Neutral Citation: 1999 ONFSCDRS 39

FSCO A98-000988

BETWEEN:

DONNA C. HART

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: M. Kaye Joachim

Heard: Written submissions were received on March 4, 1999.

Appearances:

Mrs. Donna Hart

Meredith J. Donohue for Allstate Insurance Company of Canada

Issues:

The Applicant, Donna C. Hart, was injured in a motor vehicle accident on August 16, 1995. She applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Hart applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Should this application for arbitration be dismissed on the basis that there are no longer any issues remaining in dispute?

Result:

Mrs. Hart's application for arbitration dated July 7, 1998 is dismissed.

EVIDENCE AND ANALYSIS:

By decision January 22, 1999, I issued a preliminary decision dismissing Mrs. Hart's claim for other disability benefits on the basis that she did not apply for mediation on this issue within two years of the Insurer refusing such benefit. Accordingly, I concluded that the arbitration of the issue of other disability is barred by the operation of subsection 281(5) of the Insurance Act and subsection 72(1) of the Schedule. Subsequently, the Insurer requested that the remainder of the application be dismissed and the hearing dates of April 12, 13, 14 and 15, 1999 be cancelled, since there were no outstanding issues to be arbitrated. Mrs. Hart was asked for and provided written submissions and documents on March 4, 1999. As those documents did not disclose any further issues for arbitration, the Insurer was not asked to respond.

The chronology of events is set out in detail in the preliminary decision and will not be repeated here. Briefly, Mrs. Hart filed an application for accident benefits and was paid various medical expenses. Other disability benefits were not paid. In the summer of 1997, Mrs. Hart was sent to a Designated Assessment Centre ("DAC") to assess the reasonableness and necessity of the requested medical treatment. The dental DAC assessor recommended that the requested temporomandibular joint treatment was reasonably necessary as a result of the accident² and the Insurer advised Mrs. Hart that it would comply with its recommendations.³ The musculoskeletal DAC assessors recommended that ongoing physiotherapy, massage therapy and a gym membership were not reasonably necessary as a result of the accident⁴ and the Insurer advised Mrs. Hart that it would not fund these medical benefits.⁵

On March 11, 1998, Mrs. Hart submitted an Application for Mediation indicating she was disputing the Insurer's denial of initial entitlement to other disability benefits. She also ticked off the boxes indicating she was disputing entitlement to medical benefits, rehabilitation benefits, attendant care benefits, loss of earning capacity benefits and interest. She provided no particulars of any claimed expenses.

The Report of Mediator also noted that no details of any expenses were provided.

On July 7, 1998, Mrs. Hart filed an Application for Arbitration in which she alleged that other disability benefits, loss of earning capacity benefits, medical benefits, attendant care benefits, interest, expenses, special award and other disputes were all in dispute. She provided no details with respect to any of her claims.

Following a pre-hearing held on October 20, 1998, the issues in dispute were identified as follows:⁶

Is the Applicant entitled to other disability benefits from August 23, 1995 and ongoing?
Has the issue of entitlement to other disability benefits been properly mediated, and if not, what are the consequences?
What amount, if any, is the Insurer allowed to take credit for by way of collateral benefits with regard to the other disabilty benefit claim?

In addition, the pre-hearing arbitrator noted that additional issues had been brought forward by Mrs. Hart which had apparently not been mediated. Mrs. Hart was requested to provide the Insurer with a list of those issues as well as any documentation to support those issues as soon as possible, after which the Insurer had 60 days in which to decide whether or not to include the items in arbitration.

A second pre-hearing was held on November 3, 1998, following which the issues were expanded to include:⁷

Is the Applicant entitled to other disability benefits from August 23, 1995 and ongoing?
Has the issue of entitlement to other disability benefits been properly mediated, and if not, what are the consequences?
Did the Applicant apply for mediation on the issue of other disability benefits within three years⁸ of the Insurer refusing such benefits? If not, what are the consequences?
What amount, if any, is the Insurer allowed to take credit for by way of collateral benefits with regard to the other disability benefit claim?
The Applicant claims interest on any amounts found owing.

A preliminary hearing was held on January 5, 1999 to determine issues two and three above. As mentioned earlier, in my preliminary decision issued January 22, 1999, I determined that Mrs. Hart could not proceed on the issue of other disability benefits because she applied for mediation more than two years after the Insurer denied benefits. The only question which remains is whether there are any issues which remain in dispute in this arbitration scheduled for April 12, 13, 14 and 15, 1999.

Although Mrs. Hart checked off all possible issues in her application for mediation and arbitration she has never provided any details of any of her claims, other than other disability benefits, which claim is out of time. From the documentation which Mrs. Hart recently submitted, it is apparent that the only possible outstanding claim she has is for ongoing physiotherapy, massage therapy and a gym membership. However, she has never identified this issue or provided any documentation supporting this claim, as required in the pre-hearing leter of November 2, 1998. Further, since she never provided details of these expenses claimed in her Application for Mediation, these issues do not appear to have been mediated.

I conclude that there are no further issues in dispute in this arbitration. Accordingly, the application dated July 7, 1998 is dismissed. This dismissal is without prejudice to Mrs. Hart's right to file a further (timely) application for mediation with respect to the Insurer's denial of ongoing physiotherapy, massage therapy or a gym membership, or other benefits (other than other disability benfits) should she wish to pursue these issues.

March 11, 1999

M. Kaye Joachim

Arbitrator

Date