Neutral Citation: 2005 ONFSCDRS 20
FSCO A03-001129
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
Ms. J
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A MOTION
Before: Lawrence Blackman
Heard: By telephone conference call on February 11, 2005. Written submissions were received February 9 and 10, 2005.
Appearances: Matthew Consky for Ms. J Tricia McAvoy for Allstate Insurance Company of Canada
Issues:
The Applicant, Ms. J, was injured in a motor vehicle accident on June 30, 2001. She applied for statutory accident benefits from Allstate Insurance Company of Canada (Allstate) payable under the Schedule.1 A dispute arose as to Ms. J's entitlement to certain benefits. The parties were unable to resolve their dispute through mediation and Ms. J applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
In considering the very personal facts of this case and specifically Ms. J's suicidal ideation identified by Allstate's medical examiner, Dr. M. Marian, I have exercised my discretion to anonymize this decision.
The preliminary issues in this motion are:
Should this arbitration be stayed pending Ms. J's attendance at an insurer's medical examination with Dr. R. Hershberg, psychiatrist, on March 14, 2005 at 10:00 a.m?
Is either party entitled to their legal expenses of this motion in accordance with subsection 282(11) of the Insurance Act, and if so, what amount is appropriate?
Result:
This arbitration shall proceed, as scheduled, to a hearing commencing May 3, 2005.
Ms. J is entitled to her legal expenses of this motion, fixed at $1,444.50, including GST, payable by Allstate forthwith in any event of the cause.
EVIDENCE AND ANALYSIS:
(A) Factual Findings
I make the following findings of fact:
Ms. J was injured in a motor vehicle accident on June 30, 2001.
Following the accident, Ms. J worked from July 2, 2001 to May 17, 2002.
In August 2001, Ms. J began seeing Dr. S. Brimmell for chiropractic treatment. In November 2001, Dr. Brimmell submitted a treatment plan to Allstate enumerating the Applicant's memory deficits amongst her other complaints. He confirmed this ongoing problem in a January 2002 letter addressed directly to Allstate and in a disability certificate dated February 26, 2002.
Ms. J made a formal claim to Allstate for income replacement benefits (IRBs) in May 2003, after obtaining new legal representation. The claim was not paid. Allstate did not arrange for insurer medical examinations (IMEs) at this time. Mediation failed to resolve, amongst other issues, Ms. J's IRB entitlement. Ms. J