Neutral Citation: 2002 ONFSCDRS 120
FSCO A01-001016
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JORDAN FOSTER
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
David Muir
Heard:
May 21 and 22, 2002, at the offices of the Financial Services Commission of Ontario
Written submissions were received on May 31 and June 7, with reply submissions received on June 14, 2002.
Appearances:
Brian Sherman for Mr. Foster
Grant R. Dow for Allstate Insurance Company of Canada
Issues:
The Applicant, Jordan Foster, was injured in a motor vehicle accident on October 15, 1999. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Foster applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The proceedings were recorded by a court reporter. The cross-examination of Mr. Foster was produced by Allstate. The transcript appeared to contain errors and, in deciding the issues in this case, no reference was made to it.
The issues in this hearing are:
Is Mr. Foster entitled to receive a medical benefit for treatment provided by Health Assist Clinic, claimed pursuant to section 14 of the Schedule?
Is Mr. Foster entitled to payments for the cost of examinations conducted by Health Assist Clinic, claimed pursuant to section 24 of the Schedule?
Is Allstate liable to pay Mr. Foster's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Foster liable to pay Allstate's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Foster entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mr. Foster is entitled to medical benefits as follows: $30 for adhesive pads, and $600 for massage provided by Health Assist Clinic pursuant to section 14 of the Schedule.
Mr. Foster is entitled to a payment of $41.67 for the cost of an examination conducted by Health Assist Clinic, claimed pursuant to section 24 of the Schedule?
Allstate is not liable to pay Mr. Foster's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Mr. Foster is not liable to pay Allstate's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Mr. Foster is entitled to interest pursuant to section 46(2) of the Schedule on the amounts found to be owing to him as set out above .
EVIDENCE AND ANALYSIS:
Background:
Mr. Foster was a 22-year-old man at the time of the motor vehicle accident. He was not employed at the time; however, he was a near Olympic-class sprinter and trained for roughly four hours per day five to six days per week. His other pre-accident activities included sharing the housekeeping tasks with his girlfriend with whom he lived in a two-bedroom condominium apartment in the west end of Toronto.
As a direct result of the accident, Mr. Foster suffered a myofascial cervical spine and shoulder strains and sprains. Mr. Foster saw his family physician, Dr. M. Schacter, who prescribed pain relievers and recommended physiotherapy. Mr. Foster later developed some low back pain which, for reasons set out below, I find may have been as a result of the motor vehicle accident as well.
Mr. Foster attended at the Health Assist Clinic on or about October 20, 1999. He was assessed there by Dr. John Hui, a chiropractor. Dr. Hui prepared a treatment plan which was submitted to and not accepted by Allstate. This claim was assessed by a Med-Rehab DAC in January 2000. The therapy at issue was completed by the time of the DAC. Mr. Foster discharged himself on Monday, November 22, 1999.
The Med-Rehab DAC concluded that the treatment provided by the clinic was reasonable and necessary. The dispute between the parties concerns the cost of the services provided to Mr. Foster.
As part of the services provided to Mr. Foster, the clinic had conducted an in-home assessment of his ability to undertake his household duties and a functional capacities evaluation (FCE). Allstate paid $750 on account of the FCE, billed at $1,200 by Health Assist, and nothing towards the expense of the in-home assessment. These items were commented on by the Med-Rehab DAC, although the parties were agreed that the DAC had no jurisdiction to do so at the time. In addition to these disputed assessments, various other reports and assessments included in the global Health Assist account are claimed by Mr. Foster pursuant to section 24 of the Schedule.
As will be seen below, there are significant gaps in the evidence brought by Mr. Foster in support of his claim. No one who attended to Mr. Foster's physical therapy testified on his behalf — the treatment providers had all left the clinic and were not summonsed to the hearing. As well, Mr. Foster was unable to produce the clinic's active therapy log — the daily record of his treatment at the clinic, among other documents which were not available at the hearing. Ms. Christine Tanco, the clinic's administrator testified that parts of the file were missing and it was likely that the active therapy log and other documents were lost when material was stored during a renovation of Health Assist facilities. Mr. Foster gave evidence of the treatment that he received in October and November 1999; however , I am unable to give that evidence much credit for reasons which I set out below.
The failure to produce documents such as the active therapy log, a decoded OHIP summary and other documents gave rise to a motion to dismiss the arbitration, brought by Allstate. I declined to dismiss the arbitration for the non-production of the various documents and ruled that the arbitration would proceed despite the failure to produce the documents in question. I further ruled that I would entertain submissions from Allstate in argument about what inferences, if any, ought to be drawn because of Mr. Foster's failure to produce the documents in question.
Throughout the arbitration and in its written submissions at the end of the hearing, Allstate repeatedly called upon me to find that the Health Assist Clinic had been deceitful in various ways, in part, as a result of its failures to produce various documents in a timely fashion, despite repeated requests. In my view, the evidence establishes that the most significant material was not produced because it had been lost. This is unfortunate, most particularly for Mr. Foster's case, but these things do happen. As I indicated to counsel at the outset of the hearing, sometimes non-production by a party means that there is little or no case to respond to. In the end, the inability of Health Assist to provide supporting documentation and direct evidence of the treatment regime provided to Mr. Foster seriously weakened his position. I will have more to say about the weaknesses in Mr. Foster's case when considering the parties' requests for expenses.
In written submissions at the conclusion of the hearing, Allstate asked that I "reduce the amount that should be payable for the treatment received." I understood this submission to be that I ought to conclude on the basis of the evidence, that Allstate had overpaid for items that it has paid, whether Mr. Foster is disputing them or not and, in effect, credit Allstate for such overpayments against any amounts that I find Allstate is required to pay. I am not prepared to do so in these circumstances. I am not sure whether I am entitled to do so even if persuaded that it was appropriate in the circumstances. Section 47(2) of Schedule imposes notice requirements when an insurer seeks the repayment of a benefit. The notice requirements of the Schedule have not been complied with by Allstate.
Even if section 47(2) is not applicable to these circumstances I am concerned that this issue arose only in written submissions at the conclusion of the hearing. The pre-hearing letter does not indicate that Allstate was seeking a repayment of any benefits paid. Allstate did not make clear at the outset of the hearing that this was the approach that it was going to take. To my mind, if a party intends to seek what amounts to a repayment of a benefit, that issue must be dealt with in a manner consistent with the dispute resolution process. In any event, a claim for repayment or a credit for an overpayment against a found entitlement ought to be made explicit at the beginning of the hearing at the latest, and not raised first in submissions at the conclusion of the hearing. Accordingly, I have not revisited items already paid for by the Insurer except to credit it where it appears that there has been a duplication in the billing or an inappropriate stacking of fees.
The treatment issues:
Below is a synopsis of the invoice for treatments at issue in this arbitration (not including assessments, reports etc.):
Physical Therapies ( October 20, 22, 25, 26, 27 and 29, 1999)
$ 510.00
Soft Tissue Therapies ( October 20, 22, 25, 26, 27 and 29, 1999)
$ 425.00
Functional Restoration (Weeks of November 1, 8, 15, 22, 1999)
$3,000.00
In addition, the clinic billed for chiropractic adjustments which have been paid. Of the total of these figures ($3, 935) Allstate paid, pursuant to the assessment of Ms. Arlene Krochmalnek, $1,200 based on $60 per session multiplied by 20. This aspect of the dispute between the parties is about how much more of this total should be paid by Allstate. I note at this point that Ms. Krochmalnek's assessment did not include a fee for the massage provided to Mr. Foster, for which no payment has been made.
Mr. Foster testified that he received treatment from the clinic from October 20 to November 22, 1999, when he concluded he was recovered and discharged himself. Mr. Foster testified that the treatment included chiropractic manipulations for about 20 minutes, massage for about 30 minutes, active therapies such as "cardio" workouts on a treadmill for about 30 minutes, stretches for about 30 minutes, and weight work for a further 30 minutes. Mr. Foster testified that this whole course of therapy would take two or more hours per day. He testified that he attended three to four days a week. He testified that he was being supervised by an attendant for the whole time he was in the clinic. He testified as well that the treatment program was essentially the same from beginning to end, changing only in the intensity of the exercises.
This testimony, as it relates to the amount of time these therapy sessions took, is in marked contrast to statements made by (or attributed to) Mr. Foster at the time of, or shortly after, the treatments were administered.
Ms. Krochmalnek testified at the hearing that Mr. Foster told her that the whole treatment regimen at the clinic took about one hour — 30 minutes for massage and 30 minutes for everything else. Her report records the following:
Each treatment consisted of: massage; chiropractic adjustments to the neck; electrical stimulation to the neck and left scapula; and exercises. His exercises included: stretches of the neck, arm, and upper back; cardiovascular exercise;
resisted exercise for the shoulder rotators. Each treatment was of about one hour's duration, with the exercise component taking about fifteen minutes.
While conceding that the length of time to implement this program seemed quite short, Ms. Krochmalnek testified that she would have enquired further of Mr. Foster, consistent with her invariable practice, to ensure that what was being said by the insured person was accurate.
The notes of the adjuster with carriage of the file were placed in evidence. These notes indicate that Mr. Foster reported to the adjuster that he attended at the clinic 4 to 5 times per week and that the sessions lasted about 45 minutes. In a written statement by Mr. Foster, obtained by Allstate shortly after treatments started at the clinic, he wrote that the treatments took about one hour.
As indicated earlier, the active therapy log was not produced. This document may well have provided a more comprehensive indication of when and for how long Mr. Foster attended at Health Assist's premises. I accept the evidence of Ms. Tanco that it may have been lost, but the fact remains that Mr. Foster was unable to produce a key document that may have assisted in resolving the dispute about the length of time he spent in therapy.
Mr. Foster's evidence is also at odds with the indirect evidence from the treatment provider regarding the changing nature of the treatment program it provided. The clinic's invoice indicates that there were two distinct periods of treatment — from October 20 to November 1 when the treatments are invoiced as Physical Therapies, Soft Tissue Therapy in addition to chiropractic; and then from November 1 onwards when the invoice indicates that the treatments provided were Functional Restoration — a program billed on a weekly basis ($750/week) — as well as chiropractic. Dr. D. Sheppard, the current clinic director, and Ms. Joanne Georgas, neither of whom worked in the clinic at the time that Mr. Foster was being treated there, both gave evidence about the various programs of treatment that Health Assist's invoice indicates were administered to Mr. Foster.
I am unable to give much weight to Mr. Foster's evidence given at the hearing about the length of time he spent in treatment at the clinic each day. Mr. Foster was unable to square what he recorded in his written statement and what he told Ms. Krochmalnek and Allstate, with his testimony at the hearing. Although he insisted that his estimate of the length of his treatments given at the hearing was more accurate than those given at the time or shortly after the treatment was provided, he offered no credible explanation for why this would be so.
Mr. Foster appeared to have little recollection of events in October and November 1999 and said so when he found himself in difficulty. As a result, his recollection of the course of events was malleable. For example, in his examination-in-chief, he testified that he began to experience back pain about a week after the treatments at Health Assist began. This is consistent with other evidence including some treatment notes of the clinic which were produced. However, on cross-examination, he testified that his complaints of back pain began after November 8, 1999. He also testified that for a time he was completely unable to perform his pre-accident household duties. But in the contemporaneous OCF-12 (Activities of Normal Life form) he indicated that he was, at worst, partly able to perform his usual household tasks. His explanation for this discrepancy was not convincing. I find that Mr. Foster's recollection of events as they occurred in the fall of 1999 is not reliable and I place no weight on his testimony except where it is supported by other evidence.
Largely because I cannot rely upon Mr. Foster's evidence concerning the treatment he received from Health Assist, I find that the treatment regimen provided by Health Assist took approximately one hour, including 30 minutes of massage treatments, as set out in the report of Ms. Krochmalnek.
I also find that despite the Health Assist invoice which includes charges for various categories of treatment, Mr. Foster's treatment regimen was essentially unchanged from beginning to end and was as reported in Ms. Krochmalnek's assessment (set out above). I accept the evidence of Mr. Foster in this regard because it is consistent with what he told assessors, in particular Ms. Krochmalnek, at or shortly after he began treatment.
Cost of Treatments:
There remains an issue concerning the appropriate fees for the services provided to Mr. Foster. Mr. Foster submits that I ought to order Allstate to pay the rates established by Health Assist, which are generally in excess of the Ontario Chiropractic Association (OCA) Recommended Service Codes and Fee Schedules. The Service Codes and Fee Schedules (fee guidelines) are recommended and not binding on a service provider. The evidence of Ms. Tanco and Dr. Sheppard was that the billing structure of the clinic was not based on the particular modalities or treatments provided to a patient but were fees based on the average cost of the range of services encompassed in the clinic's designations such as "physical therapies" or "soft tissue therapies" etc. Dr. Bruce Makos, a chiropractor, retained by Allstate to comment on the cost of the treatment program provided to Mr. Foster, testified that such a billing approach was unfair to the payor —whoever that was — in that the cost of the treatment bore no relationship to the treatment actually provided. I am inclined to agree with Dr. Makos.
In addition to such considerations, acceptance of the fees for the services billed by Health Assist assumes that the services as invoiced were provided. I have found, despite the evidence of Dr. Sheppard and Ms. Georgas about what those invoiced treatment modalities ought to have included, that the program of treatment was the same from beginning to end and was as set out in Ms. Krochmalnek's report.
Mr. Foster also argued that the OCA fee guidelines were too low for a clinic such as Health Assist operating in the greater Toronto area — that is, the hourly rate relied on by Ms. Krochmalnek was unreasonably low ($30 per 15-minute unit). Some limited evidence was led through Dr. Sheppard and Ms. Georgas about the facilities of the clinic and the services offered there however, there was no connection made between this evidence and the treatment of Mr. Foster. I find that the evidence offered by Mr. Foster is insufficient to support higher fees than those assessed by the Med-Rehab DAC.
Accordingly, I can find no basis for disagreeing with the assessment of Ms. Krochmalnek that an appropriate fee for those services was $30 for each 15-minute session or $60 for the modalities and passive therapies administered.
I do agree with Mr. Foster's submission that Allstate has paid nothing for massage treatments provided by Health Assist. Ms. Krochmalnek testified that she made no comment on massage as it is not physiotherapy and not within her area of assessment. Mr. Foster submitted that the Med-Rehab DAC concluded that the treatment plan was reasonable and necessary, and as it included a component of massage, there ought to be payment for that treatment.
Ms. Tanco testified that the massage therapist who worked on Mr. Foster was not a registered massage therapist. Dr. Makos, in his report, stated that the fee for massage, if administered by a registered massage therapist could reasonably be as much as $65 per hour. He does not say explicitly what a reasonable fee might be in the event that the person was not registered in Ontario. I find that a fee of $15 per 15 minutes of massage or $30 per half-hour of massage treatment was reasonable in the circumstances. Following my finding that Mr. Foster received 30 minutes of massage on each of his 20 visits, he is entitled to $600 for massage treatments.
Another outstanding treatment issue is the charge of $30 for adhesive electrodes. Dr. Makos testified that this was a reasonable expense if the pads were for the exclusive use of Mr. Foster over the course of a program of electrical therapies. I find that there were adhesive electrodes provided for the exclusive use of Mr. Foster during the course of his therapies and accordingly this expense was reasonable.
The section 24 claims:
There are a number of items claimed under section 24 of the Schedule.
Health Assist caused an FCE to be performed on October 27, 1999. Allstate paid $750 of the $1,200 billed for this assessment. Mr. Foster seeks the remainder.
The assessor was not called to give evidence. In the report, Mr. Foster is reported as saying that his pre-accident activities of daily living (ADLs) included shovelling snow, mowing lawns, grocery shopping, driving and household-cleaning responsibilities such as dusting, bed making, vacuuming and taking out the garbage and that he was able to perform these tasks, some of them with difficulty. This corresponds to some degree with the OCF-12 completed and signed by Mr. Foster on November 1, 1999 which indicated in respect of many of these activities that he could "partially" perform them.
There is no direct evidence of why this report was commissioned. A referral note on Health Assist letterhead checks off a number or services and assessments including this one. It is signed and dated by Dr. Schacter, Mr. Foster's family physician, on November 8, 1999, well after the assessment was conducted. Dr. Sheppard testified that these reports are sometimes used to create a baseline for assessment of a client's treatment needs as they progress. I accept Dr. Sheppard's evidence although that is not what occurred here. Mr. Foster's treatment regime was essentially unchanged from beginning to end.
The report is flawed however — it indicates that Mr. Foster lives in a three-storey house with four other people, whereas Mr. Foster appears to have lived in a one-storey condominium apartment with his girlfriend. It also makes no mention of Mr. Foster's predominate pre-accident ADL — training a minimum of four hours per day. In addition, it is not clear why, given Mr. Foster's condition, Health Assist thought it necessary to conduct this assessment together with an in-home assessment, since they cover much the same ground. In all of these circumstances, I see no reason to require Allstate to pay more than it has for this report.
Mr. Foster also seeks payment of the $1,200 billed by Health Assist for the in-home assessment conducted on November 10, 1999.
As with the FCE, there is very limited evidence of why this report was commissioned. It is included in the items on the referral note signed by Dr. Schacter on November 8, 1999. Ms Kim Schrattner, who performed this assessment, testified at the hearing but had no specific recollection of this case. She did not know why this particular assessment was conducted. Ms. Schrattner testified that she was a certified kinesiologist, that the assessment would have included a visit to Mr. Foster's home where she would spend 1.5 to 2 hours interviewing him, and, in this instance, likely observe him performing his household duties. Ms. Schrattner testified that for such an assessment she would have billed between $100 and $150 inclusive of her expenses.
Ms. Schrattner, in her report, concluded that Mr. Foster required assistance with laundry, bed making, ironing, meal preparation, dish washing, shopping, kitchen and bathroom cleaning, lawn mowing, floor vacuuming and garbage removal. In respect of each of these tasks, the following comment is made — "Client (sic) significant low back pains, and is unable to perform task. Movement increases his pain." Mr. Foster testified at the hearing that he needed housekeeping assistance for a period of time because he could nor perform these tasks as a result of his injuries including low back pain. I note that the earlier FCE (discussed above) indicates that Mr. Foster was reporting significant low back pain although it is not clear how that affected his level of function. Mr. Foster's ability to perform his pre-accident homemaking activities is made somewhat murkier by what he records in an OCF-12 as described above.
Mr. Foster submits that the in-home assessment is a justified section 24 expense as it was related to his claim for housekeeping and home maintenance benefits required at least for a short time, because he was unable to perform those duties due to back pain. On the evidence, it is not clear whether a claim for housekeeping benefits was made. Mr. Foster testified that he made a claim but it was rejected by Allstate. There is no record of such a claim being made to Allstate.
I find that it was not reasonable for Health Assist to have conducted the in-home assessment when it did. I come to this conclusion for the following reasons. Health Assist had just conducted the FCE discussed above and should have had the report by the time Ms. Schrattner conducted her assessment of Mr. Foster. For all of its inadequacies, the report covered much of the same ground and, as it turned out, came to somewhat different conclusions about Mr. Foster's functional abilities. If the FCE is correct (and in respect of Mr. Foster's functional abilities it may have been) there was in fact little need for the in-home assessment. Health Assist ought to have considered this report before commissioning a second one.
Mr. Foster also claims the cost of an initial report for which Health Assist charged $395. Allstate paid $75 for this item. A report dated October 20, 1999 was prepared and sent to Allstate. On the same date Health Assist billed $98 for an initial consultation. Allstate paid this fee as well as $75 for a treatment plan submitted at the same time. The OCA fee guidelines provide for fees of $83.33 to $166.67 (Service Code 1201) for an Initial or Primary Assessment. This is described as follows:
For a new or established patient, shall comprise a full history of the presenting complaint, a detailed inquiry concerning the complaint and detailed examination of the affected part, region or system (more particularly the neuromusculoskelatal system) as required to:
(a) arrive at a diagnosis ( functional or pathological);
(b) complete an appropriate record of findings;
(c) advise the patient on course of treatment;
(d) where appropriate, refer the patient for other health care.
The large majority of first assessments will be "Initial or Primary assessments."
Mr. Foster submits that what Health Assist did in this case was to combine the fees associated with service code 1201, set out above, with 1202 (an Extended Assessment) and 1407, (Detailed Case Report). An Extended Assessment is described as one where a detailed examination of more than one system is required or where the complaint is complicated or requires significantly more time than the norm. A detailed case report is just that, a detailed report of the case created at the request of the client or a third party.
Mr. Foster's submission in this regard is pure speculation. There is no evidence that Health Assist stacked the fees to come up with the charges made. Moreover, even if the Guidelines (in respect of the 1200 service codes) contemplate that kind of stacking of assessments and associated fees, a proposition I doubt, there is no evidence to support the conclusion that the initial assessment was anything more than routine, in which case Service Code 1201 is the most appropriate. I note as well that the description of service code 1407 includes in the fee for that service the time spent in information gathering and review as well as report writing. Given that Health Assist had already charged for an initial assessment and a treatment plan, it hardly seems reasonable to charge an extra $250 to reproduce the same information in another format, i.e., a report. I find that Allstate has already paid enough toward the reasonable expenses of an initial assessment and report on Mr. Foster's condition when he arrived for treatment on or about October 20, 1999.
A claim is also advanced for $395 for a November 22, 1999, Progress Assessment Report. Mr. Foster produced notes of an assessment conducted on that date. However no report was produced. I find that no report was made and that the invoiced amount was entirely inappropriate. Mr. Foster essentially abandoned the original claim for the invoiced amount over the course of the hearing and suggested in submissions that service code 1205 — Re-assessment — might be appropriate. Allstate agreed with that submission. I find that Mr. Foster is entitled to be reimbursed $41.67 for that item in accordance with the OCA fee guidelines.
Mr. Foster also claims the $250 charged by the clinic for a DAC report review. This charge was invoiced on February 11, 2000. Mr. Foster discharged himself from therapy on November 22, 1999. There is no evidence that such a review took place; no report or notes were produced; and no witness gave evidence of what such a review would have entailed or why it was undertaken several months after Mr. Foster had discharged himself from therapy. In the circumstances, I find that Mr. Foster is not entitled to this expense pursuant to either of section 14 or section 24 of the Schedule.
EXPENSES:
Both parties seek their expenses of the arbitration.
An arbitrator has the authority, pursuant to section 282(11) of the Insurance Act, to award expenses to an insured person or an insurer subject to criteria set out in the regulations. The criteria that arbitrators have considered are enumerated in subsection 12(2) of Regulation 664, R.R.O. 1990, as amended. Not specifically listed in the Regulation, but in any event a factor that arbitrators invariably consider when an insurer seeks their expenses from an applicant, is the need to ensure that impecunious insured persons are not deterred in seeking to affirm their entitlement to benefits for fear of the "cost consequences." Accordingly, the expense award "following the event" is not the norm at the Commission.
Considering the factors appropriate to this question, I find that the parties should bear their own expenses. I make this finding for the following reasons. In the normal course, given Mr. Foster's level of success, he would be entitled to an award of his expenses. I find that he is not entitled for essentially two reasons — his evidence at the hearing was singularly unhelpful in resolving the issues in dispute and, as I found above, it ought to be given little or no weight except where confirmed by other evidence. Even more profoundly unfavourable for Mr. Foster's case was the inability of the treatment provider, whose account for Mr. Foster's treatment was at stake, to provide anything other than limited, indirect and largely unhelpful evidence in support of Mr. Foster's claims.
Given the passage of time since the brief course of treatment provided to Mr. Foster, it is not entirely surprising that he recalls little of the details of the treatments provided to him in the fall of 1999. However, the sloppy record keeping of Health Assist which resulted in its loss of documents, as well as the inability of the clinic to provide a person who actually treated Mr. Foster, was fatal to his case. As a result of these deficiencies, Mr. Foster was not very successful in proving his claims. More importantly, the fact that this was a likely outcome ought to have been apparent before the hearing began.
In its closing submissions Allstate indicated that it sought "directions" as to filing a motion to recover its expenses from the Health Assist clinic pursuant to the principles enunciated in Gurevich and Royal and Sun Alliance (FSCO A01-000936, April 29, 2002). As I have found that the parties ought to bear their own expenses in this matter, the issues raised by Allstate's submission are moot.
August 6, 2002
David Muir
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 120
FSCO A01-001016
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JORDAN FOSTER
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Allstate shall pay Mr. Foster a medical benefits as follows: $30 for adhesive pads, and $600 for massage, provided by Health Assist Clinic pursuant to section 14 of the Schedule.
Allstate shall pay Mr. Foster $41.67 for the cost of examinations conducted by Health Assist Clinic, pursuant to section 24 of the Schedule.
Allstate shall pay Mr. Foster, pursuant to section 46(2) of the Schedule, interest on the amounts found to be owing to him and set out above.
Neither party is entitled to an expense order.
August 6, 2002
David Muir
Arbitrator
Date
Footnotes
- The 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.