Wei Fu Wilfred Tan v. Royal & SunAlliance Insurance Company of Canada, 2004 ONFSCDRS 179

Neutral Citation: 2004 ONFSCDRS 179

FSCO A04-000656

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

WEI FU WILFRED TAN

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Richard A. Feldman

Heard:

October 13, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gary Spector as agent for Mr. Tan

Jamie Pollack and Angela James as solicitors for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Wei Fu Wilfred Tan, was injured in a motor vehicle accident on September 26, 2003. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal did not grant the Applicant's request for approval for an in-home assessment and refused to pay the Applicant for the cost ($763.41) of the in-home assessment that was conducted on November 3, 2003 by the Toronto Assessment Centre. The sum of $763.41 covers both the assessment itself and the production of a report based upon that assessment. The parties were unable to resolve their disputes through mediation, and Mr. Tan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Royal required to pay to the Applicant $763.41, representing the cost of an in-home assessment conducted on November 3, 2003 by the Toronto Assessment Centre?

2. Is the Applicant entitled to interest on this amount under subsection 46(2) of the Schedule?

3. Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

Result:

1. Royal is not required to pay to the Applicant any amount for the in-home assessment in question.

2. No interest is payable by Royal to the Applicant.

3. The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

The Facts

The parties submitted an agreed statement of facts. The only evidence placed before me was this agreed statement of facts and the documents I accepted and to which the parties specifically referred during the course of the hearing. The relevant facts follow.

The Applicant was involved in an accident on or around September 26, 2003. The Applicant made an Application for Accident Benefits to the Insurer on or around October 3, 2003. In the covering correspondence accompanying the Application for Accident Benefits, the Applicant's representative advised that he would assign an occupational therapist to perform in-home and/or work site assessments as necessary, and cited his reliance upon section 24 of the Schedule. The Applicant attended at an Ergonomic In-home Assessment carried out by Dr. K. Alidina of the Toronto Assessment Centre on November 3, 2003. An Auto Standard Invoice was sent to Royal confirming that the In-home Assessment took place on November 3, 2003. A report of the results of the assessment was subsequently authored by Dr. Alidina. This report states that the Applicant would benefit from 7.1 hours of housekeeping and home maintenance per week.

On November 13, 2003 an Application for Approval of an Assessment or Examination (Form OCF-22) was completed on behalf of the Applicant and faxed to Royal requesting approval for the Toronto Assessment Centre to carry out an In-home Assessment (the assessment that had, in fact, already been done on November 3, 2003). On November 14, 2003, written correspondence was mailed by Royal to the Applicant (with copies to the Toronto Assessment Centre and to the Applicant's representative), stating that Royal did not approve the request for an assessment as the form was either filled out incorrectly and/or the form sought a generalized assessment that falls outside the scope of section 24 of the Schedule. Royal did not complete Section 9 of the OCF-22 form (the part where the insurer normally indicates whether it approves or does not approve the requested expense) and did not return this form to the Applicant.

On November 17, 2003, the Toronto Assessment Centre sent a copy of its report to Royal. An Explanation of Benefits Payable form dated November 26, 2003 was sent by Royal to the Applicant confirming its position that the OCF-22 form submitted on November 13, 2003 did not comply with section 24 of the Schedule.

On or about November 27, 2003, the Applicant submitted to Royal an Application for Expenses in which housekeeping and home maintenance benefits were claimed at the rate of $100.00 per week. The Applicant had not submitted an Application for Expenses for housekeeping and home maintenance expenses prior to November 27, 2003. Royal subsequently arranged an insurer's In-home Assessment to assess the Applicant's need for in-home assistance and informed the Applicant of an appointment for an assessment by correspondence dated February 5, 2004. Royal paid housekeeping and home maintenance expenses at the rate claimed by the Applicant until the date of the return of Royal's In-home Assessment Report.

Royal refuses to pay the cost of the in-home assessment conducted on November 3, 2003 by the Toronto Assessment Centre.

Both parties agree that this case turns upon an interpretation and application of the current version of section 24 of the Schedule (effective as of October 1, 2003) .