Neutral Citation: 2003 ONFSCDRS 173
FSCO A03-000155
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SIGIFREDO MORENO-OTERO
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Lawrence Blackman
Heard:
November 18, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
No one for Mr. Moreno-Otero
Christina Polano for Western Assurance Company
Issues:
The Applicant, Sigifredo Moreno-Otero, was injured in a June 22, 2002 car accident. He applied for and received statutory accident benefits from Western Assurance Company ("Western"), payable under the Schedule.1 The Applicant specifically sought payment of housekeeping and home maintenance benefits of $100 a week ongoing from July 8, 2002. Western paid the Applicant $600 in this regard, representing the sum of $30 a week for twenty weeks. The parties were unable to resolve their disputes through mediation and Mr. Moreno-Otero applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("Insurance Act").
The issues in this hearing are:
Is Mr. Moreno-Otero entitled, pursuant to section 22 of the Schedule, to payment of housekeeping and home maintenance expenses of $100 per week ongoing from July 8, 2002, less the sum of $600 already paid by Western?
Is Mr. Moreno-Otero entitled, pursuant to section 46 of the Schedule, to interest on any overdue payments?
Is Mr. Moreno-Otero entitled to his expenses of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?
Result:
Mr. Moreno-Otero is not entitled to payment of the further housekeeping and home maintenance expenses claimed, nor to any interest on any overdue payments.
Mr. Moreno-Otero is not entitled to payment of his expenses of this arbitration.
At the beginning of the arbitration hearing, Western indicated that it was requesting payment of its legal expenses as well as the sum of $3,000, the latter being claimed pursuant to subsection 282(11.2) of the Insurance Act on the basis that the Applicant had commenced an arbitration that was frivolous, vexatious and/or an abuse of process.
The Applicant did not attend the arbitration hearing. The Applicant did not attend the pre-hearing discussion held May 20, 2003 (although his then counsel did). The arbitration file indicates that a pre-hearing letter dated May 20, 2003 was sent to the Applicant at the address noted in his Application for Arbitration. The pre-hearing letter indicated the date, time and place of the arbitration hearing. The pre-hearing letter did not set out as disputed issues either the Insurer's legal expenses or its claim for $3,000.
A Notice of Hearing dated May 23, 2003 was also sent to the Applicant at the same address, as well as to his counsel, again setting out the time, date and place of the hearing. The Notice of Hearing specifically stated that:
You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.
There was no evidence in the arbitration file that either of these documents had been returned to the Commission as unclaimed.
By letter decision dated September 26, 2003, Arbitrator Muir allowed the Applicant's then counsel to withdraw from this proceeding on the grounds that every reasonable effort to contact the Applicant had been made, but to no avail. Part of the material before Arbitrator Muir was a letter dated September 2, 2003 from counsel indicating the Applicant's last known two addresses and telephone numbers. The second (and more current) address was that which was printed in the Application for Arbitration and to which the Commission's letters had been sent. The first address was that from which the Applicant had evidently moved in November or December 2002.
The Insurer entered as an exhibit its original letter dated September 26, 2003 together with the accompanying envelope. The letter is addressed to the Applicant at the most current address which the Commission has. The envelope is marked by Canada Post as "unclaimed," "Return to Sender." The body of the letter indicates Western's intent to seek its costs and expenses in defending this matter. The Insurer indicated that no other correspondence had been sent to the Applicant subsequent to the pre-hearing discussion indicating its intent in this regard.
Rule 9.1(b) of the Dispute Resolution Practice Code states that:
Parties and their representatives must provide the Dispute Resolution Group with written notice of any change of their address, telephone number and electronic transmission address (if any). The Dispute Resolution Group is entitled to rely upon the last known address, telephone number and electronic transmission address (if any) contained in its records.
The arbitration file indicates that the case administrator has endeavoured to reach Mr. Moreno-Otero by telephone, but has been unsuccessful in this regard. At the beginning of the hearing, I held the matter down half-an-hour, requesting that the case administrator again try to reach the Applicant by telephone at both telephone numbers provided in the September 2, 2003 letter. The case administrator was not successful in contacting Mr. Moreno-Otero, neither telephone number appearing to belong to the Applicant.
I was satisfied that Mr. Moreno-Otero had received proper notice of this hearing. I proceeded with the hearing. I heard submissions from the Insurer regarding adding as issues to this proceeding its expense and subsection 282(11.2) claims as well as submissions regarding the merits of those claims.
I find that the pre-hearing letter herein does not enumerate these issues. I find that no notice has been received by the Applicant that the Insurer would be seeking to add these issues nor has anything been sent to or received by the Applicant indicating that an arbitrator had amended the issues set out in the pre-hearing letter. Accordingly, I am not persuaded that fairness allows these issues to be added, and I decline to do so.
EVIDENCE AND ANALYSIS:
Section 22 of the Schedule provides that an insurer shall pay for housekeeping and home maintenance expenses if they are:
additional expenses;
which are reasonable and necessary;
incurred by or on behalf of an insured person;
who has sustained an impairment;
as a result of the accident;
resulting in the substantial inability of the insured to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
The onus is on the Applicant to establish, on a balance of probabilities, his entitlement to these benefits.
Western filed an Arbitration Brief consisting of an insurer's medical examination (IME) report dated November 22, 2002 from Seiden Health Management Inc. (Seiden), a December 23, 2002 letter from Ms. Jennifer Lloyd, an adjuster (together with an unsigned Applicant's statement), and a medical/rehabilitation Designated Assessment Centre (DAC) report dated January 15, 2003.
I am not persuaded that the Applicant has established his entitlement to further housekeeping and home maintenance benefits claimed, for the following reasons:
- The unsworn, hearsay evidence of Ms. Lloyd and the unsworn, unsigned statement of the Applicant indicate that at the time of the June 22, 2002 accident, Mr. Moreno-Otero was separated and was renting a room in a house for $350. At the beginning of December 2002, he moved into an apartment with his friend, Mr. Kalendi. The Applicant purports to state that he was unable to perform his usual household activities and that Mr. Kalendi assisted him with these activities three times a week for a weekly total of approximately ten hours. The activities were said to include shopping, cleaning, dusting and cooking.
The Applicant further purports to state that he paid Mr. Kalendi $100 per week for the first two weeks following the accident and in addition paid him the $30 a week provided by Western, as well as a further $50 to $100 out of his own money. The report states that Mr. Moreno-Otero was not paying any rent while staying with Mr. Kalendi. No proof of payments for housekeeping were provided. No evidence was received from Mr. Kalendi. No sworn or first-hand evidence from the Applicant was received. I question why the monies allegedly paid to Mr. Kalendi were apparently exclusively for household services and not for rent.
The information provided in Ms. Lloyd's letter, in part, contradicts the hearsay evidence contained in the Seiden report of one month earlier, in which the Applicant reports that he was paying his friend $100 a week for coming three times a week, five to six hours a visit, to perform the household chores. I am unable to determine with any reliability what, in fact, Mr. Moreno-Otero may have paid Mr. Kalendi expressly for housekeeping services or what, if any, promise of payment he may have made to his friend.
No schedule of housekeeping tasks was provided. No weekly list of dates and times was filed. The Applicant's statement indicates that, prior to the accident, he did his laundry at a laundromat twice a week, on Saturday and Sunday, but that afterwards, the laundry was done by Mr. Kalendi. It is unclear why a person living alone in a one room residence would need to do his laundry twice a week. It is further unclear why the Applicant indicates in his December 19, 2002 statement that Mr. Kalendi was dusting for him, when in the Seiden report a month earlier, the Applicant stated that he had resumed dusting by wiping furniture with a cloth.
There is no medical opinion before me indicating that Mr. Moreno-Otero was suffering, for the period in question, a substantial inability to perform his normal pre-accident housekeeping and home maintenance duties. Dr. H. Platnick, in his November 22, 2002 IME report, identified the Applicant as having sustained a cervical soft-tissue injury as a result of the accident. He found the Applicant's physical examination essentially normal. He could not identify any accident-related impairment preventing him from completing all of his pre-accident housekeeping and home maintenance activities. Dr. Platnick concluded that the Applicant could resume all activities without restriction and that no assistance was necessary.
The accompanying IME Functional Abilites Evaluation, also dated November 22, 2002, concluded that the Applicant "demonstrated sufficient strength, range of motion, postural tolerances and mobility to allow him to perform all of his housekeeping and normal activities of daily living."
As part of the January 15, 2003 DAC report, the examining chiropractor, Dr. R. Gringmuth, was of the view that no significant impairment of function was found during his assessment. Dr. J. Mayer, a neurosurgeon, opined the Applicant was no longer impaired as a result of the June 22, 2002 motor vehicle accident. Ms. M. Kaplan, a physiotherapist, did not provide an opinion on the Applicant's general abilities or on his specific housekeeping abilities.
- I have little, if any, reliable or independent evidence why any sum over the $30 per week paid by the Insurer for a period of twenty weeks would be a reasonable and necessary additional expense in fact incurred by the Applicant as a result of his substantial inability to perform his normal pre-accident housekeeping and home maintenance duties. I find that the evidence before me is unsworn hearsay evidence attributed to the Applicant which fails to persuade me of the Applicant's entitlement to the benefits claimed.
Accordingly, the Applicant's claim for housekeeping and home maintenance expenses is dismissed.
EXPENSES:
The Insurer claimed four hours for preparation and attendance at the Commission, at the hourly rate established under the Legal Aid Services Act, 1998, for a year of call of 2002. This is more than reasonable and would have been awarded except for the lack of notice to the Applicant, as set out above.
December 4, 2003
Lawrence Blackman
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 173
FSCO A03-000155
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SIGIFREDO MORENO-OTERO
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The claim herein is dismissed without expenses.
December 4, 2003
Lawrence Blackman
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.