Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2007 ONFSCDRS 170
FSCO A05-001235 and A05-001266
BETWEEN:
BARNA GALYAS and ERIKA CSUZDA
Applicants
and
RBC GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: May 22 and 23, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Samiya Ahmad for Mr. Galyas and Ms. Csuzda
Darrell March for RBC General Insurance Company
Issues:
The Applicants, Barna Galyas and Erika Csuzda, were injured in a motor vehicle accident on October 1, 2004. They applied for and received some statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.1 RBC refused to pay other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Galyas and Ms. Csuzda 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:
Is Mr. Galyas entitled to medical benefits in the amount of $3047 for treatment provided by Prime Health Recovery Centre, claimed pursuant to section 14 of the Schedule?
Is Mr. Galyas liable to repay RBC the income replacement benefits he received from RBC, pursuant to section 47 of the Schedule?
Is Ms. Csuzda entitled to medical benefits in the amount of $1459 for treatment provided by Prime Health Recovery Centre, claimed pursuant to section 14 of the Schedule?
Is Ms. Csuzda entitled to $1000 for housekeeping and home maintenance services for the period from December 1, 2004 to March 31, 2005, claimed pursuant to section 22 of the Schedule?
Is RBC liable to pay Mr. Galyas’ and/or Ms. Csuzda’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Are Mr. Galyas and/or Ms. Csuzda liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Are Mr. Galyas and Ms. Csuzda entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mr. Galyas is entitled to medical benefits in the amount of $3047 for treatment provided by Prime Health Recovery Centre.
Mr. Galyas is liable to repay RBC $1203.62 of the income replacement benefits he received.
Ms. Csuzda is entitled to medical benefits in the amount of $1459 for treatment provided by Prime Health Recovery Centre.
Ms. Csuzda is not entitled to $1000 for housekeeping and home maintenance services for the period from December 1, 2004 to March 31, 2005.
Mr. Galyas and Ms. Csuzda are entitled to interest for the overdue payment of benefits in accordance with section 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
Is Mr. Galyas liable to repay RBC the income replacement benefits he received from RBC, pursuant to section 47 of the Schedule?
RBC submits that it paid Mr. Galyas benefits during the time that he actually worked and earned some income. RBC asserts that it paid Mr. Galyas a total of $6193 in income replacement benefits at the rate of $249.70 per week until March 26, 2005.
Mr. Galyas submits that he informed RBC of his post-accident income and that, as a result, his weekly benefit was reduced to $77.76. While he concedes that there may have been a slight overpayment for a couple of weeks from January 20 to February 1, when RBC paid him $249.70, the mistake was RBC’s and not Mr. Galyas’ and he should not be made to pay for it.
Mr. Galyas’ evidence was that he was able to return to some work approximately three to four months after the accident, perhaps January or February 2005. He engaged in some light construction work such as painting and patching and he did some part-time work in the evening as an entertainer.
I have considered Mr. Galyas’ testimony in conjunction with the documentary evidence before me. I am satisfied that Mr. Galyas’ oral testimony is essentially in conformity with the information he reported to RBC with respect to work and his income. RBC provided that information to the firm of BDO Dunwoody in order to calculate the weekly benefit. Dunwoody’s report of January 2005 calculated the weekly rate of $249.70. Dunwoody’s subsequent report, dated April 20, 2005, used information about Mr. Galyas’ post-accident income to reduce his weekly benefit from January 20, 2005 onward to $77.76. By Explanation of Benefits dated April 4, 2005, without yet the benefit of the latest Dunwoody report, RBC informed Mr. Galyas that as a result of his return to work, reported as January 20, 2005, it was seeking a full repayment of the benefits made for the seven weeks from this time to March 11, 2005 in the amount of $1747.90. In fact, given the Dunwoody report, this latter amount should be reduced by the weekly benefit owing of $77.76 for the same seven weeks, which amounts to $544.32. The final amount owing is $1203.62.
Therefore, Mr. Galyas is liable to repay RBC $1203.62 of the income replacement benefits he received.
Are Mr. Galyas and Ms. Csuzda entitled to their expenses for treatment received at Prime Health Recovery Centre?
The motor vehicle accident in which Mr. Galyas and Ms. Csuzda were involved cannot be described as a minor one. While it was not a head-on collision, the accident was a serious side collision that rendered the car door difficult to open. Both suffered some obvious physical injuries: Ms. Csuzda, a burn to her arm and some cuts to her forehead, and Mr. Galyas, a swollen knee. Emergency personnel were called to the scene to offer assistance and the ambulance attendants gave them a thorough check. The car in which they were driving was a write-off.
Mr. Galyas testified that the only helpful treatment he received to deal with injuries as a result of the accident was massage therapy. He also received electric and laser therapy and was given exercises to do. He indicated that he might have gone for treatment two to three times per week and that it did help. Three weeks post-accident he consulted with his family doctor for the injuries to his knee. She referred Mr. Galyas to a specialist who prescribed him some medication. Mr. Galyas testified that three months after the accident he felt better, and six months later, rated himself an 8 out of 10. Mr. Galyas submits that the medical evidence shows that he did not suffer only soft tissue injuries as a result of this accident.
Mr. Galyas’ first submitted treatment plan was paid in full by RBC. The second treatment plan, dated November 17, 2004, was denied and then referred to a Med/Rehab DAC. The DAC approved continued massage therapy but took issue with the rates charged and only approved $906.70 of the plan. Finally, the third treatment plan of January 25, 2005 went through a paper review and the DAC recommendation was for Mr. Galyas to consult with an orthopaedic specialist.
Though Ms. Csuzda only missed one week of work after the accident, she also engaged in treatment to help with her recovery, including massage therapy, hot and cold packs, machine and home exercises. She too attended the clinic approximately two to three times per week. She testified that the treatment did make her feel better as it relieved some of the pain that she was experiencing as a result of the injuries suffered in the accident. The activities in which she engaged at this time included studying for her designation as a sales representative for Sutton Group at the Ontario Real Estate Board. She also worked as an aroma therapist assisting a friend of hers who had a practice assisting patients deal with stress, lack of energy, slight muscle pain and headaches.
Ms. Csuzda indicated that she felt that by mid-November she was improving. In particular, the burn on her arm from the airbag and the bruises on parts of her body were healing. In general, she felt less pain and she was learning how to do things so as not to further aggravate the injuries. Ms. Csuzda testified that she had returned to all of her regular activities six to eight months following the accident.
The first treatment plan Ms. Csuzda submitted was only partially approved by the Fast Track DAC of October 21, 2004 as it concluded that the Pre-approved Frame-work (PAF) Guidelines applied in her case. In fact, she consumed that first treatment plan in full. The second treatment plan, of November 17, 2004, was denied but RBC failed to offer her a DAC so she could not dispute the denial. Further, RBC never scheduled for her to attend an insurer’s examination with respect to her injuries and treatment.
The Applicants submit that the evidence shows that their injuries went beyond merely soft tissue injuries and were serious enough to warrant significant treatment.
RBC submits that they the Applicants failed to meet the onus on them to prove their cases in that:
there is an absence of clarity regarding expenses and where they come from, i.e., can they be directly attributed to a specific treatment plan
there is limited documentation and limited evidence about the treatment specifics provided to the Applicants, such as who did it and what was the benefit? For example, the treatment plans for Mr. Galyas total $5164. RBC paid a total of $3337, so the difference is only $2127. But the clinic’s invoices total over $6000. The same problem exists in Ms. Csuzda’s case.
The Schedule says that a medical benefit is to pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident. I agree with the Applicants that the point of the inquiry is not simply to scrutinize the accounting practices of a clinic. In any event, I am satisfied that the discrepancies between the treatment plans and the actual billings are not so extreme as to warrant any real concern. Further, I find that there is sufficient evidence regarding the treatment provided to Mr. Galyas and Ms. Csuzda. There are treatment plans in the documentary evidence indicating the proposed treatment and both Applicants provided sufficient and persuasive testimony about what treatment they engaged in and how it assisted them. RBC’s failure to submit Ms. Csuzda’s treatment plans to the proper process for disputing her need for treatment leaves it unable to challenge her need for treatment in light of the other credible evidence before me.
I also find that the medical evidence in general, contained in the disability certificates and also supported by the DACs in Mr. Galyas’ case, indicates injuries that go beyond soft tissue injuries (and the PAF guidelines) and supports the need for treatment.
Consequently, I find that Mr. Galyas is entitled to the outstanding treatment expenses of $3047 and Ms. Csuzda is entitled to the outstanding treatment expenses of $1459.
Is Ms. Csuzda entitled to $1000 for housekeeping and home maintenance services for the period from December 1, 2004 to March 31, 2005?
At the time of the accident, Mr. Galyas and Ms. Csuzda lived together in a large house, approximately 2200 square feet on a 50x125 foot lot. They had no housekeeping assistance prior to the accident.
The evidence was that before the accident Mr. Galyas took care of the yard, did the laundry, put out the garbage, and did some other cleaning. After the accident, he could not do these tasks because of the pain in his back and he admitted that he was not interested in doing most of the tasks because he did not want to aggravate the injuries and wanted to get better. RBC did pay him a total of $800 in housekeeping expenses.
Ms. Csuzda testified that she was not disabled from housekeeping but was reluctant to do her housekeeping tasks because she would have been very slow and they would have caused her pain. She said that she had not reached her pre-accident condition by mid-November as she still felt pain. On the other hand, a few months later, the pain was essentially gone and would return only with certain activities. Still later she was able to do her activities in a way that would not cause pain. RBC paid her a total of $600 towards housekeeping expenses.
The amounts claimed are to pay for the services of a housekeeper four times per week for five hours each day. Ms. Csuzda explained that the invoices submitted to RBC had been completed well after the work had been done but had been based on the records she kept of the housekeeper’s time. She did not know when exactly the invoices had been submitted to RBC.
I find that the Applicants have failed to prove this part of their claim. I am not persuaded by the evidence that Mr. Galyas and Ms. Csuzda hired a housekeeper or required housekeeping services for the period in question for the times claimed.
Though the home the two shared was a large one, it is not clear to me what housekeeping activities would have occupied a housekeeper for five hours a day four times a week. Mr. Galyas’ housekeeping duties appear occasional. When describing the difference in her abilities pre- and post-accident, Ms. Csuzda admitted that had she been well and not suffering from pain she would have been able to do her housekeeping in an hour.
Further, the evidence was that Ms. Csuzda had been working and studying since the accident. Her injuries were healing and she was benefiting from the treatment. She also admitted that she was not unable to do the housekeeping. Rather she was reluctant because of pain and the time it would have taken to complete the tasks. When these facts are combined with an absence of documentation in support of the claim and the lack of any kind of direct evidence from the housekeeper herself, I find that the Applicants have failed to discharge the onus on them to adequately prove the claim.
Expenses:
The parties did not argue the issue of expenses. I urge the parties to settle the matter of expenses. Should they be unable to do so, either of them may request an assessment of expenses in accordance with the Rules within 30 days of the date of this decision.
September 7, 2007
Rosemary Muzzi Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2007 ONFSCDRS 170
FSCO A05-001235 and A05-001266
BETWEEN:
BARNA GALYAS and ERIKA CSUZDA
Applicants
and
RBC GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
RBC pay to Mr. Galyas $3047 in medical benefits for treatment provided by Prime Health Recovery Centre.
Mr. Galyas repay to RBC $1203.62 of the income replacement benefits he received.
RBC pay to Ms. Csuzda $1459 in medical benefits for treatment provided by Prime Health Recovery Centre.
Mr. Galyas and Ms. Csuzda be paid interest for the overdue payment of benefits in accordance with section 46(2) of the Schedule.
September 7, 2007
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.