William Grozdanovsky v. Wawanesa Mutual Insurance Company, 2000 ONFSCDRS 69

Neutral Citation: 2000 ONFSCDRS 69

FSCO A99-000289

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

WILLIAM GROZDANOVSKY

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

November 2, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Roland Spiegel for Mr. Grozdanovsky

Aldo E. Picchetti for Wawanesa Mutual Insurance Company

Issues:

William Grozdanovsky sustained soft tissue injuries in an August 2, 1998 motor vehicle accident. He applied to Wawanesa Mutual Insurance Company ("Wawanesa") for transportation expenses to treatment appointments at Universal Injury Rehabilitation ("Universal"), payable under the Schedule.¹ Wawanesa paid Mr. Grozdanovsky the per diem public transit fare, but refused to reimburse him for the expenses of a private taxi. The parties did not resolve this dispute through mediation, and Mr. Grozdanovsky 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 Mr. Grozdanovsky entitled to taxi service to attend treatment?

2. Is Mr. Grozdanovsky entitled to a special award?

3. Is Mr. Grozdanovsky or Wawanesa entitled to their expenses of the arbitration process?

Result:

1. Mr. Grozdanovsky is not entitled to taxi services to attend treatment.

2. Mr. Grozdanovsky is not entitled to a special award.

3. Mr. Grozdanovsky is not entitled to his arbitration expenses. Wawanesa is entitled to its arbitration expenses.

EVIDENCE AND ANALYSIS:

The Law:

Transportation is a covered expense under subsection 14(2)(g) of the Schedule. The Schedule² specifically refers to the Transportation Expense Guidelines, which states:³

The insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions.... Transportation expenses are calculated based on the most direct route...The mode of transportation selected should be the most economical, practical for the distance travelled and appropriate under the specific circumstances.

The Guidelines provides for trip reimbursement excluding the first 50 kilometres, using the insured’s automobile. The Guideline states that any automobile that is leased or that the insured has access to qualifies as "the insured person's automobile."

The Guideline next sets out when an insurer is liable to pay taxi fare to treatments:

The insurer is liable to pay for reasonable and necessary taxi fare incurred by an insured person and their aide or attendant provided that,

• the insured person does not own or have access to an automobile; or

• the insured person is unable to operate an automobile; or

• it is reasonable and practical in the circumstances to take a taxi.

Insurers are liable to pay for reasonable and necessary expenses for other modes of transportation where the circumstances warrant. Before an insured person incurs expenses for air, rail and bus transportation services, he or she should discuss the matter with their insurer.

I find the Schedule contemplates that unless an insured does not have access to an automobile or cannot drive, he or she will first make use of any automobile to which he or she has access prior to utilizing taxi services.

The Facts:

Mr. Grozdanovsky was 36 years old when the car in which his father was driving was rear-ended at low speed while it was stopped at an off-ramp of Highway 401. Damage to the vehicle's rear bumper was less than $500, and his first visit with a health care practitioner was on August 13, 1998, 11 days after the accident.

Dr. Leslie Toth, a chiropractor at Universal Injury Rehabilitation Centre, Inc. ("Universal") submitted a report and a separate treatment plan to Wawanesa. After finding objective restrictions and functional impairments in his September 4, 1998 report, Dr. Toth diagnosed a whiplash injury of the cervical spine and prescribed eight to ten weeks of treatment. Dr. Toth's evidence does not indicate any travel restrictions or inability to operate an automobile.

Wawanesa approved Dr. Toth's treatment plan on September 23, 1998. It received billing statements from Universal for 39 treatment sessions during the twelve weeks until November 3, 1998. These statements contain $30 flat rate charges for Mr. Grozdanovsky's transportation round trip in a private taxi to appointments, totalling $1,170.⁴ Over five months after the invoices were sent (April 21, 1999), Wawanesa sent Mr. Grozdanovsky a $156 cheque. This sum was based on $4 round trip fare by public transit for the 39 appointments shown on the billing statements.

However, the number of appointments shown on Universale billing records for Mr. Grozdanovsky is not consistent with number of his appointments shown on his treatment records. The five pages of clinical notes relating to Mr. Grozdanovsky's treatments, indicate that he attended 26 treatment sessions beginning August 13, 1998 and ending on November 3, 1998.⁵ Many of the treatment dates noted on the clinical records do not correspond to the service dates noted on the billing records.

Mr. Grozdanovsky did not bring evidence to explain the discrepancy between the statements and the treatment records. Mr. Roland Speigel, his representative, stated that Universal's practitioners do not always record