Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 82
FSCO A08-001914
BETWEEN:
MARY RUSSELL
Applicant
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
PRE-HEARING DECISION
Before: Susan Sapin
Heard: By telephone conference call on April 17 and May 1, 2009.
Written submissions were received May 1, 2009
Appearances: Ross Baker for Ms. Russell Shirline Apiou for Certas Direct Insurance Company
Issues:
The pre-hearing discussion in this case was resumed on May 1, 2009, at 1:00 p.m., by telephone conference call to deal with Allstate’s motion for a determination whether insurer’s examinations (IEs) under section 42 of the Schedule1 were reasonably required to assess whether Ms. Russell met the post-104 week test for entitlement to IRBs, and, if so, whether the arbitration proceeding scheduled to proceed July 20 - 23, 2009 should be stayed pending Ms. Russell’s attendance at the IEs. The initial pre-hearing was held on Monday, March 23, 2009 at the Commission offices in North York. The issues in dispute are identified and agreed to as entitlement to income replacement, housekeeping and home maintenance and medical benefits.
Mr. Baker, agent, represented Ms. Russell. Ms. Apiou, legal counsel, represented Certas Direct Insurance Company (Certas). Both parties prepared and filed detailed written submissions and provided case law in support of their positions.
Since the initial pre-hearing on March 23, 2009, Certas arranged for, and Ms. Russell attended, IE’s on April 22 and 24, 2009, to assess the reasonableness of a Treatment Plan for retraining in a child and youth care worker course at Sheridan College. Both parties were of the view that these assessments could also address the post 104-week entitlement issue for the IRBs in dispute, in the event I determined they were reasonably required for that purpose. Certas was prepared to address this issue by requesting the IE assessors to prepare an Addendum to their report, based on the examinations conducted. In this way, the assessors would not need to re-examine Ms. Russell. In addition, Ms. Russell would have the opportunity to obtain a rebuttal report if necessary. It was understood that timing was tight to accomplish this prior to the hearing originally scheduled to begin July 20, 2009, and a brief adjournment might be required.
A further teleconference took place on June 19, 2009, where the parties advised that the assessments had taken place but the Applicant had not yet obtained a rebuttal report. The parties agreed to adjourn the hearing scheduled for July 20, 21, 22 and 23, 2009 to September 28, 29, 30 and October 1, 2009 at 10:00 a.m. at the Commission offices in North York.
REASONS FOR DECISION
Having heard the submissions of the parties and reviewed the cases provided, I find I am bound by the appeal decision in Ramalingam and State Farm Mutual Insurance Company (FSCO P05-00026, August 13, 2007), which specifically rejected the notion that a change in the test for entitlement to IRB at 104 weeks was insufficient to entitle an insurer to an IE addressing the new test. I see no evidence in this particular case of any attempt at “trial brinkmanship” by either party, and am mindful of Arbitrator Muir’s statement in McDougall and Kingsway General Insurance Company, (FSCO A04-000229, November 18, 2004), cited with approval in Ramalingam, that despite the fact that an insurer’s motivations in seeking an assessment might be mixed, (i.e. might include both ongoing adjustment of a claim and preparing for arbitration), it does not follow that a section 42 assessment is not authorized by the Schedule.
With respect to timing, I note the accident occurred on January 16, 2007, Ms. Russell applied for arbitration on September 9, 2008, the pre-hearing was scheduled for March 23, 2009, and the hearing was originally scheduled to proceed on July 20, 2009, since adjourned, on consent, to September 28, 29, 30 and October 1, 2009, some six months after the post 104-week mark. Ms. Russell requires an early hearing date due to financial difficulties and both the Commission and the Insurer were able to accommodate her request for one. An early date is in the interest of both parties. Post 104-week entitlement to an IRB is very much in issue at this time and there is no compelling reason that issue should not be determined in the current arbitration proceeding. In fact Certas would have been required to schedule assessments of Ms. Russell’s entitlement to post 104-week IRBs as part of the proper adjusting of her claims, regardless of whether an arbitration was scheduled at this or some later time.
I find the assessments to be reasonably required.
June 24, 2009
Susan Sapin Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 82
FSCO A08-001914
BETWEEN:
MARY RUSSELL
Applicant
and
CERTAS DIRECT 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 assessments scheduled for April 22 and 24, 2009 to address post 104-week income replacement benefit entitlement are reasonable and necessary under section 42 of the Schedule.
June 24, 2009
Susan Sapin Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.