Neutral Citation: 1998 ONICDRG 48, 1998 ONFSCDRS 48

FSCO A97-000734

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TERESA DEFREITAS

Applicant

and

TRAVELERS INDEMNITY COMPANY

Insurer

DECISION on PRELIMINARY ISSUE

Issue:

The Applicant, Teresa Defreitas, was injured in a motor vehicle accident on May 16, 1995. She applied for and received statutory accident benefits from Travelers Indemnity Company ("Travelers"), payable under the Schedule.¹ Travelers terminated weekly caregiver benefits on December 12, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Defreitas applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Does section 71.1 of the Schedule preclude Ms. Defreitas from proceeding to arbitration because she failed to attend Insurer's Examinations or assessments at Designated Assessment Centres?

Result:

1. Section 71.1 of the Schedule does not preclude Ms. Defreitas from proceeding to arbitration.

Hearing:

The hearing of the preliminary issue proceeded by way of an Agreed Statement of Facts and written submissions by Mr. Juan F. Carranza for the Applicant, and by Ms. Philippa G. Samworth for the Insurer.

The issues for hearing in this matter include weekly benefits, and expenses for housekeeping, psychological treatment, dental treatment, travel, case management and moving. Travelers argued that Ms. Defreitas cannot proceed to arbitration because she failed to attend Insurer's Examinations and assessments at Designated Assessment Centres.

Travelers relied on subsections 71.1 (b) and (c) of the Schedule which provide:

No insured person shall commence a mediation proceeding under section 280 of the Insurance Act unless he or she,

(b) when required, has submitted to and provided the information required for an assessment under section 23, 25, 39, 45, 50 or 64, as the case may be; and

(c) has made himself or herself reasonably available for an examination under section 65.

If an insured is not entitled to apply for mediation, that person cannot proceed to arbitration.³

Section 65 of the Schedule requires an insured to make herself reasonably available for an examination by a health professional chosen by the insurer. Although Travelers relied on this requirement in its submissions, I found nothing in the Agreed Statement of Facts to support a finding that Ms. Defreitas did not attend an Insurer's Examination under section 65.

Travelers arranged a number of assessments at designated assessment centres ("DAC").⁴ Ms. Defreitas was assessed at a disability DAC, however she did not attend assessments at medical and rehabilitation DACs. The only issue is whether these failures to attend the medical and rehabilitation DACs preclude her from proceeding to arbitration.

I will deal with the non-attendances with respect to the issues for hearing identified in the prehearing letter.

Housekeeping expenses

Travelers advised Ms. Defreitas that her family doctor would have to complete an OCF-15 form before it would consider housekeeping expenses and that the expenses were subject to assessment by a DAC. Ms. Defreitas did not submit a form or attend a DAC.

The Schedule creates DACs to assess the reasonableness and necessity of supplementary medical benefits, under Part VII, rehabilitation benefits under Part VIII and attendant care benefits under Part X. Housekeeping expenses are payable under Part XIII of the Schedule. I find no provisions which permit Travelers to require Ms. Defreitas to attend a DAC for the assessment of housekeeping expenses. Accordingly, Ms. Defreitas is not precluded from proceeding to arbitration on account of her failure to attend a DAC to assess her claim for housekeeping expenses.

Supplementary medical expenses and rehabilitation expenses

Travelers arranged a number of supplementary medical and rehabiliation DAC assessments which Ms. Defreitas did not attend.

Supplementary medical expenses and rehabilitation expenses are payable under Parts VII and VIII of the Schedule.

These parts provide that the Insurer can require an insured to be assessed at a DAC if the insurer asks for and receives from the insured's doctor a certificate that the expense is reasonable and necessary for the insured's treatment or rehabilitation. OCF-15 is a Certificate for Medical/Rehabilitation and Attendant Care. It has spaces for the health professional to describe, among other things, the service and name of the provider, the cost and duration of the treatment and the reason the rehabilitation or treatment is necessary.

The certificate forms the basis upon which the Insurer assesses the reasonableness and necessity of the expense, and, if it denies the expense, it forms the basis upon which the DAC conducts its assessment and renders its opinion on the reasonableness and necessity of the expense claimed. Since the certificate may describe the scope of the proposed medical or rehabilitation treatment, it is also relevant as to whether the insured complied with her duty to submit to the assessment and provide the requisite information. In Lopez and State Farm Insurance Company, (OIC A97-000378), Arbitrator Blackman wrote that the process of requesting and receiving such a certificate is not merely a technical requirement. In my opinion, a certificate under section 37 or section 43 is a prerequisite to a supplementary medical expense DAC assessment and to a rehabilitation expense DAC assessment.

The only OCF-15 medical/rehabilitation certificate Travelers asked for was with respect to housekeeping expenses and attendant care expenses. Housekeeping expenses are not subject to a DAC assessment and attendant care expenses are not an issue in the arbitration proceeding. I find no evidence that Travelers asked for the certificates required under sections 37 or 43 with respect to supplementary medical expenses or rehabilitation expenses. Accordingly, Travelers has not established any basis for requiring a supplementary medical or rehabilitation assessment at a DAC.

Travelers has not established that Ms. Defreitas failed to make herself reasonably available for examination under section 65. Nor did it establish that she was required to attend assessments at medical or rehabilitation DACs. Accordingly, Ms. Defreitas is not precluded by section 71.1 of the Schedule from proceeding to arbitration.

Expenses:

Expenses of this application are in the discretion of the hearing arbitrator.

Order:

1. Ms. Defreitas is entitled to proceed to arbitration on all issues identified in the pre-hearing letter of Roster Arbitrator Bowland dated December 12, 1997.

October 5, 1998

William J. Renahan

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3Lopez and Canadian General Insurance Group, (OIC P97-00041, April 8, 1998)
4. 4In this case, sections 39, 45 and 64 of the Schedule.