Neutral Citation: 1998 ONFSCDRS 95

FSCO A97-001471

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RONALD A. BLAND

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

Ronald Bland was injured in a motor vehicle accident on July 27, 1996. He received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on February 20, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Bland applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. (a) Is Mr. Bland entitled to receive an income replacement benefit under section 7 of the Schedule between February 20 and March 14, 1997, the date he returned to work, because he suffered a substantial inability to perform the essential tasks of his employment during that period?

(b) Is Mr. Bland entitled to receive an income replacement benefit after March 14, 1997 for days when he was unable to work, as a result of injuries received in the accident?

2. What is the correct amount of Mr. Bland's weekly income replacement benefit?

3. Is Mr. Bland entitled to receive supplementary medical expenses for chiropractic treatment, under section 36(1) of the Schedule?

4. Is Mr. Bland entitled to receive interest and his expenses of the arbitration?

Result:

1. (a) Mr. Bland is not entitled to an income replacement benefit between February 20 and March 14, 1997.

(b) Allstate shall pay Mr. Bland an income replacement benefit for five days after March 14, 1997, when he was unable to work, as a result of injuries received in the accident.

2. I cannot determine the correct amount of weekly income replacement benefit. Allstate shall recalculate Mr. Bland's alternate entitlement amount, according to the provisions of section 8(2)(b) and 9(5)2. of the Schedule. If the recalculated amount is greater than the amount already paid, Allstate shall pay the difference.

3. Allstate shall pay Mr. Bland $175 for his 1996 chiropractic expenses and $267 for 1997 chiropractic expenses, plus appropriate transportation expenses for those treatments.

4. Allstate shall pay Mr. Bland interest on all amounts owing and his expenses of the arbitration.

5. Allstate shall pay Mr. Bland a special award on the allowed chiropractic expenses of thirty per cent of the amount to which he is entitled ($175 for 1996 and $267 for 1997), plus transportation expenses, together with interest on all amounts owing (including unpaid interest) at two per cent per month, compounded monthly, from the time the chiropractic benefits first became payable under the Schedule.

Hearing:

The hearing was held in Windsor on November 10, 1998, before me, K. Julaine Palmer, Arbitrator. I received written submissions and further evidence on the issue of special award on November 24, 1998.

Present at the Hearing:

Applicant: Ronald A. Bland

Allstate's Representative: Richard F.L. Rose Barrister and Solicitor

Allstate's Officers: Dan Grey Susan Cecile

Witnesses:

Ronald Bland was the only witness.

The parties filed a document brief and six other exhibits at the hearing. With its written submissions Allstate filed three additional sets of documents.

Evidence and Findings:

Background

Ronald Bland was injured in an accident on July 27, 1996 when his motor vehicle collided head-on with another vehicle. Mr. Bland was the driver. He braced himself for the initial impact; he also experienced a second impact from the unrestrained body of a backseat passenger in his car colliding with the back of his driver's seat. Mr. Bland did not immediately seek medical treatment following the accident. As the day progressed, he began to experience more symptoms and he visited his family doctor on Monday, July 29, 1996.

Dr. Patrick Ryall, Mr. Bland's family doctor, reported to Allstate by a letter dated October 8, 1996 that Mr. Bland's injuries "were consistent mainly with soft tissue crushing, and straining, and appropriate medication, and physiotherapy were put in place." As of October 3, 1996 Mr. Bland was still experiencing "recurrent pain in his right shoulder, and to a lesser extent in his back, although exertion seemed to produce pain along the entire spine. ... He still requires analgesics for the pain, which is mostly related to activity, and by virtue of the description of the pain, and the limitation of function in his shoulder he would not be considered a candidate for light work at the present time."

Mr. Bland continued with physiotherapy treatment, which progressed to active therapy, until December 1996. He also attended for chiropractic treatment, beginning October 29, 1996. However, according to the records filed at the arbitration, he did not attend for this treatment as often as his chiropractor recommended, since Allstate refused to pay for the treatment and he had to pay for it himself.

At the time of the accident, on July 27, 1996, Mr. Bland had just completed two weeks' vacation from his employment as a lift-truck driver at Chrysler Canada Ltd. Temporary lay-offs from employment were a regular part of Mr. Bland's working experience from the time he joined Chrysler full-time in 1990. In the year prior to the accident he was laid off four times, missing ten weeks' work. It appears from the Chrysler records filed in the arbitration, and from Mr. Bland's Application for Accident Benefits, that he was laid off on July 26, 1996, one day before the accident. This is an important consideration, because the Schedule deals differently with those on lay-off at the time of an accident than those who are working at the time of the accident.

Income replacement benefit between February 20 and March 14, 1997, the date he returned to work

Allstate paid income replacement benefits (IRBs) to Mr. Bland until February 20, 1997. Since his entitlement to IRBs is in issue only after that date, I have undertaken no review of Mr. Bland's entitlement to IRBs before then. Mr. Bland did not return to work until March 14, 1997, however, and he seeks payment for this remaining period of three weeks and one day.

Allstate based its termination of Mr. Bland's IRBs on a disability assessment carried out by a Designated Assessment Centre (DAC) on January 16 and 21, 1997. The chiropractor, orthopaedic surgeon and kinesiologist who carried out their assessments of Mr. Bland concluded that:

There are no demonstrable impairments which would translate into a "substantial disability" from his usual employment as a jitney driver.

While we accept that Mr. Bland may have some ongoing low grade low back symptomatology, this similarly does not translate into a substantial disability, and he is considered fit and capable of returning to his pre-accident employment.

The reports of the chiropractor and orthopaedic surgeon who examined Mr. Bland for this assessment are careful, objective and detailed, each running to about seven pages in length. The kinesiologist's report following her testing is similar. All the assessors took into account the job description provided by Chrysler relating to Mr. Bland's essential tasks and Mr. Bland's subjective complaints. I accept their opinion that Mr. Bland was substantially able to perform the essential tasks of his job as of mid-January 1997.

Although Mr. Bland disputed the termination of his IRBs, effective February 20, 1997, he offered little alternative evidence of his disability during the intervening three weeks until his return to work on March 14, 1997. It would appear that on that date he presented a note from his family doctor declaring him fit to return to work and that Chrysler's physician accepted that he was "physically qualified for any work" as of that date.³

The only report from Dr. Ryall, Mr. Bland's family doctor, during the period between the disability DAC examination and Mr. Bland's return to work is a form report completed on February 12, 1997 for Mr. Bland's collateral sickness and accident insurer. In that summary report, Dr. Ryall offers a diagnosis of "mechanical back syndrome" and the remark that his patient was "still complaining of back pain." He refers to an intended examination by an orthopaedic specialist on February 24, 1997. I have no report of that examination.

With only Dr. Ryall's summary report and Mr. Bland's brief testimony on the issue, I find there is insufficient evidence to support Mr. Bland's contention that he was substantially unable to perform his essential job tasks between February 20 and March 14, 1997.

Income replacement benefits after March 14, 1997 for days when he was unable to work, as a result of injuries received in the accident

The drafters of the Schedule were sensitive to the need to encourage employed persons to return to work, without affecting their entitlement to weekly income benefits. The provisions specifically denoting this philosophy are set out in section 14:

Temporary Return to Employment

14.—(1) A person receiving weekly income replacement benefits under this Part may return to or start an employment at any time during the 104 weeks following the onset of the disability in respect of which the benefits are paid without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment.

Mr. Bland falls within the class of persons described by section 14(1), because he returned to work during the 104 weeks following the onset of his disability. The issue is whether he is able to prove, on a balance of probabilities, that for days he did not work after March 14, 1997 it was "as a result of the accident, he ... [was] unable to continue in the employment." In my view, Mr. Bland is entitled to "resume receiving benefits" for any time lost after he returned to work, if he meets the usual eligibility test, even though section 14 may be principally intended to address situations of more prolonged absence after a trial return to work.

In support of this claim Mr. Bland presented a two-page computer printout listing his absences from work from his return to Chrysler on March 14, 1997 to November 5, 1998. This document was generated by the personnel department of Chrysler and contains many unexplained codes. I accept that this document provides an accurate record of Mr. Bland's absences from work but it provides little additional information. To refresh his memory, Mr. Bland also referred to his personal 1997 pocket diary, in which he had recorded some brief notations and appointments. The diary was not filed as an exhibit. Mr. Bland had no diary for 1998.

Mr. Bland's testimony about his absences and symptoms on these occasions was sketchy, not detailed. He frequently had no memory whatever of the day on which he was claiming he lost time from work as a result of injuries he received in the accident or the symptoms he was suffering on that day, apart from stating he had "back pain," or read the notation "bad back" from his diary. On many dates, he had no substantiation of the reason for the day's absence, and could not state for certain that he had, indeed, missed the time due to symptoms of injuries he received in the accident. Mr. Bland advanced little evidence to assist me to determine whether or not he was substantially unable to perform his essential tasks on any particular day.

Mr. Bland testified that his typical symptoms included spasms, stiffness, and inability to sleep. He stated that he would try to get an appointment with Dr. Hammerschmidt, his chiropractor, if an opening was available. Otherwise, he stayed in bed or sometimes took a hot bath. Although some early clinical notes of Mr. Bland's family doctor were produced, dating from the fall of 1996, no clinical notes from 1997 and 1998 were provided. I have cross-referenced Chrysler's list of absences and Mr. Bland's oral testimony with his chiropractic treatment records, since the clinical notes and records of his chiropractor, Dr. Hammerschmidt, to August 12, 1998 were in evidence.

Some comments from Dr. Hammerschmidt's clinical notes, coinciding with days of absence from work, follow:

• May 20, 1997: ongoing problems, work o.k. depending on the job at hand,

• August 15, 1997: right shoulder and lumbar spine with lifting,

• November 27, 1997: left side spasm 2 hours ago at work (climbing up a ladder),

• November 28, 1997: left side feeling better, right side tight,

• December 3, 1997: thoracic spine and lumbar spine..., G.P. medicated heavily yesterday."

Based on his testimony and the additional information provided in the chiropractor's treatment records, I find that Mr. Bland has proven on a balance of probabilities that he was substantially unable to perform his essential job tasks on May 20, August 15, November 27, November 28 and December 3, 1997 as a result of the injuries he received in the accident of July 27, 1996. Accordingly, he is entitled to IRBs for five days, of the 27 days claimed in 1997 and 28 days in 1998. Although some other days of work absence coincided with chiropractic treatment (such as January 16, February 4, February 17 and 20, May 29, and June 19, 1998), I find insufficient evidence in the decipherable notes of the chiropractor, without any amplifying testimony or report, to sufficiently link these absences to the injuries caused by the July 1996 accident.

The amount of benefit for these five days should be calculated in accordance with the provisions of subsections 10(3) and (4) of the Schedule, dealing with net income received by the insured person in respect of any employment subsequent to the accident. According to those provisions the insurer may deduct from the amount of the IRB 75% of Mr. Bland's net income for the first 26 weeks of work, and 90% in any other case. I cannot calculate the amounts, because I have insufficient information about Mr. Bland's post-accident earnings.

Amount of weekly Income replacement benefit

Mr. Bland has no quarrel with Allstate's actual calculation, which was twice revised to take into account unemployment insurance benefits received in the 52 weeks before the accident, as well as a supplemental payment (SUB) that was made by Chrysler. Before the hearing, Mr. Bland had not studied the Schedule and made no submissions as to how his IRB should have been calculated. His only submission was really a question—during layoffs, Mr. Bland was used to receiving unemployment insurance benefits topped up with a supplementary payment, to total, he testified, 90% of his gross wages. Mr. Bland testified that this amount was about $150.00 per week. He felt, then, that Allstate's IRB payment, when combined with his collateral benefits, should be approximately the same amount, but instead he received $92.50 per week.

Since Mr. Bland was on layoff at the time of the accident, his entitlement to benefits is based on section 7(1)4.i and his gross annual income from employment should have been calculated in accordance with the rules of section 9(5) of the Schedule. In addition, under the provisions of section 8(2)(b), the insurer was not required to pay a weekly IRB "until the day the person would have been entitled to return to employment." I have no information about when that would have been, in Mr. Bland's case. Some layoffs in his employment history appear to have been for as little as one week.

Section 9(5) instructs that Mr. Bland's gross annual income from employment is deemed to be the greatest of the amounts set out in the subsection. Extrapolation is required in Mr. Bland's case. The figure which is arrived at under subsection 9(5)2. must be compared to the figure resulting from the calculation in subsection 9(5)4. and the greater amount is Mr. Bland's IRB. The calculation under subsection 9(5)4. appears to have been the amount Allstate paid Mr. Bland, after deducting collateral sickness and accident benefits as permitted by section 75(1).

Mr. Bland's second complaint about the IRBs he received related to his loss of certain amounts in June 1997, after his return to work, because those amounts were calculated on his employment in the last half of 1996 and early 1997. He submitted that, because of the accident, he only worked 13 weeks from June 1 to July 15, 1996 and March 14 to May 30, 1997 and his vacation pay, Christmas bonus, and paid absence allowance (PAA) were cut in half. He claimed 40 hours of vacation pay ($903.60), 50% more Christmas bonus ($450.00), and 26 additional hours of PAA ($579.28). Mr. Bland filed several pages from his collective agreement detailing the calculation of these amounts and his pay stub from June 1997, that showed the amounts he was paid.

I agree that Mr. Bland has lost these amounts, because of the time he lost from work recuperating after the accident. I have scrutinized the Schedule to determine if reimbursement of any such amounts is contemplated. I find it is not. It would appear that in the detailed rules for the calculation of income replacement benefits, amounts lost such as those claimed by Mr. Bland, which are not trivial, have been omitted. An explanation would appear to be that the calculation of IRBs under the Schedule is mainly retrospective, looking at past earnings, except in cases of persons scheduled to begin employment. Mr. Bland's weekly IRB amount is based on a calculation that does include amounts paid to him in the 52 weeks preceding the accident for vacation, Christmas bonus, and paid absence allowance.

Supplementary medical expenses for chiropractic treatment

Mr. Bland claims $1,153 in chiropractic treatment expense for 1998, $477 for 1997, and $175 for 1996. He has paid these expenses from his pocket, because his extended health plan does not pay for chiropractic treatment and Allstate refused to pay as well.⁴

Mr. Bland filed no recent reports from Dr. Hammerschmidt, his chiropractor. However, Dr. Hammerschmidt's clinical notes and records from October 1996 to August 12, 1998 were before me, including three letters to other health practitioners, ending in January 1997. Mr. Bland testified that he did not show Dr. Hammerschmidt the reports from the DACs.⁵ He testified that the chiropractic treatments give him short term pain relief. For example, in the last month he has suffered from a stiff neck, sore shoulder, and headaches as well as low back pain. He testified that a treatment will relieve his pain for about four hours, then it gradually returns. Mr. Bland testified that he was not presently involved in any exercise program. He stated he had light weights at home and did "stretching and things like that."

On cross examination, Mr. Bland initially asserted that all the chiropractic treatments were related to the motor vehicle accident. However, he admitted Dr. Hammerschmidt treated other problems when he attended on her, for example a sprained ankle that occurred after the accident, a wrist problem that pre-dated the accident, and for neck and headache pain related to the stress of the death of his father in June 1998. He also agreed he saw Dr. Hammerschmidt on three occasions in July 1998 after he fell rollerblading, and that his main complaint related to that incident.

Mr. Bland was examined by a med/rehab DAC on August 5, 1997 and assessed by a physiotherapist and a chiropractor. The DAC did not base its recommendations on any certificate provided by Dr. Hammerschmidt, as contemplated by section 37 of the Schedule. In such a certificate Dr. Hammerschmidt would have outlined the treatment which she felt was reasonable and necessary arising from any impairment Mr. Bland sustained as a result of the accident in July 1996. Instead, the DAC acted on a request letter from Allstate, dated June 5, 1997, that is not before me. The DAC gave its opinion on the need for Mr. Bland to undergo "further passive chiropractic or physiotherapy care" and "whether massage treatments as requested by Mr. Bland are reasonable and necessary as a result of injuries sustained in the motor vehicle accident of July 27, 1996."

The DAC concluded that Mr. Bland did not require any further passive treatments. The DAC recommended an active progressive exercise program, lasting eight to twelve weeks, in a community facility, under the guidance of a certified kinesiologist or personal trainer. The DAC recommended Mr. Bland attend three to four times each week to strengthen and stretch his neck, back, arms and legs. Thereafter, the DAC recommended a six-month gym membership be purchased so Mr. Bland could continue on his own.

I heard no oral evidence from Mr. Bland or Allstate on whether these recommendations were discussed or implemented, although a letter from Allstate dated September 3, 1997, inviting him to provide an estimate from a facility of his choice for such a program, was filed.

Section 36 of the Schedule requires the insurer to pay all reasonable expenses, incurred by the insured person who has sustained an impairment as a result of an accident, for various treatments. The Schedule has a set of rules that must be followed and, for chiropractic expenses, an insurer must pay the expense pending the resolution of the dispute, until the report of a DAC states that the treatment is not reasonable and necessary for the insured person's treatment.

In this case, the procedures set out in the Schedule for treatment expenses were not followed. When Mr. Bland and Dr. Hammerschmidt requested prior approval of chiropractic expenses, Allstate should have followed the procedures of section 69. The only reason an insurer may reject such a request is "if there are reasonable grounds to believe that the expense is one for which the insurer would not be required to pay."As is permitted by the Schedule, on October 31, 1996 Allstate sent Mr. Bland for an insurer's examination by Dr. D.A. Fleming, an orthopaedic specialist. Even at that early date, Dr. Fleming was recommending "an exercise oriented strengthening program that he can perform on his own in a health club or community exercise facility." He did not recommend either continued physical therapy or chiropractic treatment. However, section 36(4) of the Schedule does not permit Allstate to reject payment of chiropractic expenses as a result of an insurer's examination.

Dr. Hammerschmidt had written to Dr. Fleming on October 30, 1996 and a copy of her letter was sent to Allstate and Dr. Ryall, Mr. Bland's family doctor. Dr. Hammerschmidt recognized that as of that date, Mr. Bland had already undergone "a course of daily physical therapy for almost 14 weeks." She requested approval of "chiropractic for a four to six week period. Once completed, I will recommend returning to the physical therapy for active strengthening routines."

If it did not accept Dr. Hammerschmidt's treatment proposal, Allstate should have requested a section 37 certificate from her, then scheduled a med/rehab DAC under section 39. In the meantime, it should have paid her reasonable treatment account, following the timelines of section 39.1(3). That account would have been subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act.

In July 1997, when Mr. Bland was evaluated by a physiotherapist as part of a med/rehab DAC, the physiotherapist reported on his prior treatment and his current treatment with Dr. Hammerschmidt. She wrote: "He is attending 1-2 times per week. He is receiving adjustments to the spine and interferential current. The client states this is giving him approximately 24 hours of temporary relief." At that time Mr. Bland was also taking prescribed medication such as Percocet, Robaxacet, and Norgesic-4. He was reporting a variety of pain complaints and aggravations with repetitive lifting and rotation. He was sleeping poorly and reported wakening six to seven times per night when he did not take his pain medication.

By the time of the med/rehab DAC assessment, Mr. Bland had been back to work for more than three months. Dr. Hammerschmidt's notes reveal comments such as May 20, 1997 "ongoing problems, work o.k. depending on the job at hand," June 19, 1997 "worse with certain jobs at work" and July 30, 1997 "Percocet and robaxicil just to work." When she examined and treated Mr. Bland on May 20, 1997, he had not been to see her since April 18, and prior to that February 27, 1997.

I find that until the med/rehab DAC assessment Mr. Bland's chiropractic treatment was reasonable and necessary for his rehabilitation. In the initial phases, Dr. Hammerschmidt was attempting to enhance the treatment Mr. Bland was already undergoing. Later, Dr. Hammerschmidt was responding to Mr. Bland's self-initiated attendances for pain relief after his return to work. This cost is not great. Allstate should pay the balance of $175 for 1996, and $267 for 1997, covering treatments until August 26, 1997, the last treatment before Allstate's letter to Mr. Bland of September 3, 1997 indicating its acceptance of the rehabilitation proposal of the med/rehab DAC. Allstate should pay interest on these amounts, pursuant to section 68, and Mr. Bland's transportation expenses under section 36(1)(g) to the allowed treatment sessions.

No evidence suggests Mr. Bland has pursued an active exercise plan, which has been universally recommended by every assessor he has seen since October 1996. Past the date of the DAC, with no narrative report from Dr. Hammerschmidt or anyone else relating to this issue, Mr. Bland has offered little evidence in support of his claim for reimbursement of this chiropractic expenses. In his testimony at the hearing, he reported pain relief of only about four hours after a treatment. When this testimony is compared to his report to the DAC assessor in the summer of 1997, of 24 hours of pain relief after a chiropractic treatment, a decreased effectiveness of these treatments for ongoing pain relief is observed. On the basis of the limited evidence provided at the hearing in this case, I do not find the chiropractic treatments after the DAC report to be reasonable and necessary, and equally, if not more importantly, to be proven to be required as a result of an impairment sustained in the accident.

Interest and expenses of the arbitration, Special Award

Mr. Bland is entitled to interest on amounts owing, pursuant to section 68 of the Schedule. Allstate submitted that Mr. Bland should be denied his arbitration expenses. Allstate did not request Mr. Bland pay its arbitration expenses. Recognizing the divided success in these proceedings, I am satisfied Mr. Bland should be awarded his arbitration expenses, which are minimal, considering he represented himself, filed no expert reports, and called no expert witnesses.

By letter dated November 23, 1998 I requested submissions from the parties relating to a special award for unpaid chiropractic expenses, under section 282(10) of the Insurance Act.⁶ Allstate responded with a letter and three sets of documents in support of its submissions. Mr. Bland had no further submissions. I have accepted Allstate's further documents and submissions. Allstate submitted that at all times it complied with its obligations under the Schedule and that a special award was not even requested by Mr. Bland. However, as Allstate is aware, an arbitrator is bound to order a special award where he or she finds a benefit has been unreasonably withheld or delayed. As Director's Delegate Draper wrote:

In my opinion, however, section 282(10) gives arbitrators the authority to impose a special award based on the evidence presented at the hearing, whether or not notice was given before the hearing. In other words, a special award is always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payment of benefits.⁷

I find that Allstate unreasonably withheld the payment of Mr. Bland's chiropractic expenses before the med/rehab DAC assessment in the summer of 1997. Allstate did not follow the procedures clearly set out in the Schedule relating to treatment expenses. The opinion of an insurer's examination is not a substitute for a DAC, properly constituted after requesting a section 37 certificate from the health practitioner concerned.⁸ I find Mr. Bland is entitled to a special award of thirty per cent of the amount to which he is entitled ($175 for 1996, and $267 for 1997, covering treatments until August 26, 1997), plus transportation expenses for those treatments, together with interest on all amounts owing (including unpaid interest) at two per cent per month, compounded monthly, from the time the chiropractic benefits first became payable under the Schedule.

Order:

1. (a) Mr. Bland is not entitled to an income replacement benefit between February 20 and March 14, 1997.

(b) Allstate Insurance Company of Canada shall pay Mr. Bland an income replacement benefit for May 20, August 15, November 27, November 28 and December 3, 1997, when he was unable to work, as a result of injuries received in the accident.

2. I cannot determine the correct amount of weekly income replacement benefit. Allstate Insurance Company of Canada shall calculate Mr. Bland's alternate entitlement amount, according to the provisions of section 8(2)(b) and 9(5)2. of the Schedule, compare it with the amount already paid, and pay Mr. Bland any difference.

3. Allstate Insurance Company of Canada shall pay Mr. Bland $175 for 1996 chiropractic expenses and $267 for 1997 chiropractic expenses plus transportation expenses, as allowed under section 36(1)(g) of the Schedule.

4. Allstate Insurance Company of Canada shall pay Mr. Bland interest on all amounts owing and his expenses of the arbitration.

5. Allstate Insurance Company of Canada shall pay Mr. Bland a special award, under section 282(1) of the Insurance Act, on the allowed chiropractic expenses of thirty per cent of the amount to which he is entitled ($175 for 1996 and $267 for 1997), plus transportation expenses, together with interest on all amounts owing (including unpaid interest) at two per cent per month, compounded monthly, from the time the chiropractic benefits first became payable under the Schedule.

December 16, 1998

K. Julaine Palmer 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. 3Chrysler's physician had last examined Mr. Bland on December 2, 1996 and noted the "quite extensive" restrictions that his chiropractor recommended in a note dated November 29, 1996, should he then be considered for return to work. In December 1996, the Chrysler physician had decided to review Mr. Bland's progress after one month.
4. 4Neither party filed an Explanation of Assessment by Insurance Company setting out Allstate's position as to chiropractic accounts submitted. I take it that the denial was a verbal one, through the Casualty Claim Representative handling Mr. Bland's file. Allstate did not assert that no chiropractic accounts had been submitted until its written submissions of November 24, 1998 and filed certain documents in support. I do not fault Mr. Bland for not submitting chiropractic accounts to Allstate once he had been told they would not be paid, following Dr. Hammerschmidt's early letters and no written response to her, at least in her filed clinical notes and records. However, when the prehearing arbitrator ordered these accounts be provided, Mr. Bland should have complied earlier than he did.
5. 5Designated Assessment Centre
6. 6Section 282(10) of the Act reads as follows: 282.- (10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
7. 7Clark and Royal Insurance Company of Canada, (OIC P-97-00008, September 26, 1997).
8. 8see Arbitrator Renahan's decision in Defreitas and Travelers Indemnity Company, (FSCO A97-000734, October 5, 1998)