Neutral Citation: 2000 ONFSCDRS 198

FSCO A98-000603

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CATERINA (CARANCI) PELLECCHIA

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

July 25, 26 and 27, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ian Little for Ms. Pellecchia

Pamela Brownlee for Liberty Mutual Insurance Company

Issues:

The Applicant, Caterina Pellecchia (formerly Caranci), was injured in a motor vehicle accident on April 15, 1993. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly income benefits on June 7, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Pellecchia applied for arbitration at the Financial Services Commission of Ontario (FSCO) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Pellecchia entitled to weekly income benefits under section 12(5)(b) of the Schedule from June 8, 1996 and ongoing?

2. Is Ms. Pellecchia disentitled to further weekly income benefits because of a return to work under section 16 of the Schedule?

3. Is Ms. Pellecchia entitled to housekeeping expenses under section 6(1)(f) of the Schedule in the amount of $50 per week from February 28, 1994 until July 2, 1999?

4. Is Ms. Pellecchia entitled to babysitting expenses under section 6(1)(f) of the Schedule?

5. Is Ms. Pellecchia entitled to occupational training expenses under section 6(1)(c) of the Schedule?

Ms. Pellecchia also claims interest and her expenses of the arbitration.

Result:

1. Ms. Pellecchia is entitled to weekly income benefits from June 8, 1996 to June 30, 1998.

2. It is unnecessary to determine this issue.

3. Ms. Pellecchia is entitled to housekeeping expenses at the rate of $20 per week from February 28, 1994 to July 2, 1999.

4. Ms. Pellecchia is entitled to babysitting expenses in accordance with this decision.

5. Ms. Pellecchia is not entitled to occupational training expenses.

Ms. Pellecchia is entitled to interest. The issue of expenses can now be addressed.

EVIDENCE AND ANALYSIS:

At the time of the accident, Ms. Pellecchia was 24 years old. She had recently married and was living on the upper floor of her in-laws' house, in a self-contained apartment. She worked as a head cashier at Hy & Zel's supermarket.

On April 15, 1993 Ms. Pellecchia was involved in a motor vehicle accident when her car was struck on the driver's side. Ms. Pellecchia recalls striking her head against the car window more than once. She felt an immediate pain in her neck, and in her groin, from pushing on the emergency brake. She was taken that day to the hospital and followed up with her family physician, Dr. B. Y. Chiu.

Over time, Ms. Pellecchia gradually developed headaches, dizzy spells, jaw pain, left shoulder pain, and upper, middle and lower back pain. She continued to experience neck pain and right groin pain. She developed difficulties sleeping and suffered from fatigue. Currently, Ms. Pellecchia does not feel capable of performing any work on a full-time basis, due to her headaches, fatigue, dizziness and chronic pain.

Ms. Pellecchia initially underwent extensive physiotherapy, chiropractic treatment, and massage therapy. She was eventually provided with a gym unit to enable her to perform her own physiotherapy program at home.

Since the accident, Ms. Pellecchia has borne two children. Olivia was born on October 10, 1994 and Matteo was born January 30, 1999. She takes care of her children and performs most of the housework.

Ms. Pellecchia has not returned to full-time work. Ms. Pellecchia performed some office work for her husband, a self-employed electrician. She answered telephone calls, and was responsible for invoices, banking, minor bookkeeping and GST payments. She continued to perform this work for a couple of hours per week until at least January 2000.²

In 1996, Dr. Chiu urged Ms. Pellecchia to try returning to work on a gradual, volunteer basis, to test her capacity for work. From 1996 to 1998, Ms. Pellecchia did volunteer work at a local cultural organization. She helped organize events and did the paperwork. The hours of work varied, depending on the organization's needs. Sometimes she worked up to eight to 10 hours per week.

In April 1998, Ms. Pellecchia found work as an administrative assistant at the Dance Center of Canada in Woodbridge. She did secretarial duties, occasional sales and light cleaning, such as sweeping, as well as looked after the snack bar. She earned $8.00 per hour. She worked from April 20 until the end of July 1998. Although the hours were variable, she generally worked three to five hours at a time, three evenings per week, between 3.00 and 10.00 p.m. The Dance Center closed for the month of August and when she returned to work, her employment was terminated. She brought a successful employment standards claim against her employer for pregnancy-related discrimination. Ms. Pellecchia testified that she was capable of performing this part-time work and would have continued there, had her employment not been terminated.

Ms. Pellecchia did not resume her job search, but began considering a future career. In September 1999 she began an 18-month ESL program to obtain a certificate to teach English as a second language to adults. Although she takes the program by correspondence, she must keep the same pace as students attending in person. She described the course as requiring eight to 10 hours of reading per week. She hopes to teach a few evenings per week.

In addition, in March 2000, Ms. Pellecchia began performing occasional office work for her former physiotherapist. She answers the phone, books appointments, and enters client information into the computer. She also instructs her employer on the use of computers and helps with minor bookkeeping. She is paid $12 per hour and has worked 18 hours over the course of four months.

1. Weekly Benefits Beyond June 8, 1996

In order to establish entitlement to ongoing weekly income benefits Ms. Pellecchia must demonstrate that the injuries from the accident continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. Ms. Pellecchia alleges that she is incapable of working at any job on a full-time basis and therefore meets the test for ongoing benefits. Liberty asserts that Ms. Pellecchia has chosen not to return to full-time work because she prefers to stay at home and look after her children.

Education, Training and Experience

Ms. Pellecchia graduated from high school in 1988 and enrolled in a four year Honours BA program in political science and linguistics at York University. Throughout her schooling she worked at various jobs, including cashier and factory work. She took a three-month course in travel and obtained a Travel Counselling Diploma from the Knox Travel Academy in 1990. She worked part-time as a travel consultant with Goligers Travel in 1991. She began working at Hy & Zel's on a part-time basis and upon graduation in June 1992, she continued on a full-time basis.

At the time of the accident, Ms. Pellecchia was working as a head cashier at Hy & Zel's. In her application for benefits she described her essential tasks as follows: "full-time head cashier and scanning co-ordinator. Responsible for supervisory duties of cashiers and scanning of products. Act also administrative assistant to manager. Responsible for banking, computer work, cash (minimum 5 hours/day), running around to change prices." She also indicated that she did "lifting on the occasion." Her employer described her position as Point of Sales Co-ordinator, and confirmed that her duties were multi-faceted and included cash, inventory, stock, computer operations, bookkeeping, supervising and scheduling cashiers. Her employer described the job as very physically demanding and stressful.

Ms. Pellecchia testified that she was responsible for hiring and firing cashiers, but this duty was not listed on the Employer's Confirmation of Income. Also, when describing her duties to Genex during the course of rehabilitation, she did not mention these duties. I do not find that hiring and firing were official duties in her position as head cashier. I find that at the time of the accident, Ms. Pellecchia was employed as a head cashier, a position which involved a fair amount of physical activity, as well as administrative and supervisory responsibilities. At the time of the accident, she was earning $9.50 per hour.

There was some dispute about the number of hours worked. Ms. Pellecchia considered herself employed on a full-time basis, although her hours were variable. The income tax records suggest that in 1993 she was averaging approximately 35 hours per week, but that does not take into account vacation pay, or unpaid time for illness. The Employer Confirmation of Income indicates that in the six weeks prior to the accident, Ms. Pellecchia worked between 22.50 and 38.25 hours on a weekly basis, excluding the week she was ill. I am satisfied that the evidence establishes that Ms. Pellecchia was regularly working shift work between 25 and 40 hours on a weekly basis. She was required to be available for work five days per week. She was earning approximately $9.50 per hour. Extrapolating her 1993 income over 52 weeks, Ms. Pellecchia was earning approximately $17,500 annually³. She testified that she considered this "good money."

Suitable Work

Despite the money and the responsibility, Ms. Pellecchia did not see herself working at Hy & Zel's forever. Prior to the accident she applied twice to Teacher's College, but was not accepted. Just prior to the accident, Ms. Pellecchia was actively searching for other work, and had explored the possibility of a government internship in Travel and Tourism.

Ms. Pellecchia argued that she was underemployed at the time of the accident and that the determination of suitable work in her case should take into account her potential career path, not just her past career path. Ms. Pellecchia's actions just prior to the accident indicate that she intended to obtain further schooling or training in order to obtain better career prospects. The accident intervened before Ms. Pellecchia pursued any further education or training. The Schedule does not require the Insurer to fund the further education or retraining Ms. Pellecchia might have pursued, but for the accident. Nor am I entitled to consider Ms. Pellecchia's potential career prospects, had she pursued further education or training. I must consider what type of work is suitable to Ms. Pellecchia, given the education, training and work experience she had at the time of the accident. Ms. Pellecchia is free to pursue further education to improve her career prospects. However, if she is capable of returning to work suitable to her pre-accident education, training and experience, she will have to fund that education herself, just as she would have had to, had the accident not intervened.

Liberty arranged for two transferrable skills analyses to be performed. In March 1996, Genex assessed Ms. Pellecchia's level of education, work history, and work skills to identify jobs suitable to Ms. Pellecchia's physical limitations and work skills. Only light duty or sedentary jobs were considered, because of Ms. Pellecchia's chronic pain condition. Six positions were identified as vocationally suitable for Ms. Pellecchia: travel agent, welfare and compensation officer, community development worker, claims examiner, collection clerk and credit clerk. However, there was no evidence whether these positions were reasonably available and I have not considered them in my analysis.

In November 1996, Sibley & Associates generated a Computerized Transferable Skills Analysis Assessment identifying 25 vocationally suitable positions in the light/sedentary physical demands category. The positions had no formal education prerequisites, and required only minimum retraining, in the form of familiarization in an on-the-job setting or a formal academic setting. Ms. Pellecchia questioned the validity of this analysis on the basis that she was not interviewed for it. I agree that this lessens the reliability of the vocational analysis somewhat. However, it is the only vocational evidence submitted and it is the best evidence available. The consultant determined Ms. Pellecchia's vocational skills and aptitudes based on her employment history, which is the same type of information they would have obtained through an interview. Indeed, an interview might well have identified further vocational options.

One of the positions identified was travel agent. Ms. Pellecchia does not dispute that this is vocationally suitable, but asserts that she is not currently able to return to work in the travel industry, as her skills are out of date. Following a five day job search strategies program in February 1997, the Consultant from Sibley & Associates specifically stated: "In order for Cathy to reenter the Travel & Tourism field as a Travel Agent she should be re-trained in: Domestic Airline Ticketing & Tariff; International; Bank Settlement Plan; Sabre Computer Training. This training will help her to be competitive." This evidence indicates that Ms. Pellecchia would require the upgrading or training identified to obtain work as a travel agent. Liberty did not offer this retraining, and did not respond to Ms. Pellecchia's request for retraining in this field.⁴

However, there were numerous other positions suggested which Sibley & Associates identified as requiring only minimal retraining in the form of on-the-job familiarization.⁵ Ms. Pellecchia did not attempt to find work in any of these other areas and presented no evidence to demonstrate that these positions were not vocationally suitable or that she could not compete for them. In the absence of any vocational evidence contradicting the Sibley & Associates findings, I am prepared to find that the options identified by Sibley & Associates were vocationally suitable. I will identify three which appear most suitable.

Supervisor - Cashiers is suitable, as this is similar to the work she was doing prior to the accident, with fewer physical demands.

Another vocationally suitable position is receptionist. Ms. Pellecchia worked as a receptionist in the past. Since the accident, she has continued to demonstrate some vocational interest in general office and administrative duties, through her work at the Dance Center and the Woodbridge Wellness Centre.

Another vocationally suitable position is ticketing clerk, which involves preparing airlines tickets for customers. This is similar to the travel agent position, in which she has expressed interest.

The parties disputed whether Ms. Pellecchia continued to meet the test for eligibility if she was capable of returning to part-time work, rather than the full-time hours she performed prior to the accident. The arbitral case law establishes that from a financial perspective, the remuneration of the alternative employment must not be substantially less than what the insured was earning prior to the accident. If she is able to achieve a similar level of income by performing fewer hours than prior to the accident, then this alternative employment is reasonably suitable for her. If, however, the part-time work she is capable of doing provides her with an income which is substantially less than what she earned prior to the accident, then this is not work which is reasonably suitable for her within the meaning of section 12(5)(b). She would continue to be entitled to weekly benefits, less any part-time earnings. From a financial perspective, work which would generate an annual income not substantially less than $17,500 would be considered suitable.

All the positions identified above have entry level annual salaries greater than $17,500. Some of these positions have a significantly higher entry level annual salary. For example, Ticketing Clerk had an entry level salary of $26,765. It is possible that Ms. Pellecchia might have been able to achieve her pre-accident level of annual earnings by working as a ticketing clerk on a less-than-full-time basis. However, there was no evidence to suggest that this work was available on a part-time basis. Therefore, I have considered whether Ms. Pellecchia is capable of returning to work at the above positions on a full-time basis.

Although no specific labour market survey was done with respect to the above positions, Sibley & Associates identified the general employment trends for those positions as "good."

Ability to Work

Ms. Pellecchia asserts that she is not capable of full-time work on a sustained basis, due to a combination of pain, fatigue, dizziness and headaches. These are not symptoms which are capable of objective measurement. Ms. Pellecchia has not attempted to work full-time and has never been tested through work simulation for her capacity to work full-time.

The record demonstrates that Ms. Pellecchia presented herself to most health care practitioners as a credible, motivated woman. She was highly motivated shortly after the accident to attend physiotherapy, and continued to do so through most of her pregnancy. She resumed physiotherapy treatment in her home a few months after the birth of her first child. This tends to confirm the sincerity of her pain symptoms and indicates a motivation to overcome the effects of the accident.

I accept that Ms. Pellecchia continues to suffer residual symptoms of pain, dizziness, fatigue and headaches as a result of the accident. I am satisfied that for some period of time after the termination of benefits, she continued to be functionally impaired by those symptoms to the point that she was not capable of returning to any employment on a full-time basis.

However, I am satisfied that the totality of evidence demonstrates that by the end of June 1998 Ms. Pellecchia was capable of working substantially more hours than she chose to.

One of the factors in this case has been the change of circumstances due to Ms. Pellecchia's family responsibilities. Ms. Pellecchia has demonstrated some ambivalence towards returning to work in light of the birth of her first child. The Rehabilitation Consultant who worked with Ms. Pellecchia over a considerable period of time reported that Ms. Pellecchia stated "I have chosen to stay at home with my baby and now I want to enjoy her." This consultant observed that Ms. Pellecchia did not want to set goals about returning to work and did not appear motivated to return to work in light of her child care responsibilities.

Ms. Pellecchia testified that prior to the accident, she had not made a conscious decision to stay home after she had children. Her husband had asked her if she would like to stay home and she testified "sure, if I could, but I never made a conscious decision; I never had a choice." Ms. Pellecchia testified that if she had a good job, she would go back to work.

Mr. Pellecchia testified that if he was working and "everything was good" he would have given Ms. Pellecchia a choice to "stay home or not." He felt that because of the accident, she never had the option.

The clear sense from their evidence is that Ms. Pellecchia might have chosen to stay home after having children, regardless of the accident. On the other hand, she might not have. I agree with Ms. Pellecchia that it is speculative to guess what would have happened. The Schedule does not require that kind of crystal ball gazing. The issue before me is not whether Ms. Pellecchia might have stayed home anyway. The issue is whether she is capable of returning to suitable full-time work. If so, then it is irrelevant whether Ms. Pellecchia chooses to return to that work or not. Similarly, if she is not capable of returning to that work, then is it irrelevant if she is grateful or glad to be with her children instead.

However, Ms. Pellecchia has some ambivalence about returning to some kinds of work, regardless of her capacity. She did not perceive herself working at Hy & Zel's for her whole life, and the clear impression from the record is that if that is the type of work available for her to return to, then she is not motivated to return.⁶

At the same time, Ms. Pellecchia is interested in improving her qualifications and her career options. She was seriously considering Teacher's College prior to the accident and has since modified that dream to train as an English as a Second Language teacher instead. This desire for a better career appears to have influenced her against focussing on a return to her previous career or the alternatives identified by Sibley & Associates. As indicated earlier, Ms. Pellecchia did not attempt to apply for any of the positions identified by Sibley & Associates.

Ms. Pellecchia is not entitled to benefits if she is capable of returning to the type of supervisory/reception/ticketing agent work I have previously found suitable for her.

The following factors demonstrate to me that Ms. Pellecchia was capable of returning to work on a full-time basis to any of those positions by the end of June 1998.

There are some discrepancies between Ms. Pellecchia's reported functional abilities and her abilities as seen on video surveillance. The video surveillance from October 1995 demonstrates that Ms. Pellecchia was physically capable of lifting her daughter, who weighed approximately 22 lbs at that time. At the same time, during formal testing, Ms. Pellecchia did not demonstrate the ability to lift similar weight. Similarly, in January 2000, she is seen carrying her son, who weighed approximately 20 lbs at that time, together with his car seat. She did not appear to experience any distress. At the same time, she maintains that she is not capable of the lifting requirements of her previous job, which required approximately 25 lbs. The video surveillance taken in January 2000 shows Ms. Pellecchia moving freely and easily. She can be seen bending and carrying her son and groceries, without any apparent distress. She can be seen making several quick trips up and down the stairs. The video surveillance demonstrates an energy and a fluidity of movement which is somewhat inconsistent with her complaints of chronic pain, fatigue, headaches and dizziness.

From 1996 to 1998, Ms. Pellecchia demonstrated the capacity to perform up to 10 hours of volunteer work per week plus a couple of hours of office work, in addition to her child care responsibilities. This gradual return to work increased her functional ability.

From April to July 1998, Ms. Pellecchia demonstrated the capacity to work regularly for more than 15 hours per week. In the first two weeks of June she demonstrated the capacity to work 48 hours over a two week period (24 hours per week on average). She worked 54.5 hours over the latter two weeks of June (27.25 hours per week on average). This work was often performed in the evenings, after Ms. Pellecchia had already spent the day looking after her child. In my view, the capacity to work that many hours, after a full day of child care, speaks to a greater functional capacity than Ms. Pellecchia perceives. I find that Ms. Pellecchia demonstrated that between April and July 1998 she was capable of functioning over a sustained period from early in the morning until 9:00 or 10:00 o'clock at night, over many successive days.

In May 1998, Ms. Pellecchia was referred to F.I.T. Rehabilitation & Assessment Centres Inc., by her own counsel, for a functional evaluation. Based on functional testing and questionnaires, Cathy Butler, a Physiotherapist and Clinical Evaluator, determined that the work at the Dance Center involved a sedentary level of strength and that Ms. Pellecchia was capable of performing that level of work. She recommended increasing the hours as tolerance permitted.

I recognize that the work at home and at the Dance Center was flexible. While working at home Ms. Pellecchia was free to rest and pace herself as required. Similarly, the work at the Dance Center allowed her to alter her position and sit and stand as desired. However, in my view the ability to work at both child care and evening work over a four-month period indicates to me that Ms. Pellecchia was physically capable of the light, sedentary work I have previously identified as suitable, on a full-time basis.

Ms. Pellecchia testified that had her employment at the Dance Center not been terminated, she considered herself capable of maintaining that type of employment.

I am unable to give significant weight to Dr. Chiu's opinion that Ms. Pellecchia was only capable of returning to part-time work. Dr. Chiu's opinion is based solely on Ms. Pellecchia's reported limitations. I have found that Ms. Pellecchia's self-reports are not entirely consistent with her functional abilities. Dr. Chiu did not specifically assess Ms. Pellecchia's ability to return to other, more sedentary types of work on a full-time basis. Indeed, he lacks the vocational expertise to make that kind of assessment.

Ms. Pellecchia relied upon her symptoms of dizziness to assert that she is incapable of performing any work on a full-time basis. Ms. Pellecchia exhibited two forms of dizziness. She experienced a spinning sensation which required her to lay down for several hours. This was diagnosed as Meniere's syndrome or recurrent vestibulopathy. By June 1998 she reported that these spells occurred once a month. I am not convinced that these spells prevent her from engaging in any full-time work. It is noteworthy that these spells did not prevent her from working at the Dance Centre. Despite these spells, Ms. Pellecchia testified that she only once had to call her husband home to assist her over the years. Dr. Haight, the otolaryngologist who treated her for this condition, noted that it could be treated with medication. However, by June 1998 she was not taking any medication for this condition. Dr. A. M. Noyek, Otolaryngologist-In-Chief at Mount Sinai Hospital also examined Ms. Pellecchia and reviewed her history of dizziness. He did not believe that the episodes of dizziness should prevent her from working. In my view, the totality of evidence does not suggest that the dizziness was of such severity as to prevent her from engaging in full-time work.

Ms. Pellecchia also claimed to suffer frequent, brief spells of dizziness when moving quickly. Dr. Haight was of the opinion that these brief attacks might prevent her from working at an optimal level or increase the risk of injury. However, the video surveillance in January 2000 shows Ms. Pellecchia bending down repeatedly to pick up groceries and moving quickly. She did not appear to suffer any dizziness during these types of movements. I am not satisfied that these brief dizzy spells prevent Ms. Pellecchia from returning to full-time employment.

In summary, I conclude that Ms. Pellecchia has the work skills to obtain employment in alternative positions such as supervisor - cashiers, receptionist, and ticketing agent, and that such work is vocationally suitable for her. As this work would provide a similar annual income as her pre-accident income if performed on a full-time basis, I find that this work is suitable from a financial perspective. Finally, I conclude that she was physically capable of performing that work on a full-time basis from June 30, 1998.

Accordingly, Ms. Pellecchia no longer met the eligibility test beyond June 30, 1998.

2. Section 16

Liberty submitted that in light of Ms. Pellecchia's return to work from April to July 1998, she was disentitled to further weekly benefits beyond that date by virtue of section 16 of the Schedule. In light of my conclusion above, it is unnecessary to determine that issue.

3. Housekeeping

Ms. Pellecchia claims $50 per week until July 2, 1999, as a non-medical expense under section 6(1)(f) of the Schedule, to compensate for the housekeeping chores performed by her husband. Liberty paid a lump sum for housekeeping which would equate to approximately $50 per week until February 28, 1994.

The Pellecchias testified that prior to the accident, Ms. Pellecchia was solely responsible for all the housework. Immediately after the accident, Mr. Pellecchia took on many of the household chores. However, by January 1994, Ms. Pellecchia reported that she had returned to doing light housekeeping while her husband did all the heavy work. The Pellecchias testified that Ms. Pellecchia never resumed certain functions, including shopping for heavy groceries, carrying the laundry up and down, vacuuming with the heavy vacuum, and mopping the floors. Mr. Pellecchia testified that he has continuously performed these functions since February 1994 and that he spent approximately five hours per week performing them.

Although there were various periods when Mr. Pellecchia took on more duties, for reasons related to his wife's pregnancy and the birth of children, the claim for housekeeping only relates to the heavy vacuuming, mopping, and the assistance with heavy groceries and laundry. I am satisfied that Ms. Pellecchia's inability to perform those functions was related to the accident.

The record is replete with references that Mr. Pellecchia was continuously helping with the heavier aspects of the housework, which was not work he was required to do prior to the accident. I am satisfied that the type of housekeeping service he provided is a non-medical expense that under section 6(1)(f) was required as a result of the accident. There is little doubt that if an outsider had been paid to perform these housekeeping chores, they would be reimbursable under section 6(1)(f). I see no reason to decline the expense claimed simply because it was performed by Mr. Pellecchia. Indeed, it would be difficult to hire outside help to perform these sporadic tasks.

However, I find that Mr. Pellecchia's estimate of the time spent vacuuming, mopping, carrying laundry up and down, and shopping for heavy groceries somewhat high. Mr. Pellecchia did not keep track of the time spent and it does not appear to me that these tasks would require five hours on a weekly basis. I find that two hours per week, at $10 per hour, is a reasonable expense for the housekeeping services performed by Mr. Pellecchia.

Ms. Pellecchia is entitled to housekeeping expenses in the amount of $20 per week from February 28, 1994 to July 2, 1999.

4. Babysitting

Ms. Pellecchia submitted a claim for $1,215 in non-medical expenses to compensate her mother for the time spent babysitting her daughter, when Ms. Pellecchia attended physiotherapy and when she was too ill to look after her child. The invoice, submitted in July 1999, sets out various dates between January 1996 and June 1999 when Ms. Pellecchia's mother claims she babysat. She charged $10 per hour. The invoices lack detail, such as the times of babysitting and the specific need for babysitting, on a particular day. I heard no evidence about how these invoices were recreated, years after the fact.

I accept that Ms. Pellecchia required babysitting services to enable her to participate in her medical treatment and medical assessments. To the extent that the dates shown correlate with such treatment or assessments, I find that these are reasonable non-medical expenses under section 6 of the Schedule. For example, the dates in January and February 1996 appear to correlate with the time that Ms. Pellecchia was involved in an intensive work hardening program at Woodbridge Physiotherapy Centre. However, I do not propose to wade through the six volumes of documents to correlate the dates. I leave it to the parties to do so.

Those dates which cannot be related to specific treatment or assessments are not allowed. It may be that Ms. Pellecchia also called upon her mother for babysitting when she was not feeling well, but it is apparent from the vague nature of the evidence presented that neither she nor her mother are able to recall those specific dates or times. I find that Ms. Pellecchia has failed to establish that aspect of her claim.

5. Travel Course

In late 1996, Ms. Pellecchia completed an admissions test at the Toronto School of Business and was accepted into the Travel & Tourism Diploma full-time course commencing January 13, 1997. The tuition fee for the course is $4,495 and lab fees and books were estimated at $285.

Ms. Pellecchia seeks the cost of this training. In light of my finding that Ms. Pellecchia is capable of returning to various alternative positions, she is not entitled to further vocational retraining.

Interest

Ms. Pellecchia is entitled to interest on the above amounts in accordance with section 24 of the Schedule.

EXPENSES:

The parties are urged to resolve the issue of expenses between themselves. If they are unable to do so, they may apply to FSCO for a determination of this issue.

November 2, 2000

M. Kaye Joachim Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 198

FSCO A98-000603

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CATERINA (CARANCI) PELLECCHIA

Applicant

and

LIBERTY 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:

1. Liberty shall pay weekly income benefits until June 30, 1998.

2. Liberty shall pay housekeeping expenses at the rate of $20 per week from February 28, 1994 to July 2, 1999.

3. Liberty shall pay babysitting expenses in accordance with this decision.

4. Liberty shall pay interest on overdue benefits in accordance with section 24 of the Schedule.

November 2, 2000

M. Kaye Joachim Arbitrator

Date

Footnotes

1. 1The 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.
2. 2Dr. Chiu reported in January 2000 that Ms. Pellecchia was continuing to perform this work.
3. 3In the fifteen weeks between January 1 and the April 15, 1993 accident, Ms. Pellecchia earned $5,047.32 in employment income, which equals a weekly income of $336.48. Annually, she was on track to earn $17,497.38.
4. 4Exhibit 2, Tab 59.
5. 5The Sibley & Associates report stated that the jobs required "minimum retraining, familiarization, in an on the job setting or a formal academic setting." [Emphasis added.] I interpret this to mean that the familiarization could be achieved either on the job or through formal training. Indeed, in the detailed summary found at Exhibit 5, Tab D 10, page 11, the training is identified only as "Minimum, Familiarization Only."
6. 6For example, Ms. Pellecchia reported in January 1994 that she was not very fond of her job at Hy & Zel's. The Canadian Back Institute identified this as a possible barrier to her return to work. (Exhibit 1, Tab 11). On her own evidence, she was actively seeking alternative employment and considering further education while working at Hy & Zel s.