In Aleman and State Farm, P01-00014, September 21, 2001 the appellant appealed from a decision of arbitrator Palmer on March 5, 2001, in which her claim for expenses under s. 24 was denied on the basis that she had failed to produce sufficient evidence to establish a link between the assessment and the claim for benefits. The appeal was dismissed and the appellant was ordered to pay the Respondent’s expenses of the appeal fixed at $500.00. Following the accident, an in-home assessment of Mrs. Aleman’s daily activities was conducted at State Farm’s request. Approximately a year after the accident, an in-home assessment by Profile Investigations (“Profile”) was facilitated by Mrs. Aleman’s lawyer. State Farm refused to pay for the Profile assessment, arguing that it had an in-home assessment on file and therefore the second one was not reasonable or necessary. In upholding the decision, the Director’s Delegate agreed that there must be some evidence to establish a link between the assessment and the claims processed. At the arbitration, the insured had also argued that State Farm should be limited to arguing that the expense was not reasonable as it was a duplication of services. She further submitted that once an insurer delivers a denial of benefits it must defend a subsequent arbitration solely on the grounds set out in the initial notice and it is precluded from developing additional defenses. The Director’s Delegate upheld the arbitrator’s rejection of this reasoning, finding that the decision to allow or refuse the insurer’s request to rely on a new reason for denying a claim must be made on a case by case basis. Fairness will be the overriding consideration in making such decisions.

In Docoute and Zurich Insurance Company, A00-000027, September 19, 2001 the applicant applied for arbitration, claiming the cost of a medical assessment and a functional abilities evaluation conducted by DEAHY Medical Assessments Inc. The applicant was represented by an agent, Mr. Spiegel. Mr. Spiegel alleged that FSCO was biased, quoting at length from the Persofsky decision, in which the issue of institutional bias was canvassed. The arbitrator, however, had a great deal of difficulty following his written and oral submissions, finding

that he failed to clearly explain how the excerpts he quoted from the Persofsky decision assisted the applicant. Ultimately, the arbitrator dismissed Mr. Spiegel’s motion for an adjournment pending the outcome of the Persofsky decision. After she had dismissed the motion, he stood and asserted, “I declare you biased”. Thereafter, Mr. Spiegel stated that he would not be proceeding with the s.24 claim because he had made a bias claim against the arbitrator. Although Mr. Spiegel was given a recess to consider his position, he still refused to call evidence. The applicant’s claim under s.24 was dismissed and he was ordered to pay $500.00 of the insurer’s arbitration expenses under s. 282(11) and $500.00 under s. 282(11.2) of the Insurance Act. The arbitrator found Mr. Spiegel’s conduct to be abusive and very disruptive. The arbitrator also noted that Mr. Spiegel had a reckless disregard for his client’s interests.

In Atikian and Certas Insurance Company, A00-000777, September 14, 2001 it was held that the applicant did not meet the eligibility criteria for income replacement benefits under the Schedule, since he was not entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and evidenced in writing. The applicant claimed that prior to the accident he secured two contracts of employment to begin full-time work. One was to work as a salesperson at Marquess Jewellers, which was owned by his uncle. The second contract was to work as a salesperson at L’Oro Jewellers. The arbitrator found Mr. Atikian’s evidence about the formation of the contracts to be extremely vague, illogical, contradictory and inconsistent, in both his evidence in chief and on cross-examination. Based on the evidence, the arbitrator concluded that Mr. Atikian was not eligible for IRBs. In addition, he was ordered to pay Certas its expenses. On two successive days, Mr. Atikian arrived late for the hearing without explanation. His behaviour was found to be disrespectful toward the tribunal and the opposing party. Moreover, he had fabricated evidence to support his position.

In denying him expenses, the arbitrator stated that while it is important to ensure access to the system by unrepresented insured persons, it is also important to discourage such behaviour.

In Carr and Lombard General A00-000441, September 11, 2001 Lombard refused to pay income replacement benefits or ongoing housekeeping and home maintenance expenses. The arbitrator held that Mr. Carr was not entitled to an IRB, but was entitled to 6 hours of housekeeping every two weeks at $15.00 per hour from May 1999 to January 5, 2001, pursuant to s. 22 of the SABS - 1996. It was also held that Mr. Carr was disentitled to benefits pursuant to s.33(2) because of his failure to provide sufficient information to the insurer to enable it to determine his entitle to an IRB. (Contrast this finding to the Director’s Delegate McMahon’s decision in Kassa and Economical Mutual Insurance Company, P00-0053, July 26, 2001 in which it was held that s.33 is to be used to suspend benefits until the applicant complies with the request and not to “disentitle” an applicant to benefits). Prior to the accident, the 68 year old Mr. Carr was a director and corporate secretary of Bolam Funds, an investment company incorporated and based in the Bahamas. He claimed to be an employee of Bolam Funds, but the arbitrator found that he was self-employed. The arbitrator accepted objective medical evidence that it was more likely than not that Mr. Carr’s accident related impairments had caused him to fall behind in his profession and to be substantially unable to preform the essential tasks of his pre-accident employment as both a commodities trader and director of Bolam Funds (p.19). Nonetheless, it was found that he was not entitled to receive IRBs as he had failed to establish that he was entitled to receive, or that he did receive, a “salary” payment of $1,280.00 US from Bolam. Mr. Carr did not provide evidence about the income or expenses of Bolam Funds which would enable an IRB to be calculated. In the course of the proceedings, the arbitrator excluded surveillance evidence under sections 23 and 25.0.1 of the Statutory Power Procedures Act and Rule 39.2 of the Dispute Resolution Practice Code - 4^th Edition (May 31. 2001). A private investigator had entered Mr. Carr’s property in the company of a female companion and a small child, and took photographs inside the home after being admitted by Mrs. Key so that the child could use the washroom (p.22). The arbitrator remarked that insurers should not be permitted to present the Tribunal with surveillance evidence that relies on such unscrupulous and invasive tactics (p.22).

 

 

In Z (appellant) and Dominion of Canada General Insurance Company (respondent) the appellant appealed a decision dated March 7, 2000 in which it was held that she was entitled to weekly income benefits to July 15, 1997. Her claims for a functional home assessment and an occupational assessment were dismissed and she was ordered to repay $21,752.50 of the $80,935.00 that Dominion had paid for psychological counselling by Dr. J. Schachter. Dominion cross-appealed the decision. The Director’s Delegate ordered Dominion to arrange and pay for transcription of the untranscribed portions of Dr. Schachter’s testimony at the arbitration hearing and was ordered to provide a copy of the transcript to Ms. Z and the Commission. The appeal hearing was to resume forthwith. Ms. Z’s motion for preparation of transcripts of the remaining part of the arbitration hearing was dismissed. Ms. Z’s motion to admit fresh evidence on appeal was dismissed apart from the decision of the Canada Pension Plan Review Tribunal, dated May 1, 1999 and the Tribunal’s earlier letter to Ms. Z, dated April 26, 1999 which were to be admitted in the appeal. At the appeal, Dominion relied on two volumes of transcripts, arguing that it was Ms. Z’s responsibility to order and pay for any other portions of the transcripts that she wished to rely on. Dominion further submitted that no Rule expressly requires a party relying on a transcript of cross-examination to pay for preparation of transcripts of examination in chief and re-examination as well. In response to this argument, the Director’s Delegate stated:

Dominion’s position misunderstands the role of transcripts in FSCO appeals. They must be used fairly. Adjudicators should not allow a party to rely on partial transcripts where that would create an inadequate record for the issues being argued. In some cases, fairness requires that a full transcript be prepared. This may be necessary, for example, if the appellant presents good reason to believe that the arbitration decision misstates or disregards important oral evidence, or that the arbitrator erred or showed bias in the conduct of the hearing (p.8).

The Director’s Delegate ordered a complete transcript of Dr. Schachter’s oral testimony, finding that it was necessary in order to conduct a fair hearing of the appeal.