Neutral Citation: 2007 ONFSCDRS 55

FSCO A05-001298

BETWEEN:

SEAN RICHARD FARRO

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Hearing date on first page corrected to read September 25, 2007, in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: David Snider

Heard: September 25, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

No one appeared for the Applicant

Marlett M. Dobson for Pilot Insurance Company

Issues:

The Applicant, Sean Richard Farro, was injured in a motor vehicle accident on March 13, 2003. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot terminated weekly income replacement benefits on July 8, 2003. Mr. Farro also claimed payments totalling $3,440.00 for assessments completed pursuant to section 24 of the Schedule. Pilot refused to pay these claims. The parties were unable to resolve their disputes through mediation, and Mr. Farro 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. Farro entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule in the amount of $318.26 per week from July 9, 2003 to date and ongoing?
Is Mr. Farro entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule for the following:

a) Orthopaedic Surgeon's report in the amount of $1,415.00 dated July 3, 2003 by Dr. Michael West; and

b) Psychological report in the amount of $2,025.00 dated July 11, 2003 by Dr.Andrew Shaul?

Is Pilot liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Farro?
Is Pilot liable to pay Mr. Farro's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Farro liable to pay Pilot's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Farro entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Farro is not entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule in the amount of $318.26 per week from July 9, 2003 to date and ongoing.
Mr. Farro is not entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule, for the following:

a) Orthopaedic Surgeon's report in the amount of $1,415.00 dated July 3, 2003 by Dr. Michael West; and

b) Psychological report in the amount of $2,025.00 dated July 11, 2003 by Dr. Andrew Shaul.

Pilot is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Farro.
Mr. Farro is liable to pay Pilot's expenses in respect of the arbitration under section 282(11) of the Insurance Act, in the amount of $1,846.80, plus $110.81 GST and disbursements in the amount of $668.00.
Mr. Farro is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

This hearing was properly scheduled to commence on September 25, 2006 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario in Toronto. Counsel for the Insurer was in attendance and had her client and a witness available to proceed. Mr. Farro was not in attendance and no one appeared for him.

I examined the record file and found that Mr. Farro had been in attendance at the pre-hearing discussion held January 18, 2006 during which the time and date(s) of the hearing had been established and agreed to by the parties as September 25, 26, 27 and 28, 2006 at the offices of the Financial Services Commission of Ontario in Toronto. I also found that since that date Mr. Farro consistently failed to appear for other proceedings before the Commission, including a resumed pre-hearing on May 29, 2006 wherein Mr. Farro's then counsel sought and received an order removing him from the record as Mr. Farro's representative. I am satisfied that Mr. Farro had proper notice of those proceedings and this hearing, both personally and through correspondence. Accordingly, I proceeded with the hearing in his absence and began hearing evidence from the Insurer at approximately 10:15 a.m. on September 25, 2006.

I am satisfied on the evidence produced by the Insurer that Mr. Farro was employed on a full-time basis by S. Tobis Investments Ltd as a superintendent of an apartment building continuously between April 3, 2003 and January 31, 2004. He earned in excess of the $318.36 per week he has claimed for income replacement benefits throughout that time.

The Insurer paid Mr. Farro $318.36 per week from March 20, 2003 to July 8, 2003 inclusive, and complied with the Schedule in stopping those payments on the basis of an independent medical examination conducted by Dr. G. Soon Shiung which found him not to be suffering from a substantial inability to perform the essential tasks of his employment. There was no medical evidence provided to me which contradicted the findings of Dr. Shiung.

I find, therefore, that Mr. Farro is not entitled to any further income replacement benefits after July 8, 2003. I was not asked by the Insurer to determine whether there had been an overpayment of income replacement benefits to Mr. Farro.

Mr. Farro also claimed the cost of two examinations carried out on his behalf pursuant to section 24 of the Schedule. The claims were for an Orthopaedic Surgeon's report in the amount of $1,415.00 dated July 3, 2003 by Dr. Michael West and a Psychological report in the amount of $2,025.00 dated July 11, 2003 by Dr. Andrew Shaul. These two reports were prepared to bolster Mr. Farro's claims for income replacement benefits. They were, however, prepared some three months after Mr. Farro had already returned to the full-time employment which, as I have found above, he commenced on April 3, 2003 and continued with until at least January 31, 2004, after which I have no evidence.

I also find that in the case of Dr. West's report, the doctor appears to be referring to the wrong motor vehicle accident date and type and I have to conclude that the report is of very little merit. As well, it appears that Dr. Shaul was not told of Mr. Farro's pre-existing psychological problems when he examined him and prepared his report, so there is a large question with regard to the validity of the psychological findings contained therein, at least as they may pertain to the motor vehicle accident in question.

On ths basis of the above, I conclude that Pilot is not required to pay for these two claimed medical reports.

Finally, it is clear from my findings above that the basis upon which a claim for a special award can be made under subsection 282(10) of the Insurance Act has not been in any way established. I find therefore that there is no special award available for consideration in this matter.

CONCLUSIONS:

I find that there is no merit to the claims made by Mr. Farro in this Application for Arbitration. The application is therefore dismissed. I also find it is appropriate that Mr. Farro pay Pilot's reasonable legal expenses under these circumstances.

EXPENSES:

Counsel for the Insurer demonstrated to my satisfaction that the amount of time expended by her on this file, including the abbreviated hearing of September 25, 2006, amounted to 20 hours and she asked for an order at the allowable hourly rate plus GST and disbursements of $668.00.

I find this to be reasonable.

The maximum hourly rate that the Insurer may recover for legal fees is the rate established under the Legal Aid Services Act, 1998, S.O. 1998, c. 26, for professional services in civil matters before the Superior Court of Justice, including any applicable experience allowance. I find that the correct applicable rate is $73.87 per hour as set out in Part I, Column I, of Schedule 2 to O. Reg. 107/99, as amended, plus an experience increase as set out in Part IV of Schedule 2 of O. Reg. 107/99, as amended. The correct rate is therefore $92.34 per hour, plus GST. This results in a legal fee amount of $1,846.80 plus $110.81 GST. The disbursements are ordered at $668.00.

March 19, 2007

David Snider
Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario