Neutral Citation: 2004 ONFSCDRS 94
FSCO A02-001646
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KULAVEERASINGAM RAMALINGAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
PRE-HEARING DECISION
Before:
Judith Killoran
Heard:
By telephone conference call on June 4, 2004.
Appearances:
David S. Wilson for Mr. Ramalingam
Todd McCarthy for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Kulaveerasingam Ramalingam, was injured in a motor vehicle accident on January 9, 2002. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Ramalingam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On March 24, 2003, a pre-hearing discussion was held at the offices of the Financial Services Commission of Ontario. The issues in dispute were identified and agreed to as follows:
Is Mr. Ramalingam entitled to receive a weekly income replacement benefit of $388.42 from July 27, 2002 and ongoing post-104 weeks, pursuant to section 4 of the Schedule?
Is Mr. Ramalingam entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is State Farm liable to pay Mr. Ramalingam's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Ramalingam liable to pay State Farm's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Mr. Ramalingam entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
A resumption of pre-hearing discussion was held on March 10, 2004 by telephone conference call arranged by the Commission. The parties identified and agreed to add the following issues to the hearing, as outlined in my letter dated March 18, 2004:
With respect to the Order of Arbitrator Alves dated September 5, 2003, whether the insurer is required to pay interest with respect to the payment ordered to be made on September 5, 2003, and which was not made until on or about November 7, 2003.
Payment for five of Dr. R. Miller's treatment sessions which were included as part of her initial treatment plan. Please refer to correspondence from Mr.Wilson to Mr. Kope dated October 21, 2003 which deals with this issue.
Payment for treatment which was approved by a med/rehab DAC. Please refer to correspondence from Mr. Wilson to Mr. Kope dated October 8, 2003.
Payment of receipts for prescriptions and incontinence products forwarded to Mr. Kope on July 14, 2003 and September 5, 2003. Specifically, correspondence from Mr. Wilson to Mr. Kope dated July 14, 2003 included prescriptions totalling $359.76 and incontinence products totalling $771.69. The correspondence dated September 5, 2003 referred to four receipts for incontinence products, in addition to a drug prescription, totalling $412.83. Mr. Ramalingham's claim also includes all expenses for prescriptions and incontinence products after September 5, 2003. State Farm denied the claims as they were "not related to injuries sustained in loss." It also denied an entitlement to benefits pursuant to subsection 42(8) of the Schedule. Mr. Ramalingham submits that State Farm has no right to deny benefits pursuant to subsection 42(8). Also, Mr. Ramalingham submits that State Farm must offer him the option of attending at a med/rehab DAC, rather than simply denying the claim.
State Farm refused to consider a treatment plan submitted by Dr. Fuller dated July 7, 2003 in light of subsection 42(8) of the Schedule. As set out above, Mr. Ramalingham submits that benefits cannot be denied on this basis. As well, Mr. Ramalingham submits that State Farm was obliged to offer a med/rehab DAC.
On February 12, 2003, 7 prescriptions totalling $339.43 were submitted to State Farm by Mr. Ramalingham. In an explanation dated April 15, 2003, State Farm advised that it was paying $187.22 and was not paying for the medication prescribed by Dr. Baldwin since the medication was related to urinary incontinence. Mr. Ramalingham submits that he was entitled to a med/rehab DAC or payment of the full amount.
On March 12, 2003, prescriptions in the amount of $161.24 were forwarded by Mr. Ramalingham to State Farm. There has been no response from State Farm.
A resumption of pre-hearing discussion was held on Friday, June 4, 2004 by teleconference organized by the Financial Services Commission. In his letter dated May 12, 2004, Mr. Wilson asked that the following two issues be added to the arbitration hearing:
A treatment plan of Dr. Fuller dated February 11, 2004 was forwarded to the insurer and denied in correspondence dated March 4, 2004. The insured alleges that the insurer took no steps with respect to the DAC procedure. The insured wishes to add as an issue whether the insurer was required to arrange a Med/Rehab DAC with respect to the said treatment and, if so, what are the consequences of the insurer failing to arrange the same?
On March 22, 2004, the insured's counsel forwarded to the insurer prescriptions totalling $656.88, incontinence products totalling $549.80, and invoices for over-the-counter pain medications in the amount of $38.97. In an Explanation of Assessment dated April 20, 2004, the insurer advised it was paying $409.17 towards the prescriptions, nil towards the incontinence products, and was paying for the miscellaneous pain medications in full. The insurer took no steps to comply with the DAC procedure. Accordingly, the insured wishes to add as an issue whether the insurer was required to arrange a Med/Rehab DAC with respect to the said expenses and, if so, what are the consequences of the insurer failing to arrange the same?
State Farm refused to consent to adding the above two issues to the arbitration hearing. As the issues have not been mediated, I declined to add them.
In my letter of March 24, 2004, I requested that State Farm provide a response, within one month, to the additional issues listed in my letter of March 18, 2004. Mr. Ramalingam has not received a response from State Farm. State Farm submitted that it was not necessary to respond as each issue had been dealt with by Mr. Kope, the adjuster, in various pieces of correspondence. I disagree.
I order the following:
On behalf of State Farm, Mr. Kope is to provide a response, within two weeks of June 4, 2004, to each of the seven additional issues outlined in my letter of March 18, 2004. He may refer to specific pieces of correspondence or documents which he has forwarded to Mr. Wilson.
Mr. Ramalingam will provide particulars of the basis for the special award claim within two weeks of June 4, 2004.
I decline to add the two issues outlined in Mr. Wilson's letter of May 12, 2004 to the arbitration hearing without prejudice to Mr. Ramalingam's right to mediate and have these issues brought separately to an arbitration hearing or to request of the hearing arbitrator that the two issues be added to the arbitration hearing.
EXPENSES:
I leave the issue of expenses to the discretion of the hearing arbitrator.
June 15, 2004
Judith Killoran
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 94
FSCO A02-001646
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KULAVEERASINGAM RAMALINGAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
On behalf of State Farm, Mr. Kope is to provide a response, within two weeks of June 4, 2004, to each of the seven additional issues outlined in my letter of March 18, 2004.
Mr. Ramalingam will provide particulars of the basis for the special award claim within two weeks of June 4, 2004.
I decline to add the two issues outlined in Mr. Wilson's letter of May 12, 2004 to the arbitration hearing without prejudice to Mr. Ramalingam's right to mediate and have these issues brought separately to an arbitration hearing or to request of the hearing arbitrator that the two issues be added to the arbitration hearing.
June 15, 2004
Judith Killoran
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.