Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 115
FSCO A05-001553
BETWEEN:
BENYAM BELAYNEH
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: William J. Renahan
Heard: July 11, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Belayneh represented himself James Leone for Kingsway General Insurance Company
Issues:
The Applicant, Benyam Belayneh, was injured in a motor vehicle accident on May 25, 2003. He applied for the cost of three examinations and assessments from Kingsway General Insurance Company, payable under section 24 of the Schedule.1 Kingsway refused to pay and the parties were unable to resolve their disputes through mediation, and Mr. Belayneh 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:
- Is Mr. Belayneh entitled to $1,450 for the cost of a functional abilities evaluation dated June 18, 2003 pursuant to section 24 of the Schedule?
- Is Mr. Belayneh entitled to $1,115 for the cost of a work site assessment dated June 19, 2003 pursuant to section 24 of the Schedule?
- Is Mr. Belayneh entitled to $1,135 for the cost of an in home assessment dated July 7, 2003 pursuant to section 24 of the Schedule?
- Is either party entitled to the costs of this proceeding pursuant to section 282(11) of the Insurance Act.
Result:
- The application for arbitration is dismissed.
- Mr. Belayneh shall pay Kingsway $500 as its costs of this proceeding.
EVIDENCE AND ANALYSIS:
The Law:
Section 24 of the Schedule defines what examinations and assessments an insurer must pay for. At the time of these assessments, the relevant part of section 24 read as follows:
- (1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,
(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan
The onus is on Mr. Belayneh to prove on a balance of probabilities that the assessments he underwent satisfy the criteria of section 24.
The Evidence:
Mr. Belayneh testified that he was in a taxi with three others which was involved in an accident. He suffered back pain and spent the night in hospital. His family doctor told him to see a lawyer and he retained David Carranza, a non-lawyer representative. Mr. Carranza referred Mr. Belayneh to Back to Health for treatment. Mr. Carranza subsequently obtained permission to withdraw as Mr. Belayneh's representative. Mr. Belayneh testified that Back to Health sent him a bill for $3,700 which represents the three assessments in question.
Mr. Belayneh was the only witness and this is all the relevant testimony I heard. Neither party submitted any documents.
Analysis:
I have no evidence that the invoice or the assessments were sent to Kingsway. I have no evidence on whether any benefits or treatment were ever in dispute and whether the cost of these assessments was reasonable in order to resolve any such disputes. I am not satisfied that the cost of these assessments were reasonable expenses incurred for the purpose of the Statutory Accident Benefits Schedule. Accordingly, the application for arbitration is dismissed.
EXPENSES:
The criteria for determining entitlement to and amount of expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, as amended. The only relevant criteria is the first one, "each party's degree of success in the outcome of the proceeding." Kingsway is entitled to expenses.
The hearing was completed in less than one and a half hours. I fix Kingsway's expenses at $500. This is in addition to the $500 Arbitrator Feldman ordered Mr. Belayneh pay Kingsway in his order dated May 19, 2006.
July 14, 2006
William J. Renahan Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 115
FSCO A05-001553
BETWEEN:
BENYAM BELAYNEH
Applicant
and
KINGSWAY GENERAL 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:
- The application for arbitration is dismissed.
- Benyam Belayneh shall pay Kingsway General Insurance Company $500.
July 14, 2006
William J. Renahan Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.