Neutral Citation: 2005 ONFSCDRS 73

FSCO A02-000780

BETWEEN:

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION on APPLICATION FOR VARIATION/REVOCATION

Before: William J. Renahan

Heard: Written submissions were received at the offices of the Financial Services Commission of Ontario in Toronto on January 26, 2005 and February 7, 2005.

Appearances:

Albert Conforzi for Mr. K

Dwain C. Burns for Liberty Insurance Company of Canada

After a five day hearing in September 2004, I issued Reasons for Decision in this matter on January 6, 2005. My order was as follows:

Liberty shall pay to Mr. K income replacement benefits from February 1, 2001 to August 28, 2001, together with interest calculated according to section 46 of the Schedule.
Mr. K is not entitled to $2,059 for treatment at Pain Rehabilitation Clinic.
Mr. K is entitled to $875 for a functional capacity evaluation performed by Rosemount together with interest calculated according to section 46 of the Schedule.
Mr. K is not entitled to a special award.

Mr. K made an Application for Variation/Revocation of the order and Liberty filed a Response. Under section 284(2) of the Insurance Act, the Director of Arbitrations appointed me to decide the application. I asked for no further submissions and base this decision on the Application and Response.

I was mistaken on the date when Liberty terminated income replacement benefits. On pages 1 and 3 of my Reasons for Decision, I wrote that Liberty terminated income replacement benefits on February 1, 2001, and on page 2, I incorrectly framed the main issue as:

Is Mr. K entitled to income replacement benefits pursuant to section 4 of the Schedule after February 1, 2001?

Liberty terminated income replacement benefits on February 1, 2002 and the correct issue is:

Is Mr. K entitled to income replacement benefits pursuant to section 4 of the Schedule after February 1, 2002?

Pages 1, 2 and 3 of my decision are amended to reflect this error.

I now consider whether this mistake affected my decisions under the various benefits in dispute.

The Applicant argues that I have referenced all my findings through an incorrect framework.

The fact that Liberty terminated income replacement benefits on February 1, 2002 instead of February 1, 2001 is irrelevant to my finding that Mr. K satisfied the disability test under section 4 of the Schedule up to, but not beyond, August 28, 2001.

Mr. K has suffered periods of disability due to a psychiatric illness since 1989. On page 4 of my decision, I set out what the relevant evidence was:

It is necessary to review Mr. K's psychiatric history to determine whether his complaints are due to his psychiatric illness or were aggravated or caused by the blow to the head he suffered in the motor vehicle accident.

In the first 26 pages of my decision I deal with whether Mr. K was entitled to income replacement benefits. I considered Mr. K's psychiatric disability going back to 1989 when he was 19 and first hospitalized for his psychiatric condition. In my summary of the evidence and my analysis, I do not refer to the date Liberty terminated benefits because that date was irrelevant to my decision on when Mr. K's disability was the result of the motor vehicle accident and when his disability was the result of his psychiatric condition. I refer to the evidence of six medical experts and do not refer to any comment they may have made on when Liberty terminated income replacement benefits because any such comment was irrelevant to this issue.

I decided that Mr. K was disabled from returning to his work as a result of injuries suffered in the motor vehicle accident up to August 28, 2001. Thereafter, any disability was caused by his psychiatric illness and not by any impairment caused by the motor vehicle accident.

Accordingly, since Liberty paid income replacement benefits beyond the date I found Mr. K was entitled to income replacement benefits, the following part of my order is revoked:

Liberty shall pay to Mr. K income replacement benefits from February 1, 2001 to August 28, 2001, together with interest calculated according to section 46 of the Schedule.

and replaced with:

Mr. K's application for income replacement benefits is dismissed.

Costs of examinations pursuant to section 24 of the Schedule.

In disallowing the cost of a physiatry assessment by Dr. John in the amount of $1,500 I wrote:

Dr. John conducted his assessment on March 25, 2002, more than a year after Liberty terminated income replacement benefits and a month after Mr. K applied for mediation of his claims.

This sentence is incorrect and is replaced with the following:

Dr. John conducted his assessment on March 25, 2002, two months after Liberty terminated income replacement benefits and a month after Mr. K applied for mediation of his claims.

This error does not change the reason I disallowed the claim. Since the assessment was performed after mediation, the report is more in the nature of a medical-legal report and recoverable as an expense of the arbitration and not as a cost of an examination under section 24 of the Schedule.

Special Award:

In my decision, the date that Liberty terminated income replacement benefits is only relevant to the issue of whether Mr. K was entitled to a special award. Since I found that it was not unreasonable to withhold benefits for the period February 1, 2001 to August 28, 2001, it follows that Liberty did not act unreasonably in paying income replacement benefits to February 1, 2002.

Errors in law:

Mr. K made some submissions which I characterize as claims that I made errors in law and applied the wrong test. Liberty did not respond to these claims. I have nothing further to add to what I wrote in my Reasons for Decision.

EXPENSES:

My recollection is that at the beginning of the hearing the parties agreed that the issue was Mr. K's entitlement to income replacement benefits after February 1, 2001. As well, I heard extensive relevant evidence concerning the dates of hospitalizations and Mr. K's condition on the dates of various assessments. As well, I read two banker's boxes of documents which contained further relevant dates. At least twice during the hearing, I expressed to the parties my confusion concerning the dates and I asked counsel to provide me with a chronology of the important dates. This information was not provided. In these circumstances, I find that each party bears some responsibility for the mistaken date and that each should bear their own expenses of this application for variation/revocation.

May 27, 2005

William J. Renahan Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 73

FSCO A02-000780

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Paragraph 1 of my Order dated January 6, 2005 which reads:

Liberty shall pay to Mr. K income replacement benefits from February 1, 2001 to August 28, 2001, together with interest calculated according to section 46 of the Schedule.

is revoked and replaced with:

Mr. K's application for income replacement benefits is dismissed.
Each party shall bear their own expenses of this application for variation/revocation.