Carrie Adamson v. Guarantee Company of North America, 1999 ONFSCDRS 34

Neutral Citation: 1999 ONFSCDRS 34

FSCO A97-002169

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CARRIE ADAMSON Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA Insurer

REASONS FOR DECISION

Before: K. Julaine Palmer

Heard: January 18 and 19, 1999, at the Financial Services Commission of Ontario, Toronto

Appearances: Phil Bouranov for Ms. Adamson Fiona E. S. Porter for Guarantee Company of North America

Issues:

Carrie Adamson was injured in a motor vehicle accident on a Mississauga Transit bus on June 19, 1997. She applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee paid her no benefits. The parties were unable to resolve their disputes through mediation, and Ms. Adamson 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 Ms. Adamson entitled to a caregiver benefit, under section 13 of the Schedule? If so, for how long is she so entitled?

2. Is Ms. Adamson entitled to the medical benefits she claims, under section 14 of the Schedule, for physiotherapy services, an Obus form back support and taxi expenses?

3. Is Ms. Adamson entitled to the housekeeping expenses she claims, under section 22 of the Schedule?

Result:

1. Ms. Adamson is not entitled to a caregiver benefit under section 13 of the Schedule.

2. Ms. Adamson is entitled to $3,172.50, plus interest from January 30, 1999, for physiotherapy services, but is not entitled to an Obus form back support and taxi expenses under section 14 of the Schedule.

3. Ms. Adamson is not entitled to housekeeping expenses under section 22 of the Schedule.

EVIDENCE AND ANALYSIS:

Background and Early Treatment

Ms. Adamson testified that she was riding on a Mississauga Transit bus on June 19, 1997, when it collided with a mini-van. She said she was shaken and flustered by the collision. However, as she was on her way to collect her children from their daycare, which was about to close for the day, she was mainly concerned about them. The daycare was located adjacent to the accident scene. After Ms. Adamson picked up her children, she testified that she suffered an asthma attack and could not breathe. She testified that the bus driver called an ambulance and she was taken to hospital, examined and released. She was examined by her family doctor, Dr. Zenia Sanchez, the next day.

Three weeks after the accident, on July 11, 1997, Ms. Adamson was interviewed at her home by an independent adjuster acting for Guarantee. She gave a statement in which she disclosed that she was the registered owner of a motor vehicle which was being used by a girlfriend. She thought that the vehicle was insured, but was not sure. This information was important to Guarantee so that Ms. Adamson's benefits would be paid by the proper insurer.

Dr. Sanchez completed a Disability Certificate after her examination of Ms. Adamson on July 17, 1997, her second examination of Ms. Adamson since the accident. Dr. Sanchez diagnosed a cervical and lumbar strain and post traumatic headache. She characterized Ms. Adamson's condition as a "Whiplash-Associated Disorder, Grade 1."² She noted that she had treated Ms. Adamson for chronic low back pain since 1989.

Dr. Sanchez indicated that Ms. Adamson did not suffer an impairment that substantially prevented her from engaging in her pre-accident caregiving activities. She was also of the opinion that Ms. Adamson did not suffer an impairment that prevented her from carrying on substantially all of her normal pre-accident activities. She did believe, however, that Ms. Adamson suffered from an impairment that substantially prevented her from performing pre-accident housekeeping and/or home maintenance activities. In the space for her comments, Dr. Sanchez qualified her opinion and wrote:

It takes her longer time to perform an activity such as vacuuming, doing the dishes and laundry.

Dr. Sanchez also wrote that occasionally Ms. Adamson had a hard time focusing. In the space for listing medical restrictions that prevented her patient from performing her pre-accident activities, Dr. Sanchez wrote "Recurrent Headache. " She prescribed Tylenol no. 3, every four hours, as needed. Dr. Sanchez' observations and opinions on this early form are especially important, because little subsequent medical information about Ms. Adamson's recovery from the injuries she received in the accident was produced at the hearing.

At Dr. Sanchez' recommendation, Ms. Adamson attended for physiotherapy treatment. The MVA Recovery Centre ("MVA”) sent Guarantee a treatment plan. MVA's physiotherapist, who assessed Ms. Adamson on July 21, 1997, estimated that she would require both passive and active treatment for eight to twelve weeks, five days a week for the first two weeks, then three days a week thereafter, at a cost of $3,000-$4,000.

According to her clinical notes, Dr. Sanchez continued to treat Ms. Adamson through August, on four occasions—once in connection with a sprained ankle, once in relation to her request for an Obus form, and twice related to her early pregnancy. On September 3, 1997, Dr. Sanchez approved a second physiotherapy treatment plan. Dr. Sanchez described Ms. Adamson's impairment as a cervical and lumbar strain. She approved the physiotherapist's plan for "active exercises, physiotherapy (manual therapy modalities), massage therapy' three times a week for a further four to six weeks. The estimated cost was approximately $2,000.

To understand how the dispute between these parties arose, a detailed look at their interaction in the late summer and fall of 1997 is necessary. Guarantee responded to the first treatment plan negatively, on August 18, 1997, giving three reasons. First, Guarantee's investigation showed Ms. Adamson was the registered owner of an insured vehicle, the insurer of which would be responsible for Ms. Adamson's accident benefits. Second, Guarantee did not yet have an application for accident benefits from Ms. Adamson. Third, "treatment is excessive compared with other programs in community." Guarantee enclosed an additional sheet to explain Ms. Adamson's options, particularly with respect to assessment at a designated assessment centre (DAC). On August 26, 1997 Guarantee's adjuster sent Ms. Adamson's representative a permission form (OCF-14), so that a medical and rehabilitation assessment could be arranged about her treatment. On September 15, 1997 Guarantee responded to the second treatment plan similarly to the way they responded to the first plan.

Once Guarantee received Ms. Adamson's application for accident benefits, they rejected it alleging it was incomplete. The Ministry of Transportation had given Guarantee information about the insurer and policy number under which Ms. Adamson's motor vehicle was purportedly insured that did not match that insurer's information. Guarantee asked Ms. Adamson for the correct information by letter dated September 4, 1997. In that letter, Guarantee also observed that Dr. Sanchez' medical certificate did not confirm Ms. Adamson was suffering from a substantial inability to caregive.

On September 15, 1997 Guarantee denied payment of 224 hours of babysitting from June 20 to August 7, 1997, invoiced by Canadian Supplies and Consulting at $2,464, for the reason:

• not medically documented as reasonable and necessary.

• documentation confirms did not suffer an impairment which prevents e.g. [caregiver] activities

Guarantee also rejected a similar invoice claiming $140 for an Obus form and its delivery as

• not medically documented as reasonable and necessary as a result of injury sustained in M.V.A.

On September 22 and October 22, 1997 Ms. Adamson's representative submitted two taxi invoices for $216.04 and $217.35 for trips during August and September 1997. No individual receipts for each trip were submitted. Guarantee responded on October 15, 1997 and November 12, 1997 indicating that it did not know how the taxi account related to her claim and that the "documentation does not support the reasonableness or necessity of taxis."

On October 23, 1997 Guarantee's adjuster also wrote to Ms. Adamson's representative explaining the insurer's position with respect to the taxi accounts and the denial of caregiver benefits. The adjuster noted he had not received back the signed permission form, sent at the end of August, so that he could arrange the DAC appointment. The form, dated October 29, 1997, was returned to the adjuster on October 31, 1997. A week later, on November 6, 1997, he notified Ms. Adamson's representative that he had arranged the medical and rehabilitation assessment, in accordance with the provisions of section 43 of the Schedule.

At the hearing the only additional medical documentation that was filed were the DAC reports dated November 28, 1997 and January 3, 1998, Dr. Sanchez' clinical notes from December 30, 1994 to October 22, 1997, and a short note and two forms from Dr. Victor Chapnik, Ms. Adamson's family doctor since October or November 1998. No hospital records or physiotherapy treatment records were filed. I also did not receive any reports or records from Ms. Adamson's family doctor from November 1997 to September 1998, when she lived in the Malton area. Ms. Adamson was the only witness who testified on her behalf.

Caregiver Benefit

Ms. Adamson is entitled to a caregiver benefit if she meets the criteria set out in section 13 of the Schedule, the pertinent part of which states:

13. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

14. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

At the time of the accident, Ms. Adamson was a single parent of two boys, then ages 3 years-4 months and 16 months. Her sons would have required care while she attended physiotherapy, an expense for which Guarantee would be liable, but I have no evidence of Ms. Adamson's hours of attendance at physiotherapy.

The medical evidence of Ms. Adamson's own family doctor, Dr. Sanchez, outlined above, does not support her claim for a full-time caregiver. In addition, Guarantee's evidence casts doubt on the authenticity of the caregiver claim. The adjuster testified that he was at Ms. Adamson's home for about one and one-half hours in the late morning on Friday, July 11, 1997. He saw a child about age two to three and a man, who remained elsewhere in the house most of the time he was there. According to the adjuster's testimony, during his meeting with her, Ms. Adamson said nothing about already having hired a full-time caregiver, a woman named Lornette Gittens, for her children. Similarly, nothing was recorded in her statement about needing a full-time caregiver. Mr. Sawchyn, the adjuster, testified that he explained the benefit application package with Ms. Adamson. When he received invoices on August 25, 1997 from her representative, that was the first he learned babysitting expenses of 28 hours per week were alleged to have been incurred since the day after the accident.

Guarantee's surveillance over three, full consecutive weekdays in late October 1997 did not reveal any caregiver attending at Ms. Adamson's home. At the arbitration no explanation of this discrepancy was offered on Ms. Adamson's behalf, although she submitted documents claiming for both full-time childcare and housekeeping services during that week. Later, in June 1998, without explanation, her representative both refused to allow Guarantee's investigator to interview his client about these services and refused to provide the name, address and telephone number of the housekeeper and caregiver. According to Ms. Adamson, Lornette Gittens could not testify at the hearing, because she was no longer in the country.

No documentary evidence or oral testimony before me at the hearing persuaded me, on a balance of probabilities, that Ms. Adamson suffered "a substantial inability to engage in the caregiving activities in which ... she engaged at the time of the accident" as a result of the accident of June 19, 1997. I do not find Ms. Adamson's symptoms disabled her to the required, significant degree to entitle her to this payment. In addition, Ms. Adamson's evidence did not convince me that she had received full-time caregiver services since the day after the accident.

Physiotherapy, Obus Back Support and Taxi Expense

According to section 14 of the Schedule, if an insured person sustains an impairment as a result of an accident, an insurer must pay for

all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

(h) other goods and services of a medical nature that the insured person requires.

I heard no evidence about the Obus back support Ms. Adamson claims. I heard no evidence about the taxi transportation. According to my notes, Ms. Adamson only testified for about 23 minutes at the hearing, responding to her agent's questions. She was not asked about these claims in her testimony in chief or on cross-examination. There is a brief notation in Dr. Sanchez' notes of August 8, 1997 about an Obus back support, but I cannot decipher much of her note. No copy of any prescription is in evidence. I cannot find the insurer liable to pay such claims without any evidence of their reasonableness or necessity.

With respect to the physiotherapy, the situation is more complex. At the opening of the arbitration, I was advised by Guarantee's lawyer that the physiotherapy account had been settled directly with the service provider in early January 1999. A few days later, in the week prior to the hearing, Guarantee's lawyer advised that the service provider purported to rescind the settlement. Since this issue seemed resolvable by those concerned, I urged the parties to pursue the settlement following the conclusion of the hearing, and to advise me of the outcome.

After the hearing, I received correspondence confirming that the physiotherapy account appeared to be settled again, at least once, and the settlement rescinded again. Guarantee requested, in a lengthy, detailed letter dated February 2, 1999, that I consider the physiotherapy account to be settled. However, the last correspondence from Ms. Adamson's representative on the issue, dated January 28, 1999 indicated that the account was not settled. I also received a letter from the apparent successor corporation of the service provider, dated February 9, 1999, which was ambiguous as to whether or not the account had been settled.

On the basis of the documents before me at the hearing and the subsequent correspondence, I cannot find that the physiotherapy account has been settled.

In her testimony in chief at the arbitration, Ms. Adamson referred to her physiotherapy treatment only twice, very briefly. She testified that Dr. Sanchez had sent her for physiotherapy. The second reference to physiotherapy did not concern the expense which is claimed in this proceeding. In cross-examination, Ms. Adamson referred to physiotherapy only by mentioning that she would sometimes go to Lornette Gittens' apartment after her physiotherapy treatment. Accordingly, I have no direct evidence from Ms. Adamson as to the number of treatments she attended, the type of treatment she received, whether she found it helpful to her condition, etc.

An invoice from MVA Recovery Centre dated September 8, 1997 was filed. The invoice shows a charge of $175 for an initial assessment on July 21, 1997, 27 physiotherapy treatments from July 21, 1997 to September 8, 1997, each charged at $150, plus three charges for massage therapy at $40, and a charge of $130 for a Treatment Plan. The invoice totals $4,475.

No narrative report from Dr. Sanchez was filed, but her clinical notes until October 22, 1997 were in evidence. I find no reference in Dr. Sanchez' largely legible notes after September 2, 1997 to any complaints Ms. Adamson reported of neck or back pain, although notes of eight more visits for other complaints are recorded. Dr. Sanchez' approval of the second treatment plan is dated September 3, 1997.

The DAC physiotherapy assessor who examined Ms. Adamson on November 28, 1997 concluded that on that day "there was no obvious musculoskeletal findings except for some tenderness in the musculatures of the neck and back areas." By that time Ms. Adamson was no longer receiving any formal treatment. He recommended that a physiotherapist set up a home and gym exercise program for her, so that over a period of about three months she could become better conditioned. He did not believe further physiotherapy treatment in a clinical setting was reasonable and necessary.

The DAC chiropractic assessor felt that Ms. Adamson's long-standing history of low back symptoms may have been temporarily aggravated by the accident. He thought she had likely attained maximum therapeutic benefit from the formal treatments she had already undergone. He felt that a reasonable treatment plan following the accident would have been one that combined both passive and active interventions over six to ten weeks. He thought she should continue with a self-directed exercise program and that there were insufficient findings to warrant massage therapy at that time.

Ms. Adamson did not begin physiotherapy until July 21, 1997, four and one-half weeks after the accident. It would appear that she attended for the next seven and one-half weeks, initially, five times per week, then tapering to four, then three times per week. Ms. Adamson's description of her treatment to the DAC assessors appears to coincide with the first treatment plan submitted by her physiotherapist. The DAC assessors made no comment as to whether the treatment Ms. Adamson had already received was "reasonable and necessary for the insured person's treatment or rehabilitation." Whether or not they made this conclusion is important because of the provisions of section 38(14) of the Schedule. Another important subsection, section 38(16), deals with the provision of early treatment after an accident. The most important parts of section 38 to this case read as follows:

38. (1) Before expenses in respect of which a medical or rehabilitation benefit may be payable are incurred, the insured person shall submit an application for the benefit to the insurer.

(2) The application must include a treatment plan.

(8) If no notice is given under subsection (5), the insurer shall, within 14 days after receiving the application, give the insured person a notice,

(a) stating that,

(i) the insurer will pay for all goods and services contemplated by the treatment plan,

(ii) the insurer will pay for such goods and services contemplated by the treatment plan as are specified in the notice, or

(iii) the insurer will not pay for any goods and services contemplated by the treatment plan; and

(12) If the notice under clause (8)(a) indicates that there are goods or services contemplated by the treatment plan that the insurer will not pay for,

(a) the insurer shall require the insured person to be assessed in respect of those goods and services by a designated assessment centre in accordance with section 43; and

(b) the insurer shall include in the notice under subsection (8),

(i) a statement of the insurer's reasons for not agreeing to pay for all goods and services contemplated by the treatment plan, and

(ii) notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

(14) Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act,

(a) if a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person's treatment or rehabilitation, the insurer shall pay for the expense;

(b) if a report from the designated assessment centre does not state that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person's treatment or rehabilitation, the insurer is not required to pay for the expense.

(16) Subject to subsection (14), if the treatment plan contemplates goods or services provided by a chiropractor or physiotherapist, the insurer shall, despite requiring the insured person to be assessed by a designated assessment centre under subsection (12) in respect of those goods or services, pay for all expenses incurred, after submission of the treatment plan, in respect of those goods and services, up to the lesser of the following amounts:

1. The total expenses incurred on behalf of the insured person in respect of the first 15 treatment sessions with a chiropractor or physiotherapist after the accident.

2. The total expenses incurred on behalf of the insured person in respect of all treatment sessions with a chiropractor or physiotherapist within six weeks after the accident.

(17) If an insured person incurs expenses in respect of which a medical or rehabilitation benefit may be payable without complying with subsection (1), (2) or (3), the insured person shall submit to the insurer an application for payment of the expenses that complies with subsections (2) and (3) within 30 days after incurring the expenses.

(18) Despite subsection (1), if the insurer receives an application under subsection (17), the insurer shall, within 30 days after receiving the application,

(a) pay the expenses; or

(b) give the insured person notice of its reasons for not paying the expenses.

[emphasis added]

In this case, the total expense for the first 15 treatment sessions is greater than the total expense incurred within "six weeks after the accident," or July 31, 1997, since by the end of July Ms. Adamson had been treated only nine times. Accordingly, if section 38(16) is applied here, the claim is limited to services provided by July 31, 1997.

The DAC reports did not express an affirmative opinion that the physiotherapy treatment that had already been received was "reasonable and necessary for the insured person's treatment or rehabilitation." Accordingly, I find no obligation for Guarantee to have paid the expenses under the provisions of section 38(14), pending the determination of this dispute.

The mandatory language of subsection 38(16), however, underlines the importance of an insured person having assured access to chiropractic and physiotherapy services in the early weeks following an injury, whether or not the details of insurance approval have yet been sorted out. From the combined reading of section 14 of the Schedule with subsections 38(14) and 38(16), it is clear that where a dispute arises, unless the expense was reasonable and necessary and incurred as a result of an impairment Ms. Adamson sustained in an accident, then the expense is not payable, whether or not it was incurred within six weeks of the accident. In other words, contrary to what Ms. Adamson's representative submitted, the first 15 treatments are not " automatically" payable: the essential elements of causation, reasonableness and necessity still must be established, ultimately, if there is a dispute.

I find Guarantee should have paid for physiotherapy treatment to the end of July 1997, in accordance with section 38(16) of the Schedule, as soon as they concluded they were the insurers responsible for paying benefits and that Guarantee would not be giving Ms Adamson or another insurer a notice under Ontario Regulation 283/95 "Disputes Between Insurers."³

In the context of the whole physiotherapy expense claimed, I accept Dr. Sanchez's diagnosis and recommendation for the physiotherapy treatment that was planned and given until September 8, 1997. I further find three massage therapy treatments were reasonable and necessary, once Ms. Adamson's early pregnancy was discovered and a change in treatment modalities was undertaken.⁴

Guarantee submitted that the Professional Fee Guidelines-Physiotherapists, issued by the Commissioner of Insurance, should apply to the physiotherapy expense in this case.⁵ Those Guidelines apply to expenses incurred on or after November 22, 1997. In this case, the physiotherapy treatment pre-dates the Guidelines.

However, since neither Ms. Adamson nor anyone from MVA Recovery Centre or its successor testified about the treatment and the physiotherapy records were not produced, I have very little evidence upon which to conclude that the fee of $150 per session charged here by MVA for physiotherapy was fair and reasonable. Although the Guideline is not applicable in this case, as a document issued following joint recommendations of the Ontario Physiotherapy Association and a committee of insurers, it is worth considering on this issue.⁶ The Guideline sets the range of physiotherapy fees from $95 to $120 maximum "per hour for direct (one on one) treatment time (including administrative time such as report writing, treatment plan preparation, inter-professional and professional-insurer consultations." Taking into consideration the minor nature of Ms. Adamson's injuries, I allow $120 for her initial assessment, 15 minutes ($30) for compiling the treatment plan (about seven perfunctory lines on a form), 27 treatments at $107.50 and $40 for each of three massage therapy sessions claimed, for a total of $3,172.50.

Section 38(11) of the Schedule requires an insurer to pay for goods and services in a treatment plan that it has agreed to pay for "within 30 days after receiving an invoice for them." According to section 46 of the Schedule, if a payment is overdue, interest is owed at two per cent per month compounded monthly. Although it is not specifically set out in the Schedule, it stands to reason that interest should be payable on the payments required by subsection 38(16) in a similar time frame. One of the disputed issues here concerned invoices for treatment from MVA Recovery. An invoice dated September 8, 1997, found at page 35 of Exhibit 1, claiming a total owing of $4,475 for seven treatments, is actually only the second page of the invoice, containing treatments totalling $1,050. It appears from exhibit 2.9 that a full copy of the invoice from MVA Recovery Centre, dated September 8, 1997 may not have been sent to the insurer until it was faxed by Ms. Adamson's representative on December 30, 1998. In the absence of any other proof on this issue, I find interest is payable on $3,172.50 from 30 days after December 30, 1998, that is January 30, 1999.

Housekeeping

Section 22 of the Schedule sets out the insurer's obligations with respect to payment of housekeeping. The applicable parts read as follows:

22. (1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

(2) The amount payable under this section shall not exceed $100 per week.

Ms. Adamson is claiming $100 per week. She says that she agreed to pay this amount to Lornette Gittens, in addition to childcare payments of $300 per week, and, since her move north, she owes Deborah Dunn, who now does her housekeeping. She testified that the housekeepers cleaned the children's rooms, changed the bedsheets, vacuumed, washed dishes, did the laundry and cleaned the bathrooms. The first housekeeper also made meals and shovelled snow in winter.

On the evidence presented at the hearing, I cannot find that Ms. Adamson suffered a substantial inability to perform the housekeeping services that she normally performed before the accident as a result of injuries she received in the accident. Her level of disability did not and does not meet the test of substantiality. Even her own doctor's opinion of July 17, 1997 indicated that she was performing her housekeeping activities "such as vacuuming, doing the dishes and laundry" but that it was taking her longer time. No evidence established that Ms. Adamson's symptoms caused by the accident worsened after July 17, 1997.

I cannot place any weight on Dr. V. Chapnik's short note of January 6, 1999, that indicates "since motor vehicle accident June '97 she requires some assistance/home care and help with caregiving as a result." Dr. Chapnik has been Ms. Adamson's family doctor for only a brief period and I have no information as to the basis of his opinion. Neither is it clear from his note that he would agree that Ms. Adamson is substantially unable to perform her housekeeping tasks. EXPENSES:

At the conclusion of the hearing, I was jointly informed by the parties that no Offer to Settle as specified under section 74 of the Dispute Resolution Practice Code–Third Edition applies to this case. Each party sought expenses from the other in this proceeding. Ms. Adamson has not been greatly successful here, except with respect to her claim for physiotherapy expenses. I consider that the conduct of her representative, in failing to cooperate with the insurer to verify the caregiver expenses, to have been manifestly unfounded and hindered the settlement of this claim. Despite his assertion that he has worked exclusively in the area of insurance claims for the past six years, I observed that Ms. Adamson's representative was greatly impeded in the performance of his role by his complete lack of any legal, para-legal or Insurance Institute training. From the tenor of his submissions, it appeared he lacked a fundamental understanding of the Applicant's burden of proof in such cases. On the other hand, Guarantee should have followed the Schedule and paid for physiotherapy treatment to the end of July 1997 in 1997. In all the circumstances, I consider that each party should bear its own expenses of this proceeding.

February 26, 1999

K. Julaine Palmer Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 34

FSCO A97-002169

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CARRIE ADAMSON Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA Insurer

ARBITRATION ORDER

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

1. Ms. Adamson's claims for a caregiver benefit under section 13 of the Schedule, housekeeping expenses under section 22 of the Schedule and an Obus back support and taxi expenses, under section 14 of the Schedule, are dismissed.

2. Guarantee Company of North America shall pay Ms. Adamson $3,172.50, plus interest from January 30, 1999, at two per cent per month compounded monthly, for physiotherapy services, under sections 14 and 46 of the Schedule.

3. Each party shall bear its own expenses incurred in respect of the arbitration.

February 26, 1999

K. Julaine Palmer Arbitrator

Date

268.3--(1) The Commissioner may issue guidelines on the interpretation and operation of the Statutory Accident Benefits Schedule or any provision of that Schedule. (2) Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule. (3) A guideline takes effect on the day it is published in The Ontario Gazette. [Bill 164 s. 27]

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96 and 551/96.
2. 2Part 8 of the Disability Certificate classifies a Grade I Whiplash-Associated Disorder as a clinical presentation of "Complaint of neck pain, stiffness or tenderness only. No physical signs(s)." The certificate notes that "symptoms and disorders that can be manifest in all grades include deafness, dizziness, tinnitus, headache, memory loss, dysphagia, and temporo-mandibular joint pain." Grades II, III, and IV are also explained on the certificate.
3. 3Ontario Regulation 283/95 calls for an insurer who may dispute that it is the insurer responsible for paying benefits to give a written notice within 90 days of receipt of a completed application for benefits to both the insured person and every insurer who it claims is required to pay under section 268 of the Insurance Act. Any disputes about which insurer is to pay are resolved under the Arbitration Act, 1991, not by mediation and arbitration by FSCO. In this arbitration, Guarantee does not deny that it is the responsible insurer.
4. 4There was no evidence at the hearing of the reason(s) why Ms. Adamson stopped going to physiotherapy after September 8, 1997.
5. 5The Professional Fee Guideline–Physiotherapists was published in the November 22, 1997 edition of The Ontario Gazette, under the authorization of section 268.3 of the Insurance Act, R.S.O. 1990, c.I.8, as amended:
6. 6See Commissioner's Bulletin A-12/97, Property & Casualty–Auto.