Neutral Citation: 1999 ONFSCDRS 208

FSCO A98-000102

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JEFFREY BLAKE

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

July 19 and 20, 1999, in Barrie, Ontario

Appearances:

Robert H. Littlejohn for Mr. Blake

Brian Bangay for Jevco Insurance Company

Issues:

Jeffrey Blake was injured in a motorcycle accident on October 13, 1994. Jevco Insurance Company ("Jevco") paid Mr. Blake statutory accident benefits under the Schedule¹ following the accident. Mr. Blake applied for arbitration for a determination of the correct amount of his income replacement benefit, pre-accident earning capacity, residual earning capacity, and of his loss of earning capacity benefits. He also claimed housekeeping expenses, interest on overdue benefits and his expenses in respect of the arbitration. Jevco claims its expenses in respect of the arbitration.

At the commencement of the hearing, Jevco moved for a stay of the arbitration pending receipt of a report from the designated assessment centre ("DAC") with respect to Mr. Blake's residual earning capacity. Mr. Blake opposed this request, and in turn moved for interim benefits, interim expenses and housekeeping expenses.

The issues are:

1. Should the hearing be stayed?

2. If so, is Mr. Blake entitled to interim benefits pending the hearing? At what rate should such benefits be paid?

3. Is Mr. Blake entitled to interim expenses?

4. Is Mr. Blake entitled to housekeeping expenses?

5. Is Mr. Blake entitled to his expenses? Is Jevco entitled to its expenses.

Result:

1. The hearing should not be stayed. Mr. Blake's claim for housekeeping expenses is severed from the remaining issues. The issues with respect to the amount of Mr. Blake's income replacement benefit, pre-accident earning capacity, residual earning capacity, and loss of earning capacity are adjourned to September 20, 21, 22 and 23, 1999, pending receipt of an assessment of Mr. Blake's residual earning capacity by a Designated Assessment Centre ("REC DAC") which fulfills the requirements of section 27(5) of the Schedule.

2. Mr. Blake is entitled to outstanding housekeeping expenses in the amount of $500. He is also entitled to housekeeping expenses on an ongoing basis at the rate of $50 per week.

3. Subject to the further Order of the hearing arbitrator, Mr. Blake is entitled to interim income replacement benefits at the rate of $292.07 from June 3, 1997 until 14 days after a REC DAC assessment report is received which fulfills the requirements of section 27(5) of the Schedule. Jevco is required to pay these amounts forthwith. Thereafter, benefits should be paid in accordance with section 23(5) and 23(5.1) of the Schedule pending determination of the dispute.

4. Mr. Blake is entitled to interest on overdue benefits under section 68 of the Schedule.

5. Subject to the further Order of the hearing arbitrator, Mr. Blake is entitled to interim disbursements in the amount of $1,738 to be paid forthwith.

6. If counsel are unable to agree, the question of expenses may now be addressed.

EVIDENCE AND ANALYSIS:

Jeffrey Blake is presently 33 years of age. He sustained severe soft tissue injuries to his right ankle in a motorcycle accident on October 13, 1994. One of the reports suggests that he may also have fractured that ankle. Mr. Blake had developed post-traumatic degenerative arthritis in his right ankle as a result of an earlier injury, however his ankle was largely asymptomatic. Following the October 1994 accident, Mr. Blake's ankle became highly symptomatic.

The preponderance of the evidence is that Mr. Blake is disabled from performing his pre-accident job as a welder steel fitter, fabricating metal parts for buildings. In the opinions of his family physician, Dr. I. Lindsay, his podiatrist, Dr. Patel, and his orthopaedic surgeons, Drs. G.A. Crawford, Peter Welsh and Charles Bull, Mr. Blake is disabled.

Dr. Michael Hall, an orthopaedic surgeon who conducted an insurer's examination, agrees that Mr. Blake is disabled. Dr. John Zeldin, an orthopaedic surgeon who assessed Mr. Blake on behalf of Jevco in 1997, agreed with the diagnosis of post-traumatic arthritis of a progressive nature. However, he noted that pain tolerances vary and suggested that with pain killers, work boots and orthotics, Mr. Blake should be able to work. Those suggestions had already been made by Dr. Crawford in March 1995, and tried by Mr. Blake with less than satisfactory results. There is evidence that Mr. Blake is now developing hip problems which may be a consequence of his ankle injury.

There is some opinion evidence that Mr. Blake is not able to work at all on a physical basis. Much of the evidence suggests that Mr. Blake may be physically capable of sedentary work. A clarifying statement from the REC DAC suggests that Mr. Blake requires assistance in coping with his pain in order to re-train him for a part-time position. This statement may mean that Mr. Blake's residual earning capacity should be assessed based on his ability to do part-time work, or based on his being unemployable.

The central dispute between the parties is the extent to which Mr. Blake's earning capacity has diminished as a result of his injury.

I adjourned the hearing to a date which was agreeable to counsel and to the Commission. I advised counsel of my decision with respect to the issues raised before me on July 19 and 20, 1999 by letters dated July 28, 1999 and September 14, 1999, with reasons to follow. These are my reasons.

Stay

Mr. Blake rejected the Insurer's offer in respect of pre-accident earning capacity and residual earning capacity. Jevco arranged for WORK ABLE to conduct a REC DAC. The assessment was originally scheduled to take place in February 1997, but Mr. Blake did not attend. Jevco corresponded with Mr. Blake's family physician about the reasons for his non-attendance and then scheduled a further assessment which Mr. Blake attended. Over a two-week period Mr. Blake underwent a medical evaluation, a physiotherapy evaluation, a psychovocational assessment and a one-week situational assessment at WORK ABLE. The assessors issued a report dated May 1, 1997 which stated: "The assessment findings do not represent a valid profile of Mr. Blake's ability to earn based on his poor effort secondary to a strong pain focus and the resultant poor worker behaviours evidenced. No residual earning capacity can be determined."

On May 23, 1997, Jevco wrote Mr. Blake that his residual earning capacity could not be determined because he failed to co-operate in the assessment. In the same letter Jevco informed Mr. Blake that it was terminating his income replacement benefits, and would pay him loss of earning capacity benefits, ("LECB"). Jevco further advised Mr. Blake that although it had earlier offered to pay an LECB of $7.78 per week, due to a calculation error, the correct amount was zero. Mr. Blake applied for mediation and arbitration.

At the pre-hearing, the parties agreed that Jevco would arrange a further REC DAC, at one of two agreed upon designated assessment centres, subject to certain terms and conditions. The first DAC declined the referral due to staffing issues; the second refused to be bound by the parties' terms and conditions.

Jevco submits the REC DAC was unable to reach a conclusion about Mr. Blake's residual earning capacity because of his poor productivity and commitment to the assessment. Jevco submits that taken in conjunction with his initial non-attendance at the REC DAC, this amounted to a failure to co-operate within the meaning of section 23(6) of the Schedule, triggering section 23(4) of the Schedule.

Section 23(4) provides that if an insured person rejects the insurer's offer in respect of both pre-accident earning capacity and residual earning capacity, he or she may seek to resolve the dispute through mediation and adjudication, however "no steps shall be taken under sections 279 to 283 of the Insurance Act, other than the filing of an application for mediation, pending receipt of the report of the designated assessment centre under section 27." Jevco sought a stay of the arbitration. Mr. Blake wished to proceed with the hearing.

The relevant portions of section 23(6) provide that where no report has been submitted under subsection 27(5) and the DAC informs the insurer that this is because of the insured person's failure to co-operate, the insurer may, on notice to the person, and until a report is submitted under subsection 27(5) pay LECBs based on the insurer's LECB offer.

I agree with Jevco's submission that advice from a DAC of a failure to co-operate coupled with the withholding of a report under subsection 27(5) would trigger the operation of section 23(4). However, those are not the circumstances of this case. The DAC did not issue a statement that Mr. Blake failed to co-operate within the meaning of the Schedule. The fifty-six page report of the DAC does not contain those words.

The REC DAC report is flawed in that it fails to set out much of the material required by subsection 27(5) of the Schedule. I find no evidence that the DAC informed Jevco that a report was not submitted because of Mr. Blake's failure to co-operate. Nor do I infer from the evidence that the DAC intended to issue such a statement. The occupational therapist at the DAC provided a clarifying statement, that Mr. Blake has a serious injury, was not malingering, and demonstrated an ability to perform part-time sedentary work. She also stated that she would not hire him and believed no one would do so because of poor productivity, timeliness and pain focus. In my view, the therapist makes it clear that Mr. Blake's pain behaviours are a consequence of his pain which results from the accident. She also recommended his admission to a pain management clinic to assist him in coping with his pain "to re-train him for a part-time position. Pain has taken over his life."

I do not believe that a stay of Mr. Blake's arbitration application is an appropriate remedy in these circumstances. In my view, the Schedule prescribes a stay where the arbitration application is premature and the parties have not attempted to comply with the detailed process and requirements imposed by the Schedule. Mr. Blake attended and participated at a REC DAC which provided a report, albeit one which is flawed. A stay is a severe remedy in that it freezes the process and prevents Mr. Blake from taking any further steps. For example, in this case, a stay would prevent him from seeking interim or other relief.

REC DAC assessments were introduced into the statutory accident benefit regime by the Statutory Accident Benefits Schedule —Accidents on or after January 1, 1994 and before November 1, 1996.² Such centres provide opinions about suitable employment having regard to the insured person's personal and vocational characteristics, impairment, possible deterioration in impairment, and current capacity to earn income. They are also required to identify the gross annual income the person could earn from that type of employment, and give reasons for their conclusions. REC DAC assessments are an integral part of the process of resolving disputes about residual earning capacity. If parties agree with the DAC's opinion, the dispute is at an end. If the parties disagree, then the dispute may be adjudicated.

While there is other evidence with respect to Mr. Blake's residual earning capacity, in light of the statutory scheme, I find it appropriate to adjourn the matter to allow an assessment to take place and a report to be issued which fulfills the requirements of section 27(5) of the Schedule.

WORK ABLE has indicated that it can conduct the assessment in the near future. I appreciate Mr. Blake's concern that thirteen months have elapsed since the agreement that he would attend a further DAC. However, the additional delay is unlikely to be lengthy. The report may assist the parties in resolving their dispute. If they are unable to do so, the report may also assist the hearing arbitrator in determining many of the issues raised in this arbitration.

I decline to determine whether the WORK ABLE report, dated May 1, 1997, should be excluded from evidence at the hearing. The Applicant may renew his request for such an order to the hearing arbitrator who will determine whether the evidence is relevant and material or whether it should be excluded.

Interim benefits

Mr. Blake moved for interim income replacement benefits commencing June 3, 1997, when Jevco terminated those benefits, to the date of the hearing. Mr. Blake claims entitlement to a higher income replacement benefit. However, he submitted that on an interim basis, Jevco should be required to pay $292.07, since this was the amount Jevco paid until June 2, 1997.

Jevco submitted that no income replacement benefits were payable at this point, only loss of earning capacity benefits, because of the 1995 amendments to the Schedule. Jevco also submitted that any interim order should commence on the day of the motion, and end 14 days after the REC DAC report was received, and be made subject to the further order of the hearing arbitrator.

Amount and type of benefits

Generally, the proper time and place for a determination of entitlement to benefits is at the hearing.³ However, section 279(4.1) of the Insurance Act gives arbitrators the authority to make interim orders.

Jevco submitted that the Gan Canada Assurance Company and Lehman⁴ decision of Director's Delegate Draper is authority for two propositions. The first of these is that the 1995 amendments to the Schedule apply to accidents which happened in 1994, before the amendments were passed. I agree that the Lehman case is authority for this proposition. I also agree that I am bound by that interpretation, because it is a clear statement that the 1995 amendments to the Schedule affect ongoing claims arising from accidents which occurred before January 1, 1995.

I disagree that the Lehman decision is authority for the second proposition, that the 1995 amendments mean that an insurer may stop paying income replacement benefits and substitute its own offer of loss of earning capacity benefits pending the report of a REC DAC which fulfills the requirements of section 27(5) of the Schedule. I accept that the Lehman appeal decision contains a statement to this effect. However, the parties to that arbitration either assumed or agreed that was the consequence of the 1995 amendments, and did not seek an interpretation on this point. There is no indication that this issue was argued before or interpreted by the Arbitrator or by the Director's Delegate. Accordingly, that statement of the Director's Delegate is obiter and not binding on me.

The specific question before me, whether the 1995 amendments to section 23(8) of the Schedule permit an insurer to substitute the payment of loss of earning capacity benefits for income replacement benefits before the receipt of a REC DAC report, has been ably addressed by my colleagues, in the cases of Simpson and Trafalgar Insurance Company of Canada (FSCO A98-000215, July 16, 1998) by Arbitrator Palmer, in Rocca and Gan Canada Insurance Company (FSCO A97-000147, December 31, 1998) by Arbitrator Evans, and most recently in Martins and Commercial Union Assurance Company (FSCO A98-000552, March 24, 1999) by Arbitrator McMahon. In each case, the arbitrator has concluded that income replacement benefits continue to be payable pending receipt of the REC DAC report. I am not persuaded that I should depart from my colleagues' reasons or conclusions. They have provided a detailed and reasoned analysis of the provisions in question, having regard to the earlier Schedule, the nature of the legislative scheme, and the legislative purpose of the amendment. I agree with and adopt their reasons and conclusions as follows:

In the 1994 Schedule, section 23(8) made it clear that an insurer was obliged to continue to pay income replacement benefits pending final resolution of a dispute about a person's loss of earning capacity benefits, if the person continued to qualify for those benefits.⁵ It could only substitute a loss of earning capacity benefit where the insured person did not challenge the REC DAC's findings.⁶

In the 1995 Schedule the reference to income replacement benefits being payable pending resolution of the dispute was deleted from section 23(8). The amended version refers only to the obligation to continue paying caregiver or "other disability" benefits.

Section 23(5) of the 1995 Schedule says that two weeks after the REC DAC report is received, an insurer may commence paying loss of earning capacity benefits to the insured person, based on its figure for pre-accident earning capacity and based on the REC DAC's determination of residual earning capacity.

Viewed in the total context of the Schedule, this language implies that the insurer is paying some other amount until this time.⁷ Since by the act of making an LEC offer it has implicitly accepted that the insured person's disability continues, then he or she continues to qualify for income replacement benefits ("IRBs") under the provisions of section 7.⁸

Section 31 of the Schedule provides for a termination of income replacement benefits once LECBs commence or are determined to be zero. That subsection would be redundant if those benefits "automatically terminated at 104 weeks...Such an interpretation would not accord with the basic legal principle that all parts of the regulation should be interpreted to have meaning. Section 8 sets out no such automatic termination. Neither would it make sense in the context of an elaborate scheme providing income to injured persons that an insurer could unilaterally determine the amount of LEC to be paid between the LEC offer and the delivery of the RECDAC report."⁹

Similarly, section 23(6) which provides that the insurer may begin to pay a loss of earning capacity benefit to an insured person if a REC DAC informs an insurer that it is unable to issue a report because of the insured person's failure to co-operate would be redundant if the insurer already had the right to substitute a loss of earning capacity benefit.¹⁰

"To allow the insurer to substitute the LECB for the income replacement and education benefits subsection 23(8) had to be amended by deleting the reference to income replacement and education benefits. To my mind, the substantive change to the parties' rights was effected by the amendment to subsection 23(5). The amendment to subsection 23(8) was merely a housekeeping change necessitated by the amendment to subsection 23(5). It did not, as suggested by the Insurer, signal the legislature's intention to relieve the Insurer of its obligation to continue paying IRBs once an LECB offer was delivered."¹¹

For these reasons I conclude that Mr. Blake is entitled to be paid income replacement benefits at the rate of $292.07. Since these benefits are payable by virtue of the Schedule, they should be paid from June 3, 1997, the day after they were terminated, until 14 days following receipt of a report which fulfills the requirements of section 27(5), pursuant to the provisions of section 23(5) and 23(5.1). At the request of counsel for the Insurer, I clarify that Mr. Blake is also entitled to interest on these income replacement benefits pursuant to section 68 of the Schedule.

A special award claim was made in passing during the Applicant's submissions. Considerations of fairness and natural justice require notice of such a request.¹² There is nothing which indicates that the Applicant provided such notice. The Applicant may renew this request to the hearing arbitrator on proper notice to the insurer.

Interim disbursements

Mr. Blake sought interim disbursements. Jevco submitted that expenses should be dealt with following the hearing. Section 282(11.1) of the Insurance Act, gives an arbitrator the authority to make an interim award of expenses. Such an award may be varied and reviewed by the hearing arbitrator. In the case of Bernicky and Guardian Insurance Company of Canada,¹³ Arbitrator Manji identified three criteria which may guide an arbitrator in determining whether an interim award of expenses is appropriate: the arbitration application raises a bona fide issue; the expenses claimed are reasonable and necessary for the conduct of the arbitration; and, the applicant is unable to carry the expenses claimed until the arbitration hearing. I agree with and adopt these criteria.

I find Mr. Blake's arbitration application raises a bona fide issue. I accept that he is unable to carry the expenses until the arbitration hearing given that he is on welfare. As Arbitrator Manji noted in Bernicky, a decision to award interim benefits is made on the basis of evidence which will often be insufficient for the purpose of the final decision. Although arbitration is an informal process, I believe that the party making a request for interim expenses has some obligation to provide evidence of the amount of each disbursement being sought. This permits an arbitrator to determine if the amount of the expense is reasonable in relation to a Schedule of Dispute Resolution Expenses, which limits the extent to which individual items may be reimbursed. I find that it is not sufficient to advise the arbitrator that a global amount of $5,052 has been incurred in disbursements.

There is evidence of a $138 invoice for hospital records, and of a $100 filing fee for arbitration. I award both on an interim basis. The Applicant has obtained several reports which address the nature and extent of his disability. I accept that the Applicant has incurred significant disbursements. In the circumstances of this case I award a further $1,500 towards medical reports on an interim basis. This is the maximum amount which may be incurred for any one report. As noted earlier, the $1,738 amount is subject to the further order of the hearing arbitrator. Jevco is to pay these amounts forthwith.

Severance

Mr. Blake requested that the hearing proceed with respect to his entitlement to housekeeping expenses, since the matter was scheduled for a hearing. Jevco opposed this request and submitted that if the matter proceeded it should be dealt with only on an interim basis, and be subject to review by the hearing arbitrator.

Generally where feasible, all issues should be dealt with in one hearing. However, Rule 31 of the Dispute Resolution Practice Code — Third Edition, April 15, 1997 gives an arbitrator discretion to sever issues when he or she considers it appropriate. Preliminary issues, such as time limit issues, are routinely severed from other issues raised in an arbitration, where success on that issue may determine the arbitration.

The central dispute between the parties in this case is the extent to which Mr. Blake's earning capacity has been diminished by his injury. I consider it appropriate to sever the issue of Mr. Blake's entitlement to housekeeping benefits from the loss of earning capacity issues under Part 6 of the Schedule for the following reasons. Mr. Blake's claim for housekeeping expenses is made under Part 13 of the Schedule, "Compensation for Other Pecuniary Losses." It is a discrete issue from the loss of earning capacity issues under Part 6 of the Schedule. The outcome of either claim is not contingent on the outcome of the other. There is no general issue as to credibility raised in this arbitration. While there is a valid reason for adjourning the hearing to permit a REC DAC assessment to issue a report which complies with the requirements of section 27(5) of the Schedule, I find no valid reason for delaying the adjudication of Mr. Blake's claim for housekeeping expenses. The claim for housekeeping expenses is based on a significant objective injury, which worsens with time. The matter had been scheduled for a hearing more than a year ago, and Jevco terminated Mr. Blake's housekeeping expenses in February 1996.

Housekeeping expenses

Mr. Blake claims housekeeping expenses at the rate of $50.00 per week from November 26, 1995, and ongoing. He submitted an invoice to Jevco for the period from November 26, 1995 up to and including February 4, 1996, in the amount of $500, not $400 as stated in my letter. Jevco denied payment of this claim and all future claims for housekeeping expenses by letter dated February 20, 1996. Section 55 of the Schedule governs the payment of housekeeping and home maintenance services and provides:

55. If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.

Mr. Blake must establish that he sustained an impairment, that he has additional expenses, that they are reasonably incurred as a result of the accident, and that the services constitute housekeeping and home maintenance.

Mr. Blake has post-traumatic arthritis of his right ankle which became symptomatic as a result of the October 1994 accident. He testified that he consistently has some level of pain in his right ankle, which at times worsens. He also develops painful intermittent swelling in his ankle on hot humid days, when he stands or walks for too long, or at times with the slightest twisting or untoward movement in his ankle. The swelling causes a further increase in his pain. Dr. Ian Lindsay, Mr. Blake's family physician, testified that the swelling means "a lot of ongoing damage within the ankle joint." Mr. Blake has to get off his feet completely and keep his foot elevated." Dr. Lindsay testified that at times there is no swelling in Mr. Blake's ankle. However, given the progressive nature of the arthritis, as time goes on the periods when he is relatively symptom free will be shorter, and eventually he will have constant pain. Surgery is an option; however, there is no guarantee that it would relieve his pain. He would then have an immobile ankle joint which gives rise to additional problems.

I accept Dr. Lindsay's testimony that Mr. Blake's injury severely limits his activities. He cannot walk for any great distance, stand for more than 15 to 20 minutes, crouch or squat down, or do heavy lifting, or anything which involves putting weight on his ankle joint. It prevents him from working at his pre-accident job and from participating in sports. Specifically with respect to his housekeeping duties, he needs assistance cleaning the bathtub, vacuuming, cleaning windows, washing large quantities of dishes, ironing, making a bed, changing sheets, grocery shopping and cooking meals.

Mr. Blake agrees he is able to do the other chores, however, once he does them, he is "back to square one again," with pain and swelling. I accept Dr. Lindsay's opinion that the swelling is indicative of further damage to Mr. Blake's ankle joint. I do not accept that the Schedule requires Mr. Blake to cause further damage to his ankle by performing these chores. In these circumstances I find it reasonable that Mr. Blake obtain assistance with his housekeeping and home maintenance chores. I find 8 hours per week a reasonable amount of assistance for Mr. Blake between November 26, 1995 and the date of the hearing. I find the amount claimed of $50 per week to be modest and therefore reasonable.

Mr. Blake's mother, Mrs. Hilda Robinson, who is presently 73 years of age, testified at the hearing that she had provided the services which her son billed to Jevco. She testified that up until about 1997 her son paid her $50 per week for the house cleaning services. Since that time, she has continued to do her son's housekeeping and laundry about once a week, although not every week. Prior to her retirement she worked for fifteen years at the Royal Victoria Hospital where her duties were primarily cleaning patients' rooms, washing beds, dusting floors and general cleaning. I accept her testimony. She is a patient of Dr. Lindsay. Dr. Lindsay opined that she is physically able to perform these services once per week.

Mr. Blake lives in a two-bedroom apartment. I heard much evidence as to whether Mr. Blake was separated at the time of the accident, and some evidence of his pre-accident household chores. In Kats and Axa Insurance (Canada), Arbitrator Palmer stated:

It is my sense of the language of section 55 and its placement within Part 13 that housekeeping and home maintenance services formerly provided by an insured person are to be replaced, where an insured person sustains an impairment as a result of an accident and additional expense is reasonably incurred. However, if you as an able-bodied person, or otherwise, each winter before the accident paid to have your driveway and walks shovelled, the Insurer will not now pay solely because you are now personally unable to perform the work. Only additional expenses are payable and only where reasonably incurred. The section also seems to contemplate that the services required may change over time, demanding no static test, such as housekeeping services required "at the time of the accident."¹⁴

I agree with Arbitrator Palmer that, unlike other sections of the Schedule which contemplate a comparison between pre-accident and post-accident activities, section 55 contemplates that housekeeping and home maintenance services required may change over time, and demand no static test, such as housekeeping services required "at the time of the accident." Mr. Blake's circumstances may change over time. For example, he may need a different level of services, or he may have to obtain these services from someone other than his mother. Hopefully, the parties will be able to agree to appropriate changes.

If this interpretation of section 55 is incorrect, I find, based on Mr. Blake's testimony, that of his mother, the letter from his wife which was faxed from New York, along with a copy of his daughter's school picture for the 1994-1995 school year, that Mr. and Mrs. Blake were separated prior to the accident. Mr. Blake was therefore responsible for the housekeeping in his two-bedroom apartment, and for any maintenance which his landlord did not perform, such as changing light bulbs.

Jevco questioned whether the services provided by Mrs. Robinson were replacing those provided by Mr. Blake's wife prior to their separation. I accept Mrs. Robinson's testimony that she only began to provide housekeeping services for her son post-accident. She acknowledges that she "helped out" with her granddaughters prior to the accident. Since Mr. Blake enjoys frequent access to his daughters, she continues to do so. I find no evidence that Mr. Blake incurred housekeeping and home maintenance services prior to this accident. The expense claimed is therefore additional. I conclude that Mr. Blake has established his entitlement to the housekeeping expenses which he claims.

Interest

Mr. Blake is entitled to interest on overdue benefits under section 68 of the Schedule.

Expenses

The Applicant claimed expenses, including costs thrown away; the Insurer submitted that those expenses should be determined following the final hearing of the matter. The Insurer also claimed its expenses in respect of the hearing. I advised counsel of my decision with respect to expenses in a letter dated September 14, 1999. Counsel for the Applicant advised me that both counsel wished further clarification of my expenses Order.

Rule 75.1 provides that the parties will jointly inform the arbitrator at the conclusion of the hearing that neither party seeks to have an Offer to Settle or a Response to an Offer to Settle considered by the adjudicator in connection with an award of expenses. Since neither counsel informed me that they were seeking to have an Offer to Settle or a Response to an Offer to Settle considered by me in relation to an award of expenses, I am prepared to reopen the hearing with respect to the issue of expenses, unless counsel are able to agree upon this issue.

October 28, 1999

Suesan Alves Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 208

FSCO A98-000102

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JEFFREY BLAKE

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Blake's claim for housekeeping expenses is severed from the remaining issues. The issues with respect to the amount of Mr. Blake's income replacement benefit, pre-accident earning capacity, residual earning capacity and loss of earning capacity are adjourned to September 20, 21, 22 and 23, 1999, pending receipt of an assessment of Mr. Blake's residual earning capacity by a REC DAC which fulfills the requirements of section 27(5) of the Schedule.

2. Jevco shall pay Mr. Blake outstanding housekeeping expenses in the amount of $500, and thereafter at the rate of $50 per week.

3. Subject to the further Order of the hearing arbitrator, Jevco shall pay Mr. Blake interim income replacement benefits at the rate of $292.07 from June 3, 1997 until 14 days after a REC DAC assessment report is received which fulfills the requirements of section 27(5) of the Schedule. Jevco shall pay these amounts forthwith. Thereafter, benefits should be paid in accordance with section 23(5) and 23(5.1) of the Schedule pending determination of the dispute.

4. Jevco shall pay Mr. Blake interest on overdue benefits under section 68 of the Schedule.

5. Subject to the further Order of the hearing arbitrator, Jevco shall pay Mr. Blake interim disbursements in the amount of $1,738 to be paid forthwith.

6. If counsel are unable to agree, the issue of expenses may now be addressed.

October 28, 1999

Suesan Alves 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, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
2. 2Ontario Regulation 776/93.
3. 3Gomez and Pilot Insurance Company (OIC A-013080, May 10, 1995) and Cripps and AXA Insurance (Canada) (OIC A-013360, August 8, 1997)
4. 4(P97-00064, August 10, 1998)
5. 5Simpson op. cit.
6. 6Martins op.cit.
7. 7Simpson and Rocca, op.cit.
8. 8Simpson, op.cit.
9. 9Simpson, op.cit.
10. 10Martins, op.cit.
11. 11Ibid.
12. 12Clark and Royal Insurance Company of Canada (P97-00008, September 26, 1997)
13. 13(A-006268, July 6, 1994)
14. 14(OIC A97-000194, December 22, 1997)