Donna Rennato v. State Farm Mutual Automobile Insurance Company, 2002 ONFSCDRS 175

Neutral Citation: 2002 ONFSCDRS 175

FSCO A02-000253

BETWEEN:

DONNA RENNATO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Tanja Wacyk

Heard: August 20, 2002, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were to be received by September 10, 2002.

Appearances:

Phil Bouranov for Ms. Rennato

Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Donna Rennato, was injured in a motor vehicle accident on October 31, 1999. She applied for and received statutory caregiver benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm subsequently terminated benefits. The parties were unable to resolve their disputes through mediation, and Ms. Rennato 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:

Did Ms. Rennato make herself reasonably available for a disability assessment to determine her entitlement to ongoing caregiver benefits?
If not, what are the consequences?

Result:

Ms. Rennato did not make herself reasonably available for a disability assessment to determine her entitlement to ongoing caregiver benefits.
As a result of her failure to make herself reasonable available for a disability assessment, Ms. Rennato is precluded from receiving caregiver benefits from March 27, 2000 onward, until she attends at the North York Rehabilitation Centre for a DAC assessment.
If Ms. Rennato does not attend at the North York Rehabilitation Centre for a DAC assessment at the earliest reasonable date before the Arbitration scheduled for January 2003, she is precluded from pursuing her claim for caregiver benefits at that arbitration.

PRELIMINARY ISSUES:

Prior to the hearing of the merits in the preliminary issue, two matters were raised by Ms. Rennato. The first dealt with State Farm's abandonment of its argument, articulated at the pre-hearing, that Ms. Rennato was precluded from proceeding to arbitration because she had failed to comply with the time limits set out in subsection 51(2) of the Schedule.

The Applicant's agent argued that as he had prepared for that issue, it should be heard.

However, I ruled that as there was no live dispute between the parties on that issue, it was moot and nothing would be gained by litigating it.

The Applicant's Representative also argued the Insurer was precluded from proceeding by section E.1 of The Dispute Resolution Practice Code,² Note 11, which states:

NON-ATTENDANCE AT A DISABILITY DAC

Where a claimant requests a DAC for the purpose of assessing entitlement to weekly benefits but does not attend, the claimant can still apply for mediation at the Commission. If the insurer wants to raise the preliminary question of whether the claimant made him or her/self reasonably available for the assessment, that issue will be mediated along with the other disputes.

In this instance, the mediation occurred before the assessment at issue in this matter was scheduled. Consequently, Ms. Rennato's representative argued that because the issue of her non-attendance had not been mediated, it could not proceed.

However, I held that this provision was simply in place to facilitate the mediation process by making it clear that if the issue of non-compliance had been identified by the parties, the entire matter could still proceed to mediation without a predetermination of the non-compliance issue.

In this instance, as the alleged non-attendance took place after mediation, the first opportunity to raise it was at the pre-hearing and this was done. Consequently, I do not find that section E.1 of Practice Note 11 acts as a bar to this matter proceeding at this time.

HISTORY:

Ms. Rennato received caregiver benefits from December 3, 1999 to February 24, 2000, after which no further caregiver expenses were submitted. Her caregiver benefits were terminated effective March 27, 2000 as a result of an insurer's medical examination. On May 1, 2000, Ms. Rennato requested an assessment by a Designated Assessment Centre (" DAC"), and provided State Farm with a completed OCF-14 on May 4, 2000.

State Farm requested that North York Rehabilitation Centre perform the assessment. The Applicant had been assessed at the same assessment centre in March 2000, regarding certain medical and rehabilitation entitlements.

EVIDENCE:

Janet Seymour

Ms. Seymour, office manager at North York Rehabilitation Centre, testified on behalf of the Insurer. Ms. Seymour had no personal involvement with this matter and her testimony was comprised of information contained within the centre's file on Ms. Rennato.

Ms. Seymour testified that on June 16, 19, and 20, 2000, staff of the Centre left voice messages for Ms. Rennato advising her that June 29 and July 10, 2000 were available for the DAC assessment.

Ms. Rennato did not respond to the messages.

On June 20, 2000, "Marie"³ from Mr. Bouranov's office was also advised of the appointments. At that time, she indicated the parties would be attending a mediation but that she would advise Ms. Rennato and determine if she was available on those dates.

On June 23, 2000, Mr. Bouranov advised that Ms. Rennato would "not show" at the assessment. No notation appeared in the file regarding the reason.

The adjuster was advised of Mr. Bouranov's notice that Ms. Rennato would not be attending, and on June 26, 2000 advised the centre to reschedule the assessment. The assessment was rescheduled for July 19 and 28, 2000, and a letter was sent to both Ms. Rennato and Mr. Bouranov advising of the new dates.⁴

Ms. Seymour testified that on July 13, 2000, Ms. Rennato called and asked why she had to attend the assessment. Apparently Ms. Rennato also indicated she was working, and that she was in pain. Ms. Rennato was advised to contact her representative.

On July 19, 2000, the first day scheduled for Ms. Rennato's assessment, she arrived at 8:50 a.m.— 20 minutes late for her appointment. Ms. Rennato then spoke to Dr. Platnik, who was responsible for conducting her assessment. Following a brief discussion between the Applicant and Dr. Platnik, the receptionist was advised Ms. Rennato would not participate in the assessment as she experienced a lot of pain during her prior assessment at the clinic. It was not known who conveyed this information.

Ms. Rennato's appointment for July 28, 2000 was cancelled and the centre closed its file.

Donna Rennato

Ms. Rennato testified she attended at the Centre on July 19, 2000 with the intention of participating in the assessment. She conceded she arrived about 20 minutes late but indicated this was because she was not feeling well.

On arrival, Ms. Rennato testified that she spoke to Dr. Platnik, and advised him that she was not feeling well. She also advised that the last time she was assessed at the clinic she had experienced pain in her head, neck and back, and had become dizzy on the treadmill. Ms. Rennato also advised Dr. Platnik that she disagreed with elements of the resulting report.

Ms. Rennato testified that she then advised Dr. Platnik that she could not stay as she was not feeling well and was having a panic attack.

In cross-examination, Ms. Rennato conceded she had received some of the telephone messages regarding the initial appointments scheduled for June 29, 2002 and July 10, 2002. She also conceded that she did not respond but pointed out that Mr. Bouranov had advised she would not be attending. According to Ms. Rennato, this refusal pertained only to those dates. Ms. Rennato explained that she had refused to attend because the notices were not in writing and should have been sent to Mr. Bouranov.

Ms. Rennato testified she could not deny calling the centre on July 13 to say she did not want to attend, as she could not recall whether that had occurred or not.

Ms. Rennato testified that after leaving the Centre on July 19, 2000 she proceeded to work. She denied that her refusal to remain for the assessment was related to the fact she was due at work, as her employer was aware she would be late because of the assessment. Rather, she maintained it was because she was not feeling well.

In cross-examination, Ms. Rennato testified, for the first time, that she had asked that the assessment be rescheduled before she left.

Ms. Rennato also testified that she disagreed with elements of the prior assessment conducted by the clinic. While she conceded the experts at the clinic are qualified to give their opinions, she stated that she is not required to agree with them. Ms. Rennato indicated the assessors do not know her and their assessment does not mean anything to her.

Ms. Rennato was directed to three letters sent by Yasmin Nair, the claim representative for State Farm, to Mr. Bouranov and copied to Ms. Rennato. The first letter, dated July 19, 2000, advised that Ms. Rennato had failed to remain for the DAC assessment and indicated a wish to reschedule the assessment. Ms. Nair requested that Mr. Bouranov get in touch with her in order to discuss the matter further.

The next letter, dated October 23, 2000, simply asks that Mr. Bouranov contact Ms. Nair as soon as possible so that Ms. Rennato's Disability DAC could be rescheduled. The letter also notes that Ms. Rennato's caregiver benefits cannot be reinstated until the DAC assessment is completed. The last letter, dated February 21, 2001, indicates that no response had been received regarding Ms. Rennato's DAC assessment and once again asks that Mr. Bouranov contact Ms. Nair and indicate how he wishes to proceed.

Ms. Rennato recalled receiving the letters. She also conceded that neither she nor Mr. Bouranov contacted State Farm to reschedule the DAC assessment. However, Ms. Bouranov indicated this was because at the time, she was suffering from a "psychological" issue. She indicated she continues to suffer from this problem.

Ms. Rennato indicated she was referred to a psychologist shortly after the accident but did not go. However, she did receive some psychological counselling in 2001 from a psychiatrist, Dr. Martin Katzman.

Although not referred to at the hearing, the Applicant's document brief,⁵ addressed by the parties in written submissions, contains a psychiatric report from Dr. Katzman regarding a consultation with Ms. Rennato on October 9, 2001. In that report, Dr. Katzman's diagnosis is one of "Post-Traumatic Stress Disorder"and "Panic Disorder with Agoraphobia" following her motor vehicle accident on October 31, 1999. The recommended treatment is for both medication and a referral for psychotherapy.

The cover note for the report is dated July 16, 2002, and in it Dr. Katzman indicates he is writing "to report on the difficulties experienced by Ms. Rennato during the time period around her DAC assessment in relation to a rather severe Post-Traumatic Stress Disorder which she was (at the time) and with which she continues to suffer." He further states that "because of her difficulties, she was unable to remain at the appointment."

Ms. Rennato testified that neither she nor Mr. Bouranov rescheduled the DAC assessment because she was not feeling well and was not even leaving the house. According to Ms. Rennato, there were no three hours in the last two years during which she was available for the assessment, as she was not feeling well.

In the course of final argument, counsel for the Insurer was advised there was no concession on Ms. Rennato's part regarding her employment status at the time of the DAC assessment.

Consequently, with Ms. Rennato's agreement, the Insurer resumed cross-examination.

At that point, Ms. Rennato conceded that on July 19, 2000, after having left the DAC assessment centre, she proceeded to the TD tower in downtown Toronto where she worked from about 11 a.m. until about 4:30 p.m. She was employed as an administrative assistant at the time.

Ms. Rennato testified that she was on a gradual return-to-work program during that period, and that someone was helping her with her duties. She had begun the return-to-work program in April 2000, working every second day for about three hours, and increasing her work time by one hour per week. She had returned on a full-time basis by August 2000.

However, Ms. Rennato's employment ended in January 2001 and she has been receiving employment insurance since. She refused to provide more information regarding the loss of her employment, indicating there are "legal issues" involved, which she could not discuss.

While Ms. Rennato had also started a business to assist unemployed people with job placement, that business is now dormant. On re-examination, Ms. Rennato testified that she did not have the "energy or inkling" to do anything with her business, and that in fact she had lost money on it.

Mr. Bouranov then showed Ms. Rennato a document dated February 26, 2001. The document was from Mr. Bouranov and addressed to Yasmin Nair. It stated:

Dear Madam:

As per your correspondence dated February 21, 2001 and our previous telephone conversations please find the following.[sic]

We remind you that Ms. Renatto requested to reschedule the Disability DAC at the time of her initial attendance.

Be advised that as of today the new schedule for the above-mentioned assessment has not been received in our office.

Ms. Rennatto testified that she recalled the document. She also indicated there had been no response to the correspondence.

In light of this new and somewhat startling evidence at what can only be described as "the 11^th^ hour" proof, the Insurer was granted an opportunity to call evidence in response.

The Insurer called Jeff Kope, a claims adjuster. Mr. Kope had no personal involvement with Ms. Rennatto's file but testified with regard to its contents.

Mr. Kope testified that all the documents he was aware of regarding the rescheduling of Ms. Rennato's DAC assessment were contained in the Insurer's file — and that he had never seen the letter of February 26, 2001 before the hearing.

Mr. Kope further testified that the log notes do not reflect any telephone conversations regarding rescheduling the DAC, as referred to in the letter. Rather, the last log note in this regard was written by Ms. Nair in June 2001, commenting that there had been no response to her letter of February 21, 2001, referred to earlier, and noting that this had been the third invitation to Ms. Rennato to reschedule the DAC assessment. The file reflects no activity between February 21, 2001, when the letter was sent, and June 2001 when the note was written.

According to Mr. Kope, there was no notation or correspondence of any sort which indicated Ms. Rennato had attempted to reschedule the assessment.

APPLICABLE STATUTORY PROVISIONS:

Subsection 43(3) of the SABS -1996 states:

43(3) If an insured person does not make himself or herself reasonably available for an assessment ...,

(a) the insurer may stop payment of the benefit related to the assessment until the person submits to the assessment..., 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...and before the insured person makes himself or herself reasonably available....

Subsection 50(c) states in part as follows:

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

(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.

ARGUMENT:

Final Argument was made through written submissions.

The Insurer maintained that having requested the DAC assessment, the Applicant had an obligation to make herself reasonably available for such an assessment. The Insurer argued this had not occurred.

The Insurer maintained that if Ms. Rennato was well enough to work on a full-time basis from August 2000 to January 2001, she would have been well enough to attend on two separate dates for a three-hour assessment.

The Insurer also submitted that Ms. Rennato did not respond to any of the three letters from Ms. Nair, attempting to reschedule the DAC assessment. With regard to the letter of February 26, 2001 to Ms. Nair from Mr. Bouranov, the Insurer noted that the letter had not been received by State Farm. The Insurer also relied on the evidence of Mr. Kope to argue there was no independent evidence of discussions with State Farm on or about the date of the February 26, 2001 letter.

With regard to the note from Dr. Katzman, the Insurer submitted that at the time of the pre-hearing, Dr. Katzman was not identified as an individual who would give evidence on behalf of the Applicant at the preliminary hearing. Consequently, the Insurer argued, the correspondence should not be received in evidence.⁶

In any event, the Insurer argued that if the note is received in evidence, it should be given virtually no weight in view of the fact that it was written two years after Ms. Rennato's failure to remain at the DAC assessment centre. The Insurer also noted that Ms. Rennato did not begin to see Dr. Katzman until October 2001, 15 months after her failure to remain at the DAC assessment.

The Insurer asked for an order prohibiting Ms.Rennato from proceeding to arbitration with respect to her claim for caregiver benefits. It also requested an order declaring that, in the absence of attendance at the North York Rehabilitation Centre for a DAC assessment on the next earliest possible date before the arbitration hearing in January 2003, Ms. Rennato is barred from arbitrating her claim for caregiver benefits and forfeits any claim for caregiver benefits for the period between February 24, 2000, and the date she first attends at the North York Rehabilitation Centre for a DAC assessment.

In seeking these orders the Insurer relied on cases from each of the three statutory accident benefits regimes.⁷ As all of these cases turn on their particular facts, nothing would be gained by setting them out in detail. Suffice it to say that the jurisprudence is clear that applicants who request a DAC assessment, thus requiring insurers to pay benefits beyond the point they believe entitlement has ended, have an obligation to make themselves reasonably available for the assessment.⁸ Failing to do so will preclude proceeding to arbitration on the benefits at issue.⁹

The Applicant's Representative responded that there was no notation in the clinic's file as to why he had indicated the Applicant would not be attending. Having made the point, he did not offer any reason.

The Applicant's Representative characterized Ms. Rennato's graduated return-to-work, as well as her attempts to establish a new business, as desperate attempts to return to normal life which were unsuccessful.

It was submitted that Ms. Rennato's mental state prevented her from performing her duties at the bank and was the reason her new venture was unsuccessful. Furthermore, as Ms. Rennato was not diagnosed with Post-Traumatic Stress Disorder until 2001, her depression and panic attacks were not clearly understood prior to that time.

Consequently, the Applicant's Representative maintained that she had attended at the DAC with the intention of participating and that her failure to do so was due to her "serious health condition," which has not yet been resolved.

The Applicant's Representative dismissed what he understood to be the Insurer's suggestion that the letter to State Farm Insurance dated February 26, 2001, requesting a rescheduling of the DAC could be a fraud, and noted that Ms. Rennato indicated she is familiar with that specific correspondence.

The Applicant submitted that Lopez v. Allstate "should be used as a relevant case with obvious similarities to the dispute between Ms. Donna Rennato and State Fam Insurance."

In Lopez v. Allstate, the applicant had also been scheduled twice for a DAC assessment but did not attend either appointment. In that instance, the arbitrator found that only failure to attend the second scheduled examination was considered to be "unreasonable" as he accepted that the notice of the first had been received late.

However, the result was that Ms. Lopez could not proceed to arbitration in any event.

The Applicant also noted that pursuant to subsection 53(7) of the Schedule, a designated assessment centre must begin the assessment within two weeks after receiving the request for the assessment. However, the Applicant argued that in this instance, she was referred to the DAC on May 19, 2000, but the assessment was not scheduled until July 19, 2000.

Finally, the Applicant relied on the fact that State Farm did not reschedule the assessment.

The Insurer responded by reiterating that there is no expert psychiatric or psychological evidence relating to the Applicant's non-attendance and non-cooperation with the DAC process in 2000, other than the report of Dr. Katzman dating from July 2002. The Insurer maintained that report was not helpful to a determination of the Applicant's abilities to remain at one or more DAC appointments two years prior, in the summer of 2000.

However, my copy of Dr. Katzman's report had three copies of a psychiatric report dated October 9, 2001 attached. The Insurer's submissions, as well as the number of copies of the report contained in my document brief, led me to suspect the Insurer had received only the cover document dated July 16, 2002. Consequently,

I arranged for a copy of the October 9, 2001 report to be sent to the Insurer, with an inquiry regarding whether it had received a copy.

The Insurer responded by a document dated October 11, 2002, but received by the Commission on October 18, 2002. The Insurer indicated it had not seen the report and asked that it be removed from the record for the purpose of the preliminary hearing, or that the hearing be resumed to address this matter. The Applicant's Representative was copied on this correspondence but did not respond.

For reasons that will be apparent below, I have chosen to do nothing further with regard to the report.

The Insurer also argued that the Applicant's submissions regarding section 53 are misguided. While the Insurer conceded the process was commenced sometime beyond two weeks, it maintained that what is critical is that the DAC assessment be conducted as soon as possible.

Finally, the Insurer argued that whatever the conclusion is with respect to the February 26, 2001 correspondence, viewed in the context of all of the evidence, it demonstrates insufficient co-operation by the Applicant in the DAC process.

ANALYSIS:

Pursuant to subsection 37(6) of the Schedule, Ms. Rennato could have simply challenged the Insurer's termination of benefits. However, having elected to undergo a DAC assessment, and having required the Insurer to undertake the effort and expense of scheduling an assessment, Ms. Rennato is required, by subsections 43(3) and 50(c), to make herself reasonably available for the assessment if she wants to receive and pursue further benefits.

The fact the assessment was scheduled outside the two-week time frame does not relieve Ms. Rennato of that duty, as subsection 53(7) is directory only. I might point out however, that the initial appointment was for June 29, 2000, rather than the July 19, 2000 stated by Ms. Rennato's Representative.

The issue in this case is whether Ms. Rennato did make herself reasonably available for the DAC assessment she requested.

The Applicant has urged that I apply a similar analysis to that applied in the case of Lopez and Allstate Insurance. However, it is not clear what assistance the Applicant anticipates will result. While the arbitrator found that the applicant in that instance had a reasonable excuse for missing the first assessment, he found her refusal to attend the second assessment unreasonable. Consequently, she was precluded from proceeding to arbitration.

In this instance, I am of the view that Ms. Rennato failed to make herself reasonably available for either the first or second set of appointments for the DAC assessment.

There was no issue that both Ms. Rennato and Mr. Bouranov were aware of the initial appointment dates.While Mr. Bouranov made a point of stating that the reasons for Ms. Rennato's failure to attend were not known, Ms. Rennato testified regarding why she did not attend. If there were reasons other than those articulated by Ms. Rennato, it was incumbent on Mr. Bouranov to bring them forward. He did not.

Ms. Rennato testified she did not attend because the notice was not in writing and came directly to her rather that to Mr. Bouranov. However, it appears Mr. Bouranov's office was advised as well. In any event, I do not find Ms. Rennato's reasons for failing to attend to be reasonable.

I further find Ms. Rennato failed to make herself reasonably available at any time to attend the DAC assessment.

While I appreciate Ms. Rennato may have been experiencing some difficulties at the time of the July 19, 2000 appointment, she was also attending at work and returned to work on a full-time basis the next month. Consequently, I find that had she been making a sincere effort to make herself reasonably available, she would have at least attempted to undergo the assessment.

Nor do I find, as suggested by Mr. Bouranov, that Ms. Rennato left work or abandoned her business because of her mental state. There is no evidentiary basis for such a finding.

Ms. Rennato refused to indicate why her employment ended. However, her statement that it was because of "legal issues" she did not wish to discuss leads me to conclude it was for reasons other than her "mental state" as argued by Mr. Bouranov. In any event, her employment did not end until January, which suggests that at least in the period of July-August 2000, when she returned to work full time, her condition was improving.

Nor do I find her business failed because of her "mental state." Ms. Rennato testified that her business failed because she did not have the "energy or inkling" to do anything with her business. In my view, this falls short of compelling evidence that she was unable to succeed with a difficult business for which she had no express training or experience, because of her psychological state.

In reaching the above determination, I have considered both of Dr. Katzman's reports.

The Insurer is probably correct that the October 2001 report is not properly before me. If I had found it at all compelling this would give rise to a need for further submissions from both parties regarding its admissibility. However, this is not the case. There is no indication in either report that Dr. Katzman was aware the Applicant was working on a part-time basis at the time of the DAC appointment, or subsequently, on a full-time basis.

Furthermore, Dr. Katzman did not see Ms. Rennato until more than one year after the July 2000 appointments. Consequently, I cannot give Dr. Katzman's reports much weight. Rather, I find that Ms. Rennato's ability to subsequently attend and complete the day at work is inconsistent with an inability to remain and at least attempt to participate in the DAC assessment.

This brings me to the letter of February 26, 2001, allegedly sent by Mr. Bouranov to Ms. Nair, requesting a rescheduling of the DAC.

While Ms. Rennato identified the letter, there was no evidence where or under what circumstances she has previously seen it. The lack of evidentiary foundation for the letter, the reference to it almost as an afterthought, after the evidentiary portion of the hearing had already been concluded once, as well as the absence of any record of either the letter or the conversations it refers to in the Insurer's file, make it highly suspect at best. Furthermore, the letter is inconsistent with Ms. Rennato's evidence that at no time since July 19, 2000 has she been available to attend an assessment.

Consequently, I find Ms. Rennato had no intention of attending a DAC assessment since she initially requested one. I make the same finding with regard to any comment Ms. Rennato testified she made on July 19, 2000 regarding the DAC being rescheduled.

That being the case, I find that pursuant to subsection 43(3), Ms. Rennato is precluded from receiving caregiver benefits from March 27, 2000, the date on which the termination of benefits was effective, and onward, until she attends at the North York Rehabilitation Centre for a DAC assessment.

I further find that pursuant to subsection 50(c), if Ms. Rennato does not attend at the North York Rehabilitation Centre for a DAC assessment at the earliest reasonable date before the arbitration hearing scheduled for January 2003, she is precluded from pursuing her claim for caregiver benefits at that arbitration.

EXPENSES:

I will leave the matter of expenses to the hearing arbitrator in this matter.

November 1, 2002

Tanja Wacyk Arbitrator

Date