Neutral Citation: 2000 ONFSCDRS 160
FSCO A-012411
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
L. MARGARET R. TURNER
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
M. Kaye Joachim
Heard:
Written submissions were received on July 11, 2000.
Appearances:
Michael J. Gillen for Ms. Turner
Albert Conforzi for Economical Mutual Insurance Company
Issues:
The Applicant, L. Margaret R. Turner, was injured in a motor vehicle accident on May 13, 1991. In a decision dated August 6, 1999, I dealt with her claims for statutory accident benefits under the Schedule.1 I made the following orders:
Ms. Turner is not entitled to weekly income benefits after May 12, 1994.
Ms. Turner is not entitled to supplementary medical and rehabilitation benefits after May 1994.
Ms. Turner is entitled to her expenses of this arbitration proceeding.
The issue in this further hearing is:
- What are the reasonable disbursements incurred in respect of this arbitration hearing?
Result:
- Ms. Turner is entitled to a further $180.26 in disbursements.
EVIDENCE AND ANALYSIS:
The parties settled the amount of counsel fees. They were unable to resolve the issue of disbursements. On October 5, 1999, counsel for Ms. Turner submitted Ms. Turner's list of disbursements, in the amount of $7,105.45. On January 31, 2000, counsel forwarded a list of additional disbursements claimed by Ms. Turner in the amount of $4,794.34. In addition, she claimed the $2,700 retainer she had paid her own counsel and the $100 arbitration filing fee. Economical decided to pay $6,105.45 in respect of the first list of disbursements and $219.50 in respect of the second list, for a total of $6,324.95. A cheque in this amount was sent to Ms. Turner on February 10, 2000.
Ms. Turner requests reimbursement of all claimed disbursements. I have considered the following material in determining the disbursement issue: Ms. Turner's letters dated April 4, 2000 and May 30, 2000; Mr. Gillen's letter dated June 30, 2000; Mr. Conforzi's letter dated July 6, 2000 and the Expense Documentation Brief.
General Principles:
Section 282(11) of the Insurance Act provides:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
My order awarding Ms. Turner her expenses in respect of the arbitration process does not necessarily require Economical to indemnify Ms. Turner for all the expenses she has incurred. Where, as here, Economical disputes some of the submitted expenses, I must determine whether the arbitration expense claimed is reasonable in all the circumstances. Further, my discretion is constrained by the Expense Regulation2 which addresses the maximum amount which may be ordered in respect of certain arbitration expenses.
The only issue before me relates to arbitration disbursements, which are expenses incurred in preparing for and attending the arbitration hearing. The arbitration process commences with the filing of the Application for Arbitration and, therefore, generally only expenses incurred after that date would be considered arbitration expenses.
There is a difference between arbitration expenses and medical benefits. Medical assessments and reports commissioned and prepared after the commencement of the arbitration, for the primary purpose of proving the claims in dispute in the arbitration, are generally payable as arbitration disbursements. Assessments, treatments, and reports directed at ameliorating the effects of the injuries sustained in the accident are generally payable only as medical benefits under section 6 of the Schedule. Claims for medical benefits under section 6 of the Schedule must be made directly to Economical and, if disputed, must be processed in accordance with the dispute resolution process.
I will identify the disbursements claimed in the correspondence and indicate the reasonable disbursement allowed. The disputed items will be discussed below.
TABLE 1 - OCTOBER 5, 1999 - LIST OF DISBURSEMENTS
DATE
PARTICULARS
AMOUNT CLAIMED
DISPUTED OR NOT
RULING ON AMOUNT ALLOWED
1
1995
ARBITRATION FILING FEE
$100.00
$100.00
2
4/25/96
PARK PLAZA HOTEL SETTLEMENT DISCUSSION -
$116.17
DISPUTED
$0
3
3/19/99
POSTAGE 8/10/96 TO 3/19/99
$113.96
$113.96
4
2/22/99
FAXES 2/5/96 TO 2/22/99
$144.66
$144.66
5
3/30/99
COPIES 3/6/96 TO 3/30/99
$227.89
$227.89
6
10/15/98
COURIERS 5/31/95 TO 10/18/98
$85.90
DISPUTED
$85.90
7
4/1/96
REGISTERED MAIL
$13.68
$13.68
8
3/13/99
PEN REFILL
$4.59
DISPUTED
$4.59
9
2/1/99
POLICE REPORTS
$12.32
$12.32
10
10/26/99
TAXI
$60.00
DISPUTED
$60.00
11
10/29/99
TAXI
$60.00
DISPUTED
$60.00
12
10/29/99
GRATUITIES
$50.00
DISPUTED
$0
13
10/29/99
NOVOTEL - NORTH YORK
$422.65
DISPUTED
$0
14
10/29/99
MEALS 10/26 TO 10/29
$120.00
DISPUTED
$80.00
15
1/19/99
BUS
$2.50
$2.50
16
1/19/99
GO TRANSIT BUS TICKET
$49.25
$49.25
17
1/19/99
GO TRANSIT TRAIN TICKET
$4.75
$ 4.75
18
3/11/99
MILEAGE 100 KM @ .30/KM
$30.00
$30.00
19
3/11/99
GO TRANSIT TRAIN TICKET
$4.75
$4.75
20
3/11/99
MEALS 3/8 TO 3/11/99
$35.00
$35.00
21
3/11/99
COPIES
$3.00
$3.00
22
4/16/99
BUS
$4.00
$4.00
23
4/16/99
MEALS
$15.00
$15.00
24
10/24/98
FAX
$1.61
$1.61
25
10/25/98
MAIL HOLD FEE
$6.42
DISPUTED
$0
26
10/28/98
DR. CHONG - REPORT AND ATTENDANCE
$1,347.50
DISPUTED
$1,347.50
27
10/30/98
DR. BAIRD - ATTENDANCE
$600.00
$600.00
28
04/25/96
DR. BAIRD - X-RAYS AND REPORT
$443.00
DISPUTED
$443.00
29
02/22/99
MR. HARRIS - REPORT
$200.00
DISPUTED
$200.00
30
10/1/98
DR. JACONELLO - REPORT
$1,200.00
DISPUTED
$1,200.00
31
3/8/99
DR. JACONELLO ATTENDANCE -
$525.00
$525.00
32
1/19/99
CHAMPAGE - WITNESS FEE
$100.00
DISPUTED
$74.00
33
1/19/99
BEKKER - WITNESS FEE
$100.00
DISPUTED
$74.00
34
1/19/99
SIPPERT - WITNESS FEE
$100.00
DISPUTED
$74.00
35
3/8/99
LEWIS - WITNESS FEE
$100.00
DISPUTED
$74.00
36
3/8/99
KYLE - WITNESS FEE
$100.00
DISPUTED
$74.00
37
3/9/99
JEFFRIES - WITNESS FEE
$100.00
DISPUTED
$74.00
38
4/26/99
KYLE - LEGAL FEES
$116.17
$116.17
39
7/30/98
PHOTOCOPIES
$81.75
$81.75
40
10/98 TO 4/99
COURIER
$137.56
$137.56
41
11/2/98
LONG DISTANCE
$2.55
$2.55
42
2/22/99
TAXI - FOR WITNESS LEWIS
$130.00
DISPUTED
$0
SUBTOTAL
$6,150.39
Item 2 - This amount was the cost of renting a room at the Park Plaza Hotel, at Ms. Turner's instigation, to discuss settlement. I am not satisfied that this is a reasonable expense. There is no reason that the meeting could not have been held at the offices of the insurer or counsel, or at Ms. Turner's home.
Item 6 - Economical asserts that Ms. Turner's use of couriers was unreasonable. I note that counsel typically utilize courier services to ensure delivery of documents and I find that this expense is reasonable.
Item 8 - Economical disputes that a pen refill is an arbitration expense. Ms. Turner took copious notes during the hearing and this expense could be characterized as an arbitration expense.
Items 10 to 14 relate to the cost of a three night stay at the Novotel Hotel, meals and taxi rides to and from Ms. Turner's home, in connection with the October 1999 hearing dates. Economical disputes the reasonableness and necessity of these expenses. Ms. Turner lives in Oakville and the hearing took place at the Commission offices at 5160 Yonge Street. There was no evidence or argument presented as to the necessity of renting a hotel room for the duration of the October 1999 hearing dates. There was nothing in the evidence presented at the hearing which would lead me to conclude that Ms. Turner was incapable of travelling from her home in Oakville by public transportation or by car. The Expense Regulation provides that the maximum amount of travelling expenses that may be awarded for a person in respect of an arbitration which takes place within 300 kilometres of his or her residence is the lesser of 30 cents per kilometre or the actual amount incurred.3 Oakville is approximately 50 kilometres from the Financial Services Commission of Ontario ("FSCO"). Four return trips in respect of the four October hearing dates amounts to 400 kilometres @ $.30/km for a total of $120. Ms. Turner spent $120 on two taxis. Therefore, items 10 and 11 for two $60 taxi rides are allowed. Ms. Turner claimed $120 for meals over four days. I find that this is an excessive amount in respect. The Expense Regulation provides a maximum of $150 per day for overnight expenses and meals, but does not provide a maximum for meals alone. I find that $20 per day is a reasonable expense for meals in circumstances where the insured is not required to stay overnight. Therefore, I allow $80 in respect of item 14.
Item 25 is a mail hold fee. There was no explanation how this relates to the arbitration and it is disallowed.
Item 26 is the account for Dr. Chong's report and attendance. The maximum allowable under the Expense Regulation for the attendance of an expert witness is $200 per hour of attendance, up to a maximum of $1,600 per day.4 A maximum of $500 is payable to an expert in respect of preparation for the hearing.5 The maximum payable to an expert for the preparation of a report is $1,500.6 I have reviewed the report and note that Dr. Chong was required to review all his clinical notes and records and provide a report on very short notice. Dr. Chong's evidence took a couple of hours. I find that the fee charged, $1,347.50, is not unreasonable and is well within the combined maximum respecting report preparation, hearing preparation, and hearing attendance.
Item 28 is an account of $443 for x-rays and an x-ray report by Dr. Baird. The Expense Regulation does not address the maximum disbursements payable in respect of diagnostic tests. In the absence of some evidence of the reasonable cost of x-rays, I am not prepared to find that the account is unreasonable and the full amount of $443 is allowed.
Item 29 relates to Mr. Harris' report. Mr. Harris provided sacrocranial massage therapy, prepared a report, and gave his evidence by telephone. Economical disputed payment of this account on the basis that Mr. Harris was not qualified to give evidence on causation. Despite this limitation,
Mr. Harris did treat Ms. Turner and attempted, albeit unsuccessfully, to shed light on the relationship between her condition and the accident. I am satisfied that $200 is a reasonable disbursement for his report.
Item 30 relates to Dr. Jaconello's account for his report of October 5, 1998 in the amount of $1,200. Economical asserts that this account should be reduced in half in light of Dr. Jaconello's lack of expertise with respect to the nature of Ms. Turner's injuries. Despite this limitation, Dr. Jaconello's report was useful in detailing the chronology of his treatment. It was a lengthy report and within the Expense Regulation maximum amount for preparation of an expert report. I am satisfied that $1,200 is a reasonable fee in respect of this report.
Items 33 to 37 relate to witness fees, for which Ms. Turner claimed $100 in respect of each witness. The Expense Regulation provides that the maximum amount that may be awarded for the attendance of a witness is the amount of the attendance allowance for the witness that may be allowed under Rule 58.05 of the rules of court as a disbursement. Rule 58.05(1)(a) provides that the assessment officer shall assess and allow disbursements in accordance with the Tariffs. Item 21 of Tariff A, Solicitors' Fee and Disbursements Allowable under Rule 58.05, provides for an attendance allowance of $50 for each day, and a travel allowance of $3 per day or, where the witness resides within 300 kilometres of the hearing, $.24/km each way between his or her residence and the place of hearing. The witnesses resided in Oakville, which as discussed above is approximately 100 kilometres return from where the hearing took place. Therefore, each witness is entitled to a maximum of the $50 attendance allowance, plus the $24 travel allowance, for a total of $74 per witness.
Item 42 relates to the cost of a taxi for witness Lewis. The travel allowance discussed above is intended to cover the cost of transportation and accordingly, this disbursement is disallowed.
TABLE 2 - JANUARY 31, 2000 - LIST OF DISBURSEMENTS
DATE
PARTICULARS
AMOUNT CLAIMED
DISPUTED OR NOT
AMOUNT ALLOWED
1
7/15/91
DR. BUDOLOWSKI - TEETH REPAIR -
$139.00
DISPUTED
$0
2
11/6/91
DR. BUDOLOWSKI - TEETH - RESTORATION
$464.00
DISPUTED
$0
3
12/4/94
DR. FIREMAN – TMJ X-RAYS
$107.00
DISPUTED
$0
4
1/13/94
DR. MORAWETZ – TMJ ASSESSMENT
$95.00
DISPUTED
$0
5
12/8/94
DR. GRUSHKA – TMJ ASSESSMENT
$175.00
DISPUTED
$0
6
6/8/93
DR. PSUTKA – TMJ ASSESSMENT
$150.00
DISPUTED
$0
7
11/17/94
DR. ROTH - ASSESSMENT
$75.00
DISPUTED
$0
8
12/2/94
DR. ROTH - REPORT
$70.00
DISPUTED
$0
9
4/20/94
DR. LEVINE - ASSESSMENT
$60.00
DISPUTED
$0
10
12/17/91
HUGH MCMILLAN – DRIVER EVALUATION
$100.00
DISPUTED
$0
11
6/22/92
WHITE OAKS OPTICIANS - SOLAR SHIELDS
$21.85
DISPUTED
$0
12
11/11/94
DR. JACONELLO - LETTER
$35.00
$35.00
13
1/26/95
LETTER FROM DR. CHU
$20.00
DISPUTED
$20.00
14
5/16/94
DR. CURRAN-BLANEY PHOTOCOPIES
$84.50
$84.50
15
11/17/94
OAKVILLE BLUEPRINTING
$15.32
$15.32
16
12/4/92
DR. PRUSIN - EXAM & ASSESSMENT
$80.00
DISPUTED
$0
17
12/14/92
DR. PRUSIN - SURGERY
$435.00
DISPUTED
$0
18
DR. PRUSIN - SURGERY
$400.00
DISPUTED
$0
19
DR. JACONELLO'S ACCOUNTS FOR EXAMS AND TREATMENTS
$2,267.67
DISPUTED
$0
20
RETAINER FEE
$2,700.00
DISPUTED
$0
21
ARBITRATION FILING FEE
$100.00
DISPUTED
$0
SUBTOTAL
$154.82
I find that items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, 17, 18, and 19 are expenses for assessment and treatment to ameliorate the impairments sustained in the accident and are more properly characterized as medical benefits under section 6 of the Schedule, not arbitration expenses. These items are disallowed.
Item 13 relates to a $20 disbursement for a letter from Dr. Chu. Exhibit 8, Tab 22 contains a brief letter from Dr. Chu. Therefore, this item is allowed.
Item 20 is the $2,700 Ms. Turner paid her counsel, Mr. Gillen as a retainer. In her letter of May 30, 2000, Ms. Turner enclosed an interim account from Mr. Gillen. The $2,700 retainer was applied against $2,675 in legal fees and $149.92 in respect of disbursements for courier fees incurred by Mr. Gillen between October 6, 1998 and April 5, 1999. I have stated at the outset that legal fees are not an issue and, therefore, Ms. Turner cannot claim the $2,675 she paid for legal fees as a disbursement. The $149.92 Ms. Turner paid in respect of courier fees between October 1998 and April 5, 1999 were already dealt with and allowed under Item 40, above. Therefore, they cannot be claimed again.
Item 21 relates to the arbitration filing fee of $100. This was already claimed and allowed under Item 1 of Table 1, above. It cannot be claimed again.
TABLE 3 - MS. TURNER'S LETTER OF MAY 30, 2000 - ADDITIONAL CLAIMS
DATE
PARTICULARS
AMOUNT CLAIMED
DISPUTED OR NOT
AMOUNT ALLOWED
1
R. HARRIS - REPORT, TRANSPORTATION, ASSESSMENT
$485.00
DISPUTED
$200.00
2
RETURN OF FILE FROM GILLEN
$21.56
DISPUTED
$0
SUBTOTAL
$200.00
Item 1 relates to a report, transportation and assessments performed by Robert Harris. The receipts submitted by Ms. Turner in her letter of May 30, 2000 indicate two transportation expenses in respect of September 1998 and April 1999 totalling $85.00, a copy of a cheque dated November 5, 1999 made out to the Cranial Therapy Centre in the amount of $200, and a receipt issued by the Cranial Therapy Centre dated November 10, 1999 in the amount of $200. It appears to me that the cheque and the receipt relate to a single expenditure of $200. I have already allowed $200 in respect of a report from Robert Harris, under Table 1, Item 29, above. However, there are reports by Mr. Harris in the record (Exhibit 3A, Tab 15) dated March 20, 1995 and February 22, 1999. Therefore, I will allow this disbursement of $200 for a second report from Mr. Harris. The receipts for transportation are dated September 14, 1998 and April 15, 1999. Mr. Harris' report indicates that the assessments took place on November 3 and December 8, 1998. I am not satisfied that these transportation claims relate to Mr. Harris' assessment. There is no other explanation for these claims and therefore they are disallowed.
Item 2 relates to expenses incurred by Ms. Turner in obtaining her file from her counsel. This is not an expense of the arbitration proceeding.
The total of the allowable expenses is $6,505.21. Economical has already paid $6324.95 in expenses. Therefore, Ms. Turner is entitled to the difference, an additional amount of $180.26.
August 29, 2000
M. Kaye Joachim Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 160
FSCO A-012411
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
L. MARGARET R. TURNER
Applicant
and
ECONOMICAL MUTUAL 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:
- Ms. Turner is entitled to $180.26 in additional disbursements.
August 29, 2000
M. Kaye Joachim Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
- O. Reg 664, R.R.O. 1990, as amended by O. Reg 464/96. Excerpts from this expense regulation are set out in the Commission's Dispute Resolution Practice Code, Third Edition, April 15, 1997, Section F, Expense Regulation.
- Expense Regulation, section 6(2).
- Expense Regulation, section 5(3).
- Expense Regulation, section 5(4).
- Expense Regulation, section 5(5).