Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 117

FSCO A08-000460

BETWEEN:

EDWARD DOLMOVIC

Applicant

and

ZURICH INSURANCE COMPANY (COMMERCIAL BUSINESS)

Insurer

Before: Robert A. Kominar

Heard: By telephone conference call on July 9, 2008.

Appearances: Michael Bennett for Mr. Dolmovic Kevin S. Adams for Zurich Insurance Company (Commercial Business)

Issues:

The Applicant, Edward Dolmovic, was injured in a motor vehicle accident on November 22, 2006. He applied for and received statutory accident benefits from Zurich Insurance Company (Commercial Business) (“Zurich”), payable under the Schedule.¹ Zurich terminated attendant care benefits on July 30, 2007. The parties were unable to resolve their disputes through mediation, and Mr. Dolmovic applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Dolmovic has brought a motion pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition for interim benefits to be paid to him pending the resolution of his dispute with Zurich. That motion was adjourned until September 9, 10, 11, 2008. After the adjournment Mr. Dolmovic broke his right ankle and was hospitalized and then discharged. As a result he has requested that attendant care benefits be awarded to him on an interim interim basis to cover the period up to the interim motion hearing in September.

The issue on this motion is:

Is Mr. Dolmovic entitled to interim interim attendant care benefits pursuant to section 279(4.1) of the Insurance Act, and if so, in what amount?

Mr. Dolmovic also claims interest on any amounts owing and his expenses incurred on this motion.

Result:

Zurich shall pay Mr. Dolmovic interim interim attendant care benefits in the monthly amount of $2,500 for the months of July and August 2008. Zurich shall pay the July attendant care benefits to Mr. Dolmovic no later than July 14, 2008. Zurich shall pay the August attendant care benefits to Mr. Dolmovic no later than August 1, 2008.
Mr. Dolmovic is not entitled to interest on interim interim benefits unless Zurich does not comply with this order
The issue of expenses on the interim interim motion is reserved to the arbitrator hearing the interim benefits motion.

EVIDENCE AND ANALYSIS:

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

This matter originally came before me on July 2, 2008. It was scheduled to be a settlement discussion of the interim attendant care motion. However, settlement was never discussed as the parties had procedural issues that needed to be dealt with as well as an adjournment of the interim motion hearing. I granted the adjournment until September 9, 10, 11, 2008 as it was evident that the one day which had been scheduled for it initially was not adequate given the amount of evidence that would likely be called. In addition, Zurich wished to cross-examine on affidavit evidence that Mr. Dolmovic intended to rely on at the motion hearing.

Subsequent to making my procedural orders, I received correspondence from Mr. Bennett, dated July 2, 2008, requesting an urgent resumption of the proceedings as he had just learned that Mr. Dolmovic had fractured his right foot on June 29, 2008 and had stayed alone in his apartment until July 1, 2008 before seeking medical aid. He was admitted to St. Michael’s Hospital, had a cast applied to his right foot and was discharged.

The further context here is that Mr. Dolmovic has for many years been unable to rely on much strength on the left side of his body, due to a serious workplace accident. The result of breaking his right ankle, Mr. Bennett submits, is therefore extremely serious and potentially dangerous for him. In addition, there is material before me that alleges that Mr. Dolmovic has cognitive challenges which may be associated with falls he has taken after the automobile accident in question here. The material described him putting his head through a wall during one fall. The material further suggests that Mr. Dolmovic may not be an accurate historian of his medical condition, and further that he may be psychologically unable or unwilling to acknowledge the severity of his medical condition and his real functional limitations.

Mr. Bennett further advised me in his submissions that he has most recently learned that Mr. Dolmovic’s treating physiotherapist was so concerned about him that she took him back to St. Michael’s Hospital, where he was admitted overnight and then discharged again to care for himself. Mr. Dolmovic apparently has no family or friends who can help care for him and the building he lives in does not have anything like attendant care services. It is apparent that the hospital system cannot accommodate him unless he further injures himself.

In these circumstances, Mr. Bennett argues that it is fair and in fact necessary that Mr. Dolmovic be provided with some attendant care on an interim interim basis, on a humanitarian basis, as his safety may be in serious jeopardy if he is left to live alone until September without the ability to pay for any attendant care services.

Mr. Adams argues on behalf of Zurich that the factual basis of Mr. Dolmovic’s claims are not as clear as Mr. Bennett portrays them. The evidence which Mr. Dolmovic intends to rely on to support his claims has not yet been subjected to cross-examination and thus ought not to be relied upon. The reason for granting the adjournment of the interim benefits motion was primarily to allow Zurich to conduct these cross-examinations on affidavit evidence or for the parties to agree on calling certain viva voce evidence at the interim motion hearing. Mr. Adams further notes that there are a number of Form 1s that have been prepared by both sides in this matter and that they vary widely in their conclusions as to the need for attendant care. Because of this disparity of opinion Zurich believes that a decision on benefits should wait until the interim motion can assess all of the evidence, including evidence on cross-examination.

I agree with Mr. Adams that the affidavit material which has not been subjected to cross-examination is potentially unreliable and that it would be unfair to Zurich to make an ongoing order for interim benefits based on it alone. However, there are times when urgency and safety of the applicant trump the need to wait for both sides to fully present their cases to an adjudicator.

By definition interim interim benefits only are awarded pending a review of the case at the interim motion hearing. In this case, that is a period of roughly two months. Based on the written material before me and the submissions of both counsel, I am satisfied on a balance of probabilities that Mr. Dolmovic is currently in need of attendant care benefits to help reduce the risk that he suffer further incidents pending the interim motion hearing. I am satisfied that there is a real possibility, based on the material before me, that Mr. Dolmovic would be successful at the interim benefits motion. I say this with the proviso that I draw this conclusion on the material which has not yet been subjected to cross-examination and that I have not had any opportunity to assess the credibility of any of the proposed witnesses or for that matter Mr. Dolmovic himself. I am also satisfied that given Mr. Dolmovic’s stated medical condition, there is immediate urgency in providing him with the opportunity to retain service providers who can assist him with daily living until the interim motion hearing.

Further, I find that there is no unwarranted prejudice to Zurich, given that the benefits which I am ordering will last for two months only. If the interim motion arbitrator draws a different conclusion about entitlement after hearing all of the evidence, my award can be factored into whatever interim order is made at that time.

This leaves the question of the quantum of attendant care benefits to be awarded on an interim interim basis. This decision is complicated by the numerous Form 1s and the disparity in their conclusions. Having considered the matter closely, I rely on the Form 1 prepared by Ana Flores on June 12, 2007 as it is the most recent Form 1 before me. Mr. Bennett suggested that an appropriate amount of interim interim attendant care should be $3,000 per month. He based this on his argument on the position that Mr. Dolmovic is actually catastrophically impaired and likely will be deemed entitled to attendant care up to $6,000 per month. Mr. Adams, suggested that if I were to order interim interim attendant care benefits, which Zurich is not consenting to, that an amount of $532.67 would be more appropriate.

After reviewing Mr. Dolmovic’s immediate needs, it appears that he presently needs Level 1 attendant care primarily. Ms. Flores concludes that his need for Level 1 attendant care was $3,689.28 per month as of June 12, 2007. Mr. Bennett argues that Mr. Dolmovic has clearly deteriorated significantly since that report was prepared. He further submitted that the actual cost of paying for service providers is much higher than the regulated rates for attendant care and therefore that I should consider this in quantifying an award.

I am not prepared to draw an interim interim inference that Mr. Dolmovic is catastrophically impaired. That will be determined at the ultimate arbitration hearing. I only note that there are competing assessments of his catastrophic status. Therefore, the maximum I can award him under the Regulation is $3,000 per month. Mr. Bennett noted that Mr. Dolmovic does still receive 3 hours of care a day from WSIB, however, for the near future he likely needs 24 hour care.

Once again, without the benefit of basing my conclusion on evidence that has been subjected to cross-examination, I find it plausible to conclude that there is a real risk that Mr. Dolmovic will be in danger if he does not receive extensive attendant care over the next two months. Therefore, I am prepared to award Mr. Dolmovic $2,500 per month for the months of July and August 2008 in interim interim attendant care benefits. This amount reflects a notional adjustment for the WSIB attendant care which I am informed he does still receive.

EXPENSES:

The question of expenses is reserved to the arbitrator who conducts the interim benefits motion.

July 15, 2008

Robert A. Kominar Arbitrator