Neutral Citation: 2001 ONFSCDRS 5
FSCO A98-001087
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BAKO JOHNSON
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
SUPPLEMENTAL DECISION
Before:
Fred Sampliner
Heard:
September 7, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Thomas Wolf Zwiebel for Mr. Johnson
Todd J. McCarthy for Allstate Insurance Company of Canada
Issues:
Mr. Bako Johnson's claims for benefits under the Schedule1 arising from his July 15, 1997 motor vehicle accident resulted in an arbitration hearing being held under the authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended. Allstate Insurance Company of Canada (Allstate) applied to the Director of Arbitrations to vary or revoke the portion of my April 27, 2000 decision, wherein I ordered the company to pay Mr. Johnson for his physiotherapy treatment at the Professional Centre For Rehabilitation (PCR) plus interest on the overdue benefits. The Director of Arbitrations appointed me to decide this Application for Variation/Revocation.
The issues are:
Is Mr. Johnson barred under subsection 43(3) of the Schedule from receiving benefits for his physiotherapy treatment at PCR because he failed to make himself available for examination at the Designated Assessment Centre?
Is Mr. Johnson entitled to interest under section 46 of the Schedule on the physiotherapy treatment that he received at PCR?
Result:
Mr. Johnson's failure to make himself reasonably available for examination at the Designated Assessment Centre occurred after his treatment at PCR concluded, and he is not barred under subsection 43(3) of the Schedule from receiving benefits for his physiotherapy expenses.
Mr. Johnson is entitled to interest on the physiotherapy treatment at PCR under section 46 of the Schedule.
EVIDENCE AND ANALYSIS:
Mr. Bako Johnson attended 23 physiotherapy sessions at PCR between October 21 and December 8, 1997. PCR discharged him on December 15, 1997. On November 24, 1997, Allstate received PCR's treatment plan for Mr. Johnson, and an estimate of the cost. In a December 1, 1997 fax to Mr. Johnson's counsel, Allstate denied coverage for this treatment expense and requested that he sign an authorization2 to schedule an examination of his treatment needs at a Designated Assessment Centre (DAC). Mr. Johnson apparently signed the appropriate forms in April 1998, and the DAC assessment was then set for May 1998.
Mr. Johnson did not attend the May 1998 DAC examination. Allstate arranged taxi service to transport Mr. Johnson to the DAC examination on three occasions that month. The taxi driver reported to the DAC that Mr. Johnson refused to get into the car because it was 10 minutes late. His examination was rescheduled two more times in May, but the taxi driver indicated that Mr. Johnson did not come down from his apartment either time. Mr. Johnson testified at the hearing that the taxis never arrived. In November 1998, he finally attended the DAC examination.
Allstate argues that Mr. Johnson's delay in failing to sign the authorizations and three missed DAC appointments constitute a failure to make himself reasonably available for examination at the DAC, relying on subsection 43(3) of the Schedule:
(3) If an insured person does not make himself or herself reasonably available for an assessment or fails to comply with subsection (2),
(a) the insurer may stop payment of the benefit related to the assessment until the person submits to the assessment or complies with subsection (2), after which time the insurer shall resume payment of the benefit; and
(b) no benefit is payable for the period after the insured person failed to make himself or herself reasonably available or failed to comply with subsection (2) and before the insured person makes himself or herself reasonably available and complies with subsection 2. [Emphasis added]
I accept that the insured person's statutory obligation includes providing the DAC examiners with appropriate authorizations to obtain his/her health care records, as well as attending examinations. The exclusion applies unless the insured person has a reasonable excuse.3
Indicating the time-limited nature of this exclusion, the drafters specifically set out the qualifying events for its commencement and termination, unlike the general exclusions respecting income replacement benefits in Part IX of the Schedule where the drafters did not see fit to limit the operative time period for the exclusion. With the legislative intent clearly set out, it is my view that subsection 43(3) excludes benefits only during the time specific period the insured person fails to be reasonably available.
Mr. Johnson's counsel did not argue that his client made himself reasonably available or that he had a reasonable excuse. In fact, he conceded that Mr. Johnson delayed the DAC process. The fact that Mr. Johnson did not submit the signed authorizations for over four months and failed to attend three scheduled examinations convinces me that he did not intend to cooperate by making himself reasonably available for the examination process.
However, I am not convinced that Mr. Johnson's failure to make himself reasonably available commenced on the day his counsel received the notice from Allstate. In my view, an insured person should be entitled to a reasonable period after receiving a request in order to review the matter before responding. Inaction during a short time after the person receives notice should not necessarily be considered failing to comply.
There is a relatively short time-frame between the December 1, 1997 notice to Mr. Johnson's lawyer and PCR's last treatment on December 8, 1997. It is not unreasonable that Mr. Johnson did not respond during this one-week period. Consequently, I find that he did not fail to make himself reasonably available until after the conclusion of his treatment at PCR. Thus, subsection 43(3) of the Schedule does not apply, and I find that Mr. Johnson is not excluded from receiving benefits for his treatment expenses at PCR.
Allstate's further argument is that because Mr. Johnson delayed the DAC process, he should not receive interest on the benefits for his physiotherapy treatment at PCR. The Schedule specifically requires insurance companies to pay interest on treatment expenses when they become overdue, 30 days after the insurer receives the invoice.4
The purpose of the compound two