enclosing an OCF-14 "Permission to Disclose Health Information to the Designated Assessment Centre," as she was also requesting a DAC assessment of the travel expenses and other items that were being sought.

Certificates can be requested relating to treatment under section 37 of Part VII or relating to rehabilitation under section 43 of Part VIII.

Dr. Franklyn provided a Disability Certificate dated August 12, 1999, which the Insurer apparently received a few days later.

The mediation proceeded on an expedited basis and failed on September 1, 1999. The report also includes as a preliminary issue that Mr. Sollazzo had not complied with the request for a DAC assessment, as set out in section 71.1 of the Schedule.

Mr. Sollazzo then applied for arbitration. The hearing on interim benefits could not be arranged until Mr. Sollazzo was already in Italy. The hearing proceeded on written materials and the submissions of counsel, although Mr. Sollazzo was available by telephone if required.

I will deal briefly with the preliminary issue regarding section 71.1 that was also raised in the Insurer's response and at the hearing. Section 71.1 provides that no insured person shall commence a mediation proceeding unless, among other things, he or she, when required, has submitted to and provided the information required for an assessment under sections 39 or 45. However, the request for a DAC was made before receipt of the certificate. Both subsections 39(1) and 45(1) only give the Insurer the right to require a DAC assessment after it receives the certificate. As Arbitrator Blackman stated in Lopez and State Farm Mutual Automobile Insurance Company³ with respect to this process under Part VII:

I find that this process is not merely a technical requirement, but rather reflects the economic and practical sense of requiring an insurer to first seek clarification from the treating care provider, before going to the far greater expense and intrusion of a DAC assessment.

I find this requirement applies equally to Part VIII. The request for a DAC was not repeated after the certificate was provided. Accordingly, the DAC assessment has not yet been required and Mr. Sollazzo was not in breach of section 71.1 at the time of the mediation or at the time of the interim benefits hearing.

I note that the certificate does not actually indicate that the additional travel expense is reasonable and necessary for Mr. Sollazzo's treatment (in the case of Part VII) or for his rehabilitation (Part VIII). However, the certificate was requested directly from Dr. Franklyn by the Insurer. If it is imperfect, I am not prepared to find that this somehow puts Mr. Sollazzo in breach of section 71.1.

Turning to the merits of Mr. Sollazzo's claim for interim benefits, I have difficulty in considering this claim as a medical treatment under Part VII. I find no prima facie case for this benefit under Part VII. The claim may at least be possible under Part VIII, as paragraph 40(1)(a) provides that where the insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures "to reduce or eliminate the effects of any disability resulting from the impairment." I have difficulty understanding why he could not escape large groups while staying with relatives. Surely other accommodations could have been made.

Whatever the merits of Mr. Sollazzo's case, I find that he has not shown the need, necessity, or a sense of urgency in his request. If indeed economy-class travel and accommodation with relatives was so risky for him, he did not have to go. The "emergent situation," as Mr. DiPierdomenico put it, arose through Mr. Sollazzo's own actions. Indeed, as Mr. DiPierdomenico expressed the matter to the Commission in his letter dated September 3, 1999: "[Mr. Sollazzo] will have the three (3) weeks visit with his relatives and family and this will be done whether Zurich honours its obligations to pay accident benefits or not at the proverbial risk of Mr. Sollazzo killing himself."

Accordingly, I find that Mr. Sollazzo does not meet the test for interim benefits, and the request is denied.

EXPENSES:

The question of expenses was deferred until all other issues in this motion were decided. Therefore, the issue of Mr. Sollazzo's expenses of this motion may now be addressed.

September 29, 1999

David Evans Arbitrator

Date