Neutral Citation: 2000 ONFSCDRS 102

FSCO A97-002191

BETWEEN:

JEFFREY MCLENNON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

March 21, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

William D. Gray for Mr. McLennon

Grant E. Black for Pilot Insurance Company

The Applicant, Jeffrey McLennon, was involved in a motor vehicle accident on November 10, 1995. He applied for statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot denied his claim for accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. McLennon 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 Jeffrey McLennon entitled to receive a weekly education disability benefit from November 17, 1995, and ongoing pursuant to section 15 of the Schedule?
Is Jeffrey McLennon entitled to prescription drug expenses of $300 pursuant to section 36(1)(c) of the Schedule?
Is Jeffrey McLennon entitled to supplementary medical expenses for chiropractic care by Dr. Kobrossi, claimed pursuant to subsection 36(1)(b) of the Schedule?
Is Jeffrey McLennon entitled to rehabilitation benefits representing the cost of a membership at the North York Aquatic Centre, the cost of a learn-to-swim program, and the cost of a gym membership or alternatively a stationary bike claimed pursuant to section 40(5)(e) of the Schedule?
Is Jeffrey McLennon entitled to transportation expenses for 12 round trips, at 42 kilometres a trip pursuant to section 36(1)(g) of the Schedule.
Is Jeffrey McLennon entitled to attendant care expenses in the amount of $6,500 pursuant to section 47 of the Schedule?
Is Jeffrey McLennon entitled to his expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Jeffrey McLennon entitled to interest on any outstanding amounts owing according to section 46 of the Schedule.

Jeffrey McLennon is not entitled to receive a weekly education disability benefit pursuant to section 15 of the Schedule.
Jeffrey McLennon is not entitled to supplementary medical and rehabilitation expenses for chiropractic care, asthma medication, a swim program membership or a stationary bike pursuant to subsections 36(1)(b), 36(1)(c) and 40(5)(e) of the Schedule.
Jeffrey McLennon is entitled to transportation expenses, including interest, for two round trips, at 42 kilometres a trip, pursuant to subsection 36(1)(g) and section 68 of the Schedule.
Jeffrey McLennon is not entitled to attendant care expenses pursuant to section 47 of the Schedule.
Jeffrey McLennon is not entitled to his expenses in respect of this arbitration.

Jeffrey McLennon (hereinafter referred to as "Jeffrey") was represented at the hearing by his father, Mr. Desmond McLennon, (hereinafter referred to as Mr. McLennon).

Jeffrey, who was born on December 31, 1988, was six years old at the time of the accident. He was a back seat passenger in the family car, driven by his father. Mr. McLennon testified that he was coming out of a driveway and attempting to make a left hand turn when his vehicle was struck on the driver's side. Mr. McLennon testified that Jeffrey suffered a severe blow to his knees, that required medical treatment. As well, Mr. McLennon stated that Jeffrey's asthma was exacerbated by the accident and as a result he required additional medication. At the time of the accident Jeffrey was in grade two of elementary school. Mr. McLennon testified that as a result of the accident Jeffrey missed some school and required daily attendant care until June 1996. Mr. McLennon stated that prior to the accident Jeffrey was a "fine" baseball, basketball and soccer player, but was "grossly" set back in these activities as a result of the accident.

Issue 1. Is Jeffrey McLennon entitled to receive a weekly education disability benefit?

Pursuant to section 15 of the Schedule, in order for Jeffrey to qualify for a weekly education disability benefit (EDB), he must have been less than sixteen years old at the time of the accident, enrolled full-time in an elementary school and sustained an impairment as a result of an accident and suffers a substantial inability to continue his education. No weekly education disability benefit is payable under this section, for any period before the insured person attains sixteen years of age.

For the following reasons I find that Jeffrey is not entitled to an EDB.

No cogent, probative evidence was presented to establish that as a result of the accident Jeffrey sustained an impairment which substantially disabled him from continuing his education. His report card for the fall term dated December 12, 1995 records his "Days Absent" as zero. His teacher commented that his "... athletic ability is apparent during physical education" leaving one to conclude that he did not have any physical disability that hindered his physical education activities.

After the accident, Jeffrey was seen on November 13 and 21, 1995 by his family physician, Dr. J.L. Felix. The next time Jeffrey was seen by Dr. Felix was on September 26, 1996, almost a year after the accident, for a bronchial asthma problem. Dr. Felix also saw Jeffrey twice in November 1996 and twice in December 1996. On those occasions his clinical notes indicated that Jeffrey was complaining of back pain, headaches, and anxiety which were attributed to the 1995 car accident.

On December 2, 1996, Jeffrey was examined by Dr. O.F. Veidlinger, a neurologist. In his report of the same date Dr. Veidlinger stated: "I understand this boy lost about 15 days from school. He has had soft tissue injuries resulting in some post-traumatic headache and is now fully recovered from the accident." [emphasis added] However, three years after he had last seen Dr. Veidlinger and almost four years after the accident Jeffery went back to see Dr. Veidlinger. In a report of September 2, 1999 Dr. Veidlinger stated; "...this patient has continued to be symptomatic for well over three years." I give little weight to this conclusion. Dr. Veidlinger had not seen Jeffrey since December 1996 and therefore his opinion can only be based on what he was told.

On August 26, 1998 Jeffrey was examined by Dr. H.U. Cameron, an orthopaedic surgeon. In a report of the same date Dr. Cameron stated that Jeffrey complained of back pain and pain in his left knee which Jeffery attributed to the 1995 car accident. In his conclusion Dr. Cameron stated that his examination revealed that Jeffrey's back was "absolutely normal"; that except for a "Baker's" cyst, which is not uncommon in children, Jeffrey's knee was "absolutely normal"; and that in his opinion no treatment was necessary or indicated.

In reviewing the evidence, I find that Jeffrey did not suffer from any medical disability as a result of the car accident. The objective evidence shows that Jeffrey did not miss any school after the accident nor was he limited in his physical activities. As well, I accept the objective opinion of the medical assessors that Jeffrey does not suffer from any medical disability as a result of the accident. Even if I am wrong in my conclusion, pursuant to subsection 15(3)(a) of the Schedule, since Jeffrey is 10 years old, he is in any case not eligible for an EDB.

Accordingly, I find that Jeffrey is not entitled to an EDB pursuant to section 15 of the Schedule.

Issue 2. Is Jeffrey McLennon entitled to expenses for prescription drugs?

Mr. McLennon submitted that as a result of the accident Jeffrey required an increase in his asthma medication and that pursuant to subsection 36(1)(c) of the Schedule he claims expenses of $300 for prescription drugs.

Pilot submitted that Jeffrey had an asthma problem prior to the accident for which he was taking medication. Pilot submitted that there is no objective medical evidence that Jeffrey's asthma was exacerbated by the accident and that he required an increase in the frequency of his medication. Pilot pointed out that the medical records indicate that the first time Jeffrey was seen by his family doctor regarding a problem for asthma was almost a year after the accident. A report by an allergy specialist, Dr. M. Greenberg, on September 9, 1996 states that Jeffery "... is able to do 3 consecutive 100 yard dashes without any type of respiratory distress ... it appears that his Asthma is under control or in fact at this point one would even consider trying to wean his medications and determine whether there is underlying break through activity."

I agree with Pilot's submissions. Accordingly, I find that Jeffrey is not entitled to medical expenses of $300 for prescription drugs pursuant to subsection 36(1)(c) of the Schedule.

Issue 3: Is Jeffrey McLennon entitled to supplementary medical expenses for chiropractic care by Dr. Kobrossi?

I received no evidence regarding any expenses incurred for chiropractic services provided by Dr. T. Kobrossi. Mr. McLennon testified that any chiropractic expenses incurred were paid by OHIP. Accordingly, I find that pursuant to subsection 36(1)(b) of the Schedule, Jeffrey is not entitled to any expenses for the services of a chiropractor.

Issue 4. Is Jeffrey McLennon entitled to rehabilitation benefits

Mr. McLennon submitted that as a result of the accident Jeffrey required a membership at the North York Aquatic Centre; the cost of a learn-to-swim program; and the cost of a gym membership or alternatively, a stationary bike claimed pursuant to subsection 40(5)(e) of the Schedule.

I received no evidence that these rehabilitation expenses were reasonable or necessary as a result of the accident. Pilot pointed out that Dr. Cameron in his report of August 26, 1998 was of the opinion that "no treatment was necessary or indicated."

Accordingly, I find that Jeffrey is not entitled to rehabilitation benefits claimed pursuant to paragraph 40(5)(e) of the Schedule.

Issue 5: Is Jeffrey McLennon entitled to transportation expenses?

Mr. McLennon submitted that pursuant to paragraph 36(1(g) of the Schedule Jeffrey is claiming transportation expenses for 12 round trips, at 42 kilometres a trip, for visits with Dr. Felix incurred because of the accident.

Dr. Felix's clinical notes and records indicate that he saw Jeffrey on only two occasions regarding the car accident — November 10 and 21, 1995. All subsequent attendances were related to other medical problems.

Accordingly, I find that Jeffrey is entitled to his transportation expenses for two round trips, at 42 kilometres a trip, pursuant to paragraph 36(1)(g) of the Schedule.

6. Is Jeffrey McLennon entitled to attendant care expenses?

Jeffrey is claiming attendant care expenses in the amount of $6,500 for the period of November 17, 1995 to June 1, 1996 pursuant to section 47 of the Schedule.

Pilot submitted that no probative or credible evidence has been presented which shows that Jeffrey required attendant care as a result of the accident. Moreover, Pilot submitted that the receipts presented to Pilot for payment are for "child care services" for all three McLennon children and are dated from May 30, 1995, six months before the accident.

I agree with Pilot's submissions. Accordingly, I find that Jeffrey is not entitled to attendant care expenses pursuant to section 47 of the Schedule.

EXPENSES:

Pursuant to subsection 282(11) of the Insurance Act, I exercise my discretion not to award expenses to Jeffrey in this case. Although Jeffrey was successful in one minor point, namely, he was awarded his expenses for transportation for two visits to his family doctor, I find that there was no credible basis for the other 10 round trips which he claimed for. As well I found there was no credible or probative basis for any of the other claims made that would merit an arbitration hearing. In my view, Jeffrey's arbitration application was frivolous and amounted to an abuse of process. Accordingly, I deny Jeffrey his expenses in this arbitration hearing.

June 12, 2000

Joyce Miller Arbitrator

Date