Neutral Citation: 1999 ONFSCDRS 57

FSCO A98-000029

BETWEEN:

KOPO AND MARJANA JELISIC

Applicants

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before:

Shemin Manji

Heard:

January 25 and 26, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Phil Bouranov for Mr. and Mrs. Jelisic

Fiona E. Porter for Guarantee Company of North America

The Applicants, Kopo and Marjana Jelisic, were injured in a motor vehicle accident on April 3, 1997. They applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee paid the expenses incurred by Mrs. Jelisic in respect of physiotherapy treatment sessions for a period of six weeks after the accident.

However, it paid Mr. and Mrs. Jelisic no other benefits. The parties were unable to resolve their disputes through mediation, and Mr. and Mrs. Jelisic 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. Jelisic entitled to caregiver benefits from April 10, 1997 to September 1998 under section 13 of the Schedule?
Are Mr. and Mrs. Jelisic entitled to be paid for housekeeping and home maintenance services from April 10, 1997 to September 1998 under section 22 of the Schedule?
Are Mr. and Mrs. Jelisic entitled to be paid for Obus form back supports under section 14 of the Schedule?
Are Mr. and Mrs. Jelisic entitled to a special award under subsection 282(10) of the Insurance Act?
Are Mr. and Mrs. Jelisic entitled to their arbitration expenses under subsection 282(11) of the Insurance Act?

Mr. and Mrs. Jelisic also claim interest on any amounts owing.

Mrs. Jelisic is not entitled to caregiver benefits.
Mr. and Mrs. Jelisic are not entitled to payments for housekeeping and home maintenance services.
Mr. and Mrs. Jelisic are not entitled to payment for Obus form back supports.
Mr. and Mrs. Jelisic are not entitled to a special award.
If the parties are unable to agree on expenses, I may be spoken to on this issue.

Background

On April 3, 1997, at approximately 6:00 p.m., Mr. and Mrs. Jelisic and their two children were heading home, in downtown Hamilton, after doing some shopping, when the left rear side of their vehicle was struck by another vehicle at an intersection. Mr. Jelisic was driving, Mrs. Jelisic was in the front passenger seat and their two children, Bojan, age 4, and Biljana, age 6, were in the back seat of the vehicle. They were all wearing seat belts.

Mr. Jelisic testified that he hit his head against the left corner of the vehicle and lost consciousness for a few minutes. When he regained consciousness he had little time to focus on his or his wife's injuries, because the children were crying in the back and he was concerned about their safety. Mr. Jelisic testified that he exited the vehicle using his wife's door because he couldn't open his own and then assisted the children to get out from the back of the vehicle.

Mrs. Jelisic testified that she needed help getting out of the vehicle because she was in a state of shock. She said that she experienced pain in her chest and difficulty breathing, and also experienced pain in her arm and in her finger.²

Mr. Jelisic testified that the police arrived at the scene of the accident and suggested that the Jelisic family attend at a hospital. However, they chose not to do so and instead were taken home by the police.

Neither Mr. nor Mrs. Jelisic were working at the time of the accident. They had moved to Ontario from Quebec in March 1997. On April 1, 1997, both Mr. and Mrs. Jelisic had started attending English as a Second Language (ESL) classes, on a full-time basis, from 9:00 a.m. to 3:30 p.m., Monday to Friday, at St. Charles Adult Education Centres, Mountain Campus, in Hamilton. Their children attended at the school with them. The school provided free day care for the children.

1. Is Mrs. Jelisic entitled to caregiver benefits? Are Mr. and Mrs. Jelisic entitled to payments for housekeeping and home maintenance services?

Mrs. Jelisic testified that following the accident she continued to experience pain in her lower chest and her arm and also continued to experience difficulty breathing. She testified that she also developed an ulcer and a skin pigmentation problem (white spots) because of stress following the accident. She testified that her doctor prescribed pills to help her cope with the pain, however they made her dizzy and all she could do was lie down. Mrs. Jelisic testified that she was not able to do any of her normal activities, including housework and taking care of Bojan and Biljana. Mrs. Jelisic testified that after the accident Bojan and Biljana attended kindergarten from 9:00 to 11:00/11:30 a.m. but she required someone to take care of them afterwards and full-time during the summer break.

Mr. Jelisic testified that before the accident, he helped Mrs. Jelisic with the housework, although there was not much for him to do. However, after the accident he suffered from pain in his left shoulder and headaches, and as a result, he could not help with the housework or in taking care of the children.

Mr. and Mrs. Jelisic testified that they started receiving caregiving and housekeeping services from the evening of the motor vehicle accident. They testified that these services were provided by their neighbours, Vera and Miso Mirkovic. Mrs. Jelisic testified that Mr. and Mrs. Mirkovic were at her home every day for almost the whole day. Mr. and Mrs. Jelisic testified that because they felt obliged, they promised to pay their neighbours for their services. Specifically, they promised to pay them $300 a week for taking care of their children and $100 a week for providing housekeeping services. Mr. and Mrs. Jelisic testified that since neither of them were working and could not afford to pay the Mirkovics this amount of money, they promised them that they would pay them when they received the money from their insurer. Mr. and Mrs. Jelisic have not received any caregiver benefits or payments for housekeeping services from Guarantee to date and they testified that thus they have not paid their neighbours for their services.

Mrs. Jelisic claims caregiver benefits from April 10, 1997 to September 1998. Mr. and Mrs. Jelisic claim payments for housekeeping and home maintenance services from April 10, 1997 to September 1998.

I find that Mrs. Jelisic is not entitled to any caregiver benefits because of her failure to establish that she meets the requirements of section 13 of the Schedule.

I find that Mr. and Mrs. Jelisic are not entitled to be paid for the housekeeping and home maintenance services claimed because of their failure to establish that they meet the requirements of section 22 of the Schedule.

Sections 13 and 22 Requirements:

Mrs. Jelisic would be entitled to caregiver benefits for that part of the period claimed if she establishes, on a balance of probabilities, that as a result of the accident, she sustained an impairment that resulted in a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident and she incurred expenses in caring for a person in need of care that are reasonable and necessary.³

Mr. and Mrs. Jelisic would be entitled to be paid for housekeeping and home maintenance services for that part of the period claimed if they establish, on a balance of probabilities, that as a result of the accident, they sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance activities that they normally performed before the accident and that they incurred expenses for housekeeping and home maintenance services that are reasonable and necessary.⁴

Mr. and Mrs. Jelisic adduced very little medical evidence at the hearing.⁵ The medical evidence before me does not support either Mrs. Jelisic's position that following the accident she suffered from an impairment that substantially prevented her from performing her pre-accident caregiving activities for any period, or the couple's position that following the accident they suffered from an impairment that substantially prevented them from performing their pre-accident housekeeping and home maintenance activities for any period.

Mrs. and Mrs. Jelisic's family physician, Dr. R.Timarac, furnished Guarantee with two Disability Certificates in respect of Mrs. Jelisic and one in respect of Mr. Jelisic.

Dr. Timarac's Disability Certificate dated May 24, 1997 in respect of Mr. Jelisic contains information that is inconsistent with Mr. Jelisic's testimony and does not support his claim. In the Disability Certificate, Dr. Timarac indicates that she first saw Mr. Jelisic on April 17, 1997 (14 days after the motor vehicle accident) and most recently examined him on May 20, 1997 and that Mr. Jelisic had suffered either a cervical or thoracic strain,⁶ left trapezius strain and a post-traumatic headache in the accident. However, Dr. Timarac also indicates that Mr. Jelisic did not suffer from an impairment that substantially prevented him from performing pre-accident housekeeping and/or home maintenance activities. On the contrary, she indicates that she was advised by Mr. Jelisic that he had been performing all housekeeping and home maintenance activities, as well as caregiving activities, because his wife was unable to do so.

Neither of the Certificates in respect of Mrs. Jelisic have been fully completed. In her first Disability Certificate, dated May 24, 1997, Dr. Timarac indicates that she first saw Mrs. Jelisic on April 8, 1997 (5 days following the accident) and most recently examined her on April 17, 1997 and that Mrs. Jelisic had suffered a cervical strain and a chest wall contusion in the accident. She characterized Mrs. Jelisic's condition as a "Whiplash-Associated Disorder — Grade II." In Part 4 entitled "Disability Information," Dr. Timarac ticks the "yes" box under the question "(d)oes the applicant suffer an impairment that substantially prevents him or her from engaging in pre-accident caregiving activities?" She also ticks the "yes" box under the question "(d)oes the applicant suffer from an impairment that substantially prevents him or her from performing pre-accident housekeeping and/or home maintenance activities?" The Certificate requires Dr. Timarac, if she ticks the "yes" box, in each case, to describe the activities that the applicant cannot perform. Dr. Timarac did not complete this portion of the Certificate. The Certificate also requires her to list any medical restrictions that prevent the applicant from performing his or her pre-accident activities. Again, Dr. Timarac did not complete this portion of the Certificate. Essentially, Dr. Timarac gives no basis for her opinion that Mrs. Jelisic suffered an impairment that substantially prevented her from engaging in her pre-accident caregiving and housekeeping and/or home maintenance activities. I am unable to determine whether her opinion is based on Mrs. Jelisic's complaints or on any objective findings from her physical examinations of Mrs. Jelisic on April 8 and 17.

In her second Disability Certificate dated January 16, 1999, Dr. Timarac indicates that she most recently examined Mrs. Jelisic on January 15, 1999 and that Mrs. Jelisic had also strained her left shoulder in the accident. However, she does not indicate how she arrived at this conclusion and why she had not made a note of this in her Disability Certificate of May 24, 1997. Dr. Timarac also indicates that on January 15, 1999, which falls outside of the period for which caregiver benefits and payments for housekeeping and home maintenance services are being claimed, she was of the opinion that Mrs. Jelisic suffered an impairment that substantially prevented her from engaging in her pre-accident caregiving, housekeeping and/or home maintenance activities. However, as in her Disability Certificate of May 24, 1997, Dr. Timarac does not identify, as she is required to do, the specific activities that Mrs. Jelisic could not perform and, again, she does not list, as she is required to do, the medical restrictions that prevent Mrs. Jelisic from performing her pre-accident activities. Once again, it is not clear whether Dr. Timarac's opinion is based on Mrs. Jelisic's complaints or on objective findings from her physical examination of Mrs. Jelisic of January 15, 1999. At the end of Part 4 (Disability Information) of the Certificate, Dr. Timarac notes that Mrs. Jelisic had a small duodenal ulcer in July 1997 and gastric erosions in October 1997. However, it is not clear whether she attributes the ulcer and gastric erosions to the accident.

In determining whether Mrs. Jelisic sustained an impairment that resulted in a substantial inability to engage in her pre-accident caregiving activities and whether Mr. and Mrs. Jelisic sustained an impairment that resulted in a substantial inability to perform their pre-accident housekeeping and home maintenance activities, the only other evidence that I have before me is Mr. and Mrs. Jelisic's testimony. However, I am unable to give much weight to their testimony because I did not find either of them credible.

Both Mr. and Mrs. Jelisic gave little testimony. The little testimony that they gave was general and vague. It was also inconsistent with other evidence adduced at the hearing. For example, Mrs. Jelisic testified that she could not do anything after the accident. She was asked, in cross-examination, whether she returned to school following the accident. She testified that she tried to return to school two or three times and never returned to school after that. However, records from St. Charles Adult Education Centres indicate that Mrs. Jelisic returned to school shortly following the accident and attended school well into the spring of 1998 (albeit not very regularly). Further, she indicated in a registration form that she completed for additional ESL classes, in September 1997, that she had no medical problems. Mrs. Jelisic provided no explanation for the discrepancy between her testimony and the school records.

Mr. Jelisic's testimony that he was unable to perform any housekeeping and home maintenance activities, as well as caregiving activities, is not only contradicted by Dr. Timarac's Disability Certificate of May 24, 1997 (in which Dr. Timarac indicates that Mr. Jelisic advised her that he had been performing all housekeeping and home maintenance activities, as well as caregiving activities), but also in part by Mrs. Jelisic in her statement to Guarantee of May 5, 1997 in which she said that "(her) husband now cooks."

Based on the evidence, I am not persuaded, on a balance of probabilities, that following the accident Mrs. Jelisic met the requisite disability test to qualify for caregiver benefits for any period. I am also not persuaded, on a balance of probabilities, that either Mr. or Mrs. Jelisic met the requisite disability test for payments for housekeeping and home maintenance services for any period. However, even if I had determined that Mrs. Jelisic met the disability test in section 13 of the Schedule and Mr. and Mrs. Jelisic met the disability test in section 22 of the Schedule, I find that they are not entitled to caregiver benefits and payments for housekeeping and home maintenance services because they have failed to establish that they incurred any expenses for caregiving, housekeeping or home maintenance services. Further, even if I accept that they incurred expenses, it is not possible to determine what, if anything, is reasonable and necessary.

The caregiver benefit in the Bill 59 Schedule indemnifies an insured person for "reasonable and necessary expenses" incurred by the insured person, with the maximum payable dependent upon the number of persons for whom the insured person was the primary caregiver at the time of the accident.⁷

Mrs. Jelisic is claiming the maximum caregiver benefit payable for two persons in need of care, under section 13 of the Schedule, i.e. $300 per week. She and Mr. Jelisic are also claiming the maximum amount payable for housekeeping and home maintenance services, under section 22 of the Schedule, i.e. $100 per week. Mr. and Mrs. Jelisic claim that they have incurred weekly expenses in these amounts for caregiving, housekeeping and home maintenance services from April 3, 1997 to September 1998. They claim that the caregiving services were provided by Mrs. Mirkovic and the housekeeping and home maintenance services were provided by Mr. and Mrs. Mirkovic.

Mr. and Mrs. Jelisic filed an undated "Promissory Agreement" between themselves and the Mirkovics in support of their claim. In the agreement, the parties agree that because the Jelisics are unable to afford to pay the Mirkovics for the caregiving and housekeeping services provided to them, the final account between the parties would be settled after the Jelisics received benefits from their insurer. The agreement further provides that "(t)he calculation of the account of the expenses incurred shall be made based on the entitlement of Jelisic for 300 per week for caregiving and 100 per week for housekeeping."

I accept that an insured person does not have to have made payments in respect of caregiving or housekeeping services in order to be entitled to be reimbursed. I accept that an insured person can be said to have "incurred" the expense if he or she has promised to pay or is otherwise legally obligated to pay the expense. However, the nature of the other evidence in this case (as outlined below), as well as the vagueness of Mr. and Mrs. Jelisic's testimony in respect of who prepared this agreement and when this agreement was signed, and the failure of either Mr. or Mrs. Mirkovic to appear as a witness at the hearing, causes me to question both the authenticity of the "Promissory Agreement" and whether Mr. and Mrs. Jelisic have in fact "incurred" any expenses for caregiving, housekeeping or home maintenance services. In any event, even if I were to accept that such expenses have been incurred, it is difficult, based on the evidence, to determine whether the amount claimed or any other amount is reasonable. Mr. and Mrs. Jelisic filed two undated handwritten documents which list the tasks performed by Mr. and Mrs. Mirkovic and their hours of work from April 4, 1997 to July 30, 1997. Mr. and Mrs. Jelisic testified that these lists were provided to them by the Mirkovics. However, the documents do not specify the amount of time spent by Mrs. Mirkovic in providing caregiving services alone, as opposed to housekeeping services. They do not tell me about the work done from July 31, 1997 to September 1998.

The information in the handwritten documents is inconsistent with other evidence. The handwritten document setting out the tasks performed by Mrs. Mirkovic indicates that she provided babysitting for 12 days, for a few hours each day, in April 1997, commencing April 4, 1997. This is inconsistent with Mr. Jelisic's statement to Dr. Timarac in May 1997, to the effect that he had been performing all caregiving activities, as well as all housekeeping and home maintenance activities, since the accident as his wife was not able to do so.⁸ This is also inconsistent with Mrs. Jelisic's testimony that from the evening of the motor vehicle accident, Mr. and Mrs. Mirkovic were at her home every day for almost the whole day.

The handwritten documents indicate that Mrs. Mirkovic provided caregiving services on average for less than 34 hours a month in April, May, June and July 1997. Mrs. Jelisic is essentially claiming $38.00 an hour for those services.⁹ I am unable to find that this is a reasonable hourly rate in the circumstances of this case.

Mr. and Mrs. Jelisic testified that caregiving, housekeeping and home maintenance services were only provided by Mr. and Mrs. Mirkovic and money was only owed to them. However, Guarantee received invoices for these services, through Mr. and Mrs. Jelisic's representative, Mr. Bouranov, from a company named Canadian Supplies and Consulting.

The invoices from Canadian Supplies and Consulting do not indicate who performed caregiving, housekeeping and home maintenance services and make no mention of the Mirkovics. Mr. and Mrs. Jelisic testified that they had never seen the invoices from Canadian Supplies and Consulting prior to the hearing. They did not know how Canadian Supplies and Consulting came to be involved. They did not know if there was a relationship between Mr. and Mrs. Mirkovic and Canadian Supplies and Consulting.

Assuming that the Mirkovics worked for Canadian Supplies and Consulting, the information in the handwritten documents is also inconsistent with information contained in the invoices from Canadian Supplies and Consulting. For example, the handwritten document indicates that Mrs. Mirkovic did not work every day from April 4 to June 30, 1997.¹⁰ The July 7 and July 29, 1997 invoices from Canadian Supplies and Consulting indicate that caregiving services were provided to Mrs. Jelisic every day from April 4 to June 30, 1997. The handwritten document indicates that on the days that she worked, Mrs. Mirkovic provided caregiving services, as well as housekeeping services, on average of 3 hours per day.¹¹ However, the July 30, 1997 invoice from Canadian Supplies and Consulting indicates that caregiving services were provided to Mrs. Jelisic for 4.5 hours per day from July 1 to July 28, 1997. According to the handwritten documents, the Mirkovics provided housekeeping services more than twice a week. Specifically, they provided housekeeping services four times between July 1 and 7, three times between July 8 and 14, three times between July 15 and July 21, and five times between July 22 and 28, 1997. The July 30, 1997 invoice from Canadian Supplies and Consulting indicates that housekeeping and home maintenance services were provided to the Jelisics twice a week at a cost of $50 a visit from July 1 to July 28, 1997.

Neither Mr. nor Mrs. Mirkovic appeared as a witness at the hearing. They were not available to testify about the work, if any, done from April 3, 1997 to September 1998; to specify the amount of time that was spent on caregiving services alone; to explain the discrepancies between the information contained in the handwritten documents and the Jelisics' evidence; to explain their relationship, if any, to Canadian Supplies and Consulting; and, assuming that there was a relationship, to explain the discrepancies between the information contained in the handwritten documents and the invoices from Canadian Supplies and Consulting.

Mr. and Mrs. Jelisic's own testimony on the question of how they arrived at the amounts was vague, confusing and internally inconsistent. Mrs. Jelisic initially testified that she and Mr. Jelisic set the price. Later in her testimony, Mrs. Jelisic testified that this is what the Mirkovics told them they should be paid. Mr. Jelisic initially testified that they thought that this was a "just amount." Later in his testimony, he testified that they got the figure from the company — Canadian Supplies and Consulting — contrary to his earlier testimony that he did not know how Canadian Supplies and Consulting came to be involved and he did not know that there was a relationship between the Mirkovics and this company.

Neither Mr. nor Mrs. Jelisic provided specific details of the nature of the caregiving and housekeeping and home maintenance services provided by Mr. and Mrs. Mirkovic. They testified that they did not check Mr. and Mrs. Mirkovic's lists documenting their tasks and the number of hours worked. They testified that Mr. and Mrs. Mirkovic provided more caregiving, housekeeping and home maintenance services than set out in the handwritten documents but were not able to explain why the handwritten documents did not reflect this. They did not explain why full-time caregiving services were necessary when their school records indicated that they had returned to school shortly following the accident and free daycare services were provided at the school.

In conclusion, I find that Mrs. Jelisic has failed to establish that caregiving services were necessary for any period after the accident or, if they were, that $300 per week or any other amount was reasonable in the circumstances. I also find that Mr. and Mrs. Jelisic have failed to establish that housekeeping and home maintenance services were necessary for any period or, if they were, that $100 per week or any other amount was reasonable in the circumstances. It is difficult to determine, based on the evidence, that Mr. and Mrs. Jelisic in fact received any of these services and incurred expenses for such services. Accordingly, I find that Mrs. Jelisic is not entitled to any caregiver benefits. I also find that Mr. and Mrs. Jelisic are not entitled to payments for any housekeeping and home maintenance services.

Guarantee submitted that no benefits were payable to Mr. and Mrs. Jelisic because they failed to comply with the requirements of sections 33 and 42 of the Schedule. I have determined that Mr. and Mrs. Jelisic are not entitled to the benefits they are claiming because they do not meet the requirements of sections 13 and 22 of the Schedule. Accordingly, I need not determine whether they are precluded from receiving any benefits because they failed to comply with sections 33 and 42 of the Schedule.

3. Are Mr. and Mrs. Jelisic entitled to be paid for Obus form back supports?

Mr. and Mrs. Jelisic each claim the cost of an Obus form back support. Mr. and Mrs. Jelisic are entitled to payment for these devices if they establish, on a balance of probabilities, that they meet the requirements of section 14 of the Schedule, which provides as follows:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

I received little evidence about the Obus form back supports. Mr. and Mrs. Jelisic both testified that the Obus form back supports were delivered to their home. Mr. Jelisic testified that the Obus form back support has helped him. He testified that he continues to use it today.

The only medical evidence about the Obus form back supports is a one line note dated July 3, 1997 signed by Dr. Timarac in which she merely states that she recommended Obus forms for Mr. and Mrs. Jelisic. This note is not very helpful. Dr. Timarac does not provide a basis for her recommendation or state that these devices were necessary for Mr. and Mrs. Jelisic's treatment. The treatment plans of May 24, 1997, which were submitted by Dr. Timarac in respect of Mr. and Mrs. Jelisic to Guarantee, make no mention of the need for Obus forms.

Mr. and Mrs. Jelisic are claiming $240 for the cost of two Obus forms and $30 for the cost of delivery of the devices to their homes. They filed invoices from Canadian Supplies and Consulting dated June 30, July 7 and July 29, 1997 in support of their claims. The June 30th invoice is inconsistent with the July invoices. The June invoice indicates that the Obus forms were delivered on June 26 and the cost of delivery for both was $20. The July invoices indicate that the Obus forms were delivered on June 30 and the cost of delivery for both was $30. No one from Canadian Supplies and Consulting was called as a witness to explain the discrepancies. The invoices do not tell me and I heard no evidence as to why it was necessary that the Obus forms be delivered to Mr. and Mrs. Jelisic. Neither Mr. nor Mrs. Jelisic could even recall the name of the company that delivered the Obus forms. Further, I heard no evidence as to whether the cost of $120 for each Obus form was reasonable in either Mr. or Mrs. Jelisic's case.

I am unable to find, based on the evidence adduced at the hearing, that the Obus form back supports were necessary for Mr. and Mrs. Jelisic's treatment or rehabilitation. Further I am not satisfied that the cost of these devices is reasonable. Accordingly, I find that Mr. and Mrs. Jelisic are not entitled to be paid for Obus form back supports.

4. Are Mr. and Mrs. Jelisic entitled to a special award?

Mr. and Mrs. Jelisic seek a special award under subsection 282(10) of the Insurance Act. They claim that Guarantee contravened the Superintendent's Guideline for Statutory Accident Benefits Applications, The Claims Process and The Mediation Process. Specifically, they claim that Guarantee failed to inform them about the kind of accident benefits that were available to them under the Schedule and all the procedures to be followed and documents needed when applying for benefits.

Guarantee acknowledged that it did not inform Mr. and Mrs. Jelisic of the kind of benefits that were available to them and all the procedures to be followed when applying for benefits. However, the reason for this was that Mr. and Mrs. Jelisic were represented from the outset — the initial Applications for Accident Benefits were submitted on their behalf by their representative — and Guarantee assumed that this information would have been provided to them by their representative.¹²

I agree with Mr. and Mrs. Jelisic that Guarantee had the responsibility to provide them with information of the kind of benefits that were available to them and the procedures to be followed when applying for benefits regardless of whether they were represented. However, Mr. and Mrs. Jelisic are only entitled to a special award if the evidence indicates that Guarantee's failure to fulfill its responsibility resulted in an unreasonable withholding or delay of payments.

The invoices from Canadian Supplies and Consulting are extremely vague. They do not set out the times when caregiving, housekeeping and home maintenance services were provided, what specific work was done and who did the work. In addition the invoices of July 7 and 29, 1997 give no breakdown of the hours worked and the rate charged per hour.

I accept the testimony of Ms. Ines Falco, an independent adjuster from Adjusters Canada, who handled Mr. and Mrs. Jelisic's claim for accident benefits on behalf of Guarantee, that she (and therefore Guarantee) was not aware prior to July 7, 1997 (when she received the first invoice from Canadian Supplies and Consulting) that Mr. and Mrs. Jelisic were claiming that expenses were being incurred for caregiving, housekeeping and home maintenance services. There was no evidence to the contrary.

After receiving these invoices in July 1997, Guarantee repeatedly sought information from Mr. and Mrs. Jelisic, through their representative, about the persons alleged to be providing these services.¹³ Specifically, it sought the name, address and telephone number of the persons, as well as the dates, times and details of the services provided. However, Guarantee did not receive any of this information until September 1998,¹⁴ well after Mr. and Mrs. Jelisic's applications for arbitration were filed with the Commission and well after the pre-hearing, at which time this information was once again requested by Guarantee.¹⁵

Given that, under sections 13 and 22 of the Schedule, the amount of the caregiving benefit and the amount payable for housekeeping and home maintenance services is based on what is reasonable and, also given that the limited information that Guarantee had of the injuries sustained by Mr. and Mrs. Jelisic in the accident¹⁶ indicated that they were soft-tissue in nature and relatively mild,¹⁷ I find that the information requested by Guarantee about the persons providing caregiving, housekeeping and home maintenance services was reasonably required by Guarantee to determine Mrs. Jelisic's entitlement to caregiver benefits and Mr. and Mrs. Jelisic's entitlement to payments for housekeeping and home maintenance services.

Any delay or withholding of payments in this case was not as a result of Guarantee's failure to provide Mr. and Mrs. Jelisic with information of the kinds of benefits that were available to them and the procedures to be followed when applying for benefits. It was a result of Mr. and Mrs. Jelisic's failure to provide Guarantee with information that it repeatedly requested from them and reasonably required in determining their entitlement to the benefits that they were seeking.

Mr. and Mrs. Jelisic also seek a special award on the basis that Guarantee failed to fulfill its obligations under subsections 35(1) and 37(1)(a) of the Schedule, which provide as follows:

(1) On receiving an application for an income replacement, non-earner or caregiver benefit, an insurer shall promptly determine whether a benefit is payable.

37.(1) If the insurer determines that a person is not entitled or is no longer entitled to receive an income replacement, non-earner or caregiver benefit, the insurer shall give the person notice of its determination, with reasons,

(a) within 14 days after receiving an application for the benefit...

Subsection 35(1) and paragraph 37(1)(a) only apply to an application for income replacement, non-earner or caregiver benefit. Thus, only Mrs. Jelisic can seek a special award on the basis of Guarantee's failure to comply with these provisions.

Mrs. Jelisic's Application for Accident Benefits is dated April 1997. Guarantee did not provide Mrs. Jelisic with its decision in respect of her claim for caregiver benefits until November 1997. However, Guarantee was not in a position to comply with the requirements of subsection 35(1) and paragraph 37(1)(a) of the Schedule until it received the information it repeatedly requested from Mrs. Jelisic in September 1998. Accordingly, I find that Mrs. Jelisic is not entitled to a special award on the basis of Guarantee's failure to comply with subsection 35(1) and paragraph 37(1)(a) of the Schedule.

In any event, a special award is based on the amount to which the Applicant is entitled at the time of the award. I have concluded in this case that Mr. and Mrs. Jelisic are not entitled to any benefits. Therefore, I have no authority to make such an award.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided, which I have now done. Therefore, the issue of Mr. and Mrs. Jelisic's expenses of this arbitration proceeding may now be addressed.

April 8, 1999

Shemin Manji Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 57

FSCO A98-000029

FINANCIAL SERVICES COMMISSION OF ONTARIO