Lamia Al-Obaidi v. Allstate Insurance Company of Canada, 2000 ONFSCDRS 205

Financial Services Commission of Ontario

Neutral Citation: 2000 ONFSCDRS 205

FSCO A99–000889

BETWEEN:

LAMIA AL-OBAIDI Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A MOTION

Before: Fred Sampliner

Heard: Submissions by teleconference with counsel on September 1, 2000.

Appearances: Altor Shields for Ms. Al-Obaidi William Sproull for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. Lamia Al-Obaidi, objected to including Allstate Insurance Company of Canada's ("Allstate") repayment claim for the $3,260 which it paid under the Schedule¹ for her physiotherapy treatment.

The issue in this preliminary hearing is:

1. Shall Allstate's repayment claim for $3,260 of physiotherapy treatment be included in this arbitration proceeding?

Result:

1. Allstate's claim for repayment of $3,260 in physiotherapy treatment shall be included in this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Ms. Al-Obaidi was involved in two automobile accidents, the first on November 11, 1998 and the second on January 20, 1999. It is undisputed that Allstate was the proper no-fault benefits provider for both.

Allstate submits that Ms. Al-Obaidi was in physiotherapy treatment at a government-funded clinic prior to her first accident in November 1998. Allstate claims that her change of treatment providers to a privately-funded clinic after her second accident was unreasonable. Allstate seeks to include in this proceeding an order for repayment of the $3,260 it paid for this treatment.

Ms. Al-Obaidi argues that this tribunal does not have jurisdiction to hear the repayment issue. She claims that the mediation was improperly filed by Allstate on her behalf. She further argues that the repayment claim is best heard in court because her claims against the health care provider can be joined into those proceedings. Ms. Al-Obaidi maintains that the arbitration system was designed as an applicant-driven forum and that generally arbitrators should not consider claims by insurance companies.

Ms. Al-Obaidi is correct in arguing that the arbitration process is applicant-driven. While the Insurance Act² permits either the insured or insurer to file for mediation of a dispute, only the insured person can initiate claims in the arbitration system.

Ms. Al-Obaidi is not correct in arguing that insurers must resort to the court system for no-fault benefit issues they raise. The Insurance Act³ specifically provides that arbitrators shall determine all issues in dispute, whether raised by the insured person or by the insurer. Commission cases have consistently accepted jurisdiction where insurer repayment claims arise out of the same issues the insured person raises.

In this case, Ms. Al-Obaidi claims further physiotherapy treatment/work conditioning (approximately $3,000).⁴ I find that her claim represents the same type of treatment and benefit category as her past therapy at Body Rehab and Wellness Inc. ($3,260) which is the basis of the Insurer's repayment claims.⁵ I further find that there is jurisdiction to include the repayment issue, as it was mediated by Allstate in accordance with the Insurance Act.

In this case, Allstate's repayment and Ms. Al-Obaidi's claims both involve consideration of the extent of her injuries and reasonableness and necessity of her treatment. I find that Allstate's repayment claim naturally and consequentially flows from Ms. Al-Obaidi's treatment issues originally raised in this forum, and that it is properly the subject of joinder into this proceeding.⁶

EXPENSES:

Neither party raised the issues of expenses, and they are deferred to the hearing arbitrator.

November 15, 2000

Fred Sampliner Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 205

FSCO A99–000889

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LAMIA AL-OBAIDI Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

ARBITRATION ORDER

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

1. Allstate's claim for $3,260 repayment from Ms. Al-Obaidi for her treatment at Body Rehab and Wellness is included in this arbitration proceeding.

December 15, 2000

Fred Sampliner Arbitrator

Date

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, 551/96 and 303/98.
2. 2Subsection 280(1) of the Insurance Act.
3. 3Subsection 282(3) of the Insurance Act.
4. 4FSCO January 7, 2000 pre-hearing letter, OCF-18 form dated April 1999
5. 5Carby and Co-operators General Insurance Company (OIC A-950220, January 12, 1996)
6. 6Kotsiakos and State Farm Mutual Insurance Company (OIC A-002354, July 26, 1994)