Neutral Citation: 2003 ONFSCDRS 180

FSCO A03-000629

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

AHMAD G. OMIDVAR

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUES

Before: Joyce Miller

Heard: Written submissions were received from Kingsway on August 26, 2003. The Applicant did not provide any submissions.

Appearances:

Khalil (Evan) Ismaeli for Mr. Omidvar

Marla Emdin for Kingsway General Insurance Company

Issues:

The Applicant, Ahmad G. Omidvar, was injured in a motor vehicle accident on May 25, 2001. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated weekly income replacement benefits on September 3, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Omidvar 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 issues are:

1. Is Mr. Omidvar precluded from proceeding to arbitration pursuant to subsection 50(a) of the Schedule by not notifying Kingsway of the circumstances giving rise to a claim for benefits and not submitting an application for the benefits within the times prescribed by Part X of the Schedule?

2. Is Mr. Omidvar precluded from proceeding to arbitration pursuant to subsection 50(c) of the Schedule because he failed to make himself reasonably available for a Designated Assessment Centre ("DAC") assessment under section 43 of the Schedule?

Result:

1. Mr. Omidvar is not precluded from proceeding to arbitration on the issues in dispute subject to my order below regarding his claim for medical/rehabilitation benefits.

2. Pursuant to subsection 50(c) of the Schedule, Mr. Omidvar is precluded from pursuing his claim for medical/rehabilitation benefits at arbitration.

3. The issue of expenses is left to the discretion of the hearing arbitrator.

PRELIMINARY MATTER

At the pre-hearing on August 6, 2003, the parties agreed to proceed on the Preliminary Issues in dispute by way of written submissions. Mr. Ismaeli agreed to provide Mr. Omidvar's submissions by September 21, 2003. These submissions were never received by either Kingsway or FSCO. Mr. Ismaeli was contacted by Kingsway and he advised that he had mailed the submissions on September 19, 2003. Mr. Ismaeli was given an extension to fax his submissions by September 29, 2003 to Kingsway and FSCO. The submissions were not received on this date. Accordingly, on my instructions, the Case Administrator on September 30, 2003 at 12:39 p.m. faxed a letter to Mr. Ismaeli informing him as follows:

... unless we have received a fax copy of your submissions by 4:30 pm today, September 30, 2003, we will proceed with the arbitration.

[Emphasis in original]

Mr. Ismaeli did not fax a copy of the submissions as requested. Nor was any copy of the submissions subsequent to September 30, 2003 ever received by either Kingsway or FSCO. Nor was any explanation provided as to why these submissions were not forthcoming. Accordingly, having given a reasonable extension and sufficient notice to provide submissions, I will dispose of the case on the basis of the documentary evidence filed by Kingsway and its submissions.

Issue 1: Is Mr. Omidvar precluded from proceeding to arbitration pursuant to subsection 50(a) of the Schedule?

Subsection 50(a) of the Schedule states:

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

(a) he or she notified the insurer of the circumstances giving rise to a claim for a benefit and submitted an application for the benefit within the times prescribed by this Part;

Section 32 of the Schedule provides:

(1) A person who wants to apply for a benefit under this Regulation shall notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation;

(c) information to assist the person in applying for benefits; and

(d) information on any possible elections relating to income replacement, non-earner and caregiver benefits.

(3) The person shall submit an application for the benefit to the insurer within 30 days after receiving the application forms.

(4) If a person is required by an insurer to submit an additional application in respect of a benefit that the person is receiving or may be eligible to receive, the person shall submit the additional application to the insurer within 30 days after receiving the additional application forms from the insurer.

Subsection 31(1) of the Schedule provides:

A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.

EVIDENCE

Kingsway alleges that it first became aware of Mr. Omidvar's accident on June 28, 2001 when it received a copy of the Home Based Assessment Report by Assessments To Go. However, no evidence was presented to support this allegation.

In its documentary evidence, Kingsway provided a signed copy of Mr. Omidvar's Application for Accident Benefits dated May 25, 2001. The date stamped "received" on the Application by Kingsway is July 30, 2001. However, this date stamped on the application clearly contradicts a section 33² letter sent to Mr. Omidvar on July 25, 2001 by John Damiani, an Adjuster with Claims View Inc., representing Kingsway. The heading of the July 25, 2001 letter states: Section 33 Letter, Duty of Applicant to Provide Information.

The letter of July 25, 2001 also clearly acknowledges receipt of Mr. Omidvar's Application for Accident Benefits. The first sentence of the letter states:

This letter has been sent to two addresses we have on file for you - the Tambrook Address is on your Application for Accident Benefits, and the Graylawn address in [sic] on a Treatment Plan submitted by Dr. Pourgol. [Emphasis in original]

The letter also states "We had no knowledge of this accident until a Home Based Assessment Report was received from Assessment to Go..." and goes on to request a face-to-face meeting with Mr. Omidvar "...to confirm [his] identity, secure accident details, injury and employment information etc."

The letter concludes with the following statement:

It is important to note that the following benefit [sic] is not payable for any period before you have complied with this request as per Section 33 of the Statutory Accident Benefits Schedule:

1. Income Replacement Benefit

2. Housekeeping

3. Medical and Rehabilitation

On August 1, 2001, Mr. Damiani wrote to Mr. Omidvar stating "This furthers our July 25th, 2001 letter, wherein we advised that we were not able to respond to your Treatment Plan because we did not receive an Application for Accident Benefits."

The evidence provided by Kingsway shows that on August 29, 2001, Mr. Omidvar met with Mr. Damiani and provided a statement with the information requested in the July 25, 2001 letter, namely, the circumstances of the accident, his injuries, the type of employment he was engaged in at the time of the accident and his need for treatment and housekeeping. As well, he also explained two addresses had been given because he had moved.

Kingsway continued to adjust the file and, on the basis of an insurer's medical examination on August 28, 2001, denied Mr. Omidvar's claim for income replacement benefits effective September 3, 2001 by way of an OCF 9/59 dated October 17, 2001. As well, on August 1, 2001 and January 18, 2002 Kingsway rejected Mr. Omidvar's treatment plans and advised that he could request to attend for assessment at a DAC.

FINDINGS

The burden of proof rests with Kingsway to show, on a balance of probabilities, that Mr. Omidvar failed to notify Kingsway of the circumstances giving rise to a claim for benefits and submitting an application for the benefits within the times prescribed by Part X of the Schedule.

For the following reasons I find that Kingsway has not met its burden.

There is nothing in the letter of July 25, 2001 which would lead me to reasonably conclude that Kingsway was denying his claim because Mr. Omidvar did not apply for accident benefits within the time limits prescribed by section 32 of the Schedule. Instead, the letter of July 25, 2001 clearly acknowledges receipt of Mr. Omidvar's Application for Accident Benefits and specifically states in its heading that it is a "Section 33 Letter."

I give no weight to the letter from Mr. Damiani dated August 1, 2001 to Mr. Omidvar which states: "This furthers our July 25th, 2001 letter, wherein we advised that we were not able to respond to your Treatment Plan because we did not receive an Application for Accident Benefits." The content of the July 25, 2001 letter clearly shows this is not true. In fact, a letter dated November 1, 2001 from Mr. Damiani to Mr. Omidvar begins: "This will further our Section 33 letter to you dated July 25th, 2001."

The letter of November 1, 2001 also states: "Please be advised that we are invoking Section 33 of the Accident Benefits Schedule and effective July 27th (which should have been the date our first Section 33 letter dated July 25th was received) no benefits are payable under the following categories [Income Replacement, Housekeeping and Medical and Rehabilitation Benefits] until you comply with our request and the information is received in our office:..."

In conclusion, I find the evidence presented by Kingsway is confusing and contradictory and does not support its claim that Mr. Omidvar did not apply for accident benefits within the prescribed time limits. No explanation was provided by Kingsway as to why Mr. Omidvar's Application for Accident Benefits is date stamped "received" July 30, 2001 four days after the July 25, 2001 section 33 letter which acknowledges receipt of Mr. Omidvar's Application for Accident Benefits. No explanation was given why Kingsway continued to adjust the file and make further section 33 requests on October 17, 2001 and November 1, 2001 if its position is that Mr. Omidvar did not notify Kingsway of the circumstances giving rise to a claim for benefits and submit an application for the benefits within the times prescribed by Part X of the Schedule.

In fact, there is no probative evidence to support its position that Mr. Omidvar did not apply for Accident Benefits within the prescribed time limits. The evidence presented is more in keeping with the fact that Mr. Omidvar has not complied with section 33 of the Schedule, which is not before me.

Accordingly, I find that Kingsway has not met its burden of proof. Accordingly, I find that Mr. Omidvar is not precluded from proceeding to arbitration pursuant to subsection 50(a) of the Schedule.

Issue 2: Is Mr. Omidvar precluded from proceeding to arbitration pursuant to subsection 50(c) of the Schedule?

Subsection 50(c) of the Schedule states:

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.

Section 43(3) of the Schedule provides:

(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).

EVIDENCE

Kingsway made the following submissions with supporting documentation:

• In mid-July 2001, Kingsway received one page of a Treatment Plan dated June 15, 2001, from Dr. Pourgol for chiropractic and rehabilitation treatment.
• On July 28, 2001, Kingsway received a Treatment Plan from Dr. Pourgol, chiropractor, dated June 15, 2001, for psychotherapy.
• On August 1, 2001, a cover letter and Explanation of Benefits Payable form were sent to Mr. Omidvar indicating that only page 1 of the Treatment Plan for chiropractic and rehabilitation had been received and, therefore, it was rejected. Mr. Omidvar was advised he could attend for an assessment at a DAC or choose not to pursue the claim for the refused treatment. The letter noted that Kingsway had not as yet received a Disability Certificate.
• On August 27, 2001, Kingsway received a complete copy of the June 15, 2001 Treatment Plan from Dr. Pourgol for chiropractic and rehabilitation treatment.
• On August 27, 2001, Kingsway received a Treatment Plan from Dr. Dingman dated July 27, 2001 for chiropractic and rehabilitation treatment.
• On September 4, 2001, Kingsway sent Mr. Omidvar a letter and Explanation of Benefits Payable form advising him that the Treatment Plans were rejected and reiterating that it had yet to receive a Disability Certificate.
• On November 1, 2001, Kingsway wrote to Mr. Omidvar again requesting a Disability Certificate, an Employer's Confirmation of Income and additional information.
• On January 18, 2002, Mr. Omidvar was advised via an Explanation of Benefits Payable that $1,038.25 had been paid by the Insurer to the treatment facility, representing the cost of the initial examination, completion of the two Treatment Plans and the first fifteen sessions of chiropractic treatment, pursuant to the Schedule.
• Mr. Omidvar subsequently requested a DAC and Kingsway made the appropriate arrangement with Work Able Centres Inc. ("Work Able").
• On April 16, 2002, Work Able wrote to Mr. Omidvar confirming that the DAC assessment was scheduled for May 1, 2002 and explained the nature of a DAC.
• On May 6, 2002, Work Able issued an invoice for a "No Show Charge" as Mr. Omidvar had failed to attend the scheduled DAC or cancel it.
• On May 14, 2002, Kingsway wrote to Mr. Omidvar that he had failed to provide any material on which Kingsway could determine whether or not he was entitled to income replacement benefits. In addition, the letter noted Mr. Omidvar's failure to attend the scheduled DAC and asked for written confirmation if Mr. Omidvar wanted the DAC to be rescheduled.
• Mr. Omidvar did not request the DAC to be rescheduled and in August 2002 filed for mediation.

Kingsway submits that by failing to attend at the scheduled medical/rehabilitation DAC assessment on May 1, 2002 and by failing to request in writing that Kingsway reschedule the DAC assessment as offered in the correspondence of May 14, 2002, Mr. Omidvar had failed to make himself reasonably available for an assessment under section 43. Kingsway, therefore, submits that Mr. Omidvar is precluded by subsection 50(c) of the Schedule from proceeding to arbitration in relation to the issue of medical and rehabilitation benefits.

FINDINGS

I accept Kingsway's submissions, supported by documentary evidence, that Mr. Omidvar failed to attend a scheduled DAC arranged in accordance with section 43 of the Schedule. Although given the opportunity to do so, no explanation has been provided by Mr. Omidvar regarding his failure to attend the DAC.

Accordingly, I find that pursuant to subsection 50(c) Mr. Omidvar is precluded from pursuing his claim for medical/rehabilitation benefits at arbitration.

EXPENSES:

The issue of expenses is left to the discretion of the hearing arbitrator.

December 19, 2003

Joyce Miller Arbitrator

ARBITRATION ORDER

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

1. Mr. Omidvar is not precluded from proceeding to arbitration on issues in dispute subject to my order below regarding his claim for medical/rehabilitation benefits.

2. Pursuant to subsection 50(c), Mr. Omidvar is precluded from pursuing his claim for medical/rehabilitation benefits at arbitration.

December 19, 2003

Joyce Miller Arbitrator

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, 114/00 and 482/01.
2. 2Section 33 of the Schedule provides: (1) A person applying for a benefit under this Regulation shall, within 14 days after receiving a request from the insurer, provide the insurer with the following: 1. Any information reasonably required to assist the insurer in determining the person's entitlement to a benefit. 2. A statutory declaration as to the circumstances that gave rise to the application for a benefit. 3. The number, street and municipality where the person ordinarily resides. 4. Proof of the person's identity. (2) The benefit is not payable for any period before the person complies with subsection (1).