Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 97

FSCO A05-001275

BETWEEN:

ZEINAB AHMED HASHI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

May 11, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on May 18, 2006.

Appearances:

Charlie Ma, student-at-law for Ms. Hashi

Lorraine Takacs, lawyer for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Zeinab Ahmed Hashi, suffered soft tissue neck and back injuries in a July 25, 2004 motor vehicle accident. Her claims for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security") under the Schedule¹ are the subject of an upcoming arbitration hearing at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. This preliminary issue decides whether Ms Hashi may proceed with some or all of her claims in this arbitration following her failed attendance at two appointments at a Designated Assessment Centre.

The preliminary issue is:

1. Can Ms. Hashi's claims for medical and rehabilitation benefits under Part V of the Schedule proceed to a hearing?

Result:

1. All of Ms. Hashi's claims for medical and rehabilitation benefits under Part V of the Schedule may proceed to hearing.

Neither party claimed their expenses of this preliminary issue.

EVIDENCE AND ANALYSIS:

Background:

Security denied payment for Ms. Hashi's further physiotherapy after initially funding about two months of her treatment after the July 25, 2004 accident. She requested an examination at a Designated Assessment Centre (DAC)² to determine her further entitlement to treatment expenses, and the initial examination was set for January 13, 2005. A second appointment was scheduled for May 19, 2005 after she failed to appear at the first, but Ms. Hashi did not attend.

There is no question in my mind that the DAC system has played a vital role as early neutral medical evaluators in the delivery of accident benefits, and FSCO precedent has clearly established the importance of cooperative participation between an insured and insurer. There is also no question that Ms. Hashi was obliged to make herself reasonably available for the DAC examination.³ Security is not required to pay her treatment expenses if she does not have a reasonable excuse for failing to attend,⁴ but benefits may resume should Ms. Hashi subsequently submit to a DAC examination.⁵

Here the evidence demonstrates that Ms. Hashi had a reasonable excuse for not attending at her first DAC appointment in January 2005. No evidence contradicts her testimony that she made an emergency move from her home to a women's shelter house in early November 2004, and did not receive notice of the first DAC appointment. Ms. Hashi's testimony that she advised her lawyers of her emergency address change after the appointment date is consistent with her lawyers' writing Security with her new address in late March 2005. I accept that Ms. Hashi did not receive the DAC appointment notice because it was sent to her old home address. I find she has a reasonable excuse for failing to appear at the DAC for the January 2005 examination.

Security finds fault with Ms. Hashi's excuse in that she breached of her obligation to provide information reasonably necessary⁶ about her location change that directly led to the missed first DAC appointment. However, Ms. Hashi's evidence that she was emotionally troubled during this early period of her family separation provides plausible support for her explanation that she did not immediately notify her lawyers of her new living quarters.

I accept that Ms. Hashi suffered great emotional stress in January 2005, and that she has a reasonable excuse in failing to notify her lawyers or Security about her address change.

Ms. Hashi did not establish she was physically unable to attend the second DAC appointment in May 2005. She did not file any health care evidence supporting her testimony she either went to the hospital emergency several times, suffered fainting spells or was unable to travel. Her testimony is contradicted by Dr. Todd Walters, Security's medical examiner, who in April 2005 found that Ms. Hashi suffered no disability from caregiver duties and housekeeping. More directly on point, he indicates she was regularly travelling to physiotherapy appointments.

In March 2005, Ms. Hashi's lawyers asked Security to provide her with transportation to all assessments, but without providing reasons. Ms. Hashi stated she assumed a taxi would be sent to transport her in May 2005 to the DAC centre after one was provided for the earlier insurer's medical examination with Dr. Walters. She telephoned the Centre afterwards when one did not arrive.

Although, I understand Ms. Hashi's lack of understanding about her obligations to make herself available, her lawyers made the request on her behalf, and should have confirmed her travel arrangements. In my view, Security's transport of Ms. Hashi to its own medical evaluation under section 42 of the Schedule does not reverse her onus to make herself available for the DAC process under section 43 of the Schedule. I do not accept her excuse for not attending the May examination, and find that Ms. Hashi did not make herself reasonably available for her second DAC appointment.

Security's argument that Ms. Hashi's arbitration claims are either stayed or barred from proceeding to the hearing because she failed to make herself available⁷ does not apply here because it demanded reimbursement for the 2 no-show fees charged by the DAC before agreeing to schedule a third DAC appointment. The Schedule contains a specific provision for recovery of DAC no-show fees through benefit deductions,⁸ and does not contemplate immediate cash repayments from an insured.⁹ This remedy is exclusive, and I find Security did not have authority to demand immediate repayment from Ms. Hashi on May 26, 2005 as a prerequisite to her attendance at another DAC appointment.

These facts bear similarity to the insured's frustration in Onno and Wawanesa Mutual Insurance Company.¹⁰ In that case, the insistence on an appointment date without the insured's consultation about scheduling resulted in a finding the insured had complied with the statutory obligation. The reasoning in Onno compels me to find that Ms. Hashi's offer of availability cured her non-compliance with her obligations on May 26, 2006, when Security refused her request to re-schedule the DAC.¹¹

Conclusion:

I find that Ms. Hashi's claims for payment of her treatment at Downsview Health Recovery and Prime Health Recovery are not barred from proceeding to the full hearing on her entitlement to benefits.

EXPENSES:

I defer the issue of expenses on this preliminary matter to the arbitrator who hears the main issues, but ask that person to take into consideration that I did not find either parties' submissions in this matter particularly helpful.

June 14, 2006

Fred Sampliner

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 97

FSCO A05-001275

BETWEEN:

ZEINAB AHMED HASHI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Hashi's claims for medical and rehabilitation benefits under Part V of the Schedule may proceed to hearing.

June 14, 2006

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Part VII of the Schedule
3. 3Subsection 43(1)(4) of the Schedule
4. 4Subsection 43(2) of the Schedule
5. 5Subsection 43(3) of the Schedule
6. 6Subsections 43(1)(2) and 33(1) of the Schedule
7. 7Subsections 50(1)(c) and 50(2) of the Schedule
8. 8Subsections 47(1)(e), 47(2)(a), 47(5), 47(6) of the Schedule
9. 9Subsection 43(1)(1) of the Schedule
10. 10(FSCO A00-000111, September 27, 2000)
11. 11Subsection 43(3) of the Schedule