Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 46 FSCO A07-002169

BETWEEN:

ZULLY TELLO MEDINA Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Edward Lee Heard: January 5, 6, 7, 8, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Riaz Ahmed for Ms. Tello Medina Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Zully Tello Medina, was injured in a motor vehicle accident on July 31, 2006. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated housekeeping and caregiver benefits by notice given on August 16, 2007. The parties were unable to resolve their disputes through mediation, and Ms. Tello Medina 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 Ms. Tello Medina entitled to receive weekly caregiver benefits of $300.00 from September 1, 2007 and ongoing, pursuant to section 13 of the Schedule?

2. Is Ms. Tello Medina entitled to receive a medical benefit for $212.28, claimed pursuant to section 14 of the Schedule?

3. Is Ms. Tello Medina entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from September 1, 2007 to July 31, 2008, pursuant to section 22 of the Schedule?

4. Is State Farm liable to pay Ms. Tello Medina's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

5. Is Ms. Tello Medina liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

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

Result:

1. Ms. Tello Medina is not entitled to receive weekly caregiver benefits of $300.00 from September 1, 2007 and ongoing, pursuant to section 13 of the Schedule.

2. Ms. Tello Medina is not entitled to receive a medical benefit for $212.28, claimed pursuant to section 14 of the Schedule.

3. Ms. Tello Medina is entitled to payments for housekeeping and home maintenance services in the amount of $50.00 per week from September 1, 2007 to July 31, 2008, pursuant to section 22 of the Schedule.

4. State Farm is not liable to pay Ms. Tello Medina's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

5. Ms. Tello Medina is not liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

6. Ms. Tello Medina is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

Ms. Tello Medina was struck by a car while crossing the street outside her home at approximately 4:00 p.m. on July 31, 2007. She was taken by ambulance to the hospital for treatment and released that evening at approximately 11:00 p.m. Following the accident, she reported headaches, and severe pain in her low back, shoulders, left knee, and neck. She had trouble standing for long periods of time and could not bend at the waist. Soon after, she commenced physiotherapy for treatment of her injuries. She attended before a chiropractor, Dr. J. Violante, who in his Disability Certificate² dated August 2, 2006, described her injuries as including the following symptoms: WAD III of cervical spine, myosfacial strain, post traumatic headaches, shoulder sprain, and knee sprain. He concluded that she was not able to perform the essential tasks of caregiving or housekeeping.

State Farm paid Ms. Tello Medina caregiver benefits in the amount of $300.00 per week from the date of the accident to August 30, 2007, and housekeeping and home maintenance expenses in the amount of $100.00 per week from the date of the accident to August 30, 2007. Both benefits were terminated on August 30, 2007 through an OCF-9.³

CAREGIVING BENEFITS

Testimony of Zully Tello Medina

At the time of the accident, Ms. Tello Medina was the primary caregiver for her two children, Justin, aged four, and Julysa, aged three. At that time, she was not married to the father of her children. Nor did he reside with the family, and although he sometimes remained at her home for visits which lasted as long as two weeks, she alone took care of the children.

Typically, in the period from September 2005 to the date of her accident on July 31, 2006, she was required to rise early in the mornings to get her son ready for school. He was in junior kindergarten, and her daughter would accompany them on the walk to school. She would drop her son off at school at 8:45 and return home to perform housework, mopping or vacuuming the floors, doing laundry, doing dishes, and cleaning the washroom. At noon, she would pick up her son from school and return for lunch. After lunch they often went to the park where he played soccer. Other times she took her children to the mall or to movies. Sometimes they read together. In the evenings, she made dinner for herself and her children and then prepared them for bed. On weekends, she went grocery shopping. Sometimes she took her children to McDonald's on Saturday, and they went to church every Sunday.

Ms. Tello Medina testified that after her accident on July 31, 2006, she could no longer carry out her caregiving duties. She was unable to lift her children or to have them sit on her lap. She needed help to take her children to school, and someone to help them with their homework. She was unable to bathe her children or to change them. She was unable to play with her children or take them out. She engaged the services of a number of caregivers including her mother, Olga Tello Medina Massella, and other friends and relatives, including Tracy Demaria, Cristina Paez, Blanca Grijalba, and Maria Palacios. The caregivers gave her children their baths, dressed them and groomed their hair. She estimated that her children required caregiving services for four to seven hours per day.

In August 2007, more than one year post accident, Ms. Tello Medina was still experiencing headaches, knee pain, and limitations in her ability to vacuum, mop and clean the washrooms. She had pain when she climbed stairs. She could only stand for fifteen minutes without pain, and sit twenty-five minutes without pain. Her low back was aggravated by bending or doing housework. She still had headaches three to four times a week that lasted two to three hours, requiring her to take Tylenol III.

At the start of the disputed period in September 2007, her daughter, Julysa, was in junior kindergarten, attending in the afternoons five days a week. Her son, Justin attended school in the mornings. Ms. Tello Medina stated that she was taking both her children to school each day, sometimes driving in her car, and sometimes walking. She was usually accompanied by her caregiver, who was required to help her children climb out of the car. The caregiver sometimes accompanied the children into the school to ensure their safe entry, although Ms. Tello Medina did that herself if the caregiver was not present. Mrs. Tello Medina also picked up the children after school.

During this period, Ms. Tello Medina often took her children to the park, always accompanied by her caregiver, who was there to pick them up if they were to fall. On Sundays when they went to church, Ms. Tello Medina was accompanied by her caregiver who helped the children out of the car and then accompanied them to their church school class. As of July 2007, her caregiver was often in the home or with the children from 4 to 5 hours per day.

By January 2008, Ms. Tello Medina testified that she had some improvement in her condition although she still experienced headaches two times per week requiring her to take Tylenol. She still had knee and low back pain, although she was by then able to stretch her arms upward and her upper back had improved. By July 2008, her knee had improved following surgery, although bending still caused her aggravation. She was able to go for walks for 30 to 40 minutes. She prepared meals with the aid of her mother.

Testimony of Olga Tello Medina Massella

Olga Tello Medina Massella testified that in August 2007, she helped her daughter, Tully Tello Medina, with caregiving tasks. She arrived at 8:00 in the morning and prepared the children for school. She often walked the children to school, although Ms. Tello Medina sometimes accompanied them. She also took the children to the park and played with them. She would pick up the children in the afternoon and help with their homework. She spent as many as three hours a day, five days a week at her daughter's home and was responsible for dressing and bathing the children. On the weekends, she would spend two hours per day at her daughter's home.

She also performed housekeeping tasks such as mopping, sweeping, putting out garbage, and doing the laundry.

Testimony of Maria Palacios

Maria Palacios testified she performed caregiving and housekeeping tasks for Ms. Tello Medina and provided invoices for caregiving services done in November and December 2006, February 2007, and in May 2007 to July 31, 2007. She testified that she would arrive at Ms. Tello Medina's house at 8:30 in the morning and stay until four or five in the afternoon. She also went to the home on Saturdays and Sundays. Sometimes she walked the children to the park. She gave the children their baths and put them into the tub. She tutored Justin for 20 to 30 minutes a day, helping him read and write.

ANALYSIS OF CAREGIVER BENEFITS:

To be entitled to caregiver benefits from September 1, 2007 to July 31, 2008, Ms. Tello Medina must prove that:

1. she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident; and

2. that she incurred reasonable and necessary expenses as a result of the accident in caring for her two children.⁴

In regard to the period from July 31, 2008 and ongoing, Ms. Tello Medina also must prove she suffered a complete inability to carry on a normal life.⁵

Failure to Prove Substantial Inability to Perform Caregiving Tasks

Ms. Tello Medina's evidence was insufficient to convince me that she was substantially unable to perform her pre-accident caregiving activities from September 1, 2007 and ongoing.

First, Ms. Tello Medina's testimony was that her children did not have special needs. Their care requirements were typical for children of their age. Justin was aged five years and eleven months, and Julysa was four years and nine months on September 1, 2007. On July 31, 2008, two years after the date of the accident, they were aged seven years and two months, and five years and seven months respectively. They attended at a school in the public school system and were admittedly independent in their toilet requirements.

Ms. Tello Medina complained that as a result of her accident related injuries, she experienced pain when bending at the waist and at the knee, and was unable to lift and carry her children.

Nevertheless, Ms. Tello Medina's own testimony was that from September 2007 and afterward, she could often walk her children to the school or to the park. She had no restrictions with driving and she could at any time drive her children to school, to church or to the park. Although she suggested that her children needed help to exit the car, no evidence was led to convince me that her children needed such help. In fact, neither of the caregivers who testified before me stated that they were required to help the children exit from the car. One of the witnesses, Maria Palacios, did not even remember if Ms. Tello Medina drove her car after the accident, although Ms. Tello Medina testified that she sometimes drove Maria Palacios in her car.

Further, Ms. Tello Medina is seen exiting her car with her son on the surveillance tape⁶ provided by State Farm. On the tape, Ms. Tello Medina's son is self-ambulatory and there is no apparent reason why Ms. Tello Medina would be required to lift him.

I was also not convinced that Ms. Tello Medina needed caregiving services to take her children to church. It was Ms. Tello Medina who drove her children to and from church after the accident. Although she suggested that she needed a caregiver to accompany the children into their church school class, Ms. Tello Medina never stated that this formed part of her pre-accident caregiving activities. Nor was there any evidence to explain why Ms. Tello Medina needed a caregiver to remain with her children in their church school class or why she herself could not remain in the church school class with her children.

Although Ms. Tello Medina might have been unable to lift her children, it was clear that she could still take them to the park and play with them. She could and did take them to the mall. Ms. Tello Medina may not have been able to lift her children in and out of the bathtub, but she was able to help them shower and dress. In terms of physical restrictions, I did accept that she could not push them on the swing, ride a bicycle with them, or swim with them.

I also found that Ms. Tello Medina did not need a caregiver to tutor her son, who needed help with his reading and printing. Maria Palacios testified that she read with Justin for twenty minutes a day and helped him with his printing. There was no evidence that Ms. Tello Medina's accident-related injuries somehow had an impact on her ability to perform this part of her caregiving tasks.

The Occupational Therapy In-home Assessment Report⁷ of Ms. Dana Bonnell, an Occupational Therapist, was completed after an assessment that took place on July 30, 2007. It made the following conclusions in regard to caregiving: "Ms. [Tello]-Medina demonstrated sufficient range of motion, strength, balance and activity tolerance to be independent with all essential caregiving tasks, with pacing and task modification as needed."

Ms. Tello Medina referred to the report⁸ of Dr. Michael Indech, orthopaedic surgeon. His assessment, conducted on December 30, 2006, concluded as follows:

"This injury [to the knee] impacts upon her ability to function normally as it causes pain and inhibits her from kneeling and performing her normal activities of daily living including caregiving." [Emphasis Mine]

He also stated that:

"she continues to have restrictions and inabilities to perform her normal pre-accident activities of daily living, including caregiving and homemaking."

Ms. Tello Medina also referred to the Disability Certificate⁹ of Dr. Violante, a chiropractor, dated May 1, 2007. He concluded that Ms. Tello Medina was unable to perform her caregiving tasks, and would be unable to do so for more than twelve weeks after the date of the assessment.

I find that Ms. Bonnell's report was more convincing than the reports of Dr. Indech or Dr. Violante in regard to caregiving. Not only was Ms. Bonnell's report more contemporary with the period in question (the assessment took place in June 30, 2007), but it also contained a more detailed and analytical examination of the types of activities and physical movements that formed Ms. Tello Medina's pre and post-accident caregiving duties.

In summary, I find that although Ms Tello Medina may not have been able to do every single thing she had formerly done as a caregiver for her children, she was able to perform the essential and major tasks of her pre-accident caregiving duties. I do not find that she was substantially disabled from performing her caregiving tasks. Finally, Ms. Tello Medina presented no evidence whatsoever to convince me that she suffered a complete inability to carry out a normal life, as required to be entitled to caregiving benefits following July 31, 2008.

HOUSEKEEPING AND HOME MAINTENANCE:

To succeed in her claim for housekeeping and home maintenance benefits for the period from September 1, 2007 to July 31, 2008, Ms. Tello Medina must prove that she:

1. sustained an impairment as a result of the accident that results in a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident; and

2. that she incurred reasonable and unnecessary expenses for housekeeping and home maintenance services.¹⁰

Testimony of Zully Tello Medina

Ms. Tello Medina testified that prior to her accident, she performed all housekeeping and home maintenance tasks at her home. In the year before the accident, she did all the home chores, including cleaning and mopping floors, vacuuming, laundry, folding clothes and grocery shopping. She performed other duties such as: dusting, dishwashing, and prepared all meals. She would spend as many as three to four hours per day performing housekeeping tasks.

In the disputed period from August 2007 until July 31, 2008, she testified that she was still unable to perform her housekeeping tasks. She was limited by the pain in her shoulders, left knee, and in her lower back. She was unable to bend, and could not vacuum, mop and clean the washrooms adequately. She was unable to lift clothes out of the washing machine. She could only wash dishes for an eight-to-ten minute period. She could cook three meals a day, but only with someone helping her to obtain pots, pans and items from lower shelves.

In cross examination she stated that before her accident, it took her 5 to 10 minutes to mop the floors in her home, and 4 to 5 minutes to vacuum her home. She had never been required to do gardening and lawn work at her home before the accident. By January 2008, she could stretch her arms upward and her upper back had improved.

Nevertheless, she stated that use of the extended brush (an assistive device recommended by Ms. Bonnell in her report) in the bathroom was too painful and she could still only vacuum feeling pain. She could only take out small bags of garbage that were approximately one foot by two feet in size. She could sometimes dust in the home. She could not do laundry because of the weight of the clothes. She estimated it took her 20 to 45 minutes to cook each of her meals.

Testimony of Olga Medina Massella

Olga Medina Massella testified she was the housekeeper from August 2007 to July 2008 except for period where she went to Guatemala in August 2007 and September 2007. She testified that she would spend as much as three hours a day twice a week doing housekeeping. She mopped, did laundry, took out the garbage, and did grocery shopping. She also attended at the home on weekends and did the gardening duties.

ANALYSIS OF HOUSEKEEPING AND HOME MAINTENANCE BENEFIT:

In general, given the difficulty of quantifying every minute of housekeeping performed by family members, I found Ms. Tello Medina testified credibly. Some of her complaints were corroborated by the medical evidence she adduced. Ms. Tello Medina referred to the Independent Rheumatological Evaluation¹¹ of Dr. Waldemar Pruzanski, a physician, who assessed Ms. Tello Medina in April 2007. In his conclusion, Dr. Pruzanski, found that Ms. Tello Medina's injuries were directly related to the motor vehicle accident. He stated the following:

My medical opinion is that the patient is unable to perform physical functions which would involve her neck, shoulders and lumbar spine as well as her knees. Therefore, performing work duties or work at home is contraindicated.

[Emphasis Mine]

Dr. Pruzanski was unable to predict the duration of her disability.

Dr. Indech's orthopaedic examination¹² of December 2006 concluded the following:

[Ms. Tello-]Medina can only do light housekeeping tasks. She has to be careful not to lift anything heavy, such as her children or bend and twist her lower back suddenly or do anything to aggravate her left knee."

"She continues to have restrictions and inabilities to perform her normal pre-accident activities of daily living, including caregiving and homemaking."

The conclusion of Ms. Bonnell, who conducted an In-home Assessment on July 30, 2007 was the following:

Ms. [Tello] Medina does not suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. The client demonstrated the functional range of motion and strength to be independent with her pre-accident housekeeping tasks, with pacing and task modification, as needed."¹³ [Emphasis mine]

Nevertheless, according to Ms. Bonnell's report, Ms. Tello Medina required some form of modification of body mechanics, pacing, or an assistive device to perform all her housekeeping tasks, which included: "Meal preparation, wash/dry dishes, bed making or linen changing, sweeping, mopping, vacuuming, dusting and tidying, bathroom cleaning, laundry, grocery shopping and garbage removal."

Ms. Tello Medina testified that she attempted to carry out her housekeeping activities using the suggested modified techniques, pacing and assistive devices. Despite this, she was still unable to complete or adequately perform some of the tasks because of her pain. She could not properly clean the tub, toilet and washroom with the long-handled brush. She still could not properly dust, mop and sweep despite the suggestions. She still had difficulty loading and unloading laundry.

I accepted Ms. Tello Medina's evidence that her pain prevented her from carrying out some of her housekeeping and home maintenance tasks. She could do some, but not all of her pre-accident tasks. On the whole, given the number, type, and extent of the tasks Ms. Tello Medina was still unable to perform, I find that she was substantially unable to perform her pre-accident housekeeping and home maintenance duties. I find that five hours per week of housekeeping and home maintenance benefits (incurred at the rate of $10.00 per hour as charged in the invoices) during the period from September 1, 2007 to July 31, 2008, were reasonable and necessary.

MEDICAL BENEFITS:

Ms. Tello Medina claimed medical benefits in the amount of $212.28. To be entitled to this benefit, Ms. Tello Medina must prove that this expense was reasonable and necessary and it was incurred on her behalf as a result of the accident.¹⁴

Ms. Tello Medina referred to a Statement of Account¹⁵ that she stated had been prepared by Mackenzie Medical Rehabilitation Inc., a treatment facility she attended. The accounts are a running balance of various treatments that were billed to Ms. Tello Medina over a period from August 2006 to December 2007. A balance due at the end of the account suggests that the amount of $212.28 is owing. Nevertheless, no evidence was tendered as to the nature of the medical benefit sought or the time during which it had been rendered. Nor is there any information as to whether the amount was in reference to a treatment plan that had been accepted or denied. Without such information, I am unable to make any determination as to whether this amount was reasonable or necessary. This benefit is denied.

ADDITIONAL MATTERS:

At the outset of the hearing, several preliminary matters were addressed. First, it was noted by State Farm that there was a discrepancy concerning the date of the accident. Although the Application for Arbitration stated July 31, 2006 as the date of the accident, the motor vehicle accident report¹⁶ stated July 30, 2006 as the date of the accident. Both parties made submissions concerning the actual date of the accident, and it appeared there had likely been an inadvertent error in one of these documents. Nevertheless, both sides agreed that only one accident occurred during the period in question and this accident was the subject of the present arbitration. The date of the accident was either July 31, 2006 or July 30, 2006. I have taken July 31, 2006, the date set out in the application, as the date of the accident.

Second, Ms. Tello Medina also sought to adduce a set of documents into the record on the first day of the hearing. These documents were clinical notes and records from Finch Weston Rehabilitation Centre and they purported to detail Ms. Tello Medina's treatment at that facility from August 2008 to November 2008. State Farm objected to the entry of these documents as they had not been served at least 30 days before the first day of hearing, as required under section 39 of the Dispute Resolution Practice Code (the "Code").

Section 39.2 of the Code allows a party in "extraordinary circumstances" to seek an arbitrator's permission to serve a document on the other party less than thirty days before the first day of the hearing. In the present case, Counsel for Ms. Tello Medina argued that the documents in question had been requested from the treatment facility before the hearing date, but they had only been received from the treatment facility at the last minute.

Nevertheless, I noted that the documents in question were handwritten, and many of the notes were scribbled in barely-legible, shorthand notation. The documents were also unsigned. Counsel for Ms. Tello Medina did not know who had created the notes, and had no intention of calling any person from that treatment facility to testify in regard to them.

Having regard to these concerns, I was not convinced that there were "extraordinary circumstances" in the present situation to justify allowing these notes to be introduced at the hearing.

In a further matter, Counsel for Ms. Tello Medina raised another issue in his closing submissions concerning the adequacy of an OCF-9¹⁷ filed in the documentation. Dated August 16, 2007, this OCF-9 terminated the caregiver and housekeeping benefits State Farm had been paying up to that time. The OCF-9 includes the following notation:

Stoppage of Benefit: Part 2 - Caregiver Benefits

Based on OT In home report dated July 23, 2007, you do not have substantial inability to perform your pre-accident caregiving activities".

It also states as follows:

Reasons why expenses are not payable or being stopped:

Part 4 - Housekeeping and Home Maintenance Expenses

Based on OT In Home report dated July 23, 2007 you do not suffer a substantial inability from performing your pre-accident housekeeping and home maintenance activities.

Ms. Tello Medina argued that the Occupational Therapy In Home assessment of Dana Bonell was in fact conducted on July 30, 2007, and not on July 23, 2007 as suggested in the OCF-9. Therefore, the OCF-9 was not in compliance with Section 35(9) of the Schedule which reads as follows:

The insurer shall set out in its determination the specified benefits and expenses the insurer agrees to pay, the specified benefits and expenses the insurer refuses to pay and the reasons for the insurer's decision. [Emphasis mine]

According to Ms. Tello Medina, proper and accurate reasons for the stoppage had not been given to the insured because the OCF-9 referred to an OT In-Home Report dated July 23, 2007. Therefore, the discontinuance of benefits had never been a proper denial and could not be effective.

Second, Ms. Tello Medina argued that the Insurer had also violated section 35(8) of the Schedule which requires the insurer to provide a copy of the report following a section 42 examination to the insured within five days of receiving the report. Further, according to section 42(11)(3)(ii), after the completion of a section 42 examination, the examiners must provide a copy of the report to the insurer no later than 10 business days after the day the examination is completed. Given that the report was not provided to the Insurer within the 10 days, the Insurer could not rely on it as a basis of the refusal of the benefits.

In response, State Farm argued that these issues should have been raised well before Counsel addressed them in closing submissions, and that the adequacy of the OCF-9 had never been an issue before the hearing or at the pre-hearing discussion.

Nevertheless, he responded to the submissions by stating that Ms. Tello Medina never testified that she had been confused by the OCF-9 in question. Nor did she state that she had not known the OT In-home report was indeed the one dated June 30, 2007. In fact, Ms. Tello Medina admitted that she had seen the June 30, 2007 report and was familiar with its contents.

Further, State Farm referred to the Occupational Therapy In-Home Assessment Report.¹⁸ The fax printout at the top of the page clearly shows that the report was faxed from the examiner to the insurer on August 14, 2007. Given that the examination was conducted on June 30, 2007, no more than ten business days had elapsed since its completion. State Farm also referred to a cover letter¹⁹ again showing a fax printout. That letter shows that the OT In-Home report had been sent to the Insured's counsel on August 16, 2007, two days after it had been received by the Insurer.

I find that while the OCF-9 incorrectly identifies the OT In-home report as having a date of June 23, 2007 rather than June 30, 2007, this discrepancy in no way confused Ms. Tello Medina as to the reasons for the stoppage of her caregiver and housekeeping benefits. Ms. Tello Medina was shown and questioned about the report in her cross-examination, and never mentioned that she had not seen this report or had been confused because the OCF-9 referenced a report dated June 23, 2007.

Section 35(9) requires the insurer to set out its determinations in regard to the benefits it agrees or refuses to pay, and the reasons for its decision. This provision allows the Insured to know and understand why a benefit has been refused or denied. In this case, Ms. Tello Medina clearly understood that her benefits had been discontinued. She received the OT In-home assessment on which the refusal had been based and understood that the In-home report was the rationale for the denial. I find that although the insurer incorrectly identified the In-home assessment as having a date of June 23, 2007 rather than June 30, 2007, this breach in no way prevented Ms. Tello Medina from understanding why her benefits had been stopped. Therefore I do not find that this technical breach in any way invalidates the OCF-9.

Finally, based on the fax printouts, I find that the report was sent to the insured within the five day delay required in section 35(8) of the Schedule, and that the report was sent to the insurer no more than ten business days (as defined in the Schedule) after the examination was completed. Therefore, none of the preliminary matters raised by Ms. Tello Medina had a bearing on the final outcome of this arbitration.

EXPENSES:

Each party shall bear their expenses in this matter.

April 17, 2009

Edward Lee Arbitrator

Date

ARBITRATION ORDER

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

1. Ms. Tello Medina is not entitled to receive weekly caregiver benefits of $300.00 from September 1, 2007 and ongoing, pursuant to section 13 of the Schedule.

2. Ms. Tello Medina is not entitled to receive a medical benefit for $212.28, claimed pursuant to section 14 of the Schedule.

3. Ms. Tello Medina is entitled to payments for housekeeping and home maintenance services in the amount of $50.00 per week from September 1, 2007 to July 31, 2008, pursuant to section 22 of the Schedule.

4. State Farm is not liable to pay Ms. Tello Medina's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.

5. Ms. Tello Medina is not liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.

6. Ms. Tello Medina is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

April 17, 2009

Edward Lee Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Disability Certificate Ex. A-1, Tab 3, page 23
3. 3OCF-9, Ex R-1, Tab 8 p. 85
4. 4Section 13(1) of the Schedule
5. 5Section 13(4) of the Schedule
6. 6Ex. R-2. Surveillance Tape
7. 7Ex R-1, Tab 31, at p. 287
8. 8Ex A-1, Tab 3 p. 201
9. 9Ex A-1, Tab 3 p. 67
10. 10Section 22 of the Schedule
11. 11Exhibit A-1, Tab 3 at p. 281
12. 12Exhibit A-1, Tab 3 at pp. 201 - 202
13. 13In-home Assessment R-1 Tab 31, page 278
14. 14Section 14(1) of the Schedule
15. 15Exhibit A-2, Tab 4, at pp. 86-103
16. 16Exhibit R-1, Tab 10 at p. 116
17. 17Ex R-1, Tab 8 page 85
18. 18Ex R-1, Tab 31
19. 19Ex A-2, Tab 5 page 154