Neutral Citation: 2001 ONFSCDRS 119

FSCO A00-000501

BETWEEN:

MILDRED NUNES

Applicant

and

ST. PAUL FIRE & MARINE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

April 24 and 25, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Rod Hare for Ms. Nunes

Gregory P. Heckel for St. Paul Fire & Marine Insurance Company

Issues:

The Applicant, Mildred Nunes, was injured in a motor vehicle accident on July 13, 1998. She applied for and received statutory accident benefits from St. Paul Fire & Marine Insurance Company ("St.Paul"), payable under the Schedule.¹ St. Paul denied her request for payment for five health care assessments and reports, claimed under section 24 of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Nunes 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:

Is Ms. Nunes entitled to reimbursement for a psychological evaluation, an evaluation of her attendant care needs, a functional abilities evaluation, a work-site evaluation and a home assessment?
Is Ms. Nunes entitled to a special award?

Result:

Ms. Nunes is not entitled to reimbursement for any of the five assessments and reports.
Ms. Nunes is not entitled to a special award.

EVIDENCE AND ANALYSIS:

The Law:

The pertinent part of section 24 of the Schedule states:

(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan; (emphasis added)

Ms. Nunes argues that an insured has an automatic right to all assessments. She argues that an insured claiming injuries from an accident should be entitled to an assessment for every available benefit under the Schedule.

I reject the notion that an insured has an automatic right to payment for all assessments regardless of her particular injuries, because it is contrary to the specific intention which the drafters set out in section 24. The words "for the purpose of the Regulation" indicate there must be a link between an insured's actual need for some benefit potentially covered by the Schedule and the assessment claimed.² Conversely, nothing in section 24 indicates the Legislature sought to encourage assessments for benefits which neither the insured person nor their treating health practitioners thought advisable.

Ms. Nunes also maintained that St. Paul should be precluded from introducing any evidence at the hearing because it withdrew its initial reason for denying these claims. There is no dispute that Ms. Nunes signed a full and final release of all her accident benefits in October 1998.³ When the bills for the assessments at issue here were submitted to St. Paul afterwards, the Insurer told Ms. Nunes the claims were not payable because she had released all her claims for further accident benefits. St. Paul withdrew this defence in December 2000, after the Ontario Court of Appeal decided that insurance companies were required to make increased disclosure as part of any settlement.⁴

The Legislature did not intend to limit insurers to the reasons initially used in an assessment form.⁵ Restricting a party's evidence denies effective presentation of their case. While in some cases a party might be surprised by a changed position and consequently unable to develop responsive evidence, this can be dealt with far less drastically through an adjournment to allow the party to address the new evidence or position.

In this case, Ms. Nunes did not argue or present any evidence that she was caught by surprise or that her ability to advance her claims was compromised. She knew that St. Paul was not relying on the release four months prior to the hearing. I declined Ms. Nunes' request to exclude St. Paul's evidence and limit the hearing to her evidence alone.

Background Facts:

Ms. Mildred Nunes, age 41, was taking driving lessons at the time of the July 13, 1998 accident. She testified that she heard her neck snap when her vehicle was rear-ended at a red light. Ms. Nunes' neck and upper back felt stiff, and on the recommendation of her family doctor she attended seven weeks of physiotherapy. The September 11, 1998 discharge report from ACT Health Group (ACT) indicates that Ms. Nunes had progressed and was able to resume all activities of daily living.

Ms. Nunes testified that she felt improved after the initial physiotherapy sessions and that she decided to resume part-time work at her pre-accident employment as a health care aid at a nursing home. Ms. Nunes worked three to four days a week from September 1998 until July 1999. She did not work between July 1999 and January 2000, and thereafter resumed her nursing home duties one to two days a week.

Ms. Nunes stated that her neck and back symptoms increased when she began lifting patients at the nursing home in September 1998. The notes of Dr. Gilbert Aarons, her family doctor, do not corroborate her testimony that she complained to him about these symptoms. His records do not indicate neck or back complaints until about a year after the accident.

Dr. Aarons' records show Ms. Nunes only had problems with her hands during 1998, involving a work-related injury for which she underwent two separate surgeries. Shortly before the accident, Dr. M. K Joseph Kwok, a consulting orthopaedic surgeon, recommended that Ms. Nunes switch to lighter duties or retrain for other work. There is no evidence refuting Dr. Kwok's suggestion, and I find that Ms. Nunes' pre-existing hand injuries were the primary cause of her work slowdown/stoppage.

Dr. Aarons' clinical notes do not indicate that Ms. Nunes complained about her back and neck in 1998. After the motor vehicle accident, Dr. Aarons submitted a treatment plan to St. Paul in August 1998, diagnosing that Ms. Nunes sustained a grade II whiplash injury and recommending physiotherapy for treatment of her accident injuries.

Dr. Aarons' clinical notes do not support Ms. Nunes' testimony that he recommended any further treatment for her accident injuries after his initial recommendation for a physiotherapy program. Thus, I do not accept Ms. Nunes' evidence that she complained to Dr. Aarons' about her accident injuries after returning to work in September 1998. On the contrary, it is reasonable to infer from Dr. Aarons' records and the small consideration ($600) Ms. Nunes accepted from St. Paul for signing a full and final release that she did not suffer substantial symptoms and did not believe she required extensive further treatment for her accident injuries in the fall of 1998.

Ms. Nunes testified that she could no longer continue working at the nursing home after the second surgery to her hand in July 1999. She stated that Dr. Aarons recommended further treatment for her accident injuries. Ms. Nunes testified that she attended chiropractic and massage therapy for her accident injuries in November and December 1999, but she could not remember the name of the clinic or the practitioners. Her excuse for not submitting these expenses to St. Paul is that she understood the company would not pay them.

However, Ms. Nunes' submitted no bills, treatment recommendations, treatment plans, clinical notes or records of clinics or health care providers or reports from any health care professional to St. Paul since her initial treatment, and she did not introduce at the hearing any further documentary evidence of continuing treatment since her initial physiotherapy in 1998. I do not accept Ms. Nunes' assertion. I find that she did not receive any further treatment for her accident injuries after 1998.

Ms. Nunes retained legal counsel in August 1999 in order to pursue her claim for further accident benefits. She attended five assessments at Profile Evaluations (Profile) between November 1999 and January 2000. The Profile reports and invoices were submitted to St. Paul and introduced as evidence at the hearing ($1,200 for a functional ability assessment, $1,800 for a psychological assessment, $1,100 for an attendant care assessment, $800 for a housekeeping assessment, $900 for a work-site assessment).

At the time of the Profile assessments, Ms. Nunes had not undergone any further treatment for her accident injuries, received any further treatment recommendations from a health practitioner or submitted any further accident benefit claims to St. Paul. On this evidence, I find that Ms. Nunes had recovered from her accident injuries at the time of the Profile assessments. Therefore, she had no need to seek a functional ability assessment.

Ms. Nunes did not testify that she had psychological problems as a result of the accident. There is no suggestion in any health care evidence that she suffered psychological or emotional problems or needed counselling, as recommended in Profile's psychological assessment.

Ms. Nunes gave no evidence that she required help to dress and undress, apply make-up, bathe herself, clean the bathroom and bedroom and do laundry, as reported in the attendant care assessment. Neither her family doctor or any other health care practitioner lend support to Profile's recommendations that she needed assistance with these functions.

Ms. Nunes reduced her job hours and stopped working due to her work-related hand injuries. She had no potential claim for income replacement benefits and Profile's work-site assessment did not serve a purpose.

Ms. Nunes' evidence is that her husband helped with any household chores. She never paid or sought housekeeping. Ms. Nunes had no need for the homemaking assistance as a result of the accident.

I find that at the time Ms. Nunes underwent these assessments, they were not intended to establish a useful treatment plan, were not useful for her rehabilitation and were not otherwise useful in respect of some income replacement benefits or any other potential claim for accident benefits.⁶ Therefore, I find that these assessments were not reasonable expenses for the purpose of the Regulation,⁷ as required by section 24 of the Schedule.

Special award:

St. Paul admits that it did not respond to Ms. Nunes' claims for payment of the Profile assessments. Ms. Nunes claims a special award based on St. Paul's failure to respond to these claims under subsection 282(10) of the Insurance Act. An arbitrator can make a special award against an insurer where it is found that payment of benefits has been unreasonably delayed or withheld.

While St. Paul's complete failure to respond to the claims in 1999/2000 concern me, the company's inaction appears predicated on its closure of the file following Ms. Nunes signing a release in 1998. By the time that the Court of Appeal decisions changed the validity of the release and St. Paul no longer relied on the document, the Profile assessments had been mediated and reached arbitration.

Not only has Ms. Nunes been totally unsuccessful in obtaining the prerequisite award of benefits in order to form a basis for the special award, but in my view St. Paul acted reasonably in relying on the release. While I venture that altogether ignoring her claims is not in keeping with best claims practices, I find that Ms. Nunes is not entitled to a special award.

EXPENSES:

The parties may apply for an assessment of the expenses in 30 days if they cannot agree.

August 15, 2001

Fred Sampliner Arbitrator

Date