Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 78

FSCO A05-000546

BETWEEN:

ANDY KONSTANTAKOS

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

March 27 and 28, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gino Isabella for Mr. Konstantakos

James M. Brown for Aviva Canada Inc.

Issues:

The Applicant, Andy Konstantakos, was injured in a motor vehicle accident on June 12, 2003. He applied for and received statutory accident benefits from Aviva Canada Inc., payable under the Schedule.¹ Aviva terminated weekly housekeeping expenses on July 18, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Konstantakos 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:

1. Is Mr. Konstantakos entitled to weekly housekeeping expenses pursuant to section 22 of the Schedule from July 18, 2003 to September 12, 2004, and if so, in what amount?

2. Is Mr. Konstantakos entitled to attendant care benefits from November 24, 2003 to February 29, 2004, pursuant to section 16 of the Schedule, and if so, in what amount?

3. Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

1. Mr. Konstantakos is not entitled to weekly housekeeping expenses.

2. Mr. Konstantakos withdrew his claim for attendant care benefits.

3. Mr. Konstantakos shall pay Aviva's expenses of the arbitration proceeding after the parties agree to the amount or have the amount assessed by me.

EVIDENCE AND ANALYSIS:

Background:

Mr. Konstantakos was 68 years old on June 12, 2003 when his vehicle collided with a bus. In a disability certificate dated shortly after the accident, Mr. Konstantakos's chiropractor certified that Mr. Konstantakos was substantially disabled from performing his pre-accident housekeeping activities due to soft tissue and joint injuries to the neck, shoulder, rib cage and low back. On the basis of that certificate, Aviva started to pay the maximum weekly housekeeping benefit of $100 per week. It arranged for an occupational therapist, Ms. Susie Levitsky to visit Mr. Konstantakos in his home and assess him on July 9, 2003. Ms. Levitsky reported that Mr. Konstantakos only needed two hours of help a week to help with the care of his garden. On the basis of that opinion, Aviva reduced the weekly benefit after the first five weeks from $100 to $16 per week.

Ms. Levitsky assessed Mr. Konstantakos on two further occasions and on September 24, 2003 concluded that Mr. Konstantakos did not need help with caring for his garden and Aviva terminated housekeeping expenses.

Law

The current test for entitlement to housekeeping expenses is set out in section 22 of the Schedule as follows:

The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The test for entitlement in section 22 uses words similar to the test for entitlement income replacement benefits in section 4. I find that the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary. I distinguish the current test for entitlement to housekeeping expenses from that under the provisions which governed accidents between December 31, 1993 and November 1, 1996. Under section 55 of that Schedule² the insurer was required to "pay for additional expenses reasonably incurred by, or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services." Ms. Levitsky and Mr. Isabella addressed this test.

Overview:

Prior to his retirement, Mr. Konstantakos owned and operated a restaurant. He owned his home which he shared with his wife, his daughter (Kathy Durante), her husband, and their two children aged 6 and 8. A third teenaged grandson stayed at the house from time to time. Mr. Konstantakos's wife and Ms. Durante's husband suffer health problems which prevented them from contributing to the housekeeping. The housekeeping before and after the accident was performed by Mr. Konstantakos and his daughter, Ms. Durante.

Ms. Levitsky interviewed both Mr. Konstantakos and Ms. Durante on her three visits to the house. All three testified at this hearing. Ms. Levitsky did not express an opinion on whether Mr. Konstantakos suffered a substantial inability to perform his pre-accident housekeeping tasks. Her opinion that Mr. Konstantakos required two hours help in his garden per week is not based on any opinion that he suffered a substantial inability to perform his housekeeping tasks. Further, Ms. Levitsky was not aware of the fact that during the period she was reporting that Mr. Konstantakos and Ms. Durante were telling her that Mr. Konstantakos was nearly back to his pre-accident activity level, Mr. Konstantakos, with the help of his daughter, was submitting invoices to Aviva for 14 hours of housekeeping services Ms. Durante was providing each week at a cost of $112 per week.

Besides the testimony of these three witnesses, I considered documents which included an attendant care assessment at a Designated Assessment Centre ("DAC") which took place on January 17, 2005. Although it took place, four months after the end of the claim for housekeeping expenses, the author records Mr. Konstantakos's pre-accident housekeeping activities.

In general, Mr. Konstantakos testified that he did all the cleaning and meal preparation before the accident and could not resume those activities until one year later in August 2004. I heard no evidence to explain whether he gradually improved or suddenly improved and why Mr. Konstantakos and Ms. Duarte continued to submit invoices for housekeeping services for 14 hours a week until they stopped more than a year later. Mr. Konstantakos testified that his daughter took off six months from her job to help him. Ms. Duarte testified that she works as a waitress Monday to Friday and that she took off one or two weeks to help her father. She testified that she did not do housekeeping before the accident and that when she came home everything was done. She also said that she did housekeeping in the mornings before she started the afternoon shift and on weekends.

Mr. Konstantakos's house was two stories and had four and a half bedrooms, three bathrooms and one kitchen.

I will now examine the evidence I heard on specific activities in the pre- and post-accident period.

Meal preparation

Mr. Konstantakos testified that preparing dinner was his job and that he did all the cooking before the accident and that he resumed cooking in August 2004. Ms. Duarte testified that before the accident, Mr. Konstantakos prepared the meals for her and her children and that she prepared her husband's meals. In her report of August 2003, Ms. Levitsky reported that Mr. Konstantakos said he was primarily responsible for meal preparation but too tired to prepare meals. She reported that after the accident Ms. Duarte assisted with meals. However, in her check list she noted that Mr. Konstantakos shared meal preparation before the accident and was independent after the accident. The DAC reported that prior to the accident Mr. Konstantakos prepared his own breakfast and lunch and the family supper Monday to Thursdays and that the family prepared supper on Fridays and weekends.

Mr. Konstantakos and his daughter submitted to Aviva check lists of duties performed by Ms. Duarte. The claim for meal preparation ends November 23, 2003. Each check list from the time of the accident to August 2004 is for two hours a day, seven days a week without any reduction to reflect that meal preparation was not claimed after November 23, 2003.

Bathroom cleaning

Besides saying that Mr. Konstantakos did all the cleaning, neither Mr. Konstantakos or Ms. Duarte specifically addressed the issue of bathroom cleaning in testimony. Ms. Levitsky reported that the two told her that Mr. Konstantakos was not responsible for cleaning the bathrooms. Mr. Konstantakos and Ms. Duarte included bathroom cleaning in their invoices. The DAC reported that Mr. Konstantakos cleaned the bathroom daily prior to the motor vehicle accident.

Dishes

Mr. Konstantakos testified that he put the plates in the dishwasher before the accident. Ms. Duarte testified that she did not do any housekeeping before the accident except for the dishes.

Vacuuming

Mr. Konstantakos and Ms. Duarte testified that Mr. Konstantakos did the vacuuming prior to the accident, and except for one month, Ms. Duarte checked off vacuuming as an activity she performed after the accident. Ms. Levitsky observed Mr. Konstantakos vacuuming and she thought he could perform that task.

Gardening

Mr. Konstantakos testified that he took care of a large garden and pet birds before the accident and that he needed help afterwards. Mrs. Duarte testified that Mr. Konstantakos dropped the cages while trying to clean them and one bird flew away and another died. She attributes this to Mr. Konstantakos's inability to perform his pre-accident activities.

Analysis:

The only evidence concerning the difference between Mr. Konstantakos's pre- and post-accident abilities that was clear and persuasive concerned his care of the garden and his birds. Otherwise, the evidence was unclear, contradictory and not persuasive.

I find it likely that Mr. Konstantakos did most of the housekeeping tasks for a family of five before the accident which included meal preparation, cleaning and laundry. I find it likely that the only activities he was unable to perform for several months after the accident was care for his garden and birds. The difference between what he did before the accident and what he could do after the accident does not amount to a substantial inability to perform his normal housekeeping tasks. Therefore, he is not entitled to housekeeping expenses pursuant to section 22 of the Schedule.

EXPENSES:

The criteria I should consider in determining entitlement to expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, as amended. I consider each of the five criteria in order.

1. Each party's degree of success in the outcome of the proceeding.

Mr. Konstantakos failed to prove that he was entitled to housekeeping expenses and withdrew his claim for attendant care expenses. Aviva was completely successful.

2. Any written offers to settle made in accordance with subsection (3).

The parties did not advise me of any offers to settle.

3. Whether novel issues are raised in the proceeding.

The parties did not raise novel issues.

4. The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.

Mr. Isabella was not familiar with the rules and practice of this tribunal. I find that Mr. Isabella was frustrated that he had to present this case. Several times during the hearing he stated that Aviva should have settled this claim. He did not have an opening statement or any clear theory as to how his client met the test under section 22 of the Schedule. He devoted most of his examinations and cross-examination on the ability of Mr. Konstantakos to garden and gave little attention to Mr. Konstantakos’s other housekeeping responsibilities. He attempted to introduce a medical report without any prior notice to Aviva and without any explanation for not producing the report prior to the hearing.

5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I found no aspect of the proceeding improper, vexatious or unnecessary.

Having regard to these criteria, I find that Mr. Konstantakos should pay Aviva its expenses of the arbitration proceeding.

May 17, 2006

William J. Renahan

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 78

FSCO A05-000546

BETWEEN:

ANDY KONSTANTAKOS

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

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

1. The application for arbitration is dismissed.

2. Andy Konstantakos shall pay Aviva Canada Inc. its expenses of the arbitration proceeding after assessment or agreement.

May 17, 2006

William J. Renahan

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93 as amended.```