Domenica Fimiani v. Liberty Mutual Insurance Company – Reasons for Decision

Domenica Fimiani v. Liberty Mutual Insurance Company

Reasons for Decision

Before: David Muir

Heard: April 6, 7, 8, September 7, 8, 9 and November 12, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Richard M. Bogoroch and Linda Wolanski for Mrs. Fimiani Wayne Edwards and Michael J. Hucklack for Liberty Mutual Insurance Company

Issues:

The Applicant, Domenica Fimiani, was injured in a motor vehicle accident on August 28, 1994. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company (“Liberty Mutual”), payable under the Schedule. Liberty Mutual terminated weekly income 1 replacement benefits on September 28, 1995. The parties were unable to resolve their disputes through mediation, and Mrs. Fimiani 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 Mrs. Fimiani entitled to receive a weekly income replacement benefit after September 28, 1995, pursuant to section 7 of the Schedule on the basis that she suffers a substantial inability to perform the essential tasks of her employment?
2. Is Mrs. Fimiani entitled to rehabilitation benefits claimed pursuant to paragraph 40 of the Schedule?
3. Is Mrs. Fimiani entitled to payments for dependant care and housekeeping and home maintenance services claimed pursuant to sections 54 and 55 of the Schedule?
4. Is Liberty Mutual liable to pay a special award based on Liberty Mutual’s refusal to accept her condition of ongoing pain and its reliance on a DAC assessment by a chiropractor who could not assess the pain condition, pursuant to section 282(1) of the Insurance Act, R.S.O. 1990, c. I.8?
5. Is Liberty Mutual liable to pay Mrs. Fimiani’s expenses of this arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. Mrs. Fimiani is entitled to receive a weekly income replacement benefit after September 28, 1995, pursuant to section 7 of the Schedule to date, on the basis that she suffers a substantial inability to perform the essential tasks of her employment.
2. Mrs. Fimiani is entitled to the rehabilitation benefits claimed pursuant to paragraph 40 of the Schedule.
3. Mrs. Fimiani is entitled to payments for dependant care and housekeeping and home maintenance services claimed pursuant to sections 54 and 55 of the Schedule.
4. Liberty Mutual is liable to pay a special award based on its refusal to accept her condition of ongoing pain and its reliance on a DAC assessment by a chiropractor who could not assess the pain condition, pursuant to section 282(1) of the Insurance Act, R.S.O. 1990, c. I.8.

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Domenica Fimiani v. Liberty Mutual Insurance Company – Reasons for Decision