Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 152

FSCO A06-000362

BETWEEN:

K.S.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

August 29, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gurcharan Anand for Mrs. S.

Darrell March for State Farm Mutual Automobile Insurance Company

The Applicant was injured in a motor vehicle accident on August 9, 2005. In this arbitration, she claims statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹

At the pre-hearing, counsel for the Applicant requested a hearing date within a four to six month time period, based on his client's instructions and her financial and medical circumstances. Counsel for the Insurer advised that he was not available for a hearing until July 2007. He also advised that he had a couple of files with hearings scheduled in May and June 2007 which he thought might settle, and was prepared to inform counsel for the Applicant and the Commission of his earlier availability should they settle. Counsel for the Insurer further submitted that this was a matter to be resolved between counsel, and an order was unnecessary.

I made an oral ruling with reasons, that the hearing would take place during the week of January 22, 2007. Counsel for the Insurer requested that I reduce my reasons to writing and I now do so.

The issue is:

Should this hearing be delayed due to the unavailability of counsel for the Insurer?

The hearing should be scheduled within a four to six month time frame from the date of the pre-hearing. The hearing dates are January 22, 23, 24 and 25, 2007.

The Applicant is the sole breadwinner of her family, as her husband has been laid off. They have three children, aged 7, 11 and 15. Mrs. S's income replacement benefits were terminated in November 2005. The Applicant and her family are now living on a line of credit and are using this to pay their mortgage. Counsel for the Applicant requested a hearing date in January 2007 or perhaps December 2006 given his client's financial and medical circumstances and her instructions.

Counsel for the Insurer advised that he was not available until July 2007, eleven months following the pre-hearing. He also advised that he had a couple of files scheduled for a hearing in May and June 2007 that he thought might settle, and he was prepared to advise counsel for the Applicant and the Commission should this occur. In his opinion, this was a matter to be resolved between counsel, and an order from an arbitrator was unnecessary. Counsel for the Applicant requested a ruling and submitted that the purpose of this forum is to provide quick access to justice.

I made an oral ruling with reasons, that the hearing would take place during the week of January 22, 2007, approximately five months from the date of the pre-hearing. Counsel for the Insurer requested that I reduce my reasons to writing and I now do so. In summary, this case presents urgency, based on the Applicant's financial need. The case is by and large ready to be heard, and there are policy and institutional reasons for imposing a hearing date within the four to six month period.

Reasons:

According to Practice Note 7, at a pre-hearing, the arbitrator will set a convenient date for the hearing. Generally, this date will be within four to six months of the pre-hearing discussion.²

Section 3.2 of the Dispute Resolution Practice Code, Fourth Edition — Updated October 2003 states that Practice Notes are "designed to guide users in the dispute resolution process at the Commission. However, they are not binding and do not affect the duty of the adjudicator to make decisions based on the circumstances and merits of each case."

The Commission anticipates that counsel will set hearing dates within four to six months of the date of the pre-hearing. Where there is agreement to prolong this time frame, arbitrators generally set the dates on which counsel and the parties are able to agree. However, where there is good reason for a hearing to proceed within the prescribed time frame, arbitrators impose an earlier hearing date. In my view, Mrs. S's case is one which should be heard within the four to six month period because of urgency, based on the Applicant's financial need; because the case is largely ready to be heard and because of policy and institutional reasons.

I find the Applicant has medical support for her claims for further income replacement benefits and housekeeping and home maintenance benefits. The Applicant has obtained MRI and ultrasound reports that indicate there may be an objective basis for her complaints including a L5-S1 disc herniation, and some bony irregularity in her shoulder.

The Applicant's health practitioners have opined that she is disabled from engaging in any kind of full-time employment from a physical perspective, and more recently, from a psychiatric perspective. She has also obtained opinion evidence which is supportive of her claim for housekeeping benefits.

My view of the Applicant's evidence is not binding on the hearing arbitrator. I appreciate that I have been provided with extracts from and summaries of reports, not the actual reports. However, the contents of the Applicant's reports were not rebutted by the Insurer in the course of submissions. I also appreciate that there is no guarantee that the opinions obtained by the Applicant will be accepted by the hearing arbitrator, nor is there a guarantee that she will succeed at the arbitration hearing.

The Insurer's orthopaedic surgeon assessed Mrs. S. and in October 2005 opined that she was no longer disabled from returning to her pre-accident employment and housekeeping tasks. However, the Insurer's rheumatologist assessed Mrs. S. in March 2006, diagnosed her with fibromyalgia and opined : "It is unlikely that she will be employable in any setting at this time." The insurer's orthopaedic assessment of the Applicant in March 2006 noted that the Applicant was still significantly restricted with regard to heavier physical activities, bending, lifting, and repetitive use of her upper extremities.

The Applicant submits that she is ready to proceed with the hearing. She has already provided much of the documentation the Insurer has asked her to produce. This includes a decoded OHIP summary, as well as clinical notes and records of her family physician and of various health practitioners. Counsel for the Insurer made some additional production requests immediately before the pre-hearing commenced. I understand that those relate to employment files and to collateral benefits.

I note that the Applicant's smaller claims under sections 14 and 24 of the Schedule have not been mediated; however, counsel for the Insurer advised that he did not anticipate the Applicant would be required to mediate these claims once he had an opportunity to review the file and speak with his client. In any event, the hearing date I have imposed allows ample time for mediation to be undertaken, if this is necessary.

Insurers, too, have an interest in arranging arbitration hearing dates within a four to six month time frame. Since interest on overdue benefits is payable at the rate of 2 per cent per month, compounded monthly, an earlier hearing date limits the period during which an insurer is exposed to paying interest on any benefits which the hearing arbitrator concludes were overdue. A delay in the hearing date prolongs the period during which insurers may be exposed to paying interest.

In summary, in this case there is some urgency, based on the Applicant's financial need. The case is by and large ready to be heard, and there are policy and institutional reasons for a hearing date within the four to six month period. Having regard to the circumstances of this case, I resolved the dispute as to the date on which the hearing should be scheduled by imposing hearing dates of January 22, 23, 24 and 25, 2007.

Given the personal nature of some of the information disclosed, I have anonymized the Applicant's name in this decision.

Order

The arbitration hearing in this case shall proceed on January 22, 23, 24 and 25, 2007.

September 15, 2006

Suesan Alves

Arbitrator

Date