Financial Services Commission of Ontario
Neutral Citation: 2012 ONFSCDRS 112
FSCO A10-002061
BETWEEN:
ANDRE VIGLIATORE
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: November 9, 2011 and January 13, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Andre Vigliatore, self-represented Stephen B. Macaulay for Wawanesa Mutual Insurance Company
Background and Issue:
Andre Vigliatore was injured in a motor vehicle accident on February 4, 2008. He applied to Wawanesa for benefits for housekeeping services up to July 12, 2008, payable under the Schedule1, and received same. Mr. Vigliatore seeks additional benefits for housekeeping services.
The parties were unable to resolve this dispute through mediation, and Mr. Vigliatore applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
On the first day of the arbitration hearing, documents were adduced into evidence and Mr. Vigliatore testified and was cross-examined by Wawanesa’s counsel. The hearing did not conclude and the parties agreed to resume the hearing on January 13, 2012.
Mr. Vigliatore did not appear on January 13, 2012. No further evidence was adduced in January. Wawanesa made final submissions on the merits of the claims and on the issue of expenses.
Result:
Mr. Vigliatore is not entitled to further benefits for housekeeping services.
Wawanesa is entitled to its expenses fixed in the amount of $3426.75.
Conclusions and Analysis:
Mr. Vigliatore is not entitled to further benefits because he failed to provide sufficient evidence that he incurred reasonable and necessary additional expenses for housekeeping and home maintenance services after July 12, 2008.
Wawanesa submitted that I had two options for deciding Mr. Vigliatore’s claims: (i) I could dismiss them on the basis that Mr. Vigliatore failed to appear for the conclusion of the hearing; or (ii) I could dismiss them on the merits, Mr. Vigliatore having failed to prove his claims.
In the circumstances, I am satisfied that I can dismiss his claims on the merits. While he failed to prove his claims for further benefits for housekeeping services, his lack of success was due to insufficient persuasive evidence and not because he was denied an opportunity to put his case forward.
Mr. Vigliatore had every opportunity to present his case and simply chose not to attend on the final day of the hearing for his own reasons. Mr. Vigliatore was content to commence and proceed with his hearing on the first day, despite having become self-represented at the last minute and despite having been offered the option of adjourning the hearing to allow him an opportunity to further canvass the documents and/or consider retaining new counsel. The hearing proceeded in the normal course and Mr. Vigliatore testified and was cross-examined by the insurer. The documentation provided by his former counsel was marked as an exhibit to the hearing. The hearing did not finish and a resumption date was set with his consent and in consultation with him. He did not appear for the second day of hearing though he was properly served with another notice of hearing. The Commission’s Case Administrator made calls to the telephone numbers on file for him but he could not be reached nor could the others who answered the phone confirm his whereabouts.
From these circumstances, I find that Mr. Vigliatore was afforded a proper and fair hearing and there is no reason not to conclude this matter finally.
I also find that Mr. Vigliatore has failed to prove that he is entitled to further benefits for housekeeping services because there was very little concrete and reliable evidence that he incurred reasonable and necessary additional expenses for housekeeping and home maintenance services as required by the Schedule and that he actually required housekeeping services beyond July 12, 2008.
I am not persuaded that he incurred necessary expenses because, unlike for the period of time paid by Wawanesa, there was no physical evidence before me that these housekeeping services had been performed.
Wawanesa paid Mr. Vigliatore benefits for the housekeeping services that were provided to him from February 6, 2008 to July 12, 2008. Mr. Vigliatore submitted an application for expenses for these services to Wawanesa in April 20092 and was reimbursed $1890 out of a claimed $2030.
At the arbitration hearing, Mr. Vigliatore was seeking $100 weekly from February 6, 2008 and ongoing for additional services provided by various family members and friends. He claimed that he has a debt of $30,000 owing to various family members and friends for services they have provided to him since he had the car accident.
Mr. Vigliatore did not submit any other invoices for housekeeping services that Wawanesa failed to consider or pay. Mr. Vigliatore did not provide any other documentary evidence at the hearing of additional receipts or invoices, of the nature already submitted or otherwise, to substantiate his claims that he had received housekeeping services after July 2008. The lack of additional paperwork is significant here. The 2008 invoices for housekeeping expenses were not submitted to Wawanesa until April 2009, after Wawanesa decided3 that no benefits for housekeeping services would be payable after April 3, 2009 based on the in-home examination it conducted in March 2009.4 If Mr. Vigliatore had incurred expenses for housekeeping services provided after July 2008 one could reasonably have expected to see invoices for those services submitted at the same time.
I am also not satisfied that Mr. Vigliatore incurred reasonable expenses because while Mr. Vigliatore provided oral evidence about the services he received, that evidence was too vague and unreliable especially when considered in the context of the other evidence.
Mr. Vigliatore did not provide sufficiently specific evidence to support his claim that he had accrued a debt of $30,000 to family members and friends for the housekeeping services he might have received from them. Mr. Vigliatore’s oral evidence supported only that any services he received were occasional at best, so it is difficult to imagine how he would have accrued so large a debt. For example, he testified that
family members would pick him up, take him to their home, and feed him and do his laundry
a few friends in his building would stop in and help him with the cleaning once a week or every other week
someone did his laundry once a week or every two weeks
someone would clean his bathroom every three weeks while he would take 10 to 20 minutes to tidy up the bathroom himself
a neighbour would help him clean his car
someone would help him carry the garbage down the stairs
Moreover, he did not provide clear evidence of the amount of time spent providing the services and the rates charged for those services. Furthermore, Mr. Vigliatore did not name any particular service provider, with the exception of his father, had no paperwork to support these financial claims, and not one of the service providers appeared at the hearing or otherwise provided evidence to corroborate the account.
I am also not satisfied that Mr. Vigliatore actually required these additional services. There was evidence before me that Mr. Vigliatore resumed all of his regular household duties sometime in early 2009. For example, he testified that he resumed all of his regular household duties after a second surgery was performed on his left hand in the spring of 2009, which is around the time he submitted the expenses that were paid by Wawanesa. Mr. Vigliatore also told one of Wawanesa’s assessors, the occupational therapist who conducted an insurer’s in-home assessment on March 10, 20095, that he was participating in the majority of pre-accident household tasks, with increased discomfort. As a result, the assessor found no need for housekeeping but did recommend certain assistive devices.
The other evidence before me also suggests that Mr. Vigliatore did not require housekeeping assistance as he seemed capable of doing other similar and perhaps more onerous tasks. First, it appears that Mr. Vigliatore did not need extra rehabilitation. He told the occupational therapist that he stopped doing therapy six weeks after the accident. He also told her that he was working 20 to 30 hours per week performing regular and light duties at the time of the assessment in 2009.6
The other evidence indicates that Mr. Vigliatore worked from the time of the accident with little change to his hours. Mr. Vigliatore’s declaration of post-accident income7 appears to show that he worked decreased hours during this time, 23 hours between January 26 and February 1.8 His hours increased rapidly, though, from 63 hours between February 2 and February 22, to 110.5 hours between March 1 and April 4. It also appears from the documents that from the period April 4, 2008 to April 4, 2009, Mr. Vigliatore returned to work on regular hours, working anywhere from 99.5 hours to 156 hours per month. In these circumstances, it is difficult to imagine that he could not do most of his own housekeeping tasks.
The medical evidence before me also does not support the need for further housekeeping services after March 2009. Much of the medical evidence tendered in support of Mr. Vigliatore’s claims for further benefits is not contemporaneous with the accident and is unreliable for other reasons as well.
The chiropractor who provided two disability certificates9 after the submission of expenses in April 2009 appears to have seen Mr. Vigliatore for the first time two years post-accident. In addition, the two certificates are identical except that the first recommends more than 12 weeks of housekeeping assistance and the second certificate recommends housekeeping assistance for 9 - 12 more weeks.
Further, while both disability certificates note that Mr. Vigliatore has significant pre-existing physical conditions10, neither opinion appears to consider the impact of those conditions, as opposed to any injury sustained in the accident, on his ability to perform his housekeeping tasks. While she also notes that he was on medication not prescribed by her, including Lyrica, Clorazepam and Tramacet, she fails to explain the reasons for and/or the impact of that mediation on his condition and needs. These omissions are significant given that she recommends further investigation due to his neuralgia, the chronicity of his injuries, and due to anxiety, stress, sleep difficulty and nervousness.
Mr. Vigliatore has failed to show that he is entitled to further benefits for housekeeping and home maintenance services because there is a lack of sufficient reliable evidence to prove his claims on balance.
EXPENSES:
Wawanesa made representations on the issue of expenses, asking me to exercise my discretion to award them costs for the arbitration and its disbursements.
Having been completely successful in the arbitration, and there being no other relevant criteria applicable in the case according to the Expense Regulation, I find that Wawanesa is entitled to its reasonable expenses.
Wawanesa’s arbitration disbursements total $1693.49, including HST of $194.83. The total disbursement bill also includes $850 for court reporting services. The Regulation/Schedule does not contemplate that an insurer can recover expenses for the cost of such services which insurers provide at their discretion. All of the other disbursement expenses listed are recoverable. Wawanesa is therefore entitled to expenses for its disbursements in the amount of $648.66, plus $84.33 for HST.
In the matter of expenses for appearance at the arbitration, I agree that counsel for Wawanesa is entitled to be paid $112.24 per hour, the recoverable hourly rate for a lawyer with his experience. The hearing itself took no more than 12 hours. The issues were clear and straightforward, so in my view, the insurer should be paid at the ratio of 1 to 1 for preparation time. The result is that the insurer can recover 24 hours in total for preparation and appearance at the arbitration hearing, for expenses in the amount of $2693.76.
The total award for expenses and disbursements therefore is $3426.75.
July 18, 2012
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2012 ONFSCDRS 112
FSCO A10-002061
BETWEEN:
ANDRE VIGLIATORE
Applicant
and
WAWANESA MUTUAL 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:
Mr. Vigliatore is not entitled to further benefits for housekeeping services.
Wawanesa is entitled to its expenses fixed in the amount of $3426.75.
July 18, 2012
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Exhibit 1, Tab 6.
- Exhibit 1, Tab 5, explanation of benefits.
- Exhibit 2, Tab 2.
- Exhibit 2, Tab 2.
- Prior to the accident he had worked 25 - 35 hours per week.
- Exhibit 1, Tab 4.
- Exhibit 1, Tab 3;Wawanesa paid Mr. Vigliatore four weeks of income replacement benefits based on Mr. Vigliatore’s employer’s confirmation form.
- Exhibit 1, Tabs 7 and 8. The certificates are dated November 27, 2009 and February 17, 2010 respectively.
- The chiropractor notes that his pre-existing conditions include (1) left hand boxer’s tx (sic) in 2007 (2) trigeminal neuralgia (involving one or more of the three branches of the cranial nerve of fifth pair and often causing severe pain) and (3) previous MVA in 2004.