Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 4
FSCO A13-012050
BETWEEN:
THAYAPARAN SIVASUBRAMIYAM
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before: Arbitrator Charles D. Matheson
Heard: By written submissions completed on October 8, 2014
Appearances: Mr. Robert Plate for Mr. Thayaparan Sivasubramiyam
Mr. Sean R. Giovannetti for Aviva Canada Inc.
Issues:
The Applicant, Mr. Thayaparan Sivasubramiyam, was injured in a motor vehicle accident (“the accident”) on March 5, 2010. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.1 Aviva terminated Income Replacement Benefits (IRB), and House Keeping and Home Maintenance (HH) Benefits on August 4, 2011, as well as denying the treatment plan for chiropractic and massage therapy services via Dr. James Houston on March 12, 2010. Aviva further denied the recommendations from Hi-Tech Assessment Service’s OCF-22 dated June 25, 2010 and Dr. Gozlan’s OCF-22 Psychological Assessment dated July 5, 2010 in a letter and Explanation of Benefits form OCF-9 dated July 26, 2010. The parties were unable to resolve their disputes through mediation, and Mr. Thayaparan Sivasubramiyam, through his counsel, 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 Preliminary Hearing are:
- Is the Applicant statute barred for missing the limitation period for:
a. Income Replacement Benefits (IRB);
b. House Keeping and Home Maintenance (HH);
c. Treatment plan as submitted by Dr. Houston dated March 12, 2010;
d. A Social Work Assessment and report by Hi-Tech Assessment Services dated June 25, 2010;
e. A Psychological Assessment and report by Dr. Gozlan dated July 5, 2010?
- Is the Applicant liable to pay Aviva its expenses in respect of this Preliminary Issue Hearing?
Result:
a. The Applicant is statute barred from pursuing at Arbitration the IRB.
b. The Applicant is statute barred from pursuing at Arbitration the HH Benefits.
c. The Applicant is statute barred from pursuing at Arbitration Dr. Houston’s treatment plan.
d. The Applicant is allowed to pursue at Arbitration the Social Work Assessment and report by Hi-Tech Assessment Services dated June 25, 2010.
e. The Applicant is allowed to pursue at Arbitration the Psychological Assessment and report by Dr. Gozlan dated July 5, 2010.
- The issue of expenses of the Preliminary Issue Hearing shall be addressed in a separate Hearing in the event that the matter cannot be agreed upon by the parties.
EVIDENCE AND ANALYSIS:
STATUTES AND REGULATIONS CONSIDERED
Insurance Act, R.S.O. 1990, c. I.8, Section 181.1, (1), which reads as follows:
Limitation Period
281.1
(1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.
Exception
(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,
(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);
(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280 (8).
Regulations Considered
Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96, Section 37(1), which reads as follows:
Determination of Continuing Entitlement to Specified Benefits
(1) If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer,
(a) shall request that the insured person submit within 15 business days a new disability certificate completed as of a date on or after the date of the request; and
(b) may notify the insured person that the insurer requires the insured person to be examined under section 42.
Reg. 403/96, Section 38(13), which reads as follows:
(13) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination to the insured person and to the health practitioner who approved the treatment plan. O. Reg. 546/05, s. 14 (13).
Reg. 403/96, Section 38(14), which reads as follows:
(14) The determination of the insurer shall specify,
(a) the goods and services contemplated by the treatment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in paragraph 1 of subsection (8); or
(b) whether the insurer has determined that the insured person has an impairment to which a Pre-approved Framework Guideline applies and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in paragraph 2 of subsection (8). O. Reg. 546/05, s. 14 (13).
Reg. 403/96, Section 51(1), which reads as follows:
Time Limit for Proceedings
(1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer’s refusal to pay the amount claimed. O. Reg. 403/96, s. 51 (1).
(2) Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later. O. Reg. 403/96, s. 51 (2).
Case Law Authorities Considered
Smith v. Co-operators General Insurance Co., (2002), 2002 SCC 30, 286 N.R. 178, 210D.L.R. (4th) 443, 36.L.I (3d) 2 S.C.R. 129, (S.C.C.)
Roger v. Personal Insurance Co. of Canada, (2014) O.J. No. 1575, April 1, 2014, Ontario Superior Court of Justice, C.D. Aitken J.
Yogesvaran v. State Farm Mutual Automobile Insurance Co. (2009), 2009 Carswell Ont. 7980 (F.S.C.O. Arb.)
The main issues to be addressed are:
Income Replacement Benefits (IRB): is the Applicant entitled to pursue the claim for Income Replacement Benefits from August 4, 2011 to date and ongoing at Arbitration?
House Keeping and Home Maintenance (HH): is the Applicant entitled to pursue Housekeeping and Home Maintenance benefits in the amount of $100 per week from August 4, 2011 to March 5, 2012 at Arbitration?
Treatment plan as submitted by Dr. Houston dated March 12, 2010: is the Applicant entitled to pursue this treatment plan at Arbitration?
Social Work Assessment and report by Hi-Tech Assessment Services dated June 25, 2010, and Psychological Assessment and report by Dr. Gozlan dated July 5, 2010: is the Applicant entitled to pursue these treatment plans at Arbitration?
Both parties agree in their respective arguments that:
The limitation period starts with a valid termination notice of benefits, as defined in Smith v. Co-operators General Insurance Co., (2002), 2002 SCC 30, 286 N.R. 178, 210D.L.R. (4th) 443, 36 .L.I (3d) 2 S.C.R. 129, (S.C.C.);
A proper denial also encompasses the necessity for a valid or current OCF-3 to be used by the Insurer’s Examiners. This reasoning was followed in Roger v. Personal Insurance Co. of Canada, (2014) O.J. No. 1575, April 1, 2014, Ontario Superior Court of Justice, C.D. Aitken J., where Aitken J. found that without following s. 37 of the SABS and requiring an Applicant to submit a new disability certificate within 15 business days, was grounds for an invalid refusal.
The Applicant continues this line of argument by suggesting that in s. 37(2)(a) of the SABS, an Insurer is entitled to discontinue benefits if the Applicant fails to submit to a completed disability certificate within 15 business days of the Insurers request, therefore, to give proper meaning to s. 37(1)(a) the consequences for not following s. 37(1)(a) by the Insurer must be equally as severe in nature.
Income Replacement Benefit and House Keeping and Home Maintenance
Aviva argues that after receiving and reviewing the evidenced opinion from Life Mark Assessments, they determined that the Applicant was no longer entitled to either the IRB or HH Benefits, which they identified in the evidenced letter and an Explanation of Benefits form OCF-9, both dated July 19, 2011.
The Applicant argues that Aviva did not request under the Statutory Accident Benefits Schedule – Accident on or after November 1, 1996 (SABS), a s. 37(1)(a) new disability certificate (OCF-3) within 15 business days, as required by s. 37(1) (a) of the SABS. This was evidenced by an April 13, 2011 letter issued by Aviva, which requested the Applicant to undergo a series of Insurer’s Examinations in order to determine the continued entitlement of the IRB and HH benefits.
The Applicant is suggesting that by not requesting a new OCF-3, the old OCF-3, dated March 8, 2011, was in effect, old or stale and effectively invalidates the denial of benefits, which in turn does not trigger the limitation clock. Thus, the Applicant is not statue barred from arbitrating these two issues.
In reply, the Insurer suggests that the OCF-3 dated March 8, 2011 was in fact not stale or out of date and was indeed the proper OCF-3 to be used in this instance. This is evidenced by the fax transmission notation on the header of said OCF-3 which indicates that it arrived after business hours on March 10, 2011. Aviva has evidenced by letter dated March 25, 2011 that they notified the Applicant of the arrangements for five Insurer’s Examinations. All of said examinations would have been completed by April 27, 2011.
Further, the Insurer asserts that the Applicant’s representative requested the rescheduling of the original Insurer’s Examinations, which in turn generated the April 13, 2011 letter. The Applicant did not submit evidence to the contrary on this point.
After reviewing the March 2011 and April 2011 calendar, I have come to the conclusion that the Insurer did, within 15 business days, properly use the March 8, 2011 OCF-3.
Therefore, in my view of the evidence, the Applicant is statute barred on time limitations from proceeding to Arbitration on these two issues.
Dr. Houston’s Treatment Plan
The Applicant argues that Aviva violated s. 38(13) and (14) of the SABS, and that a violation of either of those sections would constitute an invalid termination.
In regards to s. 38(14), I reviewed the evidenced letter of explanation and the accompanying Explanation of Benefits OCF-9, and I am satisfied that the Insurer is clearly denying the treatment plan despite the grammatical errors of the reasons, which reads as follows:
As Dr. Sandra O’Connor does not agree with the recommendations made by Dr. J. Houston, according to the assessor, duration of the treatment plans well as the services to be provided in keeping with the PAF guidelines. Hence we are not prepared to provide funding for the proposed treatment plan.
However, the Applicant does argue, in part, that the obligations in section 38(14) of the SABS has not been fulfilled as the Insurer has not given the reasons why Dr. Houston’s treatment plan is not reasonable or necessary nor is there a reason why the assessor determined that the injuries sustained by the Applicant fell within the Pre-Approved Framework (PAF). The Applicant continues to argue that in effect the insured would have to read the opinion of the assessor to understand the reasons for the denial, which does not fall within the meaning of the SABS.
Upon review of the evidence, I am satisfied that with the plain reading of the SABS, the Insurer did give more than one reason why there was a denial of a benefit. The two reasons are that the assessor believed that the duration of treatment is in dispute, and the necessary treatments themselves could be done within the PAF. The SABS only contemplates “reasons for the Insurer’s decision” not “comprehensive or detailed” reasons for the Insurer’s decision.
In regards to s. 38(13) of the SABS, the late delivery of the assessor’s opinion or the s. 42 Insurer’s Examination Report, being delivered 69 days late, does present an issue; however, I view it is a minor administrative error. Similar to that of Atkin J. in the Roger v. Personal Insurance Company of Canada, as there was no evidence that the error prejudiced the Applicant’s case, as the Application for Arbitration wasn’t filed until one year after the two year limitation period had expired.
Therefore, the Applicant is statute barred on time limitations from proceeding to Arbitration on this issue.
Social Work and Psychological Assessments
As previously argued in the Dr. Houston treatment plan above, the Applicant argues that there were no reasons for the denial. The denial is in itself clear; however, in s. 38 of the SABS, “reasons for the Insurer’s decision” must be included in the denial to be considered a valid denial of benefits which then triggers the limitation clock to tick.
After reviewing the Letter of Explanation and the accompanying OCF-9 Explanation of Benefits, I conclude that the plain language reading of the denial suggests just one reason was given for the denial. The language in the SABS, namely the word “reasons”, is plural, which in my mind means more than one reason must be given by the Insurer for the denial.
In these two instances I only read one reason given for both denials which reads as follows:
As Dr. Charles Pierce does not agree with the recommendations made by Dr. Gozlan and Mohan Arunachalam, we are not prepared to provide funding for the proposed assessments.
Therefore, I now find and order that this denial is invalid, and the Applicant is able to purse these issues at Arbitration.
EXPENSES:
The issue of expenses of the Preliminary Issue Hearing shall be addressed in a separate Hearing in the event that the matter cannot be agreed upon by the parties.
January 9, 2015
Charles D. Matheson Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 4
FSCO A13-012050
BETWEEN:
THAYAPARAN SIVASUBRAMIYAM
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
1a. The Applicant is statute barred from pursuing at Arbitration the IRB.
1b. The Applicant is statute barred from pursuing at Arbitration the HH Benefits.
1c. The Applicant is statute barred from pursuing at Arbitration Dr. Houston’s treatment plan.
1d. The Applicant is allowed to pursue at Arbitration the Social Work Assessment and report by Hi-Tech Assessment Services dated June 25, 2010.
1e. The Applicant is allowed to pursue at Arbitration the Psychological Assessment and report by Dr. Gozlan dated July 5, 2010.
- The issue of expenses of the Preliminary Issue Hearing shall be addressed in a separate Hearing in the event that the matter cannot be agreed upon by the parties.
January 9, 2015
Charles D. Matheson Arbitrator
Date