Neutral Citation: 2002 ONFSCDRS 104

FSCO A01-000684

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TATIANA MARTINOV

Applicant

and

PRIMMUM INSURANCE COMPANY (FORMERLY CANADA LIFE CASUALTY)

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Catherine Skinner

Heard:

May 22, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Vadim Malyshev for Ms. Martinov

Jamie Pollack for Primmum Insurance Company

Issues:

The Applicant, Tatiana Martinov, was injured in a motor vehicle accident on February 21, 1999. She applied for and received certain statutory accident benefits from Primmum Insurance Co. (formerly Canada Life Casualty) ("Primmum"), payable under the Schedule.¹ Primmum denied payment of specific medical benefits claimed under section 14 of the Schedule in relation to treatment expenses incurred at Universal Injury Rehabilitation Centre Inc. ("Universal"), and for the costs of examinations claimed under section 24 of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Martinov applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Is Ms. Martinov precluded from proceeding to arbitration pursuant to section 50 of the Schedule as a result of her failure to attend an insurer's medical examination and a medical rehabilitation Designated Assessment Centre appointment?

Result:

1. Ms. Martinov is precluded from proceeding to arbitration on the issue of her entitlement to medical benefits claimed pursuant to section 14 of the Schedule in relation to treatments received at Universal from April 5, 1999 to June 16, 1999.

2. Ms. Martinov is not precluded from proceeding to arbitration on the issue of her entitlement to payment of the costs of examinations claimed pursuant to section 24 of the Schedule.

EVIDENCE AND ANALYSIS:

Facts:

The facts in this case are set out in the parties' documentary briefs. Ms. Martinov did not attend at the hearing and there was no viva voce testimony given. I make the following findings of fact:

Ms. Martinov was injured in a motor vehicle accident on February 21, 1999. Initially, Ms. Martinov received treatments from Integrated Health Recovery. The cost of these treatments is not at issue in this arbitration proceeding.

On April 4, 1999, Ms. Martinov attended at Universal for an initial assessment. Ms. Martinov received treatments at Universal throughout the month of April 1999. On April 27, 1999, Ms. Martinov submitted two treatment plans to Primmum. The treatment plans were dated February 21, 1999 and April 7, 1999 and both were prepared by Universal. Although the first treatment plan is dated February 21, 1999, I find that this date is a typographical error as the accident occurred on February 21, 1999 and Ms. Martinov did not attend at Universal until April 4, 1999.

The treatment plan dated February 21, 1999 describes the treatment to be received as a 10-week pain management and exercise program at a total cost of $3,600. The treatment plan dated April 7, 1999 recommends five weeks of massage at a total cost of $960.

Based on Universal's invoices, I find that Ms. Martinov's treatment at Universal began on April 5 and ended on June 16, 1999. The invoices do not clarify what specific treatment Ms. Martinov was receiving on each of these occasions, although they indicate that she received massage treatments at Universal from April 5 to May 7, 1999.

Upon receipt of the two treatment plans on April 27, 1999, Primmum wrote to Ms. Martinov on April 30, 1999 indicating that it was not approving the treatment plans and that it was arranging a Medical Rehabilitation Designated Assessment Centre ("DAC") assessment to determine the reasonableness and necessity of the treatments contemplated in the plans, as required under subsection 38(12) of the Schedule. On May 20, 1999, the Multi Disciplinary Assessment Centre wrote to Mr. Malyshev, Ms. Martinov's representative, advising of the appointments which had been set up for Ms. Martinov on June 3 and June 7, 1999. On May 28, 1999, Mr. Malyshev wrote to Primmum as follows:" Please be advised that due to our client's instructions [sic] Treatment Plan with respect to our client is withdrawn. Therefore kindly cancel DAC assessment scheduled for our client on June 3, 1999 and June 7, 1999."

Ms. Martinov did not attend at the DAC assessments scheduled for June 3 and June 7, 1999. Ms. Martinov was involved in a second motor vehicle accident on May 3, 1999. Ms. Martinov continued to receive treatment at Universal after that date.

In August 1999, Primmum set up an insurer's in-home assessment pursuant to section 42 of the Schedule. The purpose of the in-home assessment was to determine Ms. Martinov's entitlement to housekeeping and caregiving expenses. On August 17, 1999, the scheduled date of the in-home assessment, Ms. Martinov cancelled the appointment. No explanation was given for the cancellation.

On December 15, 2000, Ms. Martinov applied for mediation at the Commission in respect of her claim for medical benefits for treatment expenses incurred at Universal, section 24 expenses and other claims for benefits under the Schedule. On May 23, 2001, Ms. Martinov applied for arbitration in relation to her claim for medical benefits for treatment expenses incurred at Universal and section 24 expenses.

ANALYSIS

Insurer's Position:

Primmum submits that Ms. Martinov should be precluded from proceeding to arbitration because she withdrew the treatment plans by letter dated May 28, 1999 and did not attend at the DAC assessments scheduled for June 3 and 7, 1999, and because she did not make herself reasonably available for the insurer's in-home assessment in August1999. Primmum relies on section 50 of the Schedule which reads in part as follows:

50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,

(b) He or she made himself or herself reasonably available for any examination required by the insurer under section 4; and

(c) he or she made himself or herself reasonably available for any assessment under section 43 and he or she complied with subsection 43(2) in respect of the assessment.

Ms. Martinov's Position:

Treatments relating to the May 3 accident.

Mr. Malyshev provided a breakdown of the amounts at issue in arbitration as follows: $2,200 for physiotherapy and massage therapy treatments received at Universal in relation to Ms. Martinov's first accident on February 21, 1999; $240 for physiotherapy treatments received at Universal in relation to Ms. Martinov's second accident on May 3, 1999; $1,924 for section 24 expenses in relation to the first accident; and $475 for section 24 expenses in relation to the second accident.

Ms. Martinov submits that she should not be precluded from proceeding to arbitration with respect to treatments received as a result of her second accident on May 3, 1999. Her rationale in this regard is that the treatments received as a result of the second accident were not the subject of the treatment plans which were withdrawn and which would have been the subject of the DAC assessments in June. There is no evidence before me on which to distinguish the costs of treatments received as a result of the first accident and those received as a result of the second accident. I note that the treatment plan dated February 21, 1999 calls for 10 weeks of treatment. Since Ms. Martinov first attended at Universal during the first week of April 1999, that 10-week period extends into the middle of June 1999. The Universal invoices indicate that Ms. Martinov in fact received treatments only to the middle of June, as initially recommended. The invoices do not, however, indicate what type of treatments were received or whether such treatments related to injuries sustained in Ms. Martinov's first or second accidents. There was not sufficient evidence introduced to support Ms. Martinov's submission that $240 of the total cost of treatments related to injuries sustained in her second accident and was not included in the two treatment plans.

Section 38(16) of the Schedule.

Ms. Martinov argued that subsection 38(16) of the Schedule requires Primmum to pay for 15 physiotherapy sessions, regardless of her failure to attend the DAC and her withdrawal of the treatment plans. Subsection 38(16) of the Schedule provides as follows:

38. (16) Subject to subsection (14), if the treatment plan contemplates goods or services provided by a chiropractor or physiotherapist, the insurer shall, despite requiring the insured person to be assessed by a designated assessment centre under subsection (12) in respect of those goods or services, pay for all expenses incurred, after submission of the treatment plan, in respect of those goods and services, up to the lesser of the following amounts:

39. The total expenses incurred on behalf of the insured person in respect of the first 15 treatment sessions with a chiropractor or physiotherapist after the accident.

40. The total expenses incurred on behalf of the insured person in respect of all treatment sessions with a chiropractor or physiotherapist within six weeks after the accident.

Having regard to the language of subsection 38(16) and the evidence in this case, I am not persuaded that Primmum is required to pay for the first 15 treatment sessions at Universal Injury.

Subsection 38(16) contemplates that the insurer will be required to pay for a certain number of treatments provided by a physiotherapist or chiropractor. There was no evidence introduced as to the type of treatments which Ms. Martinov received at Universal. The invoices merely indicate that she received "treatments." The treatment plans describe a pain management and exercise program and massage therapy. They do not provide any additional detail regarding what type of therapist would be administering these treatments. The subsection requires the insurer to pay for sessions with a chiropractor or physiotherapist. There is no evidence before me that Ms. Martinov received any treatment from a chiropractor or physiotherapist at Universal.

Subsection 38(16) also requires the insurer to pay the lesser of the cost of the first 15 sessions with the physiotherapist or chiropractor and the total expenses relating to chiropractor or physiotherapy treatments during the first six weeks after the accident. During the first six weeks after the accident, Ms. Martinov was not receiving any treatment at Universal. According to the documents submitted, Ms. Martinov was receiving treatment elsewhere during the first six weeks after the accident. These treatments are not at issue in this arbitration.

Procedural flaws in the DAC:

Ms. Martinov also submits that there were procedural flaws in the arranging of the DAC, that the DAC was therefore never properly set up and that she should therefore not be precluded from proceeding to arbitration for her non-attendance. She submits specifically that she did not sign an OCF-14, Permission to Disclose to a Designated Assessment Centre, which is a pre-requisite to the establishment of a DAC and that there was no disclosure of any conflict of interest that the Designated Assessment Centre has relating to the assessment, as required by subsection 53(2) of the Schedule.

Ms. Martinov bears the onus of proving these procedural flaws on a balance of probabilities. There is no evidence to support her submissions that there were procedural flaws in the setting up of the DAC assessment. Mr. Malyshev's submissions on the Applicant's behalf do not constitute evidence. The documents filed in this hearing do not establish the alleged procedural flaws on a balance of probabilities.

DAC Guidelines:

Ms. Martinov also submits that, in accordance with guidelines existing in 1999, the DAC assessors would have been unable to comment on past treatments and their conclusions would therefore have been irrelevant, because she had concluded her treatment by June 1999. Accordingly, she submits that she should not be precluded from proceeding to arbitration due to her failure to attend a DAC assessment which would have been irrelevant. I can find no support in the DAC guidelines for Ms. Martinov's submission in this regard.

CONCLUSION

Ms. Martinov did not attend the DAC assessments in June 1999 because she had withdrawn the treatment plans which these DAC assessments were to evaluate. It is noteworthy that Ms. Martinov attacked the validity of the DAC assessments but did not offer any explanation as to why she withdrew the treatment plans relating to treatments at Universal and then proceeded to seek mediation on those same treatment plans and treatments. The DAC assessments were required in accordance with subsection 38(2) of the Schedule. Section 50 provides that an applicant will be precluded from applying for mediation if he or she did not make himself reasonably available for a DAC assessment. In this case, I do not find it reasonable that Ms. Martinov withdrew the treatment plans prepared by Universal, thereby obviating the requirement of her attendance at the DAC, and then proceeded to apply for mediation on the cost of the very treatments contemplated in those treatment plans. I find that she did not make herself reasonably available for the DAC assessments.

By operation of section 50 of the Schedule, Ms. Martinov is therefore precluded from proceeding to mediation with respect to the treatments contemplated in the two treatment plans dated February 21, 1999 and April 7, 1999. I am unable to distinguish between the $2,200 which Ms. Martinov submits is related to her first accident, and the $240 which she submits is related to her second accident. Accordingly, I find that Ms. Martinov is precluded from proceeding to arbitration on her claim for medical benefits under section 14 with respect to the cost of treatments incurred at Universal from April 5 to June 16, 1999.

Cost of examinations under section 24:

Ms. Martinov also applied for arbitration with respect to the cost of examinations under section 24 of the Schedule. Primmum submits that she should be precluded from proceeding to arbitration on the section 24 expenses because of her failure to attend at the DAC and the insurer's in-home assessment. Primmum suggests a broad interpretation of section 50 of the Schedule and submits that Ms. Martinov should be precluded from proceeding to arbitration on the section 24 expenses despite these not being subject to the DAC or the insurer's examination assessment process set out in sections 38 and 42 of the Schedule. In response, Ms. Martinov submits that section 50 of the Schedule should be read narrowly and should not be interpreted as precluding her from arbitration on issues that are not subject to DAC assessments or insurer's examinations. In support of her submission, Ms. Martinov referred me to Arbitrator Palmer's decision in Avdalimov² where the arbitrator comments as follows:

It is not my sense of the scheme of the Schedule and the express language of section 50 that an insured person who has not made himself reasonably available for an assessment under section 43 should be barred from mediation for other disputes between him and the insurer unrelated to the section 43 issue... A purposive interpretation of the exclusion in section 50 requires that the exclusion be read narrowly and treated as an inducement to encourage insured persons to attend an examination by a neutral expert that the DACs are mandated to provide.

I agree with Arbitrator Palmer's analysis in this regard. I do not find that section 50 of the Schedule operates to preclude Ms. Martinov from proceeding to arbitration on the section 24 expenses. The Schedule does not contemplate subjecting section 24 expenses to a DAC or an insurer's examination process. Accordingly, Ms. Martinov's failure to attend at the DAC assessments in June 1999 and the insurer's medical examination in August 1999 does not prevent her from proceeding to arbitration on the issue of the section 24 expenses.

Likewise, I find that Ms. Martinov's failure to attend the insurer's medical examination in August 1999 does not preclude her from proceeding to arbitration in this case under section 50 of the Schedule. The insurer's examination related to housekeeping and caregiving expenses, neither of which are claimed in this arbitration and neither of which are related to Ms. Martinov's claims for medical benefits and section 24 expenses.

EXPENSES:

The parties made no submissions with respect to the expenses of this preliminary issue hearing and the issue of expenses is therefore reserved to the arbitrator hearing the main issues in this arbitration.

June 28, 2002

Catherine Skinner

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 104

FSCO A01-000684

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TATIANA MARTINOV

Applicant

and

PRIMMUM INSURANCE CO. (FORMERLY CANADA LIFE CASUALTY)

Insurer

ARBITRATION ORDER

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

1. Ms. Martinov is precluded from proceeding to arbitration on her claim for medical benefits under section 14 of the Schedule in relation to treatment received at Universal from April 5 to June 16, 1999, in accordance with subsection 50(c) of the Schedule.

2. Ms. Martinov may proceed to arbitration on the issue of the section 24 examination expenses.

June 28, 2002

Catherine Skinner

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, 303/98 and 114/00.
2. 2Avdalimov and CGU Insurance Company of Canada (FSCO under appeal A00-000433, May 25, 2001)