Neutral Citation: 2013 ONFSCDRS 87 FSCO A11-001927

BETWEEN:

SOZAN HURMZ Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Richard Feldman Heard: November 26, 27, 28, 2012 and June 19, 2013, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Neritan Ciraku for the Applicant Darrell March for the Insurer

Issues:

The Applicant, Sozan Hurmz, claims to have been injured in a motor vehicle accident on November 4, 2009. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Disputes arose concerning certain claims for accident benefits. The parties were unable to resolve their disputes through mediation and Ms. Hurmz applied for arbitration of these disputes at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the outset of the hearing, the parties agreed that the issues to be decided in this arbitration proceeding are as follows:

Is Ms. Hurmz entitled to receive the following medical benefits: a. $338.51 for the outstanding cost of chiropractic treatment and physiotherapy provided by Synergy Rehabilitation Centre pursuant to a plan dated October 19, 2009? b. $4,537.39 for the outstanding cost of treatment provided by Osler Rehabilitation Centre pursuant to a plan dated December 12, 2009?
Is Ms. Hurmz entitled to receive weekly caregiver benefits at the rate of $250.00 per week from February 23, 2010 to November 4, 2011?
Is Ms. Hurmz entitled to receive attendant care benefits at the rate of $805.28 per month from November 4, 2009 through November 4, 2011, for the services provided by Ms. Evelen Dankha and Ms. Sobar Hurmz, less amounts paid by Wawanesa?
Is Ms. Hurmz entitled to receive weekly housekeeping and home maintenance benefits in the amount of $100.00 per week from February 23, 2010 through November 4, 2011, for the services provided by Ms. Evelen Dahnka and Ms. Sobar Hurmz, less amounts paid by Wawanesa?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay a special award pursuant to section 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to the Applicant?
Is either party liable to pay the expenses of the other party in respect of this arbitration proceeding under s. 282(11) of the Insurance Act?

Result:

Except as provided below, this application is dismissed.
The decision is deferred on the Applicant's claim for a special award and on the claim of both parties for their expenses of this proceeding.

PROCEDURAL ISSUES:

At the outset of the hearing, each party raised objections about breaches by the other party of FSCO's procedural rules. In particular, Wawanesa objected to my accepting the document brief submitted by the Applicant as it was only served upon the Insurer a couple of days prior to the hearing. As it turns out, the Insurer's brief was also served on the Applicant less than 30 days prior to the hearing. My preference is to decide a case upon its merits, rather than upon a technical breach of the rules. In this case, I exercised my discretion under Rule 81, waived the usual time requirements and permitted the parties to file all of their documents. I made this decision for the following reasons: (1) neither party appeared to have "clean hands" in that neither served their documents within the minimum number of days required by FSCO's rules; (2) the delay of the Applicant in delivering her brief was attributable, at least in part, to the failure of the Insurer to provide to Applicant's counsel a complete copy of its file (as requested on numerous occasions by the Applicant's counsel); and (3) the prejudice to the Applicant in excluding her brief would far outweigh the prejudice to the Insurer (who had seen virtually all of these documents long before the hearing).

There was one exception, however. The Applicant originally claimed that all housekeeping, caregiving and attendant care services were provided by the same person, Ms. Evelen Dankha; this is evidenced by the Application for Mediation and the Application for Arbitration. At the pre-hearing conference, as evidenced by the pre-hearing letter of Arbitrator Sone, the Applicant identified the service providers as Ms. Evelen Dankha and Ms. Sobar Hurmz. By letter dated October 5, 2012, Applicant's counsel advised that the Applicant would only be calling two witnesses, Evelen Dankha (service provider) and Mr. Atila Balaban (an expert witness who examined the Applicant in late 2011). As of October 2012, Wawanesa had only heard of two service providers, Evelen Dankha and Sobar Hurmz and it expected to hear testimony from Evelen Dankha. A few days before the hearing, however, when the Applicant's document brief was received by Wawanesa, Wawanesa received for the first time a copy of an Application for Expense Form (OCF-6) dated November 4, 2011 from the Applicant claiming for the period May 14, 2010 through November 4, 2011: housekeeping expenses ($7,700.00); attendant care expenses ($14,963.41); and caregiver expenses ($19,250.00). Attached to this form was a list of services and related expenses purportedly signed on November 4, 2011 by the service provider, Linda Youssef. Applicant's counsel advised the Insurer and me at the commencement of the hearing that the Applicant would not be calling Evelen Dankha as a witness but was seeking leave to call Linda Youssef instead. No prior notice had been given to the Insurer. Counsel for the Applicant admitted that the documents dated November 4, 2011 had been in his possession since November 2011 and that they had not been provided to the Insurer until a few days prior to this hearing (as part of the Applicant's document brief).

Not only did the Applicant utterly fail to comply with FSCO's rules about prior service of documents and notification about witnesses, but she failed, until the commencement of the hearing, to reveal the existence of a material witness and what appears to be a key document related to the claims that make up the major part of her dispute with the Insurer. I found this conduct to be abusive. I declined to waive the normal procedural requirements concerning notification about witnesses and therefore did not grant permission for Linda Youssef to testify. I also excluded from evidence the Expense Form in question and had this document removed from Exhibit 1 (the Applicant's document brief).

EVIDENCE AND ANALYSIS:

Accident

The following information comes from the testimony of the Applicant and the reports filed with Toronto Police Services.

On November 4, 2009, at around 7:15 p.m., the Applicant was driving her vehicle out of a plaza. She had two passengers. She misjudged the distance of an approaching vehicle and when the Applicant's vehicle entered the street, the other vehicle was unable to stop and it rear-ended the Applicant's vehicle.

The Applicant testified that she was shaken and frightened. Her heart was beating quickly. She had been wearing her seatbelt. She did not strike her head or lose consciousness. She declined medical attention at the scene because, according to her testimony, she was not in pain and she wanted to see her own doctor. She also testified that she thought that she was going to die and she was anxious to go home and see her daughter before she died. At the time of the accident, the Applicant had a two-year-old daughter and she she may have been one week pregnant.²

A police officer happened to be passing by and checked to see if anyone was hurt. When satisfied that no one was hurt, the officer advised those involved that they could report the incident at a collision reporting centre. No other emergency services attended the scene of the accident.

The Applicant called her (estranged) husband and he came with a friend to drive the Applicant and her passengers to their respective homes. The Applicant attended at a collision reporting centre the next day to report the accident.

Symptoms

The Applicant testified that her symptoms first appeared a bit after one day and then got worse until they were "severe" after five days. Her main complaints have been pain in her back, neck and shoulders and headaches. She has also complained of pain in her left leg, left side and right arm. Gradually, over time, most of the problems have subsided but she testified that her back pain has gotten worse.

The Applicant testified that because of this pain and fatigue, for at least two years after the accident, she was able to do very little of her normal caregiving and housekeeping activities and required assistance with these tasks as well as with her own personal care and meal preparation (attendant care).

The real issue in this case, however, is not so much whether the Applicant has experienced pain and other related symptoms since November 2009. Rather, the real issue is whether the symptoms described by the Applicant were caused directly by the November 2009 accident and the extent to which these symptoms prevented the Applicant from functioning from November 2009 to November 2011.

Onus, Causation and Credibility

The onus of proof rests upon the Applicant to establish entitlement to each of the benefits claimed. I find that she has failed to meet that onus. Her evidence is too vague and insubstantial. She has tendered little relevant, reliable medical evidence and her own testimony lacks the kind of detail and credibility required in a case of this nature.

There are also serious questions raised about the cause of her symptoms. For instance, her main complaint is back pain and she told numerous assessors that she had no pre-accident health problems. Yet, the records disclose that, prior to the November accident, she attended her family doctor several times in 2009 with complaints of back pain. She testified that she could not recall these visits but suggested that they might be related to her ongoing problems related to pain in the area of her back where she received an epidural during the birth of her first child (in June 2007). She testified that her family doctor had told her that there was nothing that could be done for this. This begs the question, "If the Applicant knew that nothing could be done about this back pain, why go several times in 2009 to see the doctor about this problem?" The Applicant could offer no reasonable explanation and did not call her family physician as a witness to clear this up or provide other insights into the Applicant's pre-accident and post-accident medical condition.

Of course, the Applicant was also pregnant from around November 2009 through August 2010 and then was recovering from an emergency C-section and was restricted in her activities for several months during her recovery. This also raises questions as to the extent to which her limitations in 2010 (and even 2011) may relate to things other than the November 2009 accident. Again, the Applicant adduced no medical evidence on this point.

As to her credibility, the Applicant's memory seemed to be selective, especially concerning her husband and other relatives. She could not recall when she separated from her husband. She borrows his car regularly. She has had a second child with him (since their separation). He routinely assists her with caregiving (on weekends). Since separating, they have also travelled together (to Turkey). Yet, the applicant testifies that she has no idea where he lives. The Applicant testified that her mother, two sisters and cousins live in Canada; when asked if any of them live in Toronto, the Applicant stated that she has an aunt who lives in Toronto. The Applicant forgot to mention (until prompted on cross-examination) that her mother and two sisters live in the same apartment building as her.

The Applicant was also prone to exaggeration. She testified that, on the night of the accident, she thought that she was going to die. The reality, however, is that she waived off any medical assistance that night and did not seek any medical attention until about a week later.

In conclusion, the Applicant's testimony was, at times, selective, guarded, evasive and prone to hyperbole. This manner of testimony did not leave a favourable impression.

Medical Benefits

In general, an insurer is only required to pay for reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident for enumerated types of goods and services.

Synergy Rehabilitation Centre

In this case, according to the Application for Arbitration, the Applicant is claiming $338.51 for the outstanding cost of chiropractic treatment and physiotherapy provided by Synergy Rehabilitation Centre ("Synergy") pursuant to a treatment plan dated October 19, 2009. In fact, there is no treatment plan from Synergy dated October 19, 2009.

There is a treatment plan dated April 21, 2010 in the amount of $2,920.66 and another dated November 9, 2010 in the amount of $2,612.64. According to a letter from Synergy dated May 25, 2011, Synergy is owed $55.05 for services provided under the first plan and $283.46 for services provided under the second plan (for a total outstanding balance of $338.51).

No details have been provided as to the exact services provided by Synergy. The extent of the Applicant's testimony on this issue is that she attended at Synergy while still pregnant and did some stretching and exercise and found it to be helpful.

A review of the second treatment plan reveals that it was not even signed by a health professional. No witness was called from Synergy. Thus, there is no evidence at all that the second plan was reasonable and necessary and only a signature on the first plan attesting to the author's belief that it was reasonable and necessary.

The Insurer subjected the treatment plan of April 21, 2010 to a paper review by the same assessor who conducted a physical examination of the Applicant on March 9, 2010 (Dr. Steinberg). Dr. Steinberg issued a report on May 18, 2010 in which Dr. Steinberg found that no further facility-based treatment was reasonable and necessary. Based upon this opinion, Wawanesa denied payment under this plan.

With respect to the second plan (November 9, 2010), Wawanesa had the Applicant undergo a physical assessment in December 2010. Dr. White similarly concluded that further facility-based treatment was contra-indicated for the Applicant.

In the absence of greater particulars as to the services actually provided by Synergy and better medical evidence concerning the reasonableness and necessity of the treatment in question, I find that the Applicant has failed to meet her onus of proof and this part of her claim is dismissed.

Osler Rehabilitation Centre

In this case, according to the Application for Arbitration, the Applicant is claiming $4,537.39 for the outstanding cost of treatment provided by Osler Rehabilitation Centre ("Osler") pursuant to a plan dated December 12, 2009. In fact, there is no treatment plan from Osler dated December 12, 2009. The amount of $4,537.39 actually represents the difference (as of May 25, 2011) between the total amount billed by Osler between November 26, 2009 and May 21, 2010 ($20,154.09) and the amount Osler records as having been paid to it ($15,616.70).

Normally, in a case such as this, there would need to be a detailed analysis of each invoice submitted by Osler for which it claims that full payment was not received. Each such invoice would have to be related to a specific treatment plan and the reasonableness and necessity of the treatment recommended in each plan would have to be considered.

In this case, however, such a detailed analysis is neither possible nor warranted. First, the Applicant has not called any witnesses from Osler to speak to this matter. Second, by the Applicant's own testimony, the documents from Osler cannot be taken at face-value; she testified that she stopped going to Osler (in April 2010) because they were billing for services which she had not received. Third, Osler was recommending treatment (such as massage) when the Applicant was pregnant and when her family physician was advising against such treatment; in fact, Osler submitted five plans for massage therapy even though, according to the Applicant, on the advice of her family physician, she stopped going for massage at Osler after only 3 sessions and she refused to go for any additional massage therapy. Finally, although the Applicant was initially happy with the treatment she received at Osler (the vast majority of which was paid for by Wawanesa), she testified that, over time, she grew dissatisfied with the treatment which was both unsupervised and, ultimately, of little benefit to her.

For the foregoing reasons, there is simply insufficient evidence to permit me to conclude that the amount claimed is related to treatment that was reasonable and necessary for impairments sustained as a result of the November 4, 2009 accident. This part of the Applicant's claim is also dismissed.

Caregiver Benefits

The Applicant claims weekly caregiver benefits at the rate of $250.00 per week from February 23, 2010 to November 4, 2011.

In order to be successful, the Applicant must prove that, as a result of and within 104 weeks after the accident, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. The caregiver benefit is intended to cover the reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care (up to $250.00 per week for the first person in need of care). The person in need of care in this case is the Applicant's daughter who, at the time of the accident, was two years old.

The Applicant's evidence on this issue lacked specificity as to the extent of her disability, the identity of the service provider(s), the nature of the services provided by each of the service providers, the dates and times of those services and the payments made or promised to be made to the service provider(s).

At first, the Applicant indicated to the Insurer that the service provider was Evelen Dankha. Then she said that it was Evelen Dankha and her sister, Sobar Hurmz. Then she said that it was Linda Youssef. Then she testified before me that it was Evelen Dankha, Sobar Hurmz, Linda Youssef (usually, three times per week) and her husband, Sarkoon Youkhanna. None of the named service providers testified at this hearing.³

For medical evidence, the Applicant relies primarily upon disability certificates from Osler, but I have previously indicated in this decision why documents from this facility (unsupported by viva voce evidence from the authors) cannot be taken at face value. She also relies upon a disability certificate dated May 11, 2010 from Mr. Zia Barmania, a physiotherapist at Synergy. The basis for Mr. Barmania's conclusions, however, remains unclear and untested as he did not testify before me. Also, at the time this disability certificate was issued, the Applicant was about seven months pregnant and it is unclear what role this advanced pregnancy may have played in any functional limitations the Applicant may have been experiencing at that time. Finally, the Applicant relies upon the opinion of Mr. Balaban, an exercise physiologist who examined her in late 2011; I shall comment upon his report below.

Sarah Tran is an occupational therapist who conducted an in-home assessment of the Applicant on February 3, 2010 and issued a report on February 8, 2010. Ms. Tran also testified at this hearing.⁴ Ms. Tran is the only medical professional to have observed the Applicant performing realistic tasks in her home. Ms. Tran had the opportunity to ask the Applicant questions and to observe her caring for her daughter in their home.

Ms. Tran was satisfied that based upon the information she received and her observations, although the Applicant may have to pace herself (i.e., take breaks when tired until her endurance improved) and modify some tasks (e.g., assist her daughter in climbing in and out of the tub rather than lifting her in and out) and although the Applicant might experience some pain or discomfort during some tasks, the Applicant was able to care for her daughter and did not suffer a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident.

Wawanesa paid to the Applicant the maximum caregiver benefit ($250.00 per week) from November 5, 2009 through February 22, 2010 ($3,785.71 plus $12.00 in interest). Wawanesa stopped paying caregiver benefits as a result of the opinion of Sarah Tran.

Much later (October 6, 2011), the Applicant underwent a functional capacity evaluation by Mr. Balaban. Mr. Balaban also testified at this hearing. After conducting a number of tests, Mr. Balaban concluded that the Applicant's "functional capacities are not consistent with meeting the essential physical demands of the substantial majority of her housekeeping and care giving tasks." He felt that she was putting forth a genuine effort during the testing and recommended that she receive housekeeping assistance.

On cross-examination, however, Mr. Balaban admitted that his opinion is restricted to the Applicant's functional status at the time of his examination and he has no opinion concerning her abilities prior to his seeing her (prior to October 6, 2011) and no opinion as to the cause of any functional limitations he may have observed on October 6, 2011. Mr. Balaban also stated that he was not giving an opinion as to whether the Applicant's limitations were such that she would qualify for accident benefits (i.e., whether she suffered a substantial inability to engage in the caregiving or housekeeping activities in which she engaged at the time of the accident); for this reason, he did not make detailed inquiries into her pre-accident or post-accident caregiving and housekeeping activities. Furthermore, Mr. Balaban stated that he was assessing the Applicant's ability to perform in a work-like setting (as opposed to a home setting). Mr. Balaban conceded that the Applicant might well have greater opportunity to utilize pacing strategies within the home than in a more formal work-like setting. For all of these reasons, I find Mr. Balaban's report to be of little assistance in deciding the issues that are before me and I give greater weight to the opinion of Ms. Tran.

For the foregoing reasons, I find that the Applicant has failed to prove on a balance of probabilities that she was entitled to any caregiver benefits beyond February 22, 2010 and this part of her claim is dismissed.

Attendant Care Benefits

The Applicant claims attendant care benefits at the rate of $805.28 per month from November 4, 2009 through November 4, 2011, for the services provided by Ms. Evelen Dankha and Ms. Sobar Hurmz, less amounts paid by Wawanesa.

In order to be successful, the Applicant must prove the attendant care services she reasonably required as a result of impairments she sustained as a direct result of the November 2009 accident. The cost of Attendant Care is calculated using a Form 1 (Assessment of Attendant Care Needs form). At some point in late December 2009, a claim was advanced by the Applicant for attendant care benefits ($805.28 per month). It appears from the Insurer's various responses that that this claim was supported by a Form 1 but neither party has put such a document into evidence in this proceeding.

Upon receipt of this claim for attendant care benefits, the Insurer arranged for an independent examination of the Applicant to assist it in assessing this claim. The examination was scheduled for January 18, 2010. At the request of the Applicant, this was rescheduled to February 3, 2010. The assessment was conducted in the Applicant's home by Sarah Tran, O.T. Based upon the report and Form 1 prepared by Sarah Tran, Wawanesa concluded that the Applicant was not entitled to any attendant care benefits. Nevertheless, Wawanesa appears to have paid $402.64 to the Applicant, representing payment at the rate requested by the Applicant for the period from December 21, 2009 (the date it received her demand for attendant care benefits) until January 4, 2010 (the date Wawanesa served its notice of the examination scheduled for January 18, 2010).

Subsequently (in April 2010), Mr. Zia Barmania, a physiotherapist from Synergy, submitted a Form 1 (dated March 7, 2010) on behalf of the Applicant recommending payment of $777.33 per month in attendant care benefits; this was rejected by Wawanesa on the basis that, according to its interpretation of section 39(10) of the Schedule, an applicant cannot submit a new Form 1 until at least one year has passed since the previous Form 1 was submitted. Assuming (without deciding) that the Insurer's position on the second Form 1 was wrong in law and that the Applicant was entitled to submit this new Form 1 in April 2010, the Applicant must still satisfy me that she is entitled to attendant care benefits. Other than the Form 1 itself, the Applicant really offered very little evidence as to her need for attendant care. Mr. Barmania did not testify at the hearing.

Mr. Barmania indicates in the Form 1 that the Applicant required assistance with such things as dressing, undressing, cleaning the bathroom and preparing meals. The majority of the claim related to meal preparation. The Applicant testified that, although she could prepare simple meals, she could no longer cook for two to three hours and prepare elaborate meals.

If the Applicant received assistance with meal preparation and other forms of attendant care, there is no evidence before me as to the particulars (i.e., the identity of the service provider(s), the nature of the services provided by each of the service providers, the dates and times of those services and the payments made or promised to be made to the service provider(s)). In the absence of such particulars, in the absence of a copy of the original Form 1, and in the absence of testimony from the author of either Form 1 submitted by the Applicant or testimony from a service provider, it is very difficult for the Applicant to establish her entitlement to attendant care benefits.

In addition, Ms. Tran was able to observe the Applicant in her home in February 2010 and found that no attendant care was required. Her evidence was subjected to and withstood cross-examination at the hearing. After the November 2009 accident, some tasks may well have caused the Applicant discomfort and some might have taken her longer to complete. Her pregnancy, recovery from an emergency C-section and relative inactivity appear to have adversely impacted upon her strength and endurance and may have prolonged her symptoms from the November 2009 accident. Nevertheless, the persistence of pain and other symptoms does not necessarily mean that a person cannot function.

The real issue is whether the Applicant was capable of functioning despite the existence of such symptoms (assuming that the Applicant reported those symptoms accurately). Ms. Tran formed the opinion that, from February 2010 onwards, the Applicant was capable of caring for herself (although such activities might be accompanied by some discomfort and require pacing) and that the Applicant was not entitled to attendant care benefits. Having considered all of the evidence, I accept the opinion of Ms. Tran. The Applicant's claim for attendant care benefits is dismissed.

Housekeeping and Home Maintenance Benefits

The Applicant claims weekly housekeeping and home maintenance benefits in the amount of $100.00 per week from February 23, 2010 through November 4, 2011, for the services provided by Ms. Evelen Dankha and Ms. Sobar Hurmz, less amounts paid by Wawanesa.

In order to be successful, the Applicant must prove that she sustained an impairment that results in a substantial inability to perform the housekeeping and home maintenance tasks that she normally performed before the accident.

The Applicant's testimony and documentary evidence on this issue lacked particularity as to the extent of her disability, the identity of the service provider(s), the nature of the services provided by each of the service providers, the dates and times of those services and the payments made or promised to be made to the service provider(s).

At first, the Applicant indicated to the Insurer that the service provider was Evelen Dankha. Then she said that it was Evelen Dankha and her sister, Sobar Hurmz. Then she said that it was Linda Youssef. Then she testified before me that it was Evelen Dankha, Sobar Hurmz and Linda Youssef (usually, three times per week). None of the named service providers testified at this hearing.⁵

For medical evidence, the Applicant relies primarily upon disability certificates from Osler, but I have previously indicated in this decision why documents from this facility (unsupported by viva voce evidence from the authors) cannot be taken at face value. She also relies upon a disability certificate dated May 11, 2010 from Mr. Zia Barmania, a physiotherapist at Synergy, but I have previously explained (in my reasons concerning the caregiving claim) why I do not give much weight to this document. Finally, the Applicant relies upon the opinion of Atila Balaban; in my reasons concerning the caregiving claim, I have also explained why, for the purposes of this arbitration, little weight can be given to Mr. Balaban's report.

As previously indicated, Ms. Tran is the only medical professional to have observed the Applicant performing realistic tasks in her home. Ms. Tran conducted an in-home assessment of the Applicant on February 3, 2010 and issued a report on February 8, 2010. Ms. Tran had the opportunity to ask the Applicant questions and to observe her performing housekeeping tasks. Ms. Tran was satisfied that based upon the information she received and her observations, although the Applicant may have to pace herself (i.e., take breaks when tired until her endurance improved) and modify some tasks and although the Applicant might experience some pain or discomfort during some tasks, the Applicant did not suffer a substantial inability to engage in the housekeeping and home maintenance activities in which she engaged at the time of the accident.

Nevertheless, out of consideration for the fact that the Applicant was three months pregnant and might need some time to build up her stamina, Ms. Tran recommended that some housekeeping assistance (4.5 hours per week) continue to be provided for an additional six weeks and also recommended providing the Applicant with some devices that might make her tasks easier and safer. Ms. Tran's ultimate conclusion, however, was that the Applicant had demonstrated substantial ability to do housekeeping activities (albeit with some discomfort and need for pacing).

Wawanesa paid the maximum housekeeping and home maintenance benefit ($100.00 per week) from November 5, 2009 through February 21, 2010 ($1,500.00 plus $4.80 in interest). In accordance with the recommendations of Sarah Tran (see report of February 8, 2010), Wawanesa paid additional housekeeping and home maintenance benefits at a reduced rate of $45.00 per week. Wawanesa paid an additional $527.00 ($180.00 and then $347.00) for the period from February 22, 2010 through May 14, 2010.⁶

Having considered all of the evidence presented, I find that the Applicant has failed to prove on a balance of probabilities that she is entitled to any housekeeping and home maintenance benefits beyond those already paid by Wawanesa. This part of her claim is dismissed.

Interest

The Applicant has failed to prove that there are any overdue accident benefits. Therefore, there is no interest owing to the Applicant.

Special Award

The Applicant claimed entitlement to a special award on the basis that Wawanesa unreasonably withheld or delayed payment of accident benefits that are the subject of this proceeding. Given the Applicant's lack of success on this application, it is difficult to see how she can maintain a claim for a special award but I indicated that I would defer that issue to a later date.

Conclusion

For all the reasons set out above, except as provided below, this application shall be dismissed.

The determination of the Applicant's claim for a special award and the claim of both parties for their expenses of this proceeding is deferred. If either party wishes to have adjudicated either the issue of the special award or the expenses of this proceeding, written notice must be provided to the other party and to the FSCO within 30 days of the date of this decision.

July 4, 2013

Richard Feldman Arbitrator

ARBITRATION ORDER

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

Except as provided below, this application is dismissed.
The determination of the Applicant's claim for a special award and the claim of both parties for their expenses of this proceeding is deferred. If either party wishes to have adjudicated either the issue of the special award or the expenses of this proceeding, written notice must be provided to the other party and to the FSCO within 30 days of the date of this decision.