Neutral Citation: 2002 ONFSCDRS 22

FSCO A01-001341

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHARON A. MORABITO

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

October 29, 30 and 31, November 4,5 and 6, 2002, in St. Catharines, Ontario.

Appearances:

Brian A. Banfield for Ms. Morabito

Dwaine Burns for Liberty Mutual Insurance Company

Issues:

The Applicant, Sharon A. Morabito, was injured in a motor vehicle accident on June 13, 1995. She applied for and received various statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ The parties were unable to resolve their disputes at mediation and the matter proceeded to arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties have been to an arbitration hearing on one prior occasion. At that time, the issues were, among others, whether Mrs. Morabito was entitled to income replacement benefits after July 16, 1997 and whether she was entitled to a loss of earning capacity benefit (LECB) offer from Liberty, pursuant to section 21 of the Schedule. The Arbitrator determined that Mrs. Morabito was entitled to receive income replacement benefits after July 16, 1997 and until Liberty made her a LECB offer (which it was required to do), and otherwise complied with Part VI of the Schedule.²

In respect of her ability to engage in the essential tasks of her employment, the arbitrator made the following findings:

I accept the testimony of Mr. and Mrs. Morabito that Mrs. Morabito tried to work from time to time after the motor vehicle accident but was unable to work full time hours. I find that since July 16, 1997 Mrs. Morabito has been disabled from engaging in the essential tasks of her employment.

Liberty made a LECB offer on or about March 14, 2001. Mrs. Morabito rejected the offer and the dispute was referred to a Residual Earning Capacity Designated Assessment Centre (RECDAC). Mrs. Morabito disputes the conclusions of the RECDAC. The parties also disagree about Mrs. Morabito's pre-accident earning capacity (PEC).

At the conclusion of the hearing, Mrs. Morabito asked that this decision be anonymized on the ground that the revelation of some of Mr. Morabito's business activities could prove embarrassing to him, as he continued to work in the retail gas business. Liberty opposed the request.

I have decided to deny Mrs. Morabito's request. Hearings at the Commission are open to the public and decisions of the Commission are public documents. It is normally apparent who the parties were, what their positions and evidence was. While arbitrators have, on occasion, anonymized decisions to protect the identities of applicants, this is most often done to avoid revealing the applicant's medical or health condition. The conduct of a party or a witness has not been the normal ground for the anonymization of a decision.

Mrs. Morabito nevertheless argued that applicants should not need to worry that an insurer will somehow misuse information disclosed in a Commission decision. On the facts of this case, as described below, I do not agree that this concern justifies a departure from the Commission's normal public process.

The instant hearing began on October 29, 2002 before another arbitrator who became ill and was unable to continue. The hearing began before me on October 30. A court reporter was present throughout the proceeding and a transcript of the first day of the hearing was produced. However, other than the tendering of several exhibits, the hearing was recommenced before me.

The issues in this hearing are:

What is the quantum of Mrs. Morabito's LECB pursuant first, to section 29 of the Schedule? Implicit to this determination are two sub-issues: What is Mrs. Morabito's PEC pursuant to section 29 of the Schedule? and; secondly, what is the quantum of Mrs. Morabito's REC pursuant to section 30 and 79(1) of the Schedule?
Is Liberty liable to pay Mrs. Morabito a special award because it unreasonably withheld or delayed payments pursuant to section 282(10) of the Insurance Act?
Is either party entitled to their expenses of the arbitration?

Result:

Mrs. Morabito is entitled to a LECB based on a REC of 0$ and gross PEC of $31,000. The net weekly income amounts used in the calculation of the LECB shall be indexed in accordance with section 79(1) of the Schedule.
Mrs. Morabito is entitled to a special award of $500.
The issue of expenses is deferred. The parties may speak to the issue in accordance with Rule 77 of the Practice Code.

Residual Earning Capacity:

Mrs. Morabito claims that she is not competitively employable at present as a result of her severe migraine-type headaches, fatigue, pain in her neck, tingling sensation in her arms and hands, and cognitive deficits — confusion and memory problems. Liberty disagrees and relies on the RECDAC which concluded that Mrs. Morabito was employable as a general office clerk on a part-time basis. The RECDAC determined that Mrs. Morabito REC was $14,840 (based on 20 hours per week).

The criteria for determining the quantum of Mrs. Morabito's REC are set out in section 30(2) of the Schedule.

Determining Residual Earning Capacity

30.—(1) For the purpose of this Part, the residual earning capacity of a person shall be deemed to be the net weekly income determined in accordance with section 81 or 82 using the gross annual income that the person could earn from the type of employment that best satisfies the criteria set out in subsection (2).

(2) The criteria referred to in subsection (1) are:

The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

The employment exists in the area in which the person lives and is accessible to the person.
It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

Mrs. Morabito testified at the hearing. She gave her evidence on the second and fourth days of the hearing. On the first day of her evidence she wore sunglasses. She testified at that time that she was suffering a migraine and had been up much of the night before throwing up. She also testified that prior to giving her evidence that day, she had taken significant medications including 120 mg of mscontin, 25 mg of stanesol, 50 mg of gravol and 40 g of ridolin. She testified that she required this quantity of medications to attend at the hearing that day and give her evidence. She testified that taking this amount of medication was not her usual routine, however it was also not uncommon. Through counsel she indicated that she was unable to complete her evidence-in-chief that day, and the hearing adjourned early. Mrs. Morabito next appeared on the fourth day of the hearing, a Monday morning. On this occasion she was not wearing sunglasses and appeared more relaxed. As the morning progressed Mrs. Morabito appeared to become fatigued and more emotionally labile. After the mid-day break, Mrs. Morabito returned wearing sunglasses which she wore to the conclusion of her evidence.

Mrs. Morabito testified about the motor vehicle accident and her initial injuries. Much of this evidence was discussed in the decision of Arbitrator Renahan and I do not intend to deal with it in detail here. Suffice it to say that Mrs. Morabito's difficulties have continued. She testified that she continues to experience jaw pain and associated, she believes, ear aches. Jaw pain, Mrs. Morabito stated, were one of several triggers for the migraine-type headaches that she suffers. Mrs. Morabito testified that she suffers from these headaches 3 to 7 times per week. They can last for a short period of time — one hour — or up to the whole week. The migraines are often associated with nausea and vomiting which aggravates her jaw pain, and which then can exacerbate the headache leading to what Mrs. Morabito described as a vicious cycle of nausea, vomiting and headaches.

Mrs. Morabito testified that she continues to be unable to work on any sustained basis because of the severe migraine-type headaches described above, as well as fatigue, pain in her neck, tingling sensation in her arms and hands, and cognitive deficits - confusion and memory problems. She testified that while she is capable of doing some work for short periods of time, she is incapable of sustained work. She stated that she could not, for example, do bookkeeping out of her home as recommended by the RECDAC, because she would be unable to guarantee that the work could be done in a timely manner. She stated that no one would hire a bookkeeper who was unable to provide bookkeeping when it was required.

Both her husband, Mr. Morabito, and her daughter, Mellissa, gave evidence at the hearing. Each confirmed the perceived impact of the accident on Mrs. Morabito's life and ability to function, particularly her ability to perform work. Each confirmed in a general way Mrs. Morabito's evidence.

Dr. G. A. Fulton, a physiatrist, who examined Mrs. Morabito at the request of Liberty in May 1999, offered that Mrs. Morabito could work at most two hours per day on any one task. Dr. Fulton went on to opine as follows:

Because the pain that she experiences can be, as she perceives it, very consistent in its intensity, quite crippling and disabling, she cannot be reliably available to return to he full past life duty in any sphere of social or industrial engagement.

It is the essential inconsistency and accordingly unreliability of her performance in the working world that will limit her return to work, Although a number of modifications may be made in the workplace as ergonomic advisements, and although the benefits of task analysis and subsequent assistive "machineries" may be brought both into the workplace and the home, nevertheless, there will be days in which Mrs. Morabito is essentially unable to function because of the severities of her pain state and her personal interpretation of that state meaning especially in the presence of periodic attacks (again unpredictable) of a sensed nothingness in her upper extremities.

The RECDAC assessments were scheduled to occur on July 14, 18, August 22, September 5 to 8 and September 12, 2000. Mrs. Morabito did not attend all of the scheduled assessments. On those occasions she did attend, Mrs. Morabito limited her attendance to a maximum of 1.5 hours.

Both Mr. and Mrs. Morabito testified that Mrs. Morabito attended the assessments to the extent that she was able to. She testified that on one of the first scheduled days, she had a severe migraine headache that prevented her participation. Dr. Denton Buchanan, a neuro-psychologist, testified that on one occasion, probably her first visit, Mrs. Morabito attended but he was told by Mr. Morabito that his wife would not participate in the assessment because of a migraine. It is likely that Dr. Buchanan was not pleased that Mrs. Morabito was unable to participate in an assessment on the day in question. However I am not satisfied that Dr. Buchanan's frustration did not have a substantial impact on his conclusions.

Dr. Buchanan administered two tests designed to reveal attempts by the recipient to deceive or mislead. Mrs. Morabito's scores strongly suggested the possibility of intentional deceit or malingering, according to Dr. Buchanan, although in his evidence he was careful to state that he made no positive finding in this regard. Mrs. Morabito was unable to complete much of the additional testing which Dr. Buchanan had planned to administer. However, some further testing was completed. Mrs. Morabito's performance on the so-called intellectual measures placed her at the bottom sixth percentile of the general population, marginally above the "required score for mental retardation." In Dr. Buchanan's view, these results were not in keeping with her history,. Mrs. Morabito also completed the General Aptitude Test Battery. These tests confirmed that Mrs. Morabito had good clerical skills despite apparent inadequate effort.

Dr. Buchanan testified that, in his view, while a migraine headache could interrupt performance, it could not explain Mrs. Morabito's consistent poor performance. Dr. Buchanan did acknowledge however, that Mrs. Morabito did say, after about an hour and a half on each occasion, that she had 'had enough,' which was consistent with the pattern some individuals in pain may exhibit.

A medical and physical assessment was conducted as part of the RECDAC by Dr. Kenneth Craven. He concluded that Mrs. Morabito was able to be "safely active with her symptom tolerances" and accordingly, could participate in the work simulation element of the RECDAC. He also testified that Mrs. Morabito did not meaningfully participate in the work simulation part of the assessment. However, he understood that the RECDAC was nevertheless required to make a determination according to the guidelines established by the Commission.

The RECDAC "deemed" Mrs. Morabito to be able to perform administrative/clerical work on a part-time basis. Dr. Buchanan testified that he concurred in the RECDAC's conclusion.

However, he also testified that he felt that Mrs. Morabito could do a great deal more and stated that he believed she could work full time. It is not entirely clear how the RECDAC came to the conclusion that Mrs. Morabito could work 20 hours per week. The report itself does not disclose precisely how the number was arrived at.

It is not disputed that Mrs. Morabito did attempt to contribute to the family business for a considerable length of time after the accident. In Dr. Elaine MacNiven's report of November 17, 1995 she reports that Mrs. Morabito was unable to do any work for the business until the first week of November. Dr. MacNiven and Mrs. Morabito reportedly discussed strategies to deal with a backlog of work. The GST and PST remittances, in particular, were a source of anxiety for her. Mrs. Morabito is later reported by Patricia Fleet of Sibley & Associates (in a letter dated March 4, 1997) to be working at most two to three hours daily for a period of three weeks, although it is not clear when this work was being done.

Dr. Michael Sumner, a psychiatrist who has begun to treat Mrs. Morabito, testified at the hearing. Dr. Sumner believed that Mrs. Morabito had suffered a brain injury as a result of the motor vehicle accident, although there is no evidence of a blow to the head or loss of consciousness. In Dr. Sumner's view there is no need for either in order to make a positive diagnosis of brain injury. He further diagnosed Mrs. Morabito as suffering a personality change with mild cognitive impairment, secondary to the motor vehicle accident. He also determined that Mrs. Morabito suffers from chronic mild depression. In Dr. Sumner's opinion, Mrs. Morabito is significantly impaired and is only able to work an hour or two per day on an intermittent basis. In cross-examination by Liberty, Dr. Sumner agreed that she might be able to work as much as 20 hours in a week, but would not be able to sustain that level of function for more than a week at a time. Dr. Sumner also testified that her extremely poor performance at the RECDAC is consistent with his diagnosis of a personality change, in that, even if her performance was in some way conscious, it was inconsistent with her pre-accident personality and is evidence of a profound change in her, resulting from the trauma of the motor vehicle accident, her possible brain injury and their sequellae.

I find that Mrs. Morabito possesses the intellectual capacity and the skills necessary to perform the administrative/clerical work from her home office. However, I find that Mrs. Morabito is unable to work in this capacity for 20 hours per week on a sustained basis. I find that there is simply no evidence that she was capable of working at that level at the time of the RECDAC or at present. The RECDAC seems to have extrapolated from the most positive accounts of Mrs.Morabito's post-accident level of function from past years and then "deemed" her able to perform at that level consistently week in and week out. I find that while Mrs. Morabito was able to work for brief periods of time in the early years after the accident, there is no evidence that she is able to do so any longer.

Liberty argued that even if Mrs. Morabito could not work 20 hours a week as a bookkeeper out of her home, she could work perhaps 10 hours a week as some earlier reports have indicated . However, I accept Mrs. Morabito's view (supported to a considerable degree by the views of Dr. Fulton and the evidence of her family members) and the opinion of Dr. Sumner, that her lack of reliability and inability to meet deadlines would make it unlikely that she would be competitively employable at all in that capacity. At this point there is no alternative employment suggested by Liberty or any that finds any support in the evidence.

I find therefore that Mrs. Morabito has a REC of 0.

Pre-Accident Earning Capacity:

The Morabitos operated gas bars. At the time of the accident they were operating two (Ontario Street and Page Street) and had just begun, or were about to begin operating a third location. The Ontario street location was the largest and generated the most revenue. Mr. Morabito devoted much of his time to the Ontario Street location. Page Street was significantly smaller and less lucrative. Mrs. Morabito was responsible for its day-to-day management. The third location was expected to generate similar revenues as Page Street had.

A corporation was established in 1990, M & K Gas N Wash (M & K). The Morabitos used this corporate vehicle to operate their businesses and I find that they were equal partners in this business enterprise. In very general terms the couple divided the work, with Mr. Morabito being responsible for the business's public face, both with respect to relations with the gas companies with which they dealt, and the general public. Although Mr. Morabito was the deal maker so to speak, Mrs. Morabito entered into formal agreements with the gas companies for the second and third locations. Mrs. Morabito was responsible for the bookkeeping and financial reporting for the business. Both worked on site at the gas bars and each would have particular responsibilities with respect to their respective operations such as scheduling employees, ordering supplies, stocking shelves etc. To some degree, each would cover for the other at their respective locations, although this was limited by Mr. Morabito's relationship with one oil company which prevented him from working for competitors. Mrs. Morabito, for her part, also took work home, where she would perform various bookkeeping and clerical tasks for the business for a couple of hours each evening.

Both Mrs. and Mr. Morabito testified that they had a life plan which included relatively early retirement. To get there, they stated, required that they work hard and maintain a steady, if not growing income. Along the way, the income derived from their work, supported a comfortable middle-class lifestyle, much of which is discussed in the prior arbitration decision. In brief, the Morabitos owned a home in suburban St. Catherines, a time share in Quebec, two boats (one which was sold for $75,000 recently), at least two automobiles and enjoyed regular family vacations.

A question was raised about Mrs. Morabito's employment status. It was suggested by Liberty that it was open to me to find that Mrs. Morabito was an employee of M & K or her husband at the time of the accident and not self-employed, although the question was not vigorously pursued. The submission was based primarily on remarks made by Arbitrator Renahan in the prior arbitration. I find, based on the evidence before me, that Mrs. Morabito was self-employed at all material times. There is no evidence that she was not, and I find that Arbitrator Renahan made no finding in that regard such as might have given rise to an argument that the rule res judicata might apply to the question.

Section 29 of the Schedule, the relevant provisions of which provide as follows:

Determining Pre-Accident Earning Capacity

29.—(1) For the purpose of determining the amount of a weekly loss of earning capacity benefit under this Part, the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1, 3, 4 or 6 of subsection 7(1) shall be deemed to be the person's net weekly income from employment used in section 10 in determining the amount of weekly income replacement benefits immediately before payment of the weekly loss of earning capacity benefits begins, converted to a full-time net weekly income in accordance with section 86, if section 86 applies.

(2) Despite subsection (1), the pre-accident earning capacity of a person who is entitled to receive weekly income replacement benefits under paragraph 1 of subsection 7(1) and who was self-employed at the time of the accident shall be the net weekly income determined in accordance with section 81 or 82 using the gross annual income from employment that the person could reasonably have earned at the time of the accident, having regard to the person's personal and vocational characteristics at that time.

(4) The amount of a person's pre-accident earning capacity determined under subsections (1), (2) and (3) shall not be less than,

(a) the net weekly income determined in accordance with section 81 or 82 using a gross annual income from employment equal to the person's gross income from employment, including any temporary disability benefits and any benefits received under the Unemployment Insurance Act (Canada), for a period specified by the person of fifty-two consecutive weeks in the 156-week period before the accident, in the case of a person entitled to receive weekly income replacement benefits under paragraphs 1, 2, 3, 4, or 6 of subsection 7(1), or a person who was self-employed at the time of the accident; or

These provisions provide for a certain degree of flexibility in determining an insured's PEC. It is plain that the PEC is not limited to what an employee actually earned. Section 29(2) in particular is intended to respond to the fact that self-employment income can be irregular and sometimes difficult to determine with precision. In Ironside and Royal Insurance Company of Canada (FSCO Appeal P99-00011, November 30, 1999) Director's Delegate Makepeace outlined three factors to be considered in applying section 29:

First, the PEC is based on gross annual income that the person "could reasonably have earned."! agree with Royal that "reasonably" qualifies "could." The PEC cannot be based on mere possibility or speculation. Secondly, what is reasonable is to be determined "having regard to the person's personal and vocational characteristics: These are defined to include subjective factors (vocational interests) as well as a number of objective factors (employment history, education and training, vocational skills and abilities). Finally, pre-accident earning capacity is to be assessed as "at the time of the accident."

The parties were agreed that because of an injury sustained by Mrs. Morabito in mid-1994 that limited her activities until just days before the accident, her income and that of the business as a whole were uneven prior to the accident. The parties also agreed that based on her reported income, Mrs. Morabito's best 52 of the 156 pre-accident weeks was the period from mid-June 1992 to mid-June 1993. Mrs. Morabito's income during this period is agreed to be approximately $23,600 (based on the records provided by Mrs. Morabito).

Mrs. Morabito took the broad position that her reported income was not reflective of what she actually was earning in the years prior to the accident and that, in any event, the language of section 29(2) mandates a broader inquiry than merely what a person actually earned in those circumstances. She argued that the reported income figures were not an accurate reflection of what she actually earned, because of unreported revenue as well as the use of the business to pay personal expenses beginning in 1992.

Liberty argues that Mrs. Morabito's PEC should be calculated on the basis of her actual reported income in the years prior to the accident and that while section 29 did provide some flexibility to an insured person, that flexibility was limited to finding the best 52 weeks in the 156 weeks prior to the accident. Liberty also takes issue with Mrs. Morabito's attempt to "rewrite" the pre-accident income records primarily because she was unable to provide any substantial documentation to contradict the records made at the relevant times.

I accept the Morabitos' evidence that they began charging personal expenses to their business. However, there is no precise quantification of these expenses in the sense of identifying what was personal and what might have been considered appropriate business expenses. Mr. Morabito stated that these expense claims were subject to audit by Revenue Canada and were found to be acceptable. The total of the insurance and fuel costs of the truck are now claimed to be personal, but Mrs. Morabito also testified that she used the truck for business purposes as well. In the absence of concrete evidence supporting and quantifying these expenses, a precise quantitative finding would be entirely speculative.

A similar issue arises in respect of the claim that her reported income should be revised upwards by the inclusion of allegedly unreported revenues.

While I accept that Mr. Morabito may have not been reporting all of the revenue earned by the business, in the absence of any reliable basis upon which to quantify these unreported revenues with confidence, I find that I am unable to include them in M & K's revenues when determining an appropriate PEC for Mrs. Morabito.

Despite these findings, I also accept that Mrs. Morabito's reported income in the years prior to the accident underestimate her actual earning to some unquantifiable degree. Accordingly I find that the broader enquiry contemplated by section 29(2) is appropriate in the circumstances.

I find that the Morabitos were hardworking individuals, committed to maintaining a level of income which would support their lifestyle. Although it is impossible to make any precise quantitative findings about the nexus between income and what it would buy the Morabitos,(and accordingly I place little weight on the evidence of their lifestyle described briefly above), I do find that they would take steps to maintain a stable level of income from year to year. I find, based on these considerations and the direct evidence of the Morabitos, that the decision to take on a third location in 1995 was motivated by the desire to at least maintain their income levels.

I find that the most straightforward approach to determining Mrs. Morabito's PEC is to consider her best 52 weeks in the 156 weeks prior to the accident based on her reported income, as augmented by the income that reasonably could have been expected from the third gas location, which the Morabitos became responsible for at the time of the accident. This is more than mere speculation as the Morabitos were committed to a third location and I find that they would have operated the location, but for the motor vehicle accident. The income from this location was expected to be roughly the same as received from the Page Street location or approximately $14,800 (an average of Page street for 1991, 1992 and 1993 — separate figures for 1994 are not available). Adding 50 per cent of that amount to Mrs. Morabito's reported income in her best 52 weeks results in a PEC of approximately $31,000 ($23,600 plus $7,400).

Accordingly, I find that Mrs. Morabito's PEC (in gross figures) at the time of the motor vehicle accident is $31,000.

Mrs. Morabito claims that the figures used in calculating her PEC should be indexed to inflation from the date of the accident to the time when Liberty made the first LECB offer. Liberty relied on Lehman and GAN Canada Insurance Company,(O\C A96-001417, October 27, 1997) and argued that the Schedule did not provide for the indexation of the PEC. In my view, section 79(1) paragraph 4 is clear and provides that the net weekly incomes used to determine the amount of a person's LECB benefit will be revised effective the first of January every year after 1994 by adjusting the amount by the indexation percentage published under section 268.1.This provision does not appear to have been considered in the Lehman case, supra.

Quantum of LECB:

The parties advised that they would be content to do the final calculations of Mrs. Morabito's LECB entitlement based upon the findings made in this decision. I remain seized of this matter in the event that the parties are unable to agree on the precise quantum of the LECB.

Special Award:

Mrs. Morabito claims a special award based on a number of factors, many of which predate Arbitrator Renahan's decision and which were taken into account by him in awarding her a special award in that case. It would be inappropriate to consider that evidence as anything more than evidence of a continuous and ongoing pattern of unreasonable conduct on the Insurer's part. If there is to be a second special award made in Mrs. Morabito's favour there must be evidence of continuing unreasonable withholding or delay in the payment of a benefit.

Mrs. Morabito also relied upon the quantum of the two LEC offers made to her subsequent to Arbitrator Renahan's orders.

The first offer of $23.76 was made on March 14, 2000 some six weeks after the arbitration order. The offer was based on her being able to work full time as a credit collector which determination was made in an assessment conducted at Liberty's request in April 1997.

Liberty's reliance on this report is unreasonable in two respects. First: It was nearly three years old at the time the offer was made and; secondly, the assessment is inconsistent with the overwhelming weight of the evidence that Mrs. Morabito cannot work full time. The most generous estimate of Mrs. Morabito's functional capacity was the RECDAC which, for example, concluded, based on sketchy reports contained in the records of Mrs. Morabito's treatments and assessments over the years, that she could work 20 hours per week.

As for Liberty's reliance on the RECDAC, I find that this was not unreasonable. While I have found that the evidence taken as a whole does not support the DAC's conclusion, its conclusions on the face of it were not so clearly wrong or so inconsistent with other available evidence that reliance on it was not reasonable.

Mrs. Morabito is entitled to a special award. I find that this award should be calculated, in accordance with the provisions of the Insurance Act, on the difference between the LECB offers made on March 14 and that made on November 6, 2001.The principal amount of this sum is less than $1,500. In the circumstances, a special award of $500 is appropriate.

EXPENSES:

The parties advised that they wished to speak to the issue of expenses after the release of this decision as there had been offers to settle made upon which they may wish to rely. In the event that the parties are unable to resolve the issue themselves, they may speak to the question now.

January 28, 2002

David Muir Arbitrator

Date