Neutral Citation: 2008 ONFSCDRS 47

FSCO A07-001865

BETWEEN:

MIRELA FLUTUR Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby

Heard: By teleconference on February 25, 2008 and written submissions completed on March 11, 2008

Appearances: Allen Wynperle for Mrs. Flutur Pamela L. Blaikie for TD Home and Auto Insurance Company

Issues:

The Applicant, Mirela Flutur, was injured in a motor vehicle accident on October 16, 2006. She applied for and received statutory accident benefits from TD Home and Auto Insurance Company ("TD Home"), payable under the Schedule.¹ TD Home terminated weekly income replacement benefits and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Flutur 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 further hearing are:

Are the medical reports of Dr. R. Dunlop and Dr. A. Frisina, in the amount of $1200.00 each, expenses of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
If they are expenses of the arbitration proceeding, what is the amount of those expenses?

Result:

The medical reports of Dr. R. Dunlop and Dr. A. Frisina are expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.
TD Home shall pay Mrs. Flutur: (a) $1,200.00, in respect of Dr. R. Dunlop's report; and (b) $1,200.00, in respect of Dr. A. Frisina's report.

BACKGROUND:

A pre-hearing discussion was scheduled, before me, on February 25, 2008. Prior to the pre-hearing the parties advised that they had settled the issues for arbitration and expenses save for a determination of the issues set out above. On consent of the parties, submissions were heard by teleconference on February 25 and written submissions were concluded on March 11, 2008. The parties did not seek their expenses in respect of this hearing.

EVIDENCE AND ANALYSIS:

Mrs. Flutur submits that the medical reports were obtained to assist in establishing her claims under the Schedule and not as examination expenses pursuant to section 24 of the Schedule.

TD Home submits that the expenses are examination expenses pursuant to section 24. Consequently, as Mrs. Flutur did not seek authorization pursuant to subsection 24(1.1)(a), it is not liable to pay the examination expenses. There is no dispute that, were I to find that the medical reports fall within the provisions of section 24, TD Home's authorization would have been required.

On August 17, 2007, a Report of Mediator was issued which indicated that income replacement and housekeeping benefits remained in dispute.

On August 23, 2007, Mrs. Flutur applied for arbitration and counsel for Mrs. Flutur wrote to Dr. Dunlop, an orthopaedic surgeon, requesting an assessment of Mrs. Flutur. Dr. Dunlop was asked to report on Mrs. Flutur's symptoms, his diagnosis, his opinion with respect to prognosis and whether the motor vehicle accident contributed to her condition. There was no request that Dr. Dunlop make recommendations regarding future treatment.

On September 13 and October 11, 2007, counsel wrote to Dr. A. Frisina, a chiropractor, pursuant to discussions his assistant had with Dr. Frisina's assistant and provided various medical reports for his review. There were no questions set out in either letter.

On October 19, 2007, Dr. Frisina issued a Functional Capacity Evaluation Report. He concluded that Mrs. Flutur was substantially disabled from performing the essential tasks of her pre-accident employment. Further, she was unable to perform her pre-accident housekeeping and home maintenance tasks. Dr. Frisina made no recommendations with respect to future treatment.

On November 8, 2007, Dr. Dunlop provided his report. He noted that, at the request of Mrs. Flutur's family doctor, he had previously assessed her in July and reassessed her in October 2007. Dr. Dunlop distinguished those assessments from the report requested by Mrs. Flutur's counsel as follows: "On those occasions, although noting that she was involved in a motor vehicle accident, the exact mechanism was not that important." He concludes that Mrs. Flutur sustained a WAD II injury as a result of the accident. He suggested that physiotherapy might assist in relieving her current symptoms. Dr. Dunlop's invoice dated November 7, 2007 indicated a fee of $1,200.00 for "IME – DONE FOR LAWYER."

Are the Reports Expenses of the Arbitration Proceeding?

Subsection 282(11) of the Insurance Act provides:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

Section 24 of the Schedule is an attempt to codify the procedure by which an insured person may obtain an assessment in respect of benefits the insured has applied for pursuant to the Schedule. While assessments, obtained pursuant to section 24, may often be relied upon by an insured during litigation that is not their dominant purpose. When a dispute arises regarding an insurer's refusal to pay an examination expense, an insured person may pursue his or her remedies as set out in the Insurance Act.

The dominant purpose of a medical report, which is an arbitration proceeding expense, is to meet the insured's evidentiary burden. As such, it may prove of assistance in resolving the dispute prior to the hearing or to prove the claim at hearing.

Dr. Dunlop's report and invoice support an inference that he believed his opinion was being sought by Mrs. Flutur for evidentiary purposes. Dr. Frisina's report and invoice do not shed light on his belief regarding the purpose of his report. However, he does provide his opinion with respect to the issues to be determined at hearing.

Both assessments were sought after an unsuccessful mediation. Dr. Dunlop's report was commissioned contemporaneous with the Application for Arbitration. Dr. Frisina's report was requested after the Application for Arbitration had been submitted.

TD Home submits that the reports were premature as the pre-hearing had not been scheduled at the time the reports were requested. The practice at the Commission is to order release of the insurer's file to the date upon which mediation was applied for on the presumption that, prior to mediation, litigation has not been contemplated and therefore no litigation privilege attaches. Analogously, a report commissioned after a failed mediation may be presumed to be for the purpose of establishing a claim at arbitration. TD Home has not provided any evidence which might rebut this presumption.

I do not find TD Home's submission that the reports were premature compelling. A purpose of the dispute resolution process is to effect just, quick and inexpensive resolutions to disputes. Far too often delay in preparing a case prevents early resolution. In this case, all but the issue of the report expenses were resolved prior to the pre-hearing discussion. I found that both reports would have assisted Mrs. Flutur in meeting her evidentiary burden had the matter proceeded to hearing.

I find that both Dr. Dunlop's and Dr. Frisina's reports were authored in contemplation of the arbitration proceeding and are expenses pursuant to the Insurance Act.

Amount of the Expenses:

The criteria referred to in the Expense Regulation and the amount of expenses an arbitrator may order are set out in Section F of the Dispute Resolution Practice Code. Subsection 5(3) of the Schedule to the Expense Regulation provides:

The maximum amount that may be awarded for the attendance of an expert witness is $200.00 per hour of attendance, up to a maximum of $1,600 per day.

Subsection 5(5) provides:

The amount of the expenses paid by or on behalf of the insured person or the insurer to an expert for the preparation of a report may be awarded, to a maximum of $1,500.

There was no dispute that either Dr. Dunlop or Dr. Frisina would qualify as experts had their evidence been required at an arbitration hearing. Therefore, for the purpose of this expense hearing I accept that they would come within the provisions of subsections 5(3) and (5).

The invoices submitted in this matter provide no particulars of the hours spent in assessing and preparing the reports. Dr. Dunlop had assessed Mrs. Flutur twice in the four months preceding his November report and this familiarity informed his report. I find that the amount of $1,200.00 is within reasonable limits for an expert's report. Therefore, I award Mrs. Flutur $1,200.00 for the preparation of Dr. Dunlop's report dated November 8, 2007.

Dr. Frisina's 32-page report provided an overview of his credentials and the medical reports he reviewed. Further, the report indicates that Mrs. Flutur attended a 2 ½ hour assessment. I find that the $1,200.00 charged by Dr. Frisina is reasonable and award Mrs. Flutur that amount.

CONCLUSION:

On the basis of the foregoing, I find that the reports of Dr. Dunlop and Dr. Frisina are expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.

I award Mrs. Flutur, $1,200.00 in respect of Dr. Dunlop's report and $1,200.00 in respect of Dr. Frisina's report.

March 27, 2008

Denise Ashby Arbitrator

Financial Services Commission of Ontario