Subashini Yogesvaran v. State Farm Mutual Automobile Insurance Company, 2011 ONFSCDRS 8

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 8

FSCO A08-001142

BETWEEN:

SUBASHINI YOGESVARAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: Written submissions were received on by August 4, 2010

Appearances: Alexander Voudouris for Ms. Yogesvaran

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Subashini Yogesvaran, was injured in a motor vehicle accident on May 13, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on January 16, 2008 and housekeeping benefits on January 2, 2008. The parties were unable to resolve their disputes through mediation, and Ms. Yogesvaran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

An arbitration hearing was scheduled to commence on July 6, 2009. On the first day of the hearing, the hearing was bifurcated to hear a preliminary issue on whether there had been a proper termination of Mrs. Yogesvaran’s benefits. In addition, the issues of whether Mrs. Yogesvaran was entitled to a chronic pain assessment pursuant to an OCF-22 dated March 27, 2009 and whether she was entitled to a special award were added to the arbitration hearing.

The decision on the preliminary issue which was issued on November 26, 2009 determined that State Farm had failed to properly terminate Mrs. Yogesvaran’s income replacement benefit and housekeeping benefits.

After the preliminary issue I received written submissions on the issue of a special award, which I dismissed in a decision dated June 2, 2010. As well, I issued a decision on expenses dated July 7, 2010.

The issues in this hearing are:

Is Mrs. Yogesvaran entitled to payments for the cost of examinations for an orthopaedic assessment in the amount of $2,200; two chronic pain assessments in the amounts of $2,411.50 and $2,634.56 pursuant to section 24 of the Schedule?
Is Mrs. Yogesvaran entitled to housekeeping expenses in the amount of $1,742.86 pursuant to section 22 of the Schedule?

Result:

Mrs. Yogesvaran is not entitled to payments for the cost of examinations for an orthopaedic assessment and two chronic pain assessments pursuant to section 24 of the Schedule.
Mrs. Yogesvaran is not entitled to housekeeping expenses in the amount of $1,742.86 pursuant to section 22 of the Schedule.

BACKGROUND

After I issued my decision on the Preliminary Issue hearing on November 26, 2009, Mr. Franklin on behalf of State Farm sent a letter, dated December 2, 2009, to the Commission addressed to the Case Administrator with a copy to Mrs. Yogesvaran’s counsel, Mr. Voudouris.

This letter states in part:

This is further to Mr. Voudouris’ correspondence of November 30, 2009. The issues in this arbitration proceeding have been disposed of, or will be shortly, for the following reasons:

Arbitrator Miller’s Order of November 26, 2009, orders payment of income replacement benefits and housekeeping benefits to date and ongoing.
The other benefits in dispute are Treatment Plans and cost of reports pursuant to OCF-22s. My client will be paying these amounts claimed with compounded interest subject to the clarification requested below.

My client does require clarification of the assorted claims for Treatment Plans and cost of reports. The pre-hearing report of November 20, 2008, identifies several of these claims in subparagraphs 2(i), 2(ii), 4(i), 4(ii) and 4(iii). Additional claims were mediated and are particularized in the report of mediator dated July 20, 2009. Finally, according to my notes, a further issue was added at the commencement of hearing on July 6, 2009. This is a claim in the sum of $2,634.56 pursuant to an OCF-22 dated March 27, 2009.

I ask that Mr. Voudouris confirm that I have identified all outstanding claims for benefits in the current arbitration hearing. However, in respect to the OCF-22 dated September 2, 2008, regarding an orthopaedic report of Dr. Wylie in the sum of $2,200, my client states that this item was “deemed approved”, and thus, it is my client’s position that this matter is not truly an issue in the arbitration. Furthermore, my client queries whether the OCF-22 of March 27, 2009, for a chronic pain assessment in the sum of $2,634.56 is a duplication of the OCF-22 of July 28, 2008, for a chronic pain assessment in the sum of $2,411.50 as identified in subparagraph 4(2) of the Pre-hearing Report? ...

Mrs. Yogesvaran submits that based on the December 2, 2009 letter, State Farm agreed to pay for the OCF-22’s for September 2, 2008, July 28, 2008, and March 27, 2009 subject to the clarifications. Mrs. Yogesvaran submits that she provided the clarifications and accordingly State Farm is now required to pay for the OCF-22’s.

State Farm submits that in its letter of December 2, 2009 it did not agree to pay for the OCF-22’s for September 2, 2008, July 28, 2008, and March 27, 2009.

State Farm submits that any payment to be made would be made subject to the clarifications outlined in its letter of December 2, 2009. State Farm submits that in the absence of an agreement on the clarifications, it cannot be said that there was a settlement.

EVIDENCE AND ANLYSIS

Is Mrs. Yogesvaran entitled to the cost of an orthopaedic assessment in the amount of $2,200, and two chronic pain assessments in the amounts of $2,411.50 and $2,634.56 pursuant to Section 24 of the Schedule?

(a) The Orthopaedic Assessment

(i) Mrs. Yogesvaran’s Submissions

Mrs. Yogesvaran submits that she is entitled to $2,200 for an orthopaedic assessment by Dr. A. M. Wylie pursuant to an OCF-22 dated September 2, 2008.

Although Mrs. Yogesvaran has not incurred this expense she submits that she is entitled to this expense based on the fact that it was “deemed approved” and also on the basis that it was a settled issue as per Mr. Franklin’s letter dated December 2, 2009.

Mrs. Yogesvaran further submits in her Reply submissions that “the insurer’s definition of incurred is not reflected in the case law (see McMichael and Belair Insurance Company Inc.”²

(ii) State Farm’s Submissions

State Farm submits that in a letter to Mrs. Yogesvaran’s counsel on May 4, 2010 State Farm advised that it would pay the OCF-22, which was deemed approved on October 17, 2008, “only upon receipt of an invoice from Dr. Wylie.” State Farm submits that this OCF-22 was not payable until such time as the expense is actually incurred.

FINDINGS

There is no disagreement on the fact that the September 2, 2008 OCF- 22 was deemed approved on October 17, 2008. The disagreement is on whether State Farm is required to pay this OCF-22 although there is no evidence that the expense has been incurred.

Section 24 of the Schedule provides that “[t]he insurer shall pay the following expenses incurred by or on behalf of an insured person.” [emphasis added]

Mrs. Yogesvaran disputes that she is required to incur an approved section 24 benefit before it is paid. She relies on the McMichael decision wherein it was held that an attendant care benefit not incurred was payable.

In that decision the applicant’s claim for attendant care was denied by the insurer. The applicant who required attendant care was unable to pay for it and accordingly he did not receive the necessary attendant care he required. On the particular facts of that case, the arbitrator held that the attendant care should have been paid and accordingly, the insurer was required to pay the attendant care even though it had not been incurred.

The reasoning in the McMichael case was to avoid the situation wherein an insurer will deny a claim to an impecunious insured and thus avoid having to pay a benefit found to be payable because it was not incurred.

The facts in this particular case are very different from McMichael. In the present case the insurer had approved the payment for an orthopaedic assessment. Accordingly, Mrs. Yogesvaran had the funding for this orthopaedic assessment.

For reasons not provided, Mrs. Yogesvaran chose not to have the orthopaedic assessment. Nevertheless, she claims because State Farm approved the OCF-22, she should be personally paid for this assessment although never incurred.

On the particular facts of this case, I agree with State Farm that once it had approved payment for the assessment, then until Mrs. Yogesvaran provided proof that the expense was incurred, she was not personally entitled to the money.

Mrs. Yogesvaran did not provide clarification, or proof, that this expense was incurred. Accordingly, I find that there is no binding agreement on the part of State Farm in its letter of December 2, 2009 that it would pay this expense. Accordingly, I find that pursuant to section 24 of the Schedule, Mrs. Yogesvaran is not entitled to payment for the September 2, 2008 OCF-22 unless she can offer proof that it was incurred.

(b) The chronic pain assessments

(i) Mrs. Yogesvaran’s submissions

Mrs. Yogesvaran claims she is entitled to two chronic pain assessments based on an OCF-22 dated July 28, 2008 in the sum of $2,411.50 and an OCF-22 dated March 27, 2009 in the sum of $2,634.56.

Mrs. Yogesvaran submits that in the December 17, 2009 letter to State Farm her counsel provided clarification to State Farm that the two chronic pain assessments she was requesting were not duplications. Specifically, she submitted that the assessments were prepared by different practitioners at different clinics and for different amounts.

Accordingly, Mrs. Yogesvaran submits that having provided this clarification, than pursuant to State Farm’s letter of December 2, 2009 State Farm is required to pay for both assessments.

(ii) State Farm’s Submissions

State Farm disagrees with Mrs. Yogesvaran’s assertion that the two OCF-22s for chronic pain assessments are payable by State Farm simply because her counsel’s letter of December 17, 2009 states that these OCF-22s are not a duplication of services. State Farm submits that it is irrelevant that the OCF-22s stemmed from two different applications, prepared by different practitioners and for two different amounts.

State Farm submits that the proposed chronic pain assessments are spaced eight months apart. There is no evidence these assessments were incurred and it would now be unjust and unreasonable for State Farm to be required to pay for the cost of two chronic pain assessments. This would be an unreasonable duplication of services.

Findings

The fact that Mrs. Yogesvaran’s counsel believes he has provided clarification does not mean in fact clarification has been provided.

The clarification in this instance is whether there is duplication in respect of the request for two chronic pain assessments. The fact that two assessments for chronic pain made eight months apart by two different assessors, from two different clinics for two different amounts does not mean that there is no duplication in relation to the type of service being sought.

Mrs. Yogesvaran has not provided any evidence that in fact the two chronic pain assessments, in substance, would be different. On the particular facts of this case, I agree with State Farm that the two chronic pain assessments amount to a duplication of services. There has been no clarification to show otherwise. Accordingly, I find that State Farm is not required to pay for two chronic pain assessments.

Is Mrs. Yogesvaran entitled to $1,742.86 for housekeeping expenses pursuant to Section 22 of the Schedule?

Mrs. Yogesvaran claims entitlement to $1,742.86 for outstanding housekeeping expenses for the period of September 3, 2007 to January 2, 2008.

State Farm submits that Mrs. Yogesvaran is mistaken in her assertion that there remains an outstanding housekeeping payment owing. State Farm submits that this housekeeping expense has already been paid.

In support of its position State Farm provided a copy of the Explanation of Benefits dated November 11, 2008 wherein it advised Mrs. Yogesvaran that she was being paid $1,742.86 in housekeeping expenses for the period of September 3, 2007 to January 2, 2008 as a final payment for housekeeping benefits.

In addition, State Farm provided a copy of the front and back of the cheque that was sent to Mrs. Yogesvaran on November 11, 2008. The cheque, in the amount of $1,742.86 shows that it was endorsed and cashed at the Royal Bank of Canada on November 17, 2008.

Mrs. Yogesvaran did not provide any evidence in her Reply submissions that the endorsed cheque was not signed by her. Accordingly, I accept State Farm’s submissions and evidence that the housekeeping benefits claimed by Mrs. Yogesvaran have been paid.

Accordingly, I find that Mrs. Yogesvaran is not entitled to housekeeping benefits in the amount of $1,742.86 pursuant to section 22 of the Schedule.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses within 14 days of the issuance of this decision.

January 13, 2011

Joyce Miller Date

Arbitrator