Madeline Burkholder v. Liberty Mutual Insurance Company, 1999 ONFSCDRS 63

Neutral Citation: 1999 ONFSCDRS 63

FSCO A98-001281

BETWEEN:

MADELINE BURKHOLDER

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before:

William Renahan

Heard:

By telephone conference call on April 6, 1999.

Appearances:

Allen Wynperle for Mrs. Burkholder

James Greve for Liberty Mutual Insurance Company

The Applicant, Madeline Burkholder, was injured in a motor vehicle accident on September 22, 1995. I was scheduled to hear her claims for statutory accident benefits under the Schedule¹ at a two-day hearing to commence on April 6, 1999. The parties resolved all issues except for entitlement to expenses of the arbitration proceeding. The issue the parties asked me to decide is:

Is Mrs. Burkholder entitled pursuant to subsection 282(11) of the Insurance Act to her expenses incurred in respect of this arbitration hearing?

Mrs. Burkholder is entitled to her expenses incurred in respect of the arbitration proceeding.

The parties agreed on the relevant evidence. Liberty scheduled a residual earning capacity assessment for Mrs. Burkholder at a designated assessment centre in Mississauga. Mrs. Burkholder refused to attend. She claimed that the location of Mississauga did not satisfy the guidelines established by the Financial Services Commission for the selection of an assessment centre. She claimed that the guidelines required Liberty to select an assessment centre in Hamilton. The parties could not resolve the issue of the proper assessment centre at mediation and Mrs. Burkholder applied for arbitration on September 28, 1998. At the prehearing the arbitrator described the main issue for arbitration as:

1. Does Mrs. Burkholder have a right to be assessed by a REC DAC in Hamilton?

Mrs. Burkholder also sought a special award pursuant to subsection 282(10) of the Insurance Act and interest and each party sought expenses.

The parties settled these issues on the basis that Liberty would arrange an assessment at a centre in Hamilton. However, it maintained that its original choice of the Mississauga centre complied with the Schedule and guidelines. Liberty also agreed that upon receipt of the assessment report it would "back-date all LEC (loss of earning capacity) payments in excess of the current amount." It is not clear to me what the parties agreed with respect to interest on these payments.

Although Mrs. Burkholder obtained an appointment at the Hamilton centre, which is what she wanted, the legal issue of whether she had a right to an assessment at the Hamilton centre was not decided. Liberty maintained that it had complied with the Schedule throughout.

An arbitrator can award expenses to either party. The criteria I should consider in deciding entitlement to expenses are set out in Ontario Regulation 464/90 as follows:

Each party's degree of success in the outcome of the proceeding.
Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.
Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.
The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.
Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

I agree with Arbitrator Alves' conclusion that this statutory scheme continues to be one designed to facilitate the insured's access to a speedy adjudication of disputes and that this is another criteria to consider in determining entitlement to expenses.² Normally, parties settle disputes concerning expenses with these criteria in mind when they settle the other issues.

The parties concentrated their submissions on whether Mrs. Burkholder was successful in this proceeding. Mr. Wynperle argued that Mrs. Burkholder obtained an appointment for an assessment in the city she wanted and that therefore she succeeded. Mr. Greve argued that Liberty had complied with the Schedule throughout and that its agreement to an assessment in Hamilton was not a concession that Mrs. Burkholder was entitled to one in that location. Based on the letters which evidence the terms of the settlement, I find that Liberty did not concede that Mrs. Burkholder was entitled to an assessment in Hamilton. Parties enter a settlement on the basis that each is content with the result. It is not my role to assess or comment on the result. I therefore find that each party was equally successful in this proceeding.

I heard no evidence or information with respect to the other criteria. I heard no submissions that either side took an unreasonable position. I find that the application for arbitration had some merit and that Mrs. Burkholder achieved some success. I award Mrs. Burkholder her expenses of the arbitration proceeding.

April 21, 1999

William J. Renahan

Arbitrator

Date