Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 107 FSCO A07-001740

BETWEEN:

ROSA BENJAMIN Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby Heard: May 3, 4 and 6 and June 3, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Joel P. Freedman for Ms. Benjamin Marianne Motha for Belair Insurance Company Inc.

Issues:

The Applicant, Rosa Benjamin, was injured in a motor vehicle accident on June 10, 2004. She applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Ms. Benjamin disputed Belair's stoppage of caregiver and housekeeping and home maintenance benefits. The parties were unable to resolve their disputes through mediation, and Ms. Benjamin 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. Benjamin entitled to receive weekly caregiver benefits of $250 per week from June 10, 2004 and ongoing, pursuant to section 13 of the Schedule?
2. Is Ms. Benjamin entitled to payments for housekeeping and home maintenance services of $100 per week pursuant to section 22 of the Schedule?
3. Is Belair liable to pay Ms. Benjamin's expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
4. Is Ms. Benjamin liable to pay Belair's expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
5. Is Ms. Benjamin entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Ms. Benjamin is entitled to a weekly caregiver benefit of $250.00 from June 10, 2004 to July 6, 2004 and at the weekly rate of $75.00 from July 7, 2004 to June 14, 2005.
2. Ms. Benjamin is entitled to a housekeeping benefit at the rate of $60.00 per week from October 16, 2004 to June 10, 2006, and a home maintenance benefit of $5.00 per week from October 16, 2004 to October 31, 2004 from April 1, 2005 to October 31, 2005 and from April 1, 2006 to June 10, 2006.
3. Ms. Benjamin is entitled to interest on overdue payment of benefits.
4. The parties made no submissions with respect to expenses. In the event they are unable to resolve the issue they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

BACKGROUND:

On June 10, 2004, the car which Ms. Benjamin was driving was struck on the passenger side by a car making a right hand turn. She was taken to hospital by ambulance and later released with a prescription for Vioxx. However, the following morning the hospital requested that she return for further tests. At that time additional x-rays and a CAT scan were conducted but no further injuries were revealed.

In 1996, Ms. Benjamin left her employment as an insurance company's customer services representative due to physical disability. She has not returned to employment. Ms. Benjamin received long-term disability benefits until in or about 2007.

Ms. Benjamin claims that prior to the accident she was the primary care giver of her then 5 year old son. As well, she had primary responsibility for the housekeeping and light home maintenance such as gardening.

PROCEDURAL RULING:

Ms. Benjamin sought to have the issue of post-104 week caregiving expenses dealt with at the arbitration. Belair disputed the addition of this issue on the basis that it would be prejudiced given the significant difference in the tests relating to pre- and post-104 week benefits.

Both the Report of Mediator and Application for Arbitration capped the claim for a caregiver benefit at 104 weeks or June 10, 2006. However, the Pre-hearing letter dated October 30, 2008 indicates that the issues for arbitration "identified and agreed to" were caregiving benefits at the weekly rate of $250.00 from June 10, 2004 and ongoing. Ms. Benjamin was self-represented at the pre-hearing. There is no record of either party asking the pre-hearing arbitrator to amend the issues and restrict the claim for caregiving expenses to 104 weeks post-accident. While the parties agreed that the issues for arbitration were discussed at the settlement discussion, the Settlement Officer did not amend the issues for arbitration.

I ruled that the pre-hearing letter was the authority to be relied upon and therefore post-104 week caregiving expenses would be dealt with at the hearing.

EVIDENCE:

Ms. Benjamin and her husband, Deniz Benjamin, testified at the hearing. They gave their evidence honestly. They testified that notwithstanding Ms. Benjamin's pre-existing medical problems she had primary care of their son, who was five at the time of the accident, during the day. As well, Ms. Benjamin did the majority of the housekeeping and the lighter gardening. Following the accident, Ms. Benjamin was unable to engage in care taking of their son or the household work due to pain caused by the injuries she sustained in the accident. Her condition has steadily deteriorated to the point that she presently spends much of her day in bed. Mr. Benjamin arranged to work from home one day a week to be with his family. He testified that this change was in part motivated by his wife's accident-related impairments. He estimated that this change occurred in either 2004 or 2005.

Following the accident, their son was bused to school. Mr. Benjamin, an actively involved father prior to the accident, assumed preparation of his son's lunches, setting his clothes out for school and assisting him with bathing. In the past two years, their son has become much more independent and requires little assistance with personal care. Mr. Benjamin testified that he completed Caregiver Expense Forms, some of which were prepared after the services had been provided and others contemporaneous with the services. The duties described as Family Care and driving included activities he engaged in prior to the accident and did not differentiate between the pre- and post-accident activities. Mr. Benjamin could not recall that Ms. Benjamin made an express promise to pay. However, she did advise him it would be taken care of by the insurance company.

Belair submits that Ms. Benjamin was capable of returning to her pre-accident caregiving and housekeeping and home maintenance tasks effective June 14, 2005 pursuant to its Notice of Stoppage of Weekly Benefits (OCF-17) and letter dated May 25, 2005.² Belair relied on the report of Dr. Soon-Shiong which it enclosed with its letter dated May 20, 2005.³ Further, it submits that the benefits to which she was entitled from June 10, 2004 to May 20, 2005 were suspended due to Ms. Benjamin's failure to comply with her obligations to provide information pursuant to section 33 of the Schedule.

Medical Evidence:

The pre-accident medical records indicate Ms. Benjamin had a complex pre-accident medical history that resulted in her receiving disability benefits from her employer at the time of the accident. Her family physician, Dr. William Agate, reported regularly to Ms. Benjamin's employer's insurers between March 1999 and October 2003. He identified Ms. Benjamin's diagnosed medical conditions which disabled her and prevented her from working.⁴ On September 21, 2003, Dr. Agate wrote to an unknown party and provided a detailed medical history. He concluded as follows: "Mrs. Benjamin's failure to instruct counsel, or bring her application to the courts can be attributed to the emotional and physical conditions that she has had to deal with since 1994."⁵

On October 31, 2004, Dr. Agate reported to the employer's insurer and advised there was "no substantial change" from his report of the previous year. He did not advise that Ms. Benjamin had been involved in a motor vehicle accident in June 2004. He listed the following diagnoses: interstitial cystitis, irritable bowel syndrome, chronic mood disorder with anxiety, atypical chest pain, recurrent pelvic pain associated with dypareunia and dysmenorrhea, back pain, endometriosis, and iron deficiency anemia.⁶ All of which he referred to in his previous reports.

In May 2007, Dr. Agate provided a report to Ms. Benjamin's then counsel. Dr. Agate noted that he saw Ms. Benjamin on June 15, 2004 in respect to the motor vehicle accident. At that time, Ms. Benjamin complained of neck and back stiffness and pain and anterior chest wall pain. His examination revealed decreased and guarded range of motion of the cervical spine and thoracic and lumbar back. Dr. Agate indicated that he reviewed the x-rays and CAT scan taken at the hospital and noted that there were "slight alignment abnormalities and mild disc narrowing at the C5-6." As well, he observed small central disc bulges at C3-4 and C5-6 on the CAT Scan. As a consequence of his examination and review of the reports he diagnosed soft tissue injuries. He advised Ms. Benjamin to continue with the Vioxx, prescribed at hospital, and Tylenol 3 1-2 tabs. every 8 hours as required for pain. At the time of the accident Ms. Benjamin was taking Tylenol 3 for pain associated with her pre-accident disability.⁷ Dr. Agate described the various consultations and assessments to which he referred Ms. Benjamin in respect of the accident- related impairments. In his opinion the motor vehicle accident was the cause of Ms. Benjamin's chronic neck pain and headaches and chronic back pain of a myofascial nature. Dr. Agate stated:

Prior to the accident Mrs. Bruno (Ms. Benjamin) did not suffer from chronic neck pain. Her back pain prior to the accident seemed more related to her gynecological problems. Since the accident there has been a musculoskeletal component to her back pain that was not clearly evident prior to the accident. Mrs. Bruno has suffered from headaches prior to the accident but since the accident these have become more chronic in nature... The injuries suffered and the now chronic neck and back pain from the accident have had some impact on her functional abilities, specifically her housekeeping, and child care duties, though I do not feel I can accurately quantify how much the accident added to her pre-existing disability.⁸

On July 6, 2004, Ms. Benjamin was assessed by Tara Levkoe, an Occupational Therapist, on behalf of Belair. She noted that Ms. Benjamin described headaches, neck and upper back pain caused by the accident. Ms. Benjamin had also reported her pre-accident lower back pain related to pre-existing health issues. As well, she reported that she had suffered from depressed mood for approximately 18 years which had become more pronounced in the past 4 years as a result of her health problems. Mr. Benjamin had taken 2 weeks off work to assist her. Ms. Benjamin anticipated that she would have to retain someone to assume the caregiving and housekeeping and home maintenance tasks that she was not able to perform as he had to return to work.

Ms. Levkoe concluded that Ms. Benjamin required various assistive devices and 10 hours of housekeeping and home maintenance services and 7.5 hours of caregiving weekly.⁹

On September 27, 2004, Ms. Levkoe completed a follow-up assessment. Ms. Benjamin reported that her husband continues to provide the housekeeping, home maintenance and caregiving assistance. Following the reassessment Ms. Levkoe indicated that caregiving assistance was no longer required as Ms. Benjamin reported that she had resumed her pre-accident caregiving tasks. Ms. Levkoe recommended 5.91 hours of housekeeping and .5 hours of home maintenance per week.

On July 29, 2004, Dr. Agate signed a Disability Certificate in which he stated that Ms. Benjamin was substantially disabled from providing caregiving to her son and doing heavy housework and meal preparation. He estimated the disability would persist for 9 to 12 weeks. The Certificate noted that Ms. Benjamin did not meet the non-earner test. As well, he marked income replacement benefits as non-applicable. Ms. Benjamin signed the Certificate on August 10, 2004.¹⁰

On May 6, 2005, Ms. Benjamin was assessed by Dr. Gregory Soon-Shiong, orthopaedic surgeon. He found no objective orthopaedic impairment that would substantially disable Ms. Benjamin from completing her pre-accident housekeeping and home maintenance tasks. He did not comment on Ms. Benjamin's ability to engage in the caregiving of her son. Dr. Soon-Shiong stated: "She continues to complain of multiple body aches and pains. Her clinical examination is totally devoid of any significant positive objective clinical findings. She had all of the hallmark findings of chronic pain syndrome and significant findings of symptom magnification and functional overlay. [emphasis in original]"¹¹ On May 25, 2005, Dr. Soon-Shiong issued an addendum to his report and expressed his opinion that: "from an orthopaedic perspective, Ms. Bruno-Benjamin is not substantially disabled from her pre-accident caregiving activities as a result of injuries sustained in the motor vehicle accident on June 10, 2004."¹²

On January 20, 2006, Ms. Benjamin was assessed by Dr. V.C.W. Mak, a rheumatologist. He observed a mild restriction in Ms. Benjamin's cervical spine particularly with lateral flexion. Tenderness was marked on both sides but worse on her right side. Dr. Mak could find no neurological symptoms. He concluded that Ms. Benjamin has chronic mechanical cervical pain with referred pain to her interscapular area since her car accident in 2004. Dr. Mak recommended an MRI to "accurately delineate her cervical and thoracic spine anatomy."¹³

On February 2, 2006, Ms. Benjamin was assessed by Reema Shafi, Occupational Therapist. Ms. Benjamin reported that Mr. Benjamin was continuing to assist with housekeeping and caregiving for approximately 2 to 3 hours on week days and 5 hours each day on the weekend. She indicated her husband assisted their son with bathing, brushing teeth and homework. Ms. Shafi recommended 5.94 hours of housekeeping assistance and did not make a recommendation with respect to caregiving.¹⁴ On April 27, 2006, Ms. Shafi conducted a follow-up assessment and at that time recommended 5.11 hours of weekly housekeeping, weekly assistance with gardening as needed and 19.5 hours of one-time assistance with spring cleaning. Again, there was no recommendation for caregiving assistance.¹⁵

On February 8, 2006, Ms. Benjamin was assessd by Dr. Lisa Goldstein, a pain specialist who detailed the various types of pain that Ms. Benjamin was reporting and the history of that pain. Dr. Goldstein noted that Ms. Benjamin suffered from pre-accident chronic pelvic pain. Ms. Benjamin attributed neck and lower back (lumbar) pain to post-accident. She reported this pain as having increased in the month preceding Dr. Goldstein's assessment. Ms. Benjamin described three types of headache pain which she attributed to the accident. She experiences chronic daily headache across her forehead which tends to radiate through the parietal and occipital region into her neck. Ms. Benjamin treated this pain with Advil. She experiences fleeting lancinating pain which is felt in either the right or left temporal region. Ms. Benjamin described this pain as lasting several seconds. She ranked this pain as 9 to 10 on the pain scale. However, Ms. Benjamin does not experience associated features and she does not treat this pain because it is fleeting. Ms. Benjamin described pounding headaches, often hemicranial which may have the same location as her chronic daily headaches. However, this pounding headache is associated with photophobia and osmophobia. She does not experience nausea and this occurs rarely but when it does she ranks the pain at a level 9 to 10. Ms. Benjamin treats this pain with Ibuprofen and going to a dark room to sleep.

Dr. Goldstein found that Ms. Benjamin has a "complex and chronic pain diathesis." As a consequence she recommended a multi-disciplinary approach to Ms. Benjamin's treatment. Dr. Goldstein set out a comprehensive treatment program which included biomechanical treatment with a physiotherapist or chiropractor to be taught neck strengthening exercises and gentle muscle release with ultrasound and electrical stimulation; an exercise regimen which might include yoga or Tai Chi together with focused relaxation and muscle relaxation; psychological services to be provided by a psychologist with expertise in pain management and cognitive behavioural therapy. Dr. Goldstein recommended various medications to deal with Ms. Benjamin's depression. She also supported Dr. Mak's recommendation that Ms. Benjamin undergo an MRI. Dr. Goldstein recommended it include her head, cervical and thoracic spine.¹⁶

Correspondence:

On July 27, 2004, Belair wrote to Ms. Benjamin requesting various documents including a Disability Certificate, authorization to obtain a decoded OHIP summary, release of the clinical notes and records of her family physician from June 10, 2000 to present, prescription history from one year pre-accident to present and a "Standard Consent for the Collection, Use and Disclosure of Personal Information." The letter notes that the releases were enclosed.

On September 28, 2004, Belair wrote to Ms. Benjamin requesting she provide an OCF-10, Election of Benefits, and an authorization to obtain an OHIP summary from June 2000.¹⁷

On October 8, 2004, Belair wrote to Ms. Benjamin requesting authorizations to obtain her short- term and long-term disability files. The letter also purported to serve as notice that unless the above information was provided it would suspend any benefits payable pursuant to subsection 33(2) of the Schedule.¹⁸

On November 17, 2004, Belair again wrote to Ms. Benjamin demanding the information previously requested by October 22, 2004. Belair stated:

This letter will serve as notice that unless Belair direct receives the above requested information on or before October 22, 2004, no caregiver, housekeeping/ outdoor maintenance and medical and rehabilitation benefit will be payable for the period of non-compliance, in accordance with Section 33 (2) of the SABS.

Failure to submit the above requested information by Belair Direct Insurance Company, within 14 days will result in no income replacement and medical/ rehabilitation benefits payable to your client for the period of non-compliance, in accordance with section 33 (2) of the SABS.¹⁹

On December 20, 2004, Belair wrote advising it had not received the requested information therefore it was invoking subsection 33(2) of the Schedule and no caregiver, housekeeping and home maintenance benefits would be payable.²⁰

On February 3, 2005, Belair wrote to Ms. Benjamin and confirmed a telephone conversation in which Ms. Benjamin had advised that she was having difficulties completing the forms. As well, Ms. Benjamin indicated that she intended to retain counsel. Belair asked Ms. Benjamin to submit her expenses following which Belair would review the expenses and advise her of its position.²¹

On May 25, 2005, Belair wrote to Ms. Benjamin and advised that it intended to discontinue Ms. Benjamin's weekly benefits effective June 14, 2005. It provided her with information about the availability of a DAC assessment. Belair stated that a DAC assessment would not be available to her until she provided both an OCF-17 request for an assessment by a DAC and an OCF-3 Disability Certificate.²²

On September 22, 2005, Belair wrote to Ms. Benjamin confirming a telephone conversation in which Ms. Benjamin had advised Belair she had "incurred" expenses. Ms. Benjamin is asked to submit the expenses within 20 days failing receipt of which the file will be closed. There is no description of the expenses Ms. Benjamin was claiming.²³

On June 16, 2006, Belair sent Ms. Benjamin an OCF-9, Explanation of Benefits, in which it advised it would not reimburse her for her caregiving expenses for the period from June 10, 2004 to May 2006 because it had not received an Election of Benefits notwithstanding it had sent "several section 33 requests." Belair further advised that it was reimbursing her for housekeeping and home maintenance benefits at the weekly rate of $100.00 for the period from June 10 to October 15, 2004. Thereafter it was denying payment on the basis that Ms. Benjamin had not been compliant with its section 33 request.²⁴

On June 22, 2007, Ms. Benjamin signed an OCF-10 Election of Income Replacement, Non-Earner or Caregiver Benefit, in which she elects a Caregiver Benefit.²⁵

ANALYSIS:

Ms. Benjamin must prove that as a consequence of injuries sustained in the accident she suffered an impairment which resulted in her having a substantial inability to engage in either her pre-accident caregiving or her housekeeping and home maintenance activities. Further, as Ms. Benjamin claims a post-104 week caregiver benefit she must also prove that from June 11, 2006 she was suffering a complete inability to carry on a normal life. Given Ms. Benjamin's complex pre-accident medical history, which included chronic pain, Ms. Benjamin must establish that the accident materially or significantly contributed to her post accident impairments.²⁶ This test was applied by the Court of Appeal in Monks v. ING Insurance Co. of Canada.²⁷

Ms. Benjamin's testimony was consistent with the various descriptions of her pain and distinguishing the pre-accident medical issues from the post-accident impairments she gave to Dr. Agate, Dr. Goldstein, Dr. Mak and Dr. Soon-Shiong. As well, the reports of the Occupational Therapists also reflect that Ms. Benjamin described her impairments in a similar fashion to them.

I accept Dr. Agate's opinion that although Ms. Benjamin complained of headaches prior to the accident, they became more chronic following the accident. I also accept that the chronic neck pain and myofascial back pain were caused by the accident and were not pre-existing impairments. Although Ms. Benjamin suffered from pre-accident chronic pain which was complicated by a long-standing mood disorder, I find that this was significantly exacerbated by the injuries she sustained in the accident. On the basis of the foregoing, I find that Ms. Benjamin, as a result of the motor vehicle accident on June 10, 2004, suffered an impairment that substantially prevented her from engaging in her pre-accident caregiving activities and housekeeping and home maintenance services.

Caregiving Expenses:

I accept the evidence of Ms. Benjamin and her husband that Mr. Benjamin took two weeks off work following the accident to care for his family. I find that from the date of the accident to Ms. Levkoe's initial assessment on July 6, 2004, Mr. Benjamin was providing at least 25 hours of care per week. Therefore, I find that Ms. Benjamin is entitled to $250.00 per week for the period from June 10 to July 6, 2004. I further find that from July 7, 2004 to June 14, 2005, the date upon which Belair terminated Ms. Benjamin's caregiving benefits, she is entitled to 7.5 hours of caregiving at a weekly rate of $75.00.

Housekeeping and Home Maintenance Benefits:

I rely on the description of the pre-accident and post-accident housekeeping and home maintenance services set out in Ms. Levkoe's initial assessment as they are the most objective and contemporaneous record of those duties. Belair paid Ms. Benjamin a housekeeping and home maintenance benefit for the period from June 10 to October 15, 2004 at the weekly rate of $100.00. Thereafter it declined to pay the benefit on the basis she had failed to comply with subsection 33(2) of the Schedule.

I find that Ms. Benjamin's chronic pain substantially disabled her from performing her housekeeping and home maintenance duties from October 16, 2004 to June 10, 2006.

The assessors, Ms. Levkoe and Ms. Shafi, had substantially similar findings with respect to the housekeeping assistance Ms. Benjamin required of 5.91 and 5.94 hours. However, I find it unreasonable to assess a .91 or .94 of an hour. Therefore, I find that Ms. Benjamin required 6 hours of housekeeping weekly. I assess her weekly entitlement at $60.00.

Ms. Benjamin has never resumed her gardening. Ms. Levkoe attributed .5 hours per week to this endeavour. I find that Ms. Benjamin engaged in this activity on a weekly basis from April 1 through October 31 and is entitled to an additional $5.00 weekly for that period each year.

Application of Section 33:

Belair submitted that any caregiving or housekeeping and home maintenance benefits to which Ms. Benjamin might have been entitled were suspended by operation of subsection 33(2) of the Schedule. Subsection 33(1)1 requires an insured applying for a benefit to provide the insurer with any information "reasonably required to assist the insurer in determining the person's entitlement to a benefit." Subsection 33(2) provides: "The insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1) or (1.1)."

The determination of what information may be reasonably required to help an insurer determine an insured's entitlement to benefits requires the insurer to consider the information it has available to it.

On July 27, 2004, Belair requested various documents including a Disability Certificate and Ms. Benjamin's family physician's clinical notes and records from June 2000 together with her pre-accident prescription history from 1 year pre-accident. As Belair did not request them in subsequent correspondence, I find it received the Disability Certificate signed by Dr. Agate, together with his clinical notes and records and the prescription history. Subsequently, Belair requested Ms. Benjamin's disability insurers' files and renewed its request for a decoded OHIP summary and an Election of Benefits.

Dr. Agate's records contain detailed reports to Ms. Benjamin's disability insurers. Those reports provided sufficient information to enable Belair to distinguish Ms. Benjamin's pre- and post-accident impairments. As well, Belair had reports of various specialists who had conducted pre-accident assessments. Further, on July 6, 2004, Belair commissioned an in-home assessment. Its assessor determined that Ms. Benjamin's accident-related impairments resulted in a substantial inability to engage in her pre-accident caregiving and housekeeping and home maintenance activities. Ms. Benjamin's descriptions of her pre- and post-accident impairments were consistent with her physician's records.

I find that none of the medical information requested after July 27, 2004 was reasonably required for Belair to determine Ms. Benjamin's entitlement to housekeeping and home maintenance benefits. Providing a decoded OHIP Summary is not a reasonable condition precedent to receiving benefits under the Schedule.

Subsection 36(2) of the Schedule provides for an election to be made where a person's application for benefits indicates the insured may qualify for more than one of an income replacement benefit, non-earner benefit or a caregiver benefit as referred to in subsection (1). Dr. Agate's Disability Certificate specified that weekly employment benefits were not applicable to her and she did not qualify for a non-earner benefit. He did however indicate that Ms. Benjamin was substantially disabled from engaging in her caregiving activities. Ms. Benjamin signed the Certificate thereby adopting her doctor's opinion. There is no record of Ms. Benjamin subsequently suggesting she might qualify for any of those other benefits. Therefore, it was unreasonable for Belair to deny payment of caregiving benefits it owed Ms. Benjamin on the basis that she did not provide it with an Election of Benefits. In June 2007, Ms. Benjamin provided the Election thereby confirming her claim was for a caregiver benefit.

On the basis of the foregoing, I find that Belair had sufficient medical records available to it upon which to determine Ms. Benjamin's entitlement to both caregiving and housekeeping and home maintenance benefits. Further, Belair's demand for an Election of Benefits was unreasonable as there was no evidence that Ms. Benjamin was entitled to an employment or non-earner benefit. Therefore, I find that Belair's requests for information were not reasonable and subsection 33(2) does not afford it a defence to payment of the benefits to which Ms. Benjamin was entitled.

INTEREST:

I find that the caregiving and housekeeping and home maintenance benefits to which Ms. Benjamin is entitled, as set out above, were overdue five days following Belair's receipt of Ms. Levkoe's initial report pursuant to subsection 35(8) of the Schedule. It appears the payment for housekeeping and home maintenance, referred to in Belair's Explanation of Benefits dated June 16, 2006, did not include an interest payment which I find to be owing, if not previously paid.

Belair submitted that interest payments should be waived on the basis that Ms. Benjamin failed to advance her claim in a reasonably timely manner. It relied on the appeal decision in J.C. and Progressive Casualty Insurance Company.²⁸

I decline to exercise my discretion to waive the interest payment for any period for which benefits were overdue. Belair sought to rely on a technical defence that it was not required to pay benefits, to which its assessor found Ms. Benjamin to be entitled, on the basis that she failed to provide information. Belair is not an unsophisticated entity. It is familiar with the nature of the litigation process and the protracted length of such proceedings. By not paying the benefits, Belair assumed a risk that an arbitrator or judge might determine that those benefits were overdue and interest would attach pursuant to subsection 46(2) of the Schedule long after its denial. I find that suspension of interest would require egregious conduct on the part of an insured. In these circumstances, the appropriate forum for dealing with any unreasonable delay is an Expense hearing.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

August 26, 2010

Denise Ashby Arbitrator

ARBITRATION ORDER

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

1. Belair shall pay Ms. Benjamin a weekly caregiver benefit of $250.00 from June 10, 2004 to July 6, 2004 and at the weekly rate of $75.00 from July 7, 2004 to June 14, 2005.
2. Belair shall pay Ms. Benjamin a housekeeping benefit at the rate of $60.00 per week from October 16, 2004 to June 10, 2006, and a home maintenance benefit of $5.00 per week from October 16, 2004 to October 31, 2004 from April 1, 2005 to October 31, 2005 and from April 1, 2006 to June 10, 2006.
3. Belair shall pay Ms. Benjamin interest on overdue payment of benefits.
4. The parties made no submissions with respect to expenses. In the event, they are unable to resolve the issue they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

August 26, 2010

Denise Ashby Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 3, Tabs 39 and 42
3. 3Exhibit 3, Tabs 40 and 41
4. 4Exhibit 2, Tab 4(a), (e), (f), (g) and (h)
5. 5Exhibit 2, Tab 4(g)
6. 6Exhibit 2, Tab 4(i)
7. 7Exhibit 2, Tab 4(k) page 2
8. 8Exhibit 2, Tab 4(k) pages 5 and 6
9. 9Exhibit 3, Tab 31
10. 10Exhibit 2, Tab 4(x)
11. 11Exhibit 3, Tab 40
12. 12Exhibit 3, Tab 43
13. 13Exhibit 2, Tab 8(b) page 2
14. 14Exhibit 3, Tab 18
15. 15Exhibit 3, Tab 19
16. 16Exhibit 2, Tab 6(a)
17. 17Exhibit 3, Tab 34
18. 18Exhibit 3, Tab 35
19. 19Exhibit 3, Tab 36
20. 20Exhibit 3, Tab 37
21. 21Exhibit 3, Tab 38
22. 22Exhibit 3, Tab 42
23. 23Exhibit 3, Tab 44
24. 24Exhibit 3, Tab 29
25. 25Exhibit 3, Tab 45
26. 26Correia and TTC Insurance Company Limited, (FSCO A00-000045, October 27, 2000), page 26, upheld on appeal (P00-00061, July 16, 2001)
27. 272008 ONCA 269, 2008, ONCA269, April 14, 2008, page 23
28. 28(FSCO P04-00036, February 15, 2005)