Neutral Citation: 2016 ONFSCDRS 295 FSCO A15-005318

BETWEEN:

NELIS CATHEN Applicant

and

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

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Paulina Gueller Heard: By written submissions due October 17, 2016

Appearances: No one participated for Mr. Nelis Cathen Ms. Aida Gregorian participated for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mr. Nelis Cathen, was injured in a motor vehicle accident on February 13, 2014. He applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Cathen applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

Is Mr. Cathen precluded from proceeding to Arbitration for a Medical Benefit in the amount of $3,000.00, submitted by an OCF-6 Expense Form, dated January 29, 2015, for treatment provided by Dr. Pisarek?
Is Security National entitled to its expenses of this Preliminary Issue Hearing?

Result:

Mr. Cathen is precluded from proceeding to Arbitration for the Medical Benefit submitted through an OCF-6 Expense Form, dated January 29, 2015, in the amount of $3,000.00, for treatment provided by Dr. Pisarek.
I leave the decision on expenses to the Hearing Arbitrator.
The parties shall notify ADR Chambers of a mutually agreeable Hearing date within 30 days of receiving this Order.

EVIDENCE AND ANALYSIS:

Background

By letter, dated June 14, 2016, I scheduled a Preliminary Issue Hearing in writing to decide whether Mr. Cathen was precluded from proceeding to Arbitration for the following issues:

Medical Benefits:

a. $3,000.00 for treatment, service provider: Dr. Pisarek, dated January 29, 2015;

b. $200.00 for OCF-3, service provider: Dr. Pisarek, dated August 17, 2015.

Costs of Examinations:

a. $550.00 for Report Finding, dated August 17, 2015;

b. $1,945.53 for Psychological Assessment, dated August 17, 2015;

c. $2,838.25 for Chronic Pain Assessment, dated August 17, 2015.

Security National submitted Preliminary Issue material only for the Medical Benefit number 1(a) above. Therefore, this Preliminary Issue Hearing shall address whether Mr. Cathen is precluded from proceeding to Arbitration for a Medical Benefit in the amount of $3,000.00, submitted by an OCF-6 Expense Form, dated January 29, 2015, for chiropractic treatment provided by Dr. Pisarek.

The Insurer stated that Mr. Cathen submitted an OCF-6 Expense Form, dated January 29, 2015, along with 40 receipts for chiropractic sessions, in the amount of $75.00 each, for various dates from June 25, 2014 to January 28, 2015, from Advance HealthCare.

The Insurer provided me with a letter, dated February 13, 2015, advising Mr. Cathen that Security National was unable to consider payment of the amounts submitted in the OCF-6 Expense Form, as they did not appear to be reasonable and necessary because the chiropractor treatment expenses are required to be submitted on a OCF-18 Treatment Plan and not on the OCF-6 Expense Form.

The Insurer submitted that Sections 38 and 39 of the Schedule are relevant in this case, as they provide that the Treatment Plan should have been submitted by an OCF-18 Treatment Plan Form. The Insurer also submitted that failing to do so does not create a dispute over which FSCO has jurisdiction. In consequence, the Insurer requested that Mr. Cathen’s claim for chiropractic Medical Benefits in the amount of $3,000.00 should be dismissed.

The Insurer provided me with the following case law:

a) Johnston and Pafco Insurance Company Limited,² where the Arbitrator decided that the claim for the benefits was improperly submitted. The Arbitrator found that the request to decide on the issue was premature, as there was no dispute. In consequence, the Arbitrator found that he had no jurisdiction.

b) Nadarajah and RBC General Insurance Company,³ where Director Delegate Evans concluded that a precondition for making a Rehabilitation Benefit claim is a Treatment Plan.

The Applicable Law

(2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an is not more than five business days after the accident to which the application relates; or

(i) drugs prescribed by a regulated health professional, or

(ii) goods with a cost of $250 or less per item. O. Reg. 34/10, s. 38 (2).

(3) A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional; and

(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and,

(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,

(A) that the insured person’s impairment is not predominantly a minor injury, or

(B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

(ii) stating, if the treatment and assessment plan is in respect of an accident that occurred before September 1, 2010,

(A) that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person’s treatment or rehabilitation, and

(B) that the impairment sustained by the insured person does not come within a Pre-approved Framework Guideline referred to in the Old Regulation. O. Reg. 34/10, s. 38 (3); O. Reg. 347/13, s. 4.

If no Treatment Plan is required:

(1) This section applies to a claim for a medical or rehabilitation benefit or an application for approval of an assessment or examination under section 38 if the insurer gives the insured person a notice informing the insured person that the insurer will pay the expenses without the submission of a treatment and assessment plan under that section. O. Reg. 34/10, s. 39 (1).

(2) If the insurer gives the insured person a notice under subsection (1),

(a) the notice must describe the expenses that the insurer will pay without the submission of a treatment and assessment plan and shall specify,

(i) the types of expenses,

(ii) any restrictions on the amount of the expenses, and

(iii) any restrictions on when the expenses are to be incurred;

(b) the insurer shall comply with the requirements set out in any applicable Guideline if the notice is given in connection with a proposal, recommendation or suggestion that the insured person receive goods or services from a person named by the insurer;

(d) the insurer shall, if there is a dispute about whether for the purpose of subsection 15 (1) or 16 (3) an expense described in the notice is reasonable or necessary, pay the expense pending resolution of the dispute in accordance with sections 279 to 283 of the Act. O. Reg. 34/10, s. 39 (2).

Decision

From the documents submitted by the Insurer,⁴ I conclude that Mr. Cathen incurred 40 sessions of chiropractic treatment with Dr. Pisarek of Advanced HealthCare from June 25, 2014 to January 28, 2015. Mr. Cathen submitted an OCF-6 Expense Form on January 29, 2015.

By letter, dated February 13, 2015, the Insurer advised Mr. Cathen that the expenses submitted did not appear to be reasonable and necessary and that they had to be submitted through a Treatment Plan Form.

The OCF-6 Expense Form is only used for expenses not submitted on behalf of the Applicant by his health care provider. The Applicant may apply through an OCF-6 Expense Form for reasonable and necessary expenses incurred because of an accident and not covered by another health plan.

Section 38 of the Schedule sets out that an Insurer is not liable to pay an expense in respect of a Medical Benefit that was incurred before the insured person submits a Treatment and Assessment Plan that satisfies the requirements set out in subsection (3).

Section 39 (1) of the Schedule sets out the requirements for the submission of expenses without a Treatment Plan. If the Insurer gives notice informing the insured person that the Insurer will pay the expenses without the submission of the Treatment Plan, then the Insurer will pay the expenses described in the notice.

Mr. Cathen provided me no evidence in this matter. The Applicant has the burden to prove his claim. However, he did not submit any supporting material that the chiropractic sessions incurred were reasonable and necessary, or that the Insurer notified and approved the chiropractic sessions without a Treatment Plan.

Consequently, I accept the Insurer’s submissions that the OCF-6 Expense Form submitted by Mr. Cathen for incurred treatment was improperly submitted. Therefore, it does not create a dispute over which an Arbitrator has jurisdiction to decide.

For all the above reasons, I find that Mr. Cathen is precluded from proceeding to Arbitration for the Medical Benefit in the amount of $3,000.00 for an OCF-6 Expense Form, dated January 29, 2015, for chiropractic treatment provided by Dr. Pisarek.

Remaining Issues in Dispute at the Hearing

The remaining issues in dispute are as follows:

Medical Benefits:

a. $200.00 for OCF-3, service provider: Dr. Pisarek, dated August 17, 2015.

Costs of Examinations:

a. $550.00 for Report Finding, dated August 17, 2015;

b. $1,945.53 for Psychological Assessment, dated August 17, 2015;

c. $2,838.25 for Chronic Pain Assessment, dated August 17, 2015.

I direct the parties to notify ADR Chambers within 30 days of receiving this decision as to an agreeable date and time for the Hearing.

The Hearing dates shall be set within 180 days after the date of the notice and for which ADR Chambers confirms an Arbitrator is available. Otherwise, ADR Chambers may proceed to schedule a date and time for the Hearing without the agreement of the parties, and such date and time shall be binding on the parties, pursuant to Rules 36.7 and 37.7 of the Dispute Resolution Practice Code.

EXPENSES:

I leave the decision on expenses respecting this Preliminary Issue Hearing to the Hearing Arbitrator.

November 7, 2016

Paulina Gueller Arbitrator

Date

Financial Services Commission of Ontario