Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 112

FSCO A04-002740

BETWEEN:

LUDMILA GRECI

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Snider

Heard:

May 30, 31 & June 1, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ms Greci, Self-Represented

Harry Brown for Lombard General Insurance Company of Canada

Issues:

The Applicant, Ludmila Greci, was injured in a motor vehicle accident on January 20, 2003. She applied for and received statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹Lombard terminated weekly income replacement benefits on November 25, 2003 and housekeeping and home maintenance benefits on November 7, 2003. The parties were unable to resolve their disputes through mediation, and Ms Greci applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Preliminary Matters:

In her Application for Arbitration Ms Greci had originally made various medical assessment cost, medical treatment and rehabilitation claims pursuant to sections 14, 15 and 24 of the Schedule. However, before the start of the hearing on May 30, 2006 Lombard fully dealt with and gained releases from all suppliers of the medical and assessment services which Ms Greci had utilized and claimed as part of her Application. Accordingly there were no issues remaining in dispute at the hearing with regard to claims under sections 14, 15 or 24 of the Schedule.

On the record at the hearing Lombard also paid Ms Greci $3,500.00 to fully pay out her claim for housekeeping and home maintenance expenses pursuant to section 22 of the Schedule up to and including July 10, 2004. Lombard and Ms Greci also agreed that Lombard will pay her an additional sum of $500.00 to fully cover any and all interest outstanding on the $3,500.00 mentioned above. Therefore, housekeeping and home maintenance expenses and the interest thereon up to and including July 10, 2004 were not at issue in this hearing, but Ms Greci's entitlement thereto on and after July 11, 2004 remained in dispute at the hearing.

The parties also agreed on the record that Ms Greci had under-reported her income for the 12 month period prior to the date of loss and Lombard agreed to retroactively raise her weekly income replacement benefit from $29.63, which was the amount previously paid to her for every week that such benefits were paid, to $36.17 per week throughout the period. As well, Lombard agreed to pay Ms Greci this weekly amount for the period from the original date of termination, November 25, 2003, to the date the Disability DAC Report was issued, July 13, 2004. Quantum of the weekly income replacement benefit was therefore not an issue in this hearing and the effective termination date became July 13, 2004. Therefore, the issue remaining in dispute at the hearing was Ms Greci's entitlement to continuing weekly income replacement benefits pursuant to Part II of the Schedule on and after July 13, 2004.

Further, the parties agreed that expenses in a total amount of $100.00 are payable by Lombard to Ms Greci in this matter.

The issues that remain in dispute are therefore:

1. Is Ms Greci entitled to receive a weekly income replacement benefit of $36.17, pursuant to section 4 of the Schedule, for each week after July 13, 2004?

2. Is Ms Greci entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule, between July 10, 2004 and January 20, 2005, and, if so, in what amount?

3. Is Ms Greci entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. Ms Greci is entitled to receive a weekly income replacement benefit of $36.17, pursuant to section 4 of the Schedule, for each week from July 18, 2004 to October 1, 2004.

2. Ms Greci is entitled to a payment for housekeeping and home maintenance services, pursuant to section 22 of the Schedule, in the amount of $640.00 from July 10, 2004 to January 20, 2005.

3. Ms Greci is entitled to interest on the overdue payments of the above-stated benefits at the rate set out in section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Income Replacement Benefits:

The parties agree that Ms Greci's entitlement is to $36.17 per week for every week during which Ms Greci qualifies to receive the benefit. What remains is the question of her eligibility for the $36.17 weekly benefit after July 13, 2004.

Firstly, it is noted that the Insurer decided to pay this weekly amount to Ms Greci up to and including the date the Disability DAC Report ("DISDAC") was issued, which is July 13, 2004. The DISDAC was a two-person effort, having been completed by Dr. H. Becker, Physician Consultant, and Dr. J. D. Salmon, Psychologist. Lombard submitted the report into evidence together with a Fax Cover Sheet from Dr. Becker dated July 13, 2004.

Neither the DISDAC nor the faxed message clearly discern which elements of Ms Greci's impairment relate directly to the motor vehicle accident. As well, Dr. Salmon appeared for cross-examination on the DISDAC and testified that there had been a miscommunication between himself and Dr. Becker over the standard being applied to determine the disability. He stated that his conclusion about Ms Greci's degree of impairment did not agree with the Executive Summary issued by Dr. Becker in this case. This point was not pressed on cross-examination by Ms Greci, but it was apparent nonetheless that the DISDAC had some inherent flaws. As a result, I find that the DISDAC is not sufficient for me to rely upon to determine how the motor vehicle accident affected Ms Greci's ability or substantial inability to meet the essential tasks of her employment on and after July 13, 2004.

Ms Greci's employment and medical records clearly show that Ms Greci has had a unique employment history since the year 2000 and a difficult medical and disability history since at least 1994. Of major significance is the fact that Ms Greci has been in receipt of an Ontario Disability Support Plan ("ODSP") monthly income since well before January 20, 2003, which is the date of the motor vehicle accident herein. The nature of those payments to her were such that has been allowed to earn an additional $160.00 per month over and above her ODSP income and the evidence is that she has earned income working as an extra in movie and television productions for many years. It was this supplementary income that Lombard based its income replacement payment calculations and Ms Greci's weekly eligibility upon and I have no reason to take issue with this approach.

In the evidence presented to me there was a note from Dr. Jackson dated October 19, 2004 which indicated that Ms Greci was able to work as of that date but that she might need taxi service to assist her with bringing clothing in suitcases, etc., to the worksites where she appears as an extra. As this medical note was prepared by Ms Greci's family physician I find that, on balance, it is reasonable to rely upon the document and I find therefore that Ms Greci was able to return to work as of that date.

An examination of Ms Greci's income from employment as an extra over the past five years is quite revelatory. The uncontradicted evidence was that in 2000 she made (all annual figures rounded to the nearest dollar) $354.00 from this source, followed by $1,069.00 in 2001 and $2,393.00 in 2002. It was the $2,393.00 figure which was accepted at the hearing by Lombard as the basis for its corrected income replacement benefit calculation and which resulted in the upward adjustment of her benefit to $36.17 per week. In 2003, which is the year of the motor vehicle accident, she made only $93.00, so the effects of the accident seem quite evident. In 2004, her income went back up to $941.00, but her employment records indicate that she worked only very briefly in June and July 2004, making a total of $337.50 during those two months with a gap then until October 2004. From October to the end of 2004 Ms Greci earned the bulk of her 2004 income. This level of income, totalling $941.00 for the five months when she worked during 2004, is on a par, on an annualized basis, with her best previous year of earnings, which was 2002. From these figures I can extrapolate that Ms Greci returned to her pre-accident income earning capacity during the latter half of 2004 and that she was no longer suffering from a substantial inability to perform the essential tasks of her employment as an extra by October 2004.

In 2005 it can be fairly said that Ms Greci returned to her full best pre-accident income level, as she made $2,164.00 in that year. In every month when Ms Greci made more than $160.00 in extra income, of course, she would end up having an adjustment to her ODSP stipend, but those matters are between her and the ODSP and do not affect my order in any way.

Having considered all of the above, I find that Ms Greci's work performance proves that she was able to return to work at her full pre-accident earnings level by the end of 2004. I find that Ms Greci did do some work in June and July 2004. The question which remains, however, is whether the gap which occurred between July 2004 and October 2004 when Ms Greci clearly returned to work at or above her pre-accident level was caused by her inability to work or by an absence of work being offered to her during the gap period. Ms Greci's evidence was somewhat confusing concerning this gap period, but she quite consistently throughout her testimony insisted that she was not as able to work after the motor vehicle accident as she was before. She testified about fatigue effects during her return to work and her inability to handle very long and sustained shooting days since going back to work in 2004. She also testified convincingly about the pain she experiences when working and I accept that Ms Greci quite clearly experiences pain while carrying out her job duties. She has, nonetheless, adapted to and worked through the pain, and has managed to return to her work despite all of the problems she is experiencing.

The evidence shows that Ms Greci made $72.00 on October 2, 2004 and that her income remained fairly regular after that date. Lombard has already volunteered to pay Ms Greci her full weekly amount of $36.17 up to July 10, 2004. I note from the evidence that Ms Greci earned $72.00 between July 11, 2004 and July 17, 2004 and therefore this would remove any requirement for Lombard to pay her any sum for income replacement benefits during that six day period.

On balance, I find that Ms Greci was attempting to return to work as early as June of 2004, but that she did not successfully return to her pre-accident level of earnings until October of 2004. Accordingly, I conclude that Lombard must pay Ms Greci $36.17 for each week from July 18, 2004 to October 1, 2004.

Due to the mandatory nature of the wording of section 46 of the Schedule, I also conclude that Lombard is required to pay Ms Greci interest on the weekly sums ordered to be paid for the July 18, 2004 to October 1, 2004 period.

Housekeeping and Home Maintenance:

As I have already stated above, during the course of the hearing, and on the record, Lombard paid Ms Greci $3,500.00, representing a payment of $100.00 per week for housekeeping and home maintenance services provided by various service providers between November 10, 2003 and July 10, 2004. Lombard also made an agreement with Ms Greci concerning interest due on this overdue payment and promised to pay Ms Greci an additional $500.00 for same for the period specified. I am therefore dealing only with the period after July 10, 2004 and I note that Ms Greci has not made any claim alleging that she suffered catastrophic impairments as a consequence of the motor vehicle accident of January 20, 2003. Accordingly, the mandatory cut-off date for Ms Greci's claims for "reasonable and necessary additional expenses" for housekeeping and home maintenance pursuant to section 22 of the Schedule is January 20, 2005, the end of the 104-week period.

Ms Greci testified and showed documentary evidence which confirmed to my satisfaction that, on balance of probabilities, the adjuster working on the file did not, or perhaps would not, accept any invoices for housekeeping after the original November 10, 2003 termination date even though Ms Greci did present them and get at least one date-stamped by Lombard. Lombard had a copy of the date-stamped invoice in its records and admitted having received it. I am also satisfied that Ms Greci therefore did not attempt to submit any further housekeeping invoices after November 10, 2003. She did, however, make a point of having her service providers complete them each time they attended after the termination date up to and including the week of July 10, 2004. There were no invoices prepared for the period after July 10, 2004, however, so the only available evidence of services being provided during this period was the oral testimony of Ms Greci and her housekeeper.

Both Ms Greci and Ms Natalia Gein, her housekeeping service provider for the entire period remaining in dispute, testified to the effect that Ms Gein stopped supplying services to Ms Greci on or about July 11, 2004 when Ms Gein left Canada for a period of time. Ms Greci was then unsure as to when Ms Gein's services re-started, but Ms Gein was very definite that although she returned from her trip in August 2004, she did not return to work for Ms Greci until the first week of September 2004 when she attended at Ms Greci's home for one cleaning service. Ms Greci also confirmed in her testimony that during this approximately six week period she did not pay anyone else to do her housekeeping for her. Accordingly, I find that no amount is owing by Lombard to Ms Greci for housekeeping and home maintenance services during the period between July 11, 2004 and August 31, 2004.

The testimony of Ms Greci and her witness, Natalie Gein, with regard to the period between September 1, 2004 and January 20, 2005 was consistent to the effect that Ms Gein reduced her weekly number of hours of providing housekeeping services to Ms Greci by about 50 per cent during these months. The testimony was not entirely clear as to how the total was arrived at, but both witnesses stated that the amount owing for this period was a gross amount of $800.00 and that Ms Gein did not provide any further services after the end of December 2004. As well, both of them admitted that out of approximately 16 service provisions completed during the period, three were provided for Ms Greci's daughter, rather than to Ms Greci. It is very clear that the hours worked for the daughter are not claimable expenses pursuant to section 22 of the Schedule and when confronted with this fact in her testimony Ms Greci voluntarily calculated that the total amount she was claiming pursuant to section 22 should be reduced by $160.00. This leaves a remaining total claim for housekeeping of $640.00.

The insurer submitted that the weekly amount for the weeks when Ms Gein provided services during these months should be reduced by one-fifth to account for the time which both witnesses admitted Ms Gein spent having tea and talking with Ms Greci on each housekeeping service day. However, I could not discern any difference on the evidence given by these two witnesses between the time spent stopping for tea and a chat in the earlier periods and the same practice during the period to which my order applies. I find that what changed after July 10, 2004 was the frequency of the provision of services and the amount of service which was provided. As the price per service was reduced by 50 per cent on agreement between Ms Greci and her housekeeper, I am satisfied that the amount being claimed need not be reduced further than to the $640.00 amount claimed by Ms Greci for the period remaining in dispute.

Accordingly, I find no compelling reason to reduce the amount claimed for this period and I therefore order that $640.00 is payable forthwith by Lombard to Ms Greci for all section 22 claims remaining to the end of the 104 week period, namely January 20, 2005.

Due to the mandatory nature of the wording of section 46 of the Schedule, I also conclude that Lombard is required to pay Ms Greci interest on the $640.00. However, as the evidence provided by the Applicant for this expense did not come in until during the hearing and as it was not specific as to the dates the services were provided, but only that they occurred before December 31, 2004, I order that the said interest commences December 31, 2004.

EXPENSES:

On consent, expenses are fixed at $100.00, inclusive of GST, payable by Lombard to Ms Greci forthwith.

July 6, 2006

David Snider Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 112

FSCO A04-002740

BETWEEN:

LUDMILA GRECI

Applicant

and

LOMBARD GENERAL 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:

1. Lombard General Insurance Company of Canada shall forthwith pay Ludmila Greci $36.17 per week for income replacement benefits during the weeks of July 18, 2004 to October 1, 2004, inclusive.

2. Lombard General Insurance Company of Canada shall forthwith pay Ludmila Greci $640.00 for housekeeping and home maintenance expenses for the period of July 11, 2004 to January 20, 2005, inclusive.

3. Lombard General Insurance Company of Canada shall pay interest for income replacement benefits on and after July 18, 2004 at the rate of 2 per cent per month compounded monthly as specified in section 46(2) of the Schedule.

4. Lombard General Insurance Company of Canada shall pay interest for housekeeping and home maintenance expenses on and after December 31, 2004 at the rate of 2 per cent per month compounded monthly as specified in section 46(2) of the Schedule.

5. Lombard General Insurance Company of Canada shall forthwith pay Ludmila Greci a fixed amount of $100.00 for her expenses of this hearing.

July 6, 2006

David Snider Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.