Neutral Citation: 1999 ONFSCDRS 225

FSCO A98-001079

BETWEEN:

SONIA SALAMA

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Beth Allen

Heard:

September 20 and 22, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mrs. Salama on her own behalf

J. Lynne Frank for Liberty Mutual Insurance Company

The Applicant, Sonia Salama, was injured in a motor vehicle accident on March 23, 1996. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Mrs. Salama seeks reinstatement of benefits for chiropractic treatment which Liberty Mutual terminated on September 7, 1997. She also claims entitlement to income replacement benefits (IRBs), a lump sum education benefit and prescription, transportation, housekeeping and dependant care benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Salama applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Salama precluded from proceeding to mediation (and hence to arbitration) of the IRB issue because she failed to comply with section 59 of the Schedule?
Is Mrs. Salama entitled to IRBs under section 7 of the Schedule?
What is the correct amount of Mrs. Salama's IRB pursuant to section 10 of the Schedule?
Is Mrs. Salama entitled to a lump sum education benefit under section 16 of the Schedule?
Is Mrs. Salama entitled to chiropractic treatment, prescription and/or transportation expenses under section 36 of the Schedule?
Is Mrs. Salama entitled to dependant care expenses under section 54 of the Schedule?
Is Mrs. Salama entitled to housekeeping expenses under section 55 of the Schedule?
Is Mrs. Salama entitled under subsection 282(11) of the Act, to her expenses incurred in respect of the arbitration hearing?
Is Liberty Mutual entitled under subsection 282(11) of the Act, to its expenses incurred in respect of the arbitration hearing?
Is Mrs. Salama liable under subsection 282(11.2) of the Act to pay Liberty Mutual an award in an amount of up to its $3,000 assessment fee?

Mrs. Salama has complied with section 59 of the Schedule and hence, is not precluded from proceeding to mediation (and hence arbitration) on the IRB issue.
Mrs. Salama is not entitled to IRBs under section 7 of the Schedule.
Since I find that Mrs. Salama is not entitled to IRBs, I make no findings on the amount of her benefit.
Mrs. Salama is not entitled to a lump sum education benefit under section 16 of the Schedule.
Mrs. Salama is not entitled to chiropractic, prescription and/or transportation expenses under section 36 of the Schedule.
Mrs. Salama is not entitled to dependant care benefits under section 54 of the Schedule.
Mrs. Salama is not entitled to housekeeping expenses under section 55 of the Schedule.
I reserve my decision on the expense and assessment award issues under subsections 282(11) and (11.2) of the Act.

Background:

On Saturday, March 23, 1996, Mrs. Salama was driving with a friend when her vehicle struck a van which had entered the lane in which she was driving. An ambulance transported her to North York General Hospital. Mrs. Salama stated that she was examined, given pain killers and discharged from the hospital that day into the care of her family doctor.

Mrs. Salama had obtained a job with Zurich Canada ("Zurich") as an accounting assistant about two weeks before the accident. Following the accident, she was absent from her job at Zurich for two days — on March 25 and March 27, 1996. She testified that at this job, she was responsible on a national level for reconciling the accounts receivable of insurance brokers. Mrs. Salama described her job as requiring desk, telephone, computer work and mental work with numbers. She characterized her dealings with brokers as high pressure. She continued to work at Zurich until November 20, 1997. Subsequently, she obtained three further full-time accounting/ bookkeeping positions. From April 20, 1998 until January 15, 1999, she worked as a bookkeeper with the Corporation of the Council of the Ministers of Education, Canada ("the Council"). Overlapping with the Council position, in June 1998 she began a position with the Assessment Review Board (Ontario), where she remained until April 8, 1999. She then commenced working with the Ministry of Finance (Ontario) where she continues to work as a field auditor. Mrs. Salama also claims that at the time of the accident, she was enrolled in a course for credit towards a Certified General Accountant (CGA) certificate.

Arguments and Analysis:

Entitlement to Income replacement benefits

Mrs. Salama's claim for IRBs is somewhat unclear. In her Application for Accident Benefits dated April 23, 1996, Mrs. Salama claims that from March 25, 1996, her accident-related injuries prevented her from performing the essential tasks of her employment. Liberty Mutual paid her no IRBs because she returned to work, only missing two days within the first week after the accident. However, Mrs. Salama did not dispute the IRB issue at mediation which was conducted on May 19, 1998. But she indicated in her Application for Arbitration, date-stamped as received by the Commission on August 10, 1998, that she is disputing the amount of and her entitlement to IRBs. At the initial pre-hearing discussion held on January 25, 1999, the IRB entitlement issue (but not the quantum issue) was included as an issue for the arbitration.

Notations in her Application for Arbitration suggest that her IRB claim is based on her contention that she lost her job at Zurich because of accident-related injuries. At the hearing she testified that she is seeking IRBs for March 25 and 27, 1996 and for other days when she was absent from Zurich because of her accident-related injuries. She also claims she lost her job because of the accident and, for this reason, she claims IRBs for the period from November 20, 1997 (when she left Zurich), until April 20, 1998 (when she started working for the Council).

Liberty Mutual submits, on both procedural and substantive grounds, that Mrs. Salama is not entitled to IRBs.

Section 59

On the procedural level, Liberty Mutual asserts that Mrs. Salama failed to comply with the 90-day limitation period set out in subsection 59(3) of the Schedule. Section 59 states:

59.-(1) A person who wants to apply for benefits under this Regulation shall notify the insurer within thirty days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and

(c) written information to assist the person in applying for benefits including information to assist the person in making any possible elections.

(3) The person shall submit an application for the benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a time limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse.

According to Liberty Mutual, Mrs. Salama failed to submit an application for IRBs within 90 days of receiving the application forms and hence is precluded from proceeding to mediation on this issue. In correspondence dated April 3, 1996, the claims representative from the Prudential (later, Liberty Mutual) on Mrs. Salama's case at that time, confirmed that at the initial interview on March 29, 1996, she had provided Mrs. Salama with a package of accident benefit application forms. Liberty Mutual contends that since Mrs. Salama did not claim IRBs in her Application for Accident Benefits and submitted no further applications, she has breached section 59 and is not entitled to proceed to mediation (and hence arbitration) on this issue.

I do not agree with Liberty Mutual's view of Mrs. Salama's Application. I find that she did not breach section 59, since she did apply for IRBs in her Application to the extent that the Application form permits her to do so.That is, the form does not ask for an affirmative or negative answer as to whether an applicant wants IRBs. Mrs. Salama completed the employment information on the form, indicating she had suffered an accident-related injury, and selected the income period for the purpose of calculating her benefit. I therefore find that Mrs. Salama applied for IRBs in compliance with the 90-day deadline.

The IRB issue was not mediated, but it appears that Mrs. Salama added this issue at the initial pre-hearing discussion. It does not appear from the January 29, 1999 pre-hearing letter that Liberty Mutual objected to including this issue on the grounds that Mrs. Salama did not raise it at mediation.² I received no evidence and heard no submissions from Liberty Mutual that it objected to including this issue.

I find therefore that Mrs. Salama is not barred from proceeding to arbitration on the issue of her IRB entitlement.

Claim for IRBs:

On March 25, 1996, two days after the accident, Mrs. Salama visited her family doctor, Dr. Brian Berger, and her chiropractor, Dr. M.B. Shrott. In his clinical note for March 25, 1996, Dr. Berger indicated that Mrs. Salama sustained a neck whiplash-type injury, a bruised chest, rib and right ankle sprains and a nasal scar in the accident. X-ray results were negative. Dr. Berger suggested Mrs. Salama apply ice to the affected areas and prescribed Tylenol 2s for pain. He recommended she rest, take two days off work and not seek chiropractic treatment for her injuries, but rather undergo massage treatment. Dr. Berger's April 2, 1996 note indicates that Mrs. Salama had returned to work, had minimal spasm in her right neck, but "felt much better." Against Dr. Berger's recommendation, Mrs. Salama has continued to see her chiropractor since the accident.

Liberty Mutual argues that Mrs. Salama has not proved, in accordance with section 7 of the Schedule, that her accident-related injuries substantially prevented her from performing the essential tasks of her job as an accounting assistant at Zurich; and that she has no coverage for the two days she was absent since they fell within the first week following the accident. The relevant provisions of the Schedule state:

7.-(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

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.

[emphasis added]

8.-(3) No weekly income replacement benefit is payable under this Part for the first week of the disability.

In response to Mrs. Salama's claim that she missed more that two days from Zurich because of the accident, Liberty Mutual produced Mrs. Salama's attendance records from Zurich and questioned Mrs. Salama about her attendance following the accident. During cross-examination, Mrs. Salama brought no credible evidence to show that she was absent because of the accident on any days, except March 25 and March 27, 1996. In fact, the records show, and I find, that she continued to work at Zurich without accident-related absences, other than the noted dates, until Zurich terminated her employment on November 20, 1997. Furthermore, Mrs. Salama has held three jobs with different employers since Zurich and continues to the present to work for the Ministry of Finance.

Mrs. Salama claims that neck pain and depression, which she alleges were caused by the accident, affected her ability to perform her high-pressure job at Zurich. I find she gave scant evidence about the requirements of her job and how her injuries affected her performance. Liberty Mutual confronted her on cross-examination with the clinical notes and records of Dr. Berger and Dr. Shrott. Liberty Mutual submits, and I find, that this evidence reveals that for years before and up to the time of the accident, Mrs. Salama suffered from and was receiving treatment for neck pain and depression. In response to this evidence, Mrs. Salama stated, without providing substantiation, that the accident aggravated these conditions and affected her on her job. I need not decide the aggravation issue since I find that Mrs. Salama failed to show she was absent from work because of these conditions, and accordingly has not proved that the accident affected her job performance. She is not entitled to IRBs in respect of her employment with Zurich, since the only days she was absent from work because of her accident-related injuries were the two days during the first week after the accident.

Mrs. Salama claims that her accident-related injuries prompted her to leave Zurich. Liberty Mutual submits that Mrs. Salama has failed to substantiate this claim. It produced Mrs. Salama's November 1997 employment records from Zurich, which it argues establishes that Zurich dismissed Mrs. Salama because of poor conduct in relation to her co-workers. It produced several memoranda and termination documents which indicate that she had been engaging in disruptive and uncooperative conduct towards her co-workers and superiors, resulting in Zurich terminating her employment and offering her severance pay in lieu of notice. Mrs. Salama refused to answer Liberty Mutual's questions about this and generally conducted herself in a very disruptive and hostile manner.

I find that Mrs. Salama produced no credible evidence that she left her job at Zurich because of the accident. I accept the evidence that Zurich dismissed Mrs. Salama because of her conduct in relation to her co-workers. She brought no credible evidence to show that she was unable, because of accident-related injuries, to work during the period between her Zurich job and her job with the Council. She is therefore not entitled to IRBs for this period.

Amount of the IRB

Mrs. Salama's claim for an IRB amount was not precise. She claims generally that the amount should be based on her gross annual income of $29,000 from Zurich for the 52 weeks before the accident. Liberty Mutual argues that despite many requests, Mrs. Salama failed to produce employment benefit policies before the hearing to establish whether she was entitled to loss of income benefits through her employers which would be deductible from any IRB recovery.

Since I find that Mrs. Salama is not entitled to IRBs, I need not decide the collateral benefits and quantum issues.

Lump Sum Education Benefit

Mrs. Salama claims entitlement under section 16 of the Schedule to a lump sum of $412 to cover her expenses for books and tuition for a CGA course she was attending but was allegedly unable to complete because of the accident. Liberty Mutual argues that she does not meet the qualifications for this benefit. Subsection 16(1) states:

16.-(1) Subject to subsections (2) and (3), an insured person who sustains an impairment as a result of an accident is entitled to a lump sum education disability benefit of,

(a) $2,000 for each year of elementary education that the person is unable to attend or successfully complete as a result of the accident;

(b) $4,000 for each year or, if the person is enrolled in a secondary school organized on a semester basis, $2,000 for each semester, to a maximum of $4,000 in any year, of secondary education that the person is unable to attend or successfully complete as a result of the accident; and

(c) $8,000 for each year or, if the person is enrolled in a post-secondary education institution organized on a semester basis, $4,000 for each semester, to a maximum of $8,000 in any year, of post-secondary education that a person is unable to attend or successfully complete as a result of the accident.

Mrs. Salama provided little information other than brief oral evidence about her course. I found this evidence unpersuasive. She provided no documentary proof that she was enrolled in the course, that the course meets the requirements of elementary, secondary or post-secondary education or that the accident prevented her from completing it. Accordingly, I find Mrs. Salama has not established her entitlement to the lump sum payment she claims.

Supplementary medical benefits

Mrs. Salama claims expenses for chiropractic treatment and prescription and transportation expenses under section 36 of the Schedule. She submits that she needs treatment and medication to relieve the physical and emotional injuries she sustained in the accident. Mrs. Salama also testified that she incurred expenses travelling to and from medical appointments, which expenses, in her opinion, Liberty Mutual is obligated to reimburse.

Liberty Mutual submits that the issue of prescription and transportation expenses were not mediated and for this reason should not be included in the arbitration. Mrs. Salama disagrees. She points to the Report of Mediator which refers to these issues, among the other issues mediated, as resolved. Mrs. Salama contends that the parties discussed these issues but did not ultimately resolve them. Although she was represented by counsel at mediation, she was not represented thereafter in the arbitration process. She completed her Application for Arbitration herself and did not specifically identify the medical benefits she was claiming. However, the pre-hearing letter which summarizes the issues from the initial pre-hearing, indicates that "various medical/rehabilitation benefits, including chiropractic treatment" are in dispute.

Under these circumstances, I am prepared to accept that the transportation and prescription issues were mediated as required under the Act and, in absence of evidence to the contrary, remained in dispute at the pre-hearing discussion. Accordingly, Mrs. Salama is entitled to raise these issues at arbitration.

Liberty Mutual argues that Mrs. Salama failed to establish before the hearing whether or not she was entitled to coverage from employment benefit policies for the medical expenses in issue. It further submits that Mrs. Salama did not establish the bases for her medical benefit claims since she failed to prove that she incurred these expenses because of injuries sustained in the accident. Liberty Mutual also argues that Mrs. Salama did not satisfy its request for a health practitioner's certificate as permitted by section 37 of the Schedule, to establish that the expenses are reasonable and necessary for her treatment.

The relevant portions of section 36 state:

36.-(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for, [emphasis added].

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

Subsection 37 provides:

37.-(1) The insurer may require a person claiming payment of an expense under section 36 to furnish a certificate from the person's health practitioner stating that the expense is reasonable and is necessary for the person's treatment.

[emphasis added].

Chiropractic treatment:

Liberty Mutual asserts, and I find, that Mrs. Salama did not provide invoices or other proof that she incurred the $240 expense claimed for chiropractic treatment by Dr. Shrott. In support of her claim, Mrs. Salama pointed to a statement of account she submitted into evidence from Yonge-Spruce Chiropractic Clinic for December 1, 1998 to December 31, 1998 where the amount due to December 31, 1998 is $240.20. Liberty Mutual referred to a more recent statement of account for the period January 1, 1989 to August 7, 1999 which discloses a balance of $10.00 due as of August 7, 1999.

Liberty Mutual argues, and I find, that even if Mrs. Salama successfully proved she incurred the chiropractic expense, she has failed to establish this expense was reasonable and necessary for the treatment of accident-related injuries. In coming to this conclusion, I considered Mrs. Salama’s family doctor’s opinion and the findings and recommendations of the medical and rehabilitation Designated Assessment Centre (DAC) assessment which Mrs. Salama underwent in November and December 1996. As noted earlier, Dr. Berger suggested Mrs. Salama not undergo chiropractic treatment after the accident. The DAC chiropractor noted in his November 11, 1996 report that her ongoing neck complaints were probably due to her pre-existing arthritis condition and that chiropractic treatment was not necessary for the soft tissue injuries she sustained in the accident.

I therefore conclude that Mrs. Salama is not entitled to benefits for chiropractic treatment.

Prescription expenses:

I find that Mrs. Salama failed to provide a medical certificate from either her family doctor or chiropractor certifying that pain and depression medication were reasonable and necessary as a result of the accident.

Moreover, Liberty Mutual submits, and I find, that Mrs. Salama did not produce sufficient proof that she incurred prescription expenses for accident-related injuries. She brought numerous original prescription receipts to the hearing and I have no credible evidence that she ever submitted these to Liberty Mutual. Mrs. Salama claimed that she had submitted invoices to the Prudential before the merger with Liberty Mutual. She stated, without providing any substantiation, that the claims adjuster told her that some of her documentation was lost with the merger. Mrs. Salama contended that her prescription and taxi receipts were lost during this period. Since Mrs. Salama called no witnesses and brought no other proof for this assertion, I am not persuaded that she actually submitted the prescription and transportation invoices.

Furthermore, I accept the evidence advanced by Liberty Mutual that Mrs. Salama was prescribed pain and depression medication before the accident. Mrs. Salama has not shown that the post-accident prescriptions for this type of medication were attributable to her accident-related conditions.

I therefore conclude that Mrs. Salama is not entitled to benefits for prescriptions.

Transportation expenses:

Mrs. Salama testified that she required taxis to take her to and from medical appointments because of injuries to her lower extremities. I find that Mrs. Salama did not substantiate this claim by submitting to Liberty Mutual a medical certificate establishing that this expense is reasonable and necessary as a result of the accident. Liberty Mutual pointed out that Mrs. Salama submitted into evidence numerous taxi receipts which she has never produced to Liberty Mutual to justify her claim, and therefore she is not entitled to be reimbursed for these expenses.

I accept Liberty Mutual's position and find based on the evidence, that Mrs. Salama has not proved that taxi transportation was reasonable and necessary. Furthermore, Mrs. Salama provided no evidence that she engaged the taxis and that she used them for accident-related medical appointments. I therefore conclude that Mrs. Salama is not entitled to transportation expenses.

Dependant care benefits

Section 54 of the Schedule requires an insurer to pay additional expenses an insured person reasonably incurred, as a result of an accident, in caring for her dependants. Subsection 54(1) states:

54.-(1) 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 in caring for the insured person's dependants as a result of the accident.

Mrs. Salama claims that she incurred additional expenses caring for her young son on March 23, 24, 25 and 29, 1996. Liberty Mutual pointed out, and I find, that she provided no documentary support for this claim. Mrs. Salama admitted under cross-examination that before the accident her son attended daycare and also did so on the days in question. She provided no proof that she incurred any additional expenses caring for her son as a result of the accident. I therefore conclude that she is not entitled to dependant care benefits.

Housekeeping expenses

Section 55 of the Schedule requires an insurer to pay additional housekeeping and home maintenance expenses incurred by an insured person as the result of impairments sustained in an accident. This provision states:

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.

Mrs. Salama claims that Liberty Mutual is required to reimburse her for housekeeping expenses she incurred because she was unable to perform her household tasks due to her accident-related injuries. Liberty Mutual submits that Mrs. Salama has provided absolutely no proof that such expenses were incurred or that if they were incurred, they were reasonable and necessary. I accept Liberty Mutual's position. Mrs. Salama provided no invoices or other proof of this expense, apart from her verbal testimony which I found to be untrustworthy. In fact, when Liberty Mutual inquired on cross-examination as to the name and address of the person she retained to provide these services, Mrs. Salama refused to give this information. She asserted that the reason she refused to do so was because she paid the housekeeper in cash, as she (the housekeeper) did not want to claim this income for income tax purposes.

I conclude therefore that Mrs. Salama has not substantiated her claim for housekeeping expenses.

EXPENSES:

At the hearing, the parties made partial submissions on the expense issue pursuant to subsections 282 (11) and (11.2) of the Act. I reserve my order on this issue, until after this decision is released to permit the parties to take my decision into account in making their final submissions on expenses. I suggested and the parties agreed, to written submissions, to be filed with the Commission on the dates I set in this decision.

Submissions should itemize the parties' expenses incurred in respect of the arbitration hearing as prescribed under Regulation 664,³ (the Expenses Regulation) and Rule 73 of the Dispute Resolution Practice Code (Third Edition, April 15, 1997). Submissions should also contain the parties' arguments, if any, as to why they are entitled to their expenses and why the other party should be liable to pay them.

Mrs. Salama must file her submissions with the Commission and serve it on Liberty Mutual no later than November 29, 1999.

Liberty Mutual must file its submissions in response with the Commission and serve it on Mrs. Salama no later than December 9, 1999.

Mrs. Salama must file her submissions in reply with the Commission and serve it on Liberty Mutual no later than December 19, 1999.

November 19, 1999

Beth Allen Arbitrator

Date