Neutral Citation: 2002 ONFSCDRS 31

FSCO A00-000330

BETWEEN:

GIUSEPPINA (PINA) BRUNO

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Janice Sandomirsky

Heard: August 13, 2001, at the offices of the Financial Services Commission of Ontario in Toronto. The post-hearing process was completed on October 24, 2001.

Appearances: William J. McCorriston for Zurich Insurance Company Neither Ms. Bruno nor Mr. Ricci, her representative, appeared at the hearing.

Issues:

The Applicant, Giuseppina (Pina) Bruno, was injured in a motor vehicle accident on March 22, 1999. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits ("IRBs") on September 3, 1999. The parties were unable to resolve their disputes through mediation, and Ms. Bruno applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Neither Ms. Bruno nor Mr. Michael Ricci, her representative, appeared at the hearing. Zurich submitted that the hearing ought to proceed in the absence of the Applicant and her representative. It argued that Rule 37.7 of the Dispute Resolution Practice Code (the "Practice Code") provides that an arbitrator may proceed with the hearing in the party's absence where notice of the hearing has been sent to the party. In this case, notice of the hearing was sent to Ms. Bruno and her former representative, Ms. Kelley Campbell, on December 15, 2000. Zurich argued that it was entitled to present its case and make submissions in support of the request that the application be dismissed. Zurich also claimed entitlement to its expenses.

After hearing Mr. McCorriston's submissions, and confirming by telephone that Mr. Ricci would not be attending the hearing, I considered the two issues that arose out of these circumstances. First, whether to proceed with the hearing in the absence of Ms. Bruno and her representative, and second, whether to permit Mr. Ricci's request to withdraw as Ms. Bruno's representative in the proceedings.

(A) Whether to proceed with the hearing in the absence of the Applicant and her representative:

In deciding the issue of whether to proceed with the hearing in the Applicant's absence, I took the following factors in consideration:

Ms. Bruno participated in the Pre-Hearing Discussion, held on December 14, 2000, when the parties agreed to the date for the arbitration hearing.
Notice of Hearing was sent to Ms. Bruno and her former representative, Ms. Kelley Campbell, on December 15, 2000.
There has been no notice of a change of address filed with the Commission.
Mr. McCorriston continued to correspond with Ms. Campbell on this matter.
In a letter dated July 13, 2001, Ms. Campbell wrote to the Commission stating that she was advised by Mr. Ricci on July 11 that he had been retained by Ms. Bruno in February 2001 to act as her representative. She stated that she had no prior knowledge of the fact that Ms. Bruno had retained another representative and asked to withdraw from the matter. She attached to the letter a copy of the written authorization from Ms. Bruno appointing Mr. Ricci as her representative. The authorization was dated February 12, 2001. Ms. Campbell also noted in the same letter that she had been unable to contact Ms. Bruno directly, and was advised by her family that she was out of the country and they had no way of contacting her.
On July 17, 2001, Mr. Ricci wrote the Commission to request an adjournment of the hearing on the basis that he was not able to properly prepare because he had just received the Defendant's briefs, and was not yet in receipt of the Applicant's file from Ms. Campbell's office.
Mr. McCorriston objected to the request for an adjournment on the basis that the Insurer was ready to proceed, having prepared the case and summonsed its witnesses, and would be prejudiced by the granting of an adjournment.
Arbitrator Evans considered the adjournment request on July 24, 2001. After hearing the parties' submissions, he denied the request, finding the facts of the case not fitting within the requirements of the Adjournment Guideline.
The parties consented to the scheduling of a settlement discussion, which took place with Arbitrator Allen on Friday, August 10, 2001. Ms. Bruno did not participate in the settlement discussion.
After participating in those discussions, Mr. Ricci faxed a letter on August 10, 2001 to Mr. McCorriston stating that he was unable to obtain instructions from his client with respect to the settlement, and was not able to proceed on August 13 with the arbitration hearing. He also asked to be removed from the record, as he no longer represented Ms. Bruno.
Mr. McCorriston appeared at the hearing with his client to proceed with the case.

Mr. McCorriston submitted that, based on this case history, the hearing ought to proceed in the Applicant's absence and that I am entitled to draw an adverse inference from her failure to participate in the process. He cited a number of authorities in support of this position.² All but one of the these cases involved an applicant who was not represented. Nguyen and Allstate is the one exception. In that case, Senior Arbitrator Naylor decided to proceed with the hearing despite the request for an adjournment by the applicant's representative who appeared without his client. The representative asked for the adjournment because he had been unable to contact his client. Senior Arbitrator Naylor did not accept the explanation as a reasonable ground for an adjournment and proceeded with the case. She found that the representative's attempt to contact his client was "at best, desultory." In addition, the representative had made no effort to contact the insurer to advise of the situation.

In this case, neither Ms. Bruno nor her representative appeared at the hearing. As a result, I had no explanation for Ms. Bruno's absence. It was unclear whether Ms. Bruno decided to abandon her application for benefits, or whether there was a lack of communication between her and her representative.

In the circumstances, I advised Mr. McCorriston that I was prepared to consider his review of the evidence and submissions on the understanding that I would then adjourn the hearing to give Ms. Bruno an opportunity to provide an explanation for her absence from the hearing, and determine whether she wished to have the matter reconvened. If the explanation for her absence was reasonable, I indicated that I would set new dates for the resumption of the hearing. I confirmed with Mr. McCorriston that, in the event the hearing is reconvened, Zurich would also have the opportunity to present its case in full. In the event that Ms. Bruno did not provide a reasonable explanation for her absence, I would proceed to dispose of the case based on the Insurer's evidence and submissions presented at the hearing.

Mr. McCorriston agreed to this process and presented the evidence relied on by Zurich.

Ms. Urquhart, a Dispute Resolution Specialist in the Accident Benefit Claims Unit, provided oral testimony.

(B) Whether to permit Mr. Ricci's request to withdraw

In considering Mr. Ricci's request to withdraw as Ms. Bruno's representative, I noted that this request was made on the Friday before the Monday when the arbitration hearing was scheduled to begin. There was no written consent from Ms. Bruno. The only explanation for Mr. Ricci's absence from the hearing was contained in a letter to Mr. McCorriston after the settlement discussions on August 10, 2001. In that letter, Mr. Ricci advised that he was unable to obtain instructions from his client with respect to the settlement discussion, and unable to proceed with the hearing on August 13. Mr. Ricci asked to be removed from the record as he was no longer representing the Applicant.

The Practice Code provides that:

9.7 A representative who seeks to withdraw from a proceeding must:

(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;

(b) provide the last known address, telephone number and electronic transmission address (if any) of the represented party.

9.8 Where the party represented provides written consent to the representative's request for withdrawal, the Registrar or an adjudicator shall permit the representative's withdrawal. Otherwise, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

In this case, there was no evidence that Ms. Bruno consented to Mr. Ricci's request to withdraw as her representative. Where there is no consent from the party, the Practice Code gives the arbitrator the discretion to permit a representative to withdraw, subject to terms. Before deciding whether Mr. Ricci may withdraw from the case, I wrote to him and requested that he forward the written consent from Ms. Bruno, or evidence of the steps he took to contact Ms. Bruno to obtain her written consent. I allowed him until September 10, 2001 to respond.

On September 27, 2001, Ms. Bruno forwarded a note to the Commission confirming that she hired Mr. Ricci in February 2001, and he never received any documentation or papers from Zurich about her accident. She went on to say that Mr. Ricci was notified of the hearing a couple of days prior to the hearing date, and was unable to prepare himself or contact her because she was out of the country and not aware of the dates. Therefore, he removed himself from the case.

I wrote to Ms. Bruno on October 11, 2001, advising her that I accepted this note as written confirmation that Mr. Ricci was no longer acting as her representative. I also advised her that if she wished to re-open the hearing, she would have to make a formal request in writing. I stated that, in the event that a written request was not received within 10 days from the date of my letter, I would proceed to a decision in this case. There has been no response to this letter.

The Hearing Issues:

Is Ms. Bruno entitled to income replacement benefits after September 3, 1999, pursuant to section 4 of the Schedule?
Did Ms. Bruno have a legitimate contract of employment made before the accident and evidenced in writing, pursuant to section 4(3)(i) of the Schedule?
Is Ms. Bruno entitled to payments for the cost of physiotherapy treatments from Woodbridge Therapy and Fitness Centre in the amount of $8,425, pursuant to section 14 of the Schedule?
Is Ms. Bruno entitled to payment for transportation to her physiotherapy treatments after August 18, 1999, pursuant to section 14 of the Schedule?
Is Ms. Bruno entitled to additional payments for housekeeping services in the amount of $1,206.20, pursuant to section 22 of the Schedule?

Ms. Bruno also claimed interest on any amounts owing.

Result:

The claims are dismissed.

EVIDENCE AND ANALYSIS:

In an arbitration hearing, the onus is on the Applicant to produce credible evidence in support of her claim. Ms. Bruno produced no evidence.

Zurich elected not to rely on the Applicant's non-appearance, and presented its case, filing a document brief and calling Zurich's Dispute Resolution Specialist as a witness.

1. The Income Replacement Benefit claim

Income replacement benefits were terminated on the basis of an independent medical examination by Dr. R. Lexier, orthopaedic surgeon, which included a functional capacity assessment. In reports dated July 14 and August 23, 1999, Dr. Lexier concluded that Ms. Bruno's impairments did not result in a substantial inability to perform her pre-accident level of activities or pre-accident employment. He recommended six additional weeks of ultrasound to the region of the left hip and, if that did not succeed in resolving the complaints of pain, he recommended a cortisone injection. The functional capacity assessment concluded that Ms. Bruno did not have a substantial inability to perform her pre-accident employment and recommended that she participate in a gradual return to work program. After reviewing the functional capacity assessment report, Dr. Lexier stated that he agreed with the conclusion that Ms. Bruno did not experience a substantial inability to perform her pre-accident employment or the activities of normal living or housekeeping/home maintenance.

On the basis of this report, Zurich terminated Ms. Bruno's benefits on September 3, 1999. Ms. Bruno did not request a Designated Assessment Centre ("DAC") assessment. The OHIP summary, clinical notes from the family physician, Dr. Stefou, and reports from Dr. Prutis and Dr. P.H. Waxer, who performed a psychological assessment in October 1999, all indicate that Ms. Bruno continued to receive treatment after September 1999. Dr. Prutis referred her for a CT lumbar spine, EMG and MRI. The CT scan and MRI were reported to be normal. The EMG suggested left L5 nerve root irritation, but no compression. Dr. Prutis diagnosed chronic pain. This diagnosis was confirmed by Dr. Waxer. Dr. Lexier's reports and the report from the functional capacity assessment noted Ms. Bruno's pain limitations, but still concluded that she was capable of returning to her pre-accident employment as a retail sales clerk, which was classified as light work. There was no medical evidence challenging this conclusion.

The onus is on the Applicant to establish her entitlement to ongoing IRB. After considering the medical reports available, I conclude that the evidence of ongoing chronic pain symptoms was not sufficient to establish entitlement to further benefits in light of the clear report from Dr. Lexier, supported by the functional capacity assessment concluding that Ms. Bruno was capable of returning to her pre-accident employment and activities of daily living.

2. Quantum of benefits

Ms. Bruno also challenged the quantum of the IRB benefits. She submitted that she had a contract of employment prior to the accident and that the income from that employment ought to be reflected in her IRB payments pursuant to section 4(3) of the Schedule. Zurich calculated Ms. Bruno's IRB entitlement based on her employment income from the retail store where she was employed on a part-time basis at the time of accident. Ms. Bruno claimed that she had been offered another job at a bakery. Zurich took the position that there was no contract of employment evidenced in writing made before the accident as required in section 4(3). It relied on statements from Ms. Bruno and the potential employer in support of this position. The statement from Ms. Bruno states that she had an oral offer of employment, but she was not given a written contract. The statement from the potential employer confirmed that there was a discussion between himself and Ms. Bruno about working at his bakery. A start date was not confirmed, but she was expected to begin employment the end of March.

As there was no written evidence of a contract of employment made before the accident, I conclude that the evidence did not support Ms. Bruno's claim to an increase in the quantum of her IRB payments.

3. Medical benefits

Ms. Bruno also claimed entitlement to further physiotherapy treatments and transportation costs. Zurich approved the first treatment plan from Woodbridge Physiotherapy up to June 7, 1999. Zurich then received three more treatment plans, but declined to pay further benefits because Ms. Bruno failed to return the OCF-14 Form, and there was no DAC assessment in order to determine whether any further treatment was reasonable or necessary. Zurich takes the position that Ms. Bruno was precluded from proceeding to mediation pursuant to section 50 of the Schedule on the basis she refused to attend a DAC assessment.

On the basis of the evidence presented, I conclude that Ms. Bruno failed to make herself reasonably available for a DAC and, therefore, Zurich was not required to pay the claimed medical benefit.

Zurich also noted that it approved a treatment plan with Dr. Waxer in November 1999, but Ms. Bruno failed to participate in that treatment.

4. Housekeeping claim

Zurich also declined to pay the full amount claimed for housekeeping expenses. There was no evidence submitted from Ms. Bruno to support her claim to further housekeeping benefits. As a result, I could not conclude that the evidence supported Ms. Bruno's claim that she is entitled to further housekeeping benefits.

EXPENSES:

Zurich claimed entitlement to expenses and made some submissions in support of this claim. An arbitrator may award expenses to either party if the arbitrator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2 of the Practice Code. These criteria require a consideration of a number of items including the party's success in the outcome of the proceeding, whether the conduct of either party tended to prolong, hinder or obstruct the proceeding, or was an abuse of process.

I find that Ms. Bruno's apparent abandonment of her claim, with no notice or compliance with the Practice Code, was an abuse of process, and unnecessarily prolonged the matter. In light of her lack of success at the hearing, I award the Insurer its expenses against Ms. Bruno. Zurich may request an assessment of the expenses by the Commission.

February 8, 2002

Janice Sandomirsky Arbitrator

Date