Neutral Citation: 2004 ONFSCDRS 99

FSCO A03-000628

BETWEEN:

GAGANDEEP SINGH

Applicant

and

AXA INSURANCE (CANADA)

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

January 28, 29 and February 20, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Zubin Zarolia for Mr. Singh

Linda Matthews for AXA Insurance (Canada)

The Applicant, Gagandeep Singh, was injured in a motor vehicle accident on November 22, 2001. This dispute concerns Mr. Singh's entitlement to and the amount of his housekeeping expenses from AXA Insurance (Canada) ("AXA"), payable under the Schedule.¹ The parties were unable to resolve the dispute through mediation, and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

What is Mr. Singh's housekeeping entitlement under section 22 of the Schedule?
Is Mr. Singh entitled to a special award under subsection 282(10) of the Insurance Act?
Is Mr. Singh's arbitration a frivolous or vexatious proceeding under subsection 282(11.2) of the Insurance Act?

Mr. Singh is entitled to $315 for housekeeping expenses under section 22 of the Schedule.
Mr. Singh is entitled to a $40 special award under subsection 282(10) of the Insurance Act.
Mr. Singh's arbitration is not frivolous or vexatious under subsection 282(11.2) of the Insurance Act.

Mr. Singh's car hit an open manhole on November 22, 2001, causing the vehicle to jump. His automobile was written off as a total loss.

Mr. Singh sustained whiplash-type injuries to his middle and upper back, right wrist, both knees and legs when the air bags deployed during the accident. He claims that due to his accident injuries he suffered a substantial inability to perform his pre-accident housekeeping activities through April 2002, and is entitled to reimbursement for his mother's replacement services. Section 22 of the Schedule provides $100 per week maximum coverage for the 24-week claim period.

Mr. Singh contends he submitted two invoices to AXA totalling $4,337, more than the maximum $2,400 he could be allowed for the claim period. AXA maintains that Mr. Singh never submitted the second set of housekeeping invoices for $2,553 until the hearing, and that his claim is limited to the $1,784 represented by his first housekeeping invoice for the period ending January 11, 2002.

Although Mr. Singh introduced a copy of his representative's cover letter to AXA with the second housekeeping invoice during the second hearing day, there is no other evidence he claimed more than $2,083 in this proceeding. The mediator's report and the pre-hearing arbitrator's letter both state this amount, and there is no evidence that Mr. Singh sent the second housekeeping invoice to AXA during the parties' production exchanges that followed the pre-hearing discussion.

This evidence persuades me that Mr. Singh's November 2002 letter with his second housekeeping invoice did not reach AXA. I find that Mr. Singh's claim for housekeeping expenses under section 22 of the Schedule through April 2002 is limited to $2,083.

Mr. Singh returned to work and school after the accident. He lived with his parents and younger sister in the family's large suburban Mississauga home while attending post-university courses and working part-time ten hours a day on weekends at a print shop.

Mr. Singh's uncontradicted evidence of his pre-accident duties is that he dusted the family home, changed his bed linens, ironed and stored his clothes, cleaned his bathroom, prepared meals for himself and Friday evening dinner for the family, cleared snow, took out the trash/recycling and frequently helped with the family's grocery shopping. I understand there is no claim for snow removal during that winter when Mr. Singh claimed he could not shovel.

I do not accept Mr. Singh's assertion that he vacuumed most of the house because it is contradicted by his statements prior to the hearing. While he told AXA's occupational therapist in February 2002 that he did 70% to 80% of the vacuuming, the report indicates he only vacuumed his bedroom and the upper floor of the house once a week before the accident. This evidence is consistent with his January 2002 written statement to AXA's adjuster, and I find that Mr. Singh's pre-accident vacuuming was confined to the second floor before the accident.

Mr. Singh commissioned Vocan Health Assessors (Vocan) to conduct an in-home assessment of his housekeeping duties to support his claim. The report fails to meet the requirement to set out the author's professional credentials in order to be accepted as expert evidence and is also unsigned.² I give the Vocan report no weight. Mr. Singh's other expert evidence consisted of his chiropractor's initial disability certificate.

AXA's in-home assessment report was performed by a health professional who testified at the hearing. Ms. Melissa (Jackson) Aldoroty, an occupational therapist, agreed that Mr. Singh suffered pain and was moderately disabled from repetitive lifting or grasping with his dominant right hand during her visit to his home on February 13, 2002. Although her report does not recommend any housekeeping assistance because he was partially conducting his duties at that time, her evidence supports Mr. Singh's testimony he was unable to repetitively use his wrist to vacuum the upper floor and wipe his bathroom through January 2002.

Mr. Singh testified that his housekeeping abilities improved approximately six weeks after the accident. He resumed dusting, surface cleaning and making his bed, but was still unable to bend or lift due to his back, neck and shoulder pain. His evidence of his abilities during January 2002 is supported by his treating chiropractor's disability certificate that month, and Mr. Singh's statement to AXA that he remained unable to vacuum, clean the bathroom and do other chores that involved bending. I accept this evidence as it is not contradicted by any other expert opinion.

AXA's position that Mr. Singh resumed most of his household duties with modifications by mid-February 2002 is supported by his concession at the hearing that he signed the in-home assessment, with a statement agreeing with the occupational therapist's opinion that he was able to perform most of his household chores with modifications. Ms. Aldoroty's opinion that Mr. Singh should gradually resume all his household tasks within four weeks after her February 13, 2002 home visit is not rebutted by any other expert evidence. I rely on AXA's report and the occupational therapist's estimated times for completion of Mr. Singh's household tasks.

Conclusion:

Mr. Singh testified that he spent 10 to 12 hours a week with household duties before the accident, contradicting the 28 hours a week billed on the invoice for replacement services. There is nothing in AXA's report to substantiate the hours billed, and I reject Mr. Singh's estimate.

I have based my finding on the total estimated times noted in AXA's report. I find that Mr. Singh required 5.5 hours per week to complete his pre-accident household chores that he was unable to perform during the six weeks after the accident.

There is no expert evidence disputing Mr. Singh's claim he was unable to perform most of his housekeeping duties for the first six weeks after the accident. I find that Mr. Singh suffered a substantial housekeeping inability until January 3, 2002, and is entitled to reimbursement for the 5.5 hours housekeeping per week at $9 per hour ($297) during that period of time.

Based on the evidence from Mr. Singh and AXA's expert, I find that after January 3, 2002 he still suffered a substantial inability to perform his household tasks because he could not vacuum his bedroom, the second floor hall or clean his bathroom due to his bending limitation. He told AXA's occupational therapist it took him 40 to 60 minutes per week to vacuum, 30 to 45 minutes a week to clean his bathroom. Thus, I find Mr. Singh is entitled to 1.5 hours per week housekeeping from January 3, 2002 through February 13, 2002 ($81), and continuing 4 weeks thereafter ($54).

No expert evidence contradicts AXA's expert prognosis that Mr. Singh should fully resume all tasks within 4 weeks after her February 13, 2002 visit. AXA may deduct the $117 that it paid from the $432 total I have awarded for Mr. Singh's housekeeping expenses under section 22 of the Schedule.

Special Award:

Mr. Singh claims a special award under subsection 282(10) of the Insurance Act on the basis that AXA unreasonably refused or withheld payment of housekeeping benefits. Specifically, he maintains it was unreasonable for AXA to pay him limited benefits for four weeks when the adjuster relied on his in-home assessment recommending ongoing housekeeping assistance. AXA argues that the confusion over Mr. Singh's household duties and his unsubstantiated presentation of inflated hourly claims excuses any underpayment.

I accept that AXA's decision to deny housekeeping benefits following its mid-February 2002 in-home assessment was reasonably based on the conclusion that Mr. Singh's inability was not substantial because its occupational therapist reported he was performing most of his tasks with modifications. However, AXA did not satisfactorily explain its failure to pay any housekeeping benefits between January 3, 2002 and its February 13, 2002 home assessment.³

I find AXA was unreasonable in not paying any housekeeping benefits during this four week period. Based on the small sum of housekeeping benefits that AXA unreasonably withheld, I find it is rational and proportional⁴ to grant Mr. Singh a $40 special award.

I do not agree with AXA's argument that Mr. Singh's special award claim is defeated because he first made the allegation at the commencement of the hearing. An arbitrator always has jurisdiction to decide whether a special award is warranted, so long as an insurer is afforded the opportunity to present its case on that issue.⁵

In this case, AXA adduced evidence from its own witness, cross-examined Mr. Singh and made submissions on the special award. I find that AXA had notice and full opportunity to present its case during the hearing, and I reject AXA's argument.

Frivolous Vexatious Proceeding:

As I have found that Mr. Singh is entitled to benefits, I reject AXA's position this was a vexatious or frivolous claim under subsection 282(11.2) of the Insurance Act.

EXPENSES:

I explained during the hearing my dismay over the parties' adamant refusal to streamline the evidence on such a simple matter. The parties insisted on their right to use two days to present the evidence and a half day on submissions.

I sincerely hope these parties will resolve their expenses of this arbitration on their own. However, if they cannot they should review the process and guidance of Rules 75 to 79 of the Dispute Resolution Practice Code before they contact the case administrator for an assessment hearing.

June 22, 2004

Fred Sampliner Arbitrator

Date