Neutral Citation: 2000 ONFSCDRS 54

FSCO A96-001699

BETWEEN:

ANA MALESHEVICH

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE (No.2)

Before:

K. Julaine Palmer

Heard:

By written submissions

Appearances:

Karl Arvai for Mrs. Maleshevich

Cameron C. R. Godden for Guardian Insurance Company of Canada

This is the second decision on a preliminary issue arising from Mrs. Maleshevich's involvement in three motor vehicle accidents in 1990, 1993 and 1995, when she was insured by Guardian Insurance Company of Canada ("Guardian"). She was also involved in a fourth motor vehicle accident in 1997, when she was insured by another company. Mrs. Maleshevich claims she has sustained serious and permanent injuries to her head, neck, back, knees, and ankle. In addition, she says she continues to suffer from depression, post-traumatic stress, anxiety, sleep difficulties, memory problems and difficulties in concentration. She says she has been unable to work as a real estate agent, or in any other job, since the first accident.

On December 24, 1999 Guardian served motion documents seeking an order to compel Mrs. Maleshevich to attend a number of insurer's examinations and that she pay Guardian's expenses of the preliminary hearing. Mrs. Maleshevich denied that Guardian is entitled to the requested examinations. She cross-applied for an order that Guardian pay outstanding medical and rehabilitation expenses and pay certain expenses pending a final order in the proceedings. This decision deals with that cross-application. The decision dealing with the insurer's examinations was released earlier, on January 21, 2000.

Mrs. Maleshevich filed an affidavit and supporting documents in relation to the application and cross-application on January 14, 2000. Guardian's response was filed on February 1, 2000. Mrs. Maleshevich filed further written submissions on February 4, 2000.

Mrs. Maleshevich seeks an interim order that Guardian pay all outstanding expenses owed to her for the following medical and rehabilitation expenses: expenses incurred in attempting to return to employment, medication expenses, household assistance expenses, transportation and parking expenses incurred for the purpose of obtaining treatment, expenses incurred for assistive devices, expenses for physiotherapy and other medical and rehabilitative treatment programs. The expenses total more than $30,000.

She also seeks an order that Guardian pay the following benefits pending a final order in these proceedings: medication as prescribed by her treating physicians, individual psychological counselling with Dr. John W. Schneider as per his recommendation, driving rehabilitation and desensitization, marital counselling, cognitive rehabilitation, and reasonable travel expenses incurred in attending for treatment.

Guardian Insurance Company of Canada shall pay Ana Maleshevich her expenses for medication relating to her psychiatric treatment and pain management, pending a final order in this arbitration.

Mrs. Maleshevich has seen many health practitioners since 1990, for both physical and psychological problems which she alleges result from her accidents. Her case is complex, both in the number of accidents, the respective accident benefit schemes involved with their various time limits and provisions, and in her health condition. To decide the issue of Mrs. Maleshevich's request for past medical and rehabilitation expenses, and expenses pending the outcome of her case, I will follow the principles that have developed in the case law in this area at the Commission. Those cases consider the existence of any element of necessity or urgency to receive these benefits, the merits of the case for entitlement and any blatant disregard by Guardian of the Schedule or the Insurance Act.

Past Expenses

Mrs. Maleshevich has deposed that she incurred about $7,500 in expenses in attempting to return to work in 1991 after the first accident. She attached particulars of the expenses to her affidavit, and, in addition, referred to a brief of expenses filed with the Commission in September 1999. She has also deposed that she has required numerous medications to cope with accident-related symptoms, dating back to December 1993, which have not been paid by Guardian. Particulars are provided. She also lists other expenses in paragraph 7 of her affidavit, such as physiotherapy, housekeeping, driving assistance, and assistive devices that she deposes were incurred directly as a result of her involvement in the motor vehicle accidents.

Guardian says that Mrs. Maleshevich has submitted no evidence in her application for interim benefits that there is a need, necessity or a sense of urgency in her request. There is also no evidence that non-payment of the expenses will result in financial stress or other hardship.

Decision on Past Expenses

In her affidavit, Mrs. Maleshevich makes no reference whatsoever to any need or urgency for her to receive payment of any past expenses on an interim basis, pending a full hearing which is now less than one month away. Her counsel does refer to Mrs. Maleshevich's financial situation in his submissions, but I cannot accept his submissions as evidence. Some of the expenses claimed were incurred as far back as 1990 and 1991 and cannot be described as urgent matters. The earliest expenses claimed relate to an attempt Mrs. Maleshevich made to return to work in 1991 and are likely claimed under the heading of rehabilitation, which is not a "pay pending dispute" category in the 1990 Schedule.

Mrs. Maleshevich's list of past medical and rehabilitation expenses covers 16 closely typed pages. Her counsel has admitted that some of the 1995 expenses inadvertently claimed as unpaid, have been paid. The supporting documentation for these expenses was filed with the Commission in September 1999 and is bound in a volume more than two centimetres thick. Some of the expenses claimed clearly do not fall within the category of "pay pending dispute," for example thousands of dollars of claims for housekeeping.

I heard no testimony on this cross-application for interim benefits and received only a 13 paragraph affidavit from Mrs. Maleshevich with its supporting documentation as evidence.

In my view, given the complexity and sheer number of expenses claimed, the length of time some of the expenses have been outstanding, the lack of urgency demonstrated in the motion material, and the imminence of the full hearing set to begin next month, this question should be resolved by the hearing arbitrator. The parties have requested eight days to present their positions at the full hearing. That is the proper forum to resolve these disputes and the place where the evidence can be tested by cross-examination.

Parties in circumstances like Mrs. Maleshevich's should recall that a motion for interim benefits is not the only remedy when an insured person claims that "pay pending dispute" has been violated and other benefits have been unreasonably withheld. Where an insurance company has been delinquent in its obligations it can be subject to a substantial special award. Under section 282(10) of the Act, if Guardian is found by the hearing arbitrator to have unreasonably withheld or delayed payments, in addition to awarding the benefits and interest to which Mrs. Maleshevich may be entitled under the Schedule, she will receive a lump sum "special award."

The Applicant's counsel also requests that I consider that a final decision of the hearing arbitrator "may take a long time to be rendered." At this stage in the Commission's existence, every effort is being made to issue decisions within 60 days of the end of the hearing. In my view, given the four years that this matter has taken to come to a hearing, that period is not an inordinate delay. However, given the flexible nature of our process, it remains open to the Applicant to renew her motion before the hearing arbitrator before the close of the full hearing. This would be somewhat unusual, but is certainly within the scope of Rule 65.6 of the Code.

Treatment Pending the Outcome of the Hearing

Mrs. Maleshevich alleges she was first injured in a motor vehicle accident on July 11, 1990. She claims she suffered further injury as a result of accidents in 1993 and 1995. She was also involved in a fourth accident in 1997, when she was insured by another insurance company. Both the 1990 Schedule and the 1995 Schedule provide that insurers should pay certain supplementary medical and rehabilitation benefits "pending resolution of the dispute."¹ Under the 1990 Schedule these expenses include medical and psychological services and the services of physiotherapists, as well as transportation for the person to and from treatment. The maximum amount payable is $500,000 during the first ten years following the accident. Under the 1995 Schedule the limit is $1,000,000 for supplementary medical and rehabilitation benefits," according to the mediator's report.

Both Schedules set out procedures to which insured persons and insurers should adhere in order that the proper benefits are paid. At a mediation conducted during the summer of 1995, Mrs. Maleshevich claimed entitlement to payment of various items and services (including housekeeping and prescriptions) totalling $5,032.64. She also claimed entitlement to reimbursement of transportation expenses at $0.20 per kilometre. These expenses were still in dispute at the time of the pre-hearing in December 1997 and remain in dispute. In relation to the 1995 accident, at the September 1995 mediation Mrs. Maleshevich claimed "unspecified and future supplementary medical benefits," according to the mediator's report.

Mrs. Maleshevich seeks an order that Guardian pay the following benefits pending a final order in these proceedings: medication as prescribed by her treating physicians, individual psychological counselling with Dr. Schneider as per his recommendation, driving rehabilitation and desensitization, marital counselling, cognitive rehabilitation, and reasonable travel expenses for treatment. Extensive particulars of this claim are not provided, for example by way of a "budget" or outline of the proposed expenses, for example, on a monthly basis.

Guardian alleges that Mrs. Maleshevich has never submitted a formal claim for these benefits so they would have an opportunity to properly consider them. Guardian submits that Mrs. Maleshevich is not entitled to refer these issues to arbitration because they have not been mediated. Guardian asserts that Mrs. Maleshevich has failed to submit any medical evidence that the expenses are reasonable or necessary and result from injuries sustained in the 1990, 1993 and 1995 motor vehicle accidents.

Mrs. Maleshevich continues to receive psychiatric care, funded through OHIP. She also sees her family doctor regularly. Her expenses filed with the Commission include recent claims for medication, so it would appear that she has been able to obtain prescribed medication, at her own expense, without current reimbursement from Guardian.

As evidence on this motion, Mrs. Maleshevich presented six reports from physicians and psychologists dating from August to December 1999 which I consider useful to the issue of her current condition and medical/rehabilitation issues. Dr. Nick Cuberovic has been Mrs. Maleshevich's family doctor since December 1995. In his report dated September 20, 1999, Dr. Cuberovic gives his opinion that Mrs. Maleshevich suffers from a sleep disorder, spinal stenosis, hypothyroidism, non-insulin dependent diabetes mellitus, osteoarthritis, psoriasis, fibromyalgia, post traumatic stress disorder, depression, and a personality disorder of borderline type or other personality disorder. He foresees continuous or prolonged and severe permanent disability for Mrs. Maleshevich. Dr. Cuberovic does not address the causation of each of these conditions. It is common ground that not all Mrs. Maleshevich's health problems were caused by the accidents.

Dr. Cuberovic believes Mrs. Maleshevich's need for medications will continue and that she will need ongoing counselling and psychiatric care "as a direct result of the motor vehicle accidents as the primary focus to this woman's ability to cope with her physical disabilities related to the MVA's."

Dr. Eldon Tunks, Professor of Psychiatry, McMaster University, and a specialist in chronic pain management, wrote a 29-page medico-legal report regarding Mrs. Maleshevich, dated August 23, 1999. He interviewed and examined Mrs. Maleshevich on August 23, 1999. He had previously assessed her on March 19, 1997. Dr. Tunks concludes that Mrs. Maleshevich's diagnosis is one of "chronic pain disorder associated with psychological and medical factors."

The psychological facts include chronic depression, probably dysthymia, panic disorder and specific phobia of travel. ... There appears to be a somatoform component, demonstrated in vigilance about physical symptoms and the alarm with which she interprets her symptoms. Medical components include the widespread diffuse soft tissue pain, the "fibromyalgia" syndrome, mild but persistent temporomandibular joint dysfunction, occipital neuritis on the left side...

Dr. Scott Garner wrote a report dated September 9, 1999 based on his examination of Mrs. Maleshevich in 1997. At that time he felt she would need to receive continued supportive care from her family doctor "with appropriate medication which could include anti-depressants. Pain medication and anti-inflammatories may be helpful but should be minimized if possible." Dr. Garner felt Mrs. Maleshevich should continue on a maintenance exercise program and a pool-based exercise program. "She also may benefit from ongoing maintenance counselling and hope that her psychological symptoms can be minimized or kept under control."

Dr. James E. Sweeney, clinical neuropsychologist, evaluated Mrs. Maleshevich on August 18 and 19, 1999. His report is dated September 14, 1999. Dr. Sweeney wrote:

Considering the complexity and entrenchment of her current neuropsychological and psychological condition ... [the] prognosis for significant psychological recovery is not encouraging. Rehabilitative counselling goals should include an acceptance of limitations in the cognitive skills identified, the utilization of compensatory behaviours to reduce the negative effect of these limitations, and involvement in avocational activities of interest that include "over-learned" skills predating the first motor vehicle accident that could enhance self-esteem th[r]ough productivity. I see rehabilitative counselling needs as open-ended and achievement of the latter rehabilitative goal as crucial to any notable reduction of depression and effective management of subjective experiences of pain.

Dr. J.H. Ennis is the psychiatrist who has been treating Mrs. Maleshevich at East Region Mental Health Services. He has most recently prescribed Serazone, Clonazepan and Gabapentin. He reports that Mrs. Maleshevich has had difficulty tolerating side-effects of certain medications in the past. In his report of November 15, 1999 he wrote: "At this point in time, I do not see Mrs. Maleshevich as being amenable to counselling or involvement in a multidisciplinary treatment program. She is simply too agitated and distraught. Perhaps at some future date, if her mood can be stabilized, she may well benefit from counselling input. As well, it would appear, based on Mrs. Maleshevich's description, that she and her husband could benefit from family counselling."

Dr. Schneider wrote a report dated December 30, 1999 about Mrs. Maleshevich. Mrs. Maleshevich was his patient in 1992 and between August 1993 and December 1994. He also re-assessed her in November 1999 and carried out some psychometric testing at that time. Dr. Schneider believes Mrs. Maleshevich should continue the medication Dr. Ennis has prescribed. He believes that she should have a program of cognitive rehabilitation of approximately 35 hours of therapy time. This could be conducted by John F. Sullivan, Registered Psychological Associate, at Dr. Schneider's clinic. Dr. Schneider also recommends marital counselling, if Mr. Maleshevich is amenable. Dr. Schneider anticipates a minimum of 12 sessions at 1.5 hours each would be necessary.

In addition, Dr. Schneider recommends desensitization from Mrs. Maleshevich's automobile travel phobia which could be conducted by Mr. Jerzy Kwiatkowski, Certified Driving Instructor. This treatment would likely require 20 to 30 hours of desensitization and driving rehabilitation. Finally, Dr. Schneider recommends "on-going individual psychological counselling." He observes that Mrs. Maleshevich's emotional condition has deteriorated since she was last seen by him for treatment in January 1995. Dr. Schneider expects a minimum of 30 hours of therapy would be needed, and possibly as much as 50 hours.

Mrs. Maleshevich requests that her medication be paid pending a final order in this arbitration. She also wants to pursue individual counselling with Dr. Schneider, driving rehabilitation and desensitization, marital counselling, and cognitive rehabilitation. From the reports of Dr. Sweeney and Dr. Schneider, it is clear that they attribute Mrs. Maleshevich's need for such treatment to neuropsychological impairment following non-impact head injury and psychological injury as a result of the accidents of 1990, 1993 and 1995.

Guardian Insurance did not provide any Assessment of Claim by Insurer or Explanation of Assessment by Insurance Company forms in relation to Mrs. Maleshevich's claims on this cross-application. In its Response to the Cross-Application, Guardian alleged that Mrs. Maleshevich was relying upon reports from doctors that were not provided to Guardian until September and November 1999 and January 2000. Guardian asserts that Mrs. Maleshevich has not provided particulars of the recommended treatment—where, with whom, at what cost. Guardian asserts it "has not had the opportunity to properly consider the recommendations."

Guardian alleges that Mrs. Maleshevich must first mediate her entitlement to these treatments and until then she cannot bring the issues to arbitration, following the provisions of subsection 281(2) of the Act. Guardian also submits that Mrs. Maleshevich has failed to provide medical evidence that these treatments are reasonable or necessary.

Decision on Medication and Treatment Pending a Final Decision

In most cases, both Insurers and Applicants are anxious to include all issues in dispute between them in a single arbitration hearing. In this case, however, Guardian submits that I have no jurisdiction to make an interim order about the current treatment and medication Mrs. Maleshevich seeks, because this issue has not been mediated.

Section 281(2) of the Act requires mediation to be sought first before the issues in dispute can be submitted to arbitration. Compulsory mediation of issues in dispute is the keystone of the dispute resolution process under the Act. In August 1995, the mediator issued three reports, each almost identical, but dealing with the 1990, 1993 and 1995 accidents, respectively. The supplementary medical and rehabilitation benefits claimed at that mediation, valued at $5,032.64, to my understanding, did not include a claim for ongoing treatment by Dr. Schneider and others. The claim for "unspecified future treatment" arising from the 1995 accident in the third mediation cannot be relied upon to support this claim, in my view, because of its vagueness and lack of a genuine dispute at the time of mediation.

In his decision in Carby and Co-operators General Insurance Company, (OIC A-950220, January 12, 1996) Arbitrator Bayefsky thoroughly reviewed the case law and regulatory framework relating to such issues. Determining the issues in dispute of an arbitration is an important and complex area of arbitral jurisdiction. In Arbitrator Bayefsky's view the various provisions of our Dispute Resolution Practice Code and the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended, "affirm the basic jurisdiction of an arbitrator to decide which issues are to be determined in the course of an arbitration and to structure the proceeding so as to achieve the most just and expeditious disposition of the matter."

I am concerned about multiple proceedings involving these parties, but in the face of the Insurer's complaint that the current treatment proposed for Mrs. Maleshevich has not been mediated, I feel compelled to allow a mediator to help the parties achieve their own resolution of that issue, as the Act contemplates. At the same time I am concerned that, with respect to ongoing treatment, Guardian may be in violation of the "pay pending dispute" provisions of the Schedules. An insurer questioning the reasonableness and necessity of proposed treatment must request a health practitioner to submit a statement "stating that the expense is necessary for the insured person's treatment or rehabilitation"² or, in the case of the 1995 Schedule, a certificate under section 37.

The rationale behind the "pay pending" features of the Schedules, and the necessity for parties to attentively follow the provisions of the Schedules regarding treatment disputes has been discussed thoroughly in several recent decisions.³ I commend these decisions to the parties for their review.

With respect to the issue of the payment of medication, it is clear that this was included in the 1995 mediation. In my view it is reasonable that Guardian pay for Mrs. Maleshevich's medications relating to her psychiatric treatment and pain management, pending a final order in this arbitration. (Clearly no one is suggesting that Guardian should pay for Mrs. Maleshevich's thyroid or diabetes medication.)

The parties will recall that this cross-application was heard in a summary fashion and the order made expeditiously. After a full hearing of all of the evidence, the hearing arbitrator may well conclude that a different order should be made. This interim order is subject to that final order in which an arbitrator may order interim benefits to be repaid.

Should a party wish to include the current recommended treatment in this arbitration, a party should apply immediately for mediation of this issue and consult the Director of Mediation Services with respect to the time frames involved. The parties should then seek direction from the hearing arbitrator at the opening of the hearing.

EXPENSES:

Subsection 282(11) of the Insurance Act, R.S.O. 1999, c. I.8 (as amended), allows arbitrators to award all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations. Subsection 282(11.1) allows for interim awards of expenses. I reserve the issue of expenses of this preliminary issue to the hearing arbitrator.

March 16, 2000

K. Julaine Palmer Arbitrator

Date