Neutral Citation: 2003 ONFSCDRS 28

FSCO A02-000462

BETWEEN:

AMARJIT MANN

BIKRAM MANN

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Janice Sandomirsky

Heard: November 21, 2002, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on January 10, 2003.

Appearances: Mark DeWitt for Mr. Mann Derek E. Wilson for Allstate Insurance Company of Canada

Issues:

The Applicants, Amarjit Mann and Bikram Mann, were injured in a motor vehicle accident on September 2, 2001. They applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate denied entitlement to some of the treatment proposed by Centre City Health Recovery ("Centre City"). The parties were unable to resolve their disputes through mediation and Mr. and Mrs. Mann applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. and Mrs. Mann filed separate applications for arbitration. The applications were administatively consolidated into one claim file under one file number. Rule 30 of the Dispute Resolution Practice Code (the "Code") provides that an arbitrator may combine proceedings where two or more applications for arbitration have issues in common, or where combining proceedings will result in the most just, quickest and least expensive means to deal with the applications. There has been no order to combine Mr. and Mrs. Mann's applications for arbitration. However, noting that the issues in these applications arise out of the same accident and involve the same treatment provider, it is my intention to combine the proceedings, unless the parties give notice of an objection, pursuant to Rule 30.2

As a result, this preliminary decision considers the issues involving both Mr. and Mrs. Mann's applications for arbitration. The preliminary issue is:

What are the issues in this arbitration?

Result:

The issues in this arbitration proceeding include the treatment plans for Mr. and Mrs. Mann from Centre City identified in the Reports of Mediator dated December 7, 2001, May 3 and June 4, 2002.
The four treatment plans for Mr. Mann, dated October 24, 2002, will not be included as issues in this arbitration at this time.
It remains unclear from the information filed whether the treatment plans for Mr. and Mrs. Mann for massage therapy and a kinesiology program, dated September 26, 2001, were mediated. I request that the parties clarify the status of those treatment plans at the resumption of the pre-hearing. I will make a decision regarding their inclusion in the arbitration after reviewing the additional information.

EVIDENCE AND ANALYSIS:

Amarjit Mann's application

Mr. Mann's application for arbitration identified the issues in dispute to include a treatment plan, dated September 26, 2001, for chiropractic treatment at Centre City in the amount of $3,400, and $5,874.35 for treatment incurred to that date. These issues went through the mediation process and were identified in the Report of Mediator, dated December 7, 2001.

At the pre-hearing held on November 21, 2002, Allstate advised that Centre City has submitted a number of other treatment plans for Mr. Mann and requested that all the treatment plans be added as issues in this arbitration. Mr. DeWitt objected to the inclusion of any matters except those considered in the mediator's report of December 7, 2001. The parties agreed to provide written submissions in support of their positions regarding the issues to be included in this arbitration.

In his written submission, Mr. DeWitt withdrew his objection to the inclusion in this arbitration all the Centre City treatment plans that have already been mediated. Allstate maintained, however, that all the treatment plans, including those that have not been mediated to date, ought to be added as issues in this arbitration.

Allstate submitted copies of all the treatment plans from Centre City for Mr. Mann. They include the following:

September 26, 2001, treatment plans

There are three treatment plans from September 26, 2001. One plan for chiropractor treatment in the amount of $3,400 is clearly identified in the December 7, 2001, mediator report and the application for arbitration.

The other two treatment plans, dated September 26, 2001, are for massage therapy in the amount of $960, and a kinesiology program in the amount of $960. These two treatment plans are not specifically identified in the December 7, 2001, mediator report.

November 27, 2001, treatment plans

Three treatment plans, dated November 27, 2001, have been mediated. A mediator report dated May 3, 2002, considered the chiropractic treatment plan. Allstate agreed to pay for $720 of the $2,120 claimed. The mediator report, dated June 4, 2002, considered the two other treatment plans for massage therapy and acupuncture. There was no resolution of these matters.

October 24, 2002, treatment plans

There are four additional treatment plans from Centre City, dated October 24, 2002, for chiropractic, acupuncture, massage therapy and a rehabilitation strengthening program. These treatment plans have not been mediated.

Allstate relies on the decision in Suliman and Economical Mutual Insurance Company (FSCO A02-000596, October 16, 2002) in support of its position that all the treatment plans from Centre City should be combined into one arbitration. In Suliman, Arbitrator Blackman considered similar facts with multiple treatment plans from Centre City, some of which had been mediated and some not mediated. He concluded that all the outstanding issues involving the various treatment plans should be arbitrated together. As a prerequisite to adding other treatment plans, the insurer was directed to take all the outstanding matters to mediation.

In reaching this decision, Arbitrator Blackman rejected the Applicant's claim that subsection 281(1) of the Insurance Act gave the insured person an unrestricted right to choose to take his case either to arbitration or to court. He stated that, where it appears that all the treatment plans arose out of the same motor vehicle accident, involve the same parties and the same treatment centre during a related period of time, and raise the same issues of the reasonableness and necessity of the proposed treatment, they ought to be brought together into one process. Arbitrator Blackman reasoned that, to allow the applicant to proceed separately on each treatment plan would lead to a duplication of evidence and effort and possibly result in inconsistent decisions on similar issues and similar evidence. Therefore, he concluded that, where the "treatment plans appear, prima facia, to be intertwined with and to flow naturally and consequentially from those plans which have been mediated ... Combining all the treatment plans in one proceeding would clearly advance the public policy of 'speedy and effective dispute resolution,' as well being cost-effective, pragmatic, fair and just."

In this case, there is no issue between the parties that the treatment plans from Centre City that have been mediated will be included as issues in this arbitration. That includes the one treatment plan for chiropractor treatment dated September 26, 2001, and the three treatment plans dated November 27, 2001.

Although the mediator report dated December 7, 2001, also included an issue regarding the amount for treatment to date, it did not specifically identify the two September 26, 2001, treatment plans for massage therapy and a kinesiology program. Therefore, before deciding whether to include these treatment plans in this arbitration, I ask that the parties clarify their status at the resumption of the pre-hearing.

The four treatment plans for Mr. Mann, dated October 24, 2002, were not mediated and there is no agreement between the parties about adding them in this arbitration. In considering this question, I find the criteria set out in Suliman very helpful. It is clear that the October 2002 treatment plans arose out of the same accident and involved the same parties and the same treatment centre. What is less clear, however, is the temporal relationship between the treatment plans. The October 2002 treatment plans followed approximately one year after the earlier plans and, with this lapse of time, it is not possible to assume that the issues are "intertwined with" and "flow naturally and consequentially from those plans which have been mediated." It may well be that the evidence regarding the reasonableness and necessity of the treatment in 2002 is substantially different from the evidence supporting the claim for treatment the year before.

As a result, I cannot conclude that the public policy goals of effective, pragmatic, fair and just dispute resolution require that the issues arising from the October 2002 treatment plans be heard together in this arbitration.

Bikram Mann's application

Mrs. Mann's application for arbitration identified the same issues in dispute as in Mr. Mann's application. That is, a treatment plan dated September 26, 2001, for chiropractic treatment at Centre City in the amount of $3,400, and $5,874.35 for treatment incurred to that date. This treatment plan was the subject of the mediator report dated December 7, 2001.

Centre City also submitted treatment plans, dated November 27, 2001, for Mrs. Mann, which were dealt with in mediator reports dated May 3 and June 4, 2002. There are no other treatment plans submitted for Mrs. Mann after that date.

As a result, all of Mrs. Mann's treatment plans from Centre City have been mediated and, therefore, will be issues in this arbitration, with the exception of the September 26, 2001, plans for massage and a kinesiology program, which require further clarification.

Conclusion:

It is my finding that the issues in this arbitration shall include the issues identified in the mediator reports dated December 7, 2001, May 3 and June 4, 2002. I request that the parties provide further information at the resumption of the pre-hearing regarding the status of the treatment plans for both Mr. and Mrs. Mann for massage therapy and a kinesiology program dated September 26, 2001. I will make a decision regarding the inclusion of those treatment plans at that time.

If, by the time of the resumption of the pre-hearing, the October 2002 treatment plans for Mr. Mann have been mediated, Allstate may again request that they be added to the issues in this arbitration if it is established that the policy considerations for including issues in one proceeding have been met.

EXPENSES:

I leave the issue of expenses to the discretion of the hearing arbitrator.

March 4, 2003

Janice Sandomirsky Arbitrator

ARBITRATION ORDER