Neutral Citation: 2004 ONFSCDRS 91
FSCO A03-001311 and A03-001312
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
THANH THUY THI PHAN
Applicant
and
WATERLOO INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Anne Sone
Heard:
By telephone conference call on May 17, 2004.
Appearances:
L. Brent Vickar for Mrs. Phan
Helen Friedman for Waterloo Insurance Company
Issues:
The Applicant, Thanh Thuy Thi Phan, was injured in motor vehicle accidents on November 13, 2001 and June 22, 2002. She applied for and received statutory accident benefits from Waterloo Insurance Company ("Waterloo"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mrs. Phan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, for weekly caregiver benefits, a medical benefit for physiotherapy and massage treatment, payments for housekeeping and home maintenance services, and her legal expenses.
The preliminary issue is:
- Does the Financial Services Commission of Ontario have the jurisdiction, pursuant to subsection 50(c) of the Schedule, to mediate the issue of Mrs. Phan's entitlement to a medical benefit for physiotherapy and massage by CN Rehabilitation Centre from November 19, 2001 to January 30, 2002, in the amount of $3,434?
Result:
- The Financial Services Commission of Ontario does not have the jurisdiction, pursuant to subsection 50(c) of the Schedule, to mediate the issue of Mrs. Phan's entitlement to a medical benefit for physiotherapy and massage by CN Rehabilitation Centre from November 19, 2001 to January 30, 2002, in the amount of $3,434.
EVIDENCE AND ANALYSIS:
Facts:
There was no dispute between the parties as to the relevant facts. Accordingly, I make the following findings of fact.
On November 13, 2001, the vehicle driven by Mrs. Phan rear-ended another vehicle while traveling on the Highway 401 collector lanes near Bayview Avenue, in Toronto (the "accident").
On November 14, 2001, prior to applying for accident benefits from Waterloo, Mrs. Phan attended at the Keele & Finch Rehabilitation Centre ("Keele & Finch Rehab") for the purpose of obtaining an assessment and treatment. On November 28, 2001, Waterloo received an initial physiotherapy report from Keele & Finch Rehab.
Keele & Finch Rehab also prepared an OCF-18/59 treatment plan dated November 15, 2001, on behalf of Mrs. Phan. It was also received by Waterloo on November 28, 2001. This treatment plan called for a variety of physiotherapy treatments requiring approximately 29 sessions at $125 per visit, or $4,100 in total.
On November 17, 2001, Mrs. Phan saw Dr. Simon Mok, a physician who had not treated Mrs. Phan prior to the accident. Dr. Mok referred Mrs. Phan to CN Rehabilitation Centre ("CN Rehab") in Mississauga, for physiotherapy.
On November 19, 2001, Mrs. Phan attended at CN Rehab. On that date, CN Rehab prepared two additional treatment plans. Waterloo received the two treatment plans on December 6, 2001. The first treatment plan proposed 16 sessions of massage therapy at a cost of $1,120. The second treatment plan proposed 28 sessions of physiotherapy at a cost of $3,500. The treatments were to take place over eight weeks (the "CN Rehab treatment plans").
In a letter dated December 7, 2001, Waterloo informed Mrs. Phan that it had received the Keele & Finch Rehab treatment plans, but still had not received her Application for Accident Benefits (OCF-1/59). Waterloo enclosed an Application for Accident Benefits package, and formally requested a Disability Certificate (OCF-3/59), Employer's Confirmation of Income (OCF-2/59) and a Permission to Disclose Health Information (OCF-5). Waterloo also advised that it would fund the lesser of the first 15 chiropractic or physiotherapy sessions, or those chiropractic or physiotherapy sessions incurred within six weeks after the accident.
On January 14, 2002, two months after the accident, Waterloo received Mrs. Phan's Application for Accident Benefits (OCF-1/59) dated January 9, 2002.
By registered letter dated January 14, 2002 (copied to CN Rehab and Longley/Vickar, Mrs. Phan's counsel), Waterloo advised Mrs. Phan that funding for the CN Rehab treatment plans was not approved. Waterloo required Mrs. Phan to be assessed at a Designated Assessment Centre ("DAC") in accordance with subsection 38(12) of the Schedule to confirm the reasonableness and necessity of the proposed treatment. Enclosed with that letter was an OCF-14/59, Permission to Disclose Health Information to a Designated Assessment Centre ("OCF-14"). The letter requested that the OCF-14 be returned in 14 days. The letter further stated that Waterloo would agree to fund any treatment identified as necessary in the DAC assessment report, subject to the availability of collateral benefits.
I find that Mrs. Phan did not return the OCF-14 to Waterloo, which was a prerequisite to Waterloo arranging the Medical/Rehabilitation DAC Assessment.
On February 7, 2002, Waterloo received an invoice from CN Rehab for treatment expenses totaling $4,170 for services provided between November 28, 2001 and January 30, 2002.
On February 11, 2002, Waterloo advised CN Rehab that it was paying $1,875 (representing 15 treatments) of the invoice pending receipt of a DAC report. This letter was copied to Mrs. Phan and her counsel.
On June 22, 2002, Mrs. Phan was involved in a second motor vehicle accident. Mrs. Phan says she was injured in this accident, and submitted an Application for Accident Benefits in connection with it.
On July 31, 2002, Mrs. Phan filed an Application for Mediation with the Financial Services Commission of Ontario, Dispute Resolution Group, with respect to benefits claimed in respect of the November 13, 2001 accident, including the balance of the CN Rehab treatment charges in the amount of $2,295 ($4,170 less $1,875). This Application for Mediation, dated July 2, 2002, states that Waterloo did not request that Mrs. Phan attend a DAC assessment.
Waterloo's Response to an Application for Mediation raised a preliminary issue pursuant to subsection 50(c) of the Schedule. It alleges that Mrs. Phan failed to make herself reasonably available for a medical/rehabilitation DAC assessment in respect of the CN Rehab treatment.
The parties were unable to resolve the matter through a mediation held on October 9, 2002. The Report of Mediator noted Waterloo's jurisdictional objection to mediation pursuant to subsection 50(c).
Mrs. Phan then filed an Application for Arbitration (the "Application") with the Financial Services Commission of Ontario. This Application was received by Waterloo on October 1, 2003, almost two years after the accident and the disputed treatment plan. The Application included the issue of the outstanding treatment account from CN Rehab.
Waterloo provided a Response by Insurer to an Application for Arbitration on October 24, 2003, and again raised the jurisdictional objection pursuant to subsection 50(c).
A pre-hearing discussion in respect of the claims arising out of both accidents was held on March 10, 2003. Waterloo again raised Mrs. Phan's failure to provide the OCF-14 as a bar to proceeding to arbitration, on the issue of payment for CN Rehab's treatment pursuant to subsection 50(c).
By letter dated March 18, 2004, Mrs. Phan, through her counsel, provided a signed OCF-14 to Waterloo.
The OCF-14 was provided 28 months after the proposed treatment plan, and after Mrs. Phan had been involved in a second motor vehicle accident, in which she claimed to have sustained similar, if not identical, injuries to those sustained in the first accident.
Mrs. Phan did not explain her failure to provide the signed OCF-14 between the date of the original request on January 14, 2002, and the date of receipt of the OCF-14 by Waterloo on March 18, 2004.
Statutory Framework:
Subsection 38(8) of the Schedule provides that the insurer must respond within 14 days after receiving an application for a medical benefit. If the insurer will not pay for the goods and services contemplated by the treatment plan, subparagraph 38(12) states that the insurer shall require the insured person to be assessed by a DAC. If the DAC says that the treatment is reasonable, the insurer must pay for it.
Subsection 43(2) of the Schedule requires the insured person and the insurer to provide the person or persons conducting the DAC assessment with such information as is reasonably necessary. Under this section, the insured person has an obligation to make herself reasonably available for the assessment, failing which, the insurer is justified in terminating the insured's benefits until such time as the insured complies with the request.
In addition, section 50 of the Schedule states that 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.
Pursuant to subsection 43(2),
the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary...
Pursuant to subsection 281(2) of the Insurance Act, no person may refer issues in dispute to an arbitrator unless mediation was sought and failed.
Section E2(i) of Practice Note 11 of the Dispute Resolution Practice Code, Fourth Edition, Updated October 2003, states as follows:
For accidents occurring on or after November 1, 1996 (Bill 59), a claimant's failure to attend a DAC assessment scheduled for the purpose of assessing the claimant's entitlement to medical benefits, rehabilitation benefits or attendant care benefits does NOT prevent the claimant from proceeding to mediation as long as the claimant has made him or her/self reasonably available for the assessment.
Disputes concerning whether the claimant has made him or her/self reasonably available for the DAC assessment, will be accepted for mediation. This preliminary issue will be mediated along with the disputes concerning statutory accident benefits claimed in the Application for Mediation.
The Commission accepts cases for mediation where there are disputes as to whether a claimant has made himself or herself reasonably available for a DAC assessment. Ultimately, arbitrators have determined this issue.2
OCF-14
Arbitrator Palmer in Avdalimov3 sets out in detail the statutory framework which gives authority to the OCF-14. Under this authority the Minister's Committee on the Designated Assessment Centre System has published procedures, standards and guidelines outlining the process to be followed with respect to a DAC. The committee determined that insurers should bear the primary responsibility for collating the medical documentation that must be forwarded to the DAC. In its Guidelines for Designated Assessment Centres to Conduct Assessments for Accidents on or after November 1, 1996, as amended in June 1998, the committee wrote:
Responsibilities of the Insurer
The insurer must confirm that the claimant agrees to participate in the DAC referral, and signs all approved release forms for medical documentation that will be included in the DAC referral package.
The insurer must notify the DAC, in writing, to initiate an assessment request. As the first step in the assessment, this notification, in the form of a referral, sets the stage for the entire process. To ensure a successful outcome, the DAC must receive a complete referral, including a signed Permission to Disclose Health Information to the Designated Assessment Centre (OCF-14) form and up-to-date medical documentation and reports. A list of the referral package elements is included in this guideline (see page 15).
Disclosure
The SABS requires complete disclosure of all relevant information necessary to complete the assessment. While the insurance company and the claimant share responsibility for supplying this information, the insurance company is responsible for ensuring that all elements in the referral package are received by the DAC prior to the assessment appointment.
Consent
A Permission to Disclose Health Information to the Designated Assessment Centre (OCF-14) form, with an original signature by the claimant, must be submitted with the referral package. A DAC cannot commence an assessment without receiving a completed and signed OCF-14 form. [Emphasis added.]
By signing part 4 of the OCF-14 form, the applicant authorizes the insurer to give the DAC, "any information relating to my health condition, treatment and rehabilitation received as a result of the automobile accident." This permission is necessary to allow the insurer to forward the applicant's information to the DAC. Mrs. Phan does not dispute that such information was reasonably necessary for the DAC assessors to conduct the DAC.
The second part of the "Signature" section authorizes the DAC "to consult with my treating health professionals if necessary." Since the DAC will often be determining the eligibility of the applicant to begin or continue treatment with a particular health professional, as recommended by that health professional or another health practitioner, this provision appears reasonable on its face. The DAC assessors are thereby able to confirm any questions or discrepancies directly with the health care provider and receive further information from those professionals, if necessary.
Conclusion:
I find that Mrs. Phan delayed for 28 months in signing and returning the OCF-14 form. Such a delay is unreasonable and makes the DAC process unworkable.4Accordingly, I find that Mrs. Phan did not comply with subsection 43(2) of the Schedule, which requires Mrs. Phan to provide the DAC assessors with such information as is reasonably necessary. It follows that she is not entitled to commence a mediation proceeding with respect to this medical benefit, pursuant to subsection 50(c) of the Schedule. If she does not have a mediation, she cannot proceed to an arbitration on the issue of entitlement to a medical benefit for physiotherapy and massage by CN Rehab from November 19, 2001 to January 30, 2002, in the amount of $3,434, pursuant to subsection 281(2) of the Insurance Act.
June 11, 2004
Anne Sone
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 91
FSCO A03-001311 and A03-001312
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
THANH THUY THI PHAN
Applicant
and
WATERLOO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mrs. Phan may not proceed to arbitration on the issue of her entitlement to a medical benefit for physiotherapy and massage by CN Rehabilitation Centre from November 19, 2001 to January 30, 2002, in the amount of $3,434.
June 11, 2004
Anne Sone
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, 114/00 and 482/01.
- See Avdalimov and CGU Insurance Company of Canada, (FSCO A00-000433, May 25, 2001) and Burke and Allstate Insurance Company of Canada, (FSCO A01-000969, March 24, 2003).
- Footnote 2, supra
- See appeal Falco and Continental Insurance Company and Pafco Insurance Company Limited, (FSCO P00-00038, May 15, 2002)