Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 88

FSCO A13-002558

BETWEEN:

ANNE AMIDI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Marshall Schnapp

Heard: In person at ADR Chambers on June 23, 24, 25, 2015 and November 5, 2015 and by written submissions completed on January 15, 2016

Appearances:

Ms. Anne Amidi participated Mr. Jonathan Mackenzie participated for Ms. Anne Amidi Mr. Darrell March participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Anne Amidi, was injured in a motor vehicle accident on December 5, 2010 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Amidi, through her representative, 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 Hearing are:

1. Is Ms. Amidi entitled to the following medical benefits:

a) $2,882.43 for an OCF-18 (Treatment and Assessment Plan), dated December 8, 2010, completed by Dr. Merchant (Chiropractor) of Physiocare & Rehab;

b) $2,013.84 for an OCF-18, dated April 20, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab;

c) $1,650.68 for an OCF-18, dated July 5, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab?

2. Is Ms. Amidi entitled to a cost of examination in the sum of $1,800.00 for the undertaking of a MRI on November 14, 2011 as per an OCF-18, dated November 17, 2011?

3. Is either party entitled to its expenses of the Hearing?

4. Is Ms. Amidi entitled to interest for the overdue payment of benefits?

Result:

1. Ms. Amidi is not entitled to the following medical benefits:

a) $2,882.43 for an OCF-18, dated December 8, 2010, completed by Dr. Merchant (Chiropractor) of Physiocare & Rehab;

b) $2,013.84 for an OCF-18, dated April 20, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab;

c) $1,650.68 for an OCF-18, dated July 5, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab.

2. Ms. Amidi is not entitled to a cost of examination in the sum of $1,800.00 for the undertaking of a MRI on November 14, 2011 as per an OCF-18, dated November 17, 2011.

3. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background & Procedural Issues

A Pre-Hearing discussion took place in this matter on June 25, 2014 before Arbitrator Henry, who ordered that the exchange of documents, or best efforts to obtain them, be completed within 60 days. Arbitrator Henry made a further Productions Order, dated March 18, 2015, and provided Ms. Amidi’s counsel with a deadline of March 30, 2015 to provide all outstanding productions.

The Pre-Hearing letter noted numerous benefits in dispute that were withdrawn by Ms. Amidi by email, dated June 16, 2015, prior to the start of the Arbitration Hearing before me.

The benefits in dispute that were withdrawn included the following:

1. caregiver benefits in the amount of $250.00 per week from December 5, 2010 to December 5, 2012;

2. medical benefits in the amount of $2,227.38 for outstanding invoices from Physiocare & Rehab Inc.; and

3. housekeeping and home maintenance benefits in the amount of $100.00 per week from December 5, 2010 to December 5, 2012.

Thus only the medical benefits and one cost of examination noted as the issues above were subject to the Arbitration.

Preliminary Motions

At the commencement of the Hearing, State Farm brought two Motions. The first was to exclude all witnesses on behalf of Ms. Amidi, including Ms. Amidi, from testifying due to non-compliance with Rule 41 of the Dispute Resolution Practice Code (“the Code”). The second issue was an order to exclude Ms. Amidi’s Arbitration Brief as evidence due to non-compliance with Rule 39 of the Code. Ms. Amidi had not provided either of the above information thirty days prior to the start of the Hearing. I requested written submissions from both parties on the above Motions.

State Farm’s Position

Applicant’s Witnesses

State Farm took the position that as Ms. Amidi had not provided the names of any witnesses she intended to call; none should be allowed to provide testimony. State Farm relied on Rule 39 and several FSCO decisions in support of this Motion.

Arbitration Brief

It was State Farm’s argument that as Ms. Amidi had not complied with Rule 39, her Arbitration Brief should not be allowed as evidence. State Farm relied on Rule 42 and several FSCO decisions in support of this Motion.

Ms. Amidi’s Position

Applicant’s Witnesses

Ms. Amidi served a witness list by fax on June 11, 2015 and Ms. Amidi was listed as a witness on the list.

Ms. Amidi noted that Rule 41.3 states that an Arbitrator “may” excuse a witness from attending the Hearing for the reasons set out in Rule 41.3(a) and 41.3(b). It is also noted that the Arbitrator may “make such other order as the arbitrator considers just”.

In support of allowing Ms. Amidi to testify, she relied on the following FSCO decisions: Chung and Unifund Assurance Company 2010 (FSCO A09-000198) and Cyr and State Farm Mutual Automobile Insurance Company 2015 (FSCO A12-003716).²

In the Cyr decision, Arbitrator Matheson addressed the issue of whether an Applicant could be excluded from testifying at their own Arbitration Hearing and made several findings including the following:

I note that neither party was able to present any evidence of a definition for either a “party” or a “witness” that would apply to the Insurance Act (the “Act”), the Statutory Accident Benefits Schedule (“SABS”) or the Dispute Resolution Practice Code (“DRPC”)…

It seems that the parties agree that an Applicant who may or may not testify as a witness is also a party…

In the instant case, the Applicant is a party, and wishes to testify on her own behalf.

I am persuaded by the Applicant’s argument that there is no specific provision in the Rules that speaks directly to excusing or excluding a party…

It has been generally and widely accepted by Arbitrators and Judges that the Act is a consumer protection mechanism by design, and if the access to justice is to be quick, effective, and just, it seems reasonable to conclude that the legislature would have placed certain powers at the discretion of an Arbitrator if specific events took place, to exclude or excuse a party as a witness. Such conditions and their subsequent remedies of preventing a party from testifying at his or her own Arbitration do not exist. If the intention of the legislature was to allow for such a thing to happen, such Rules would exist. I simply cannot make the leap that the Insurer wishes me to and exclude or excuse the Applicant within the meaning of Rule 41 or 42, as I feel that the course of natural justice, and significant common law principles would be violated.

Therefore, I find that the Applicant may testify at this Arbitration.

Ms. Amidi also noted that State Farm did not produce any case law to the effect that the Applicant herself may be excluded from testifying.

Arbitration Brief

According to Ms. Amidi, she has been serving documents relevant to this Arbitration since March 2013 – many of which were in the Brief. Ms. Amidi also submits the Arbitration Brief was served on June 12, 2015.

Ms. Amidi disagrees with the Insurer’s interpretation of the law and submits that her Arbitration Brief is admissible at this Arbitration. In support of this argument, Ms. Amidi notes that the 30 day timeline outlined in the Code does not specifically refer to Arbitration Briefs. In support of the above, she relied on the 2014 decision of Burgess and Pembridge Insurance Company (FSCO A11-001160).³

Ms. Amidi submitted that if her Arbitration Brief was admitted at this Arbitration, there would be no prejudice to State Farm, but if the Arbitration Brief was found to be inadmissible, then she would be significantly prejudiced.

It was noted by Ms. Amidi that included in her Arbitration Brief were three treatment plans that were issues in this Arbitration.

Rulings on Motions

Applicant’s Witnesses

The only witness Ms. Amidi has put forward is herself. I have been provided with no authority, including rules from the Code, FSCO decisions or case law, where a party has been denied the right to testify on their own behalf.

I also note that the Rule in the Code with respect to witnesses reads differently than the rule with respect to evidence. Rule 41.3 says that an Arbitrator “may” excuse a witness from attending the Hearing for the reasons set out in Rule 41.3(a) and 41.3(b). It is also noted that the Arbitrator may “make such other order as the arbitrator considers just”.

I am also in agreement with Arbitrator Matheson’s comments referred to above on this issue, specifically that there is no specific provision in the Rules that speaks directly to excusing or excluding a party, and by excluding a party from testifying, the principles of natural justice, and significant common law principles, would be violated. Therefore I am allowing Ms. Amidi to testify.

Arbitration Brief

Contained within Ms. Amidi’s Arbitration Brief are three treatment plans that form some of the issues in dispute in her Application for Arbitration. State Farm received these treatment plans and denied these benefits. As these treatment plans form part of the issues in dispute, I am allowing their admittance into evidence.

However, with respect to the remaining documents in Ms. Amidi’s Arbitration Brief, some of which had been previously served on State Farm, Rule 39 of the Code speaks directly to this issue of admittance of evidence at a Hearing.

39.1 Subject to Rule 39.2, all documents, reports (including experts' reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing. 39.2 In extraordinary circumstances, a party may seek an arbitrator's permission to serve a document, report or assessment on the other party for use at a hearing less than 30 days before the first day of hearing.

I note the language states “must be served on the other party at least 30 days before the first day of the hearing”.

While the Rule does not specifically refer to “Arbitration Briefs”, it does refer to “document, report or assessment”, and all of these items are what comprises Ms. Amidi’s Arbitration Brief.

I was provided no submissions on any “extraordinary circumstances” that existed that would assist me in allowing late service of Ms. Amidi’s Arbitration Brief.

One of the cases State Farm relied on was Hotchkiss and Kingsway General Insurance Company,⁴ where Arbitrator Wilson made the following findings which I am in agreement with:

Rule 39.1 is mandatory. It sets a time limit and establishes the discretion of an arbitrator to vary that time limit. It also provides the criterion for such exceptions: that “extraordinary circumstances exist.” It pointedly does not refer to a jurisdiction to make any order “on such terms as are just” in such circumstances, as Jevco would have me do in this matter.

In the absence of cogent evidence describing the circumstances in which its default occurred, or showing that the prejudice claimed exists and is not merely the results of a now regretted litigation strategy, I find that the Insurer has not met its burden to set aside the normal timelines for the production of documentary evidence.

Thus, for the reasons above, I am not willing to use my discretionary powers to rectify the late service of documents as Ms. Amidi has not met her burden to set aside the normal timelines, and thus her Arbitration Brief, except for the three treatment plans in dispute contained therein, is excluded as evidence.

Witnesses

I heard testimony from Ms. Amidi and no other witnesses provided any evidence.

Ms. Amidi’s Evidence

I found Ms. Amidi provided her testimony in a straight-forward and direct manner. She came across as credible and sincere. Ms. Amidi testified that she was born in Lebanon in 1975 and immigrated to Canada in 1993. She advised she is deaf and lost her hearing when she was ten months old due to a bomb explosion. She was laid off from employment in 2005, and since that time she received some job training and has made some attempts to resume working. At the time of the motor vehicle accident she was not working.

Ms. Amidi provided some details about her activity level in the year prior to the accident. According to her she was able to perform her normal activities – taking care of her children, shopping and cleaning.

At the time of the motor vehicle accident, Ms. Amidi was seated in the front passenger seat, wearing her seatbelt as the motor vehicle she was in was travelling west, when another motor vehicle came across the street right in front and drove over the line. The driver of the motor vehicle Ms. Amidi was in tried to avoid the car, but was unable to do so and the cars collided.

Ms. Amidi recalls hitting her head. She also recalls her knees hitting the car, she felt her chest impacting and hitting her head on the door window. Her right shoulder and neck were twisted as a result and her head and back were sore after the collision. She recalls suffering a terrible shock after the collision. According to Ms. Amidi the air bags deployed as a result of the collision.

Ms. Amidi testified that she was taken by ambulance to Credit Valley Hospital. Ms. Amidi testified that she was “pissed off” and “they were not good to me” at the hospital. The doctor told her she was fine. She was not provided with an American Sign interpreter at the hospital.

Ms. Amidi testified that she was in a lot of pain immediately after the accident when she went home and required assistance from her friends. She recalls she could not do anything as she was in a great deal of pain, so she just sat. She recalled that her chest pain ceased about a month after the accident but the other pain had continued.

Ms. Amidi testified that she had pain in her neck until her therapy helped relieve her pain but then it came back after the therapy was over. She recalls going for therapy in Mississauga but did not recall the name of the facility. She also recalled going to a clinic in Scarborough.

When asked what types of therapies she received, Ms. Amidi recalled receiving massage therapy, “some electrical things for her knees” and some exercises. She could not remember all the therapy as it was so long ago. In terms of frequency, she was unsure but thought it was either once or twice a week. She was not able to recall the names or genders of those who provided her treatment.

Ms. Amidi stopped going to therapy because the insurance company stopped funding her treatment. Ms. Amidi testified that after the therapy stopped she was still suffering from pain in her body in the following areas: knees, right hip, neck, right shoulder and right side of her back.

According to Ms. Amidi, her low back pain causes a lot of stress and she believes her leg pain is getting worse and “it is deteriorating”.

According to Ms. Amidi, approximately two years ago, she was seeing a specialist at Credit Valley—whose name she does not recall—and they were considering surgery for her knees, but she was unable to follow-up about it because she got pregnant.

In terms of her current condition, Ms. Amidi still has pain in the right side of her back, hip and knees. She also advised she feels quite depressed. She no longer participates in sports and cannot run; however, sometimes she will bike.

Ms. Amidi was asked if she has received a medical diagnosis about her current condition. She testified that her previous family doctor is gone and he knew her history so she now has a new doctor. Her new doctor asked her if she wanted surgery, to which she said no, but they have a plan to obtain x-rays to determine the best course of action.

Ms. Amidi also testified that when she discussed her medical condition with her former family doctor, Dr. Adams, he recommended some treatment but Ms. Amidi did not undertake the treatment. As well, she advised she was not currently taking any prescription medication.

Ms. Amidi advised her counsel her current condition does not affect her ability to perform her housekeeping tasks as long as she was very careful.

During cross-examination, Ms. Amidi testified that she met her current partner, and father of her youngest child, on October 25, 2012. He resides in Niagara Falls, New York and is unable to travel to Canada due to immigration issues. When asked how many times she has travelled to see him since they met, Ms. Amidi answered that it depends; sometimes it is twice a week, three times a week or weekly. Ms. Amidi currently lives in Mississauga.

Ms. Amidi also testified that prior to the accident and after the accident, she would drive her older son, Samir, to school in her van.

During her cross-examination, Ms. Amidi also confirmed after the accident she travelled to New Jersey, went on a cruise and on a one week trip to Cancun, Mexico.

Ms. Amidi’s Submissions on the issues in dispute

Medical Benefits

Ms. Amidi submitted that her injuries should not fall within the Minor Injury Guideline (“MIG”) and as the treatment plans in dispute were reasonable and necessary, they should be paid by State Farm. In support of this argument, Ms. Amidi notes that both Dr. Merchant and Mr. Lamba indicated on the treatment plans in dispute that Ms. Amidi’s impairment is not predominantly a minor injury as referred to in the MIG.

As well, Ms. Amidi argues that her injuries should not fall within the MIG because her MRI dated November 17, 2011, shows a prior complex tear of the medial meniscus, with a large portion of the posterior horn not seen, and an old full thickness tear of the ACL.

And she further submits that even if the ACL tear and/or the meniscus tear in the left knee existed prior to the subject December 5, 2010 motor vehicle collision, Ms. Amidi’s injuries should not come within the MIG as she then had a pre-existing condition which would prevent her from achieving maximal medical recovery from her injuries if she is subject to the $3,500 limit under the MIG.

Another argument put forward by Ms. Amidi was that Dr. Merchant (Chiropractor) and Mr. Lamba (Physiotherapist) indicated in their respective treatment plans that her hearing impairment was a barrier to her recovery. Ms. Amidi agues her hearing impairment would prevent her from achieving maximal medical recovery from her injuries if she is subject to the $3,500 limit under the MIG.

Ms. Amidi also noted that only $140.00 in medical and rehabilitation benefits have been paid in her claim and therefore under the MIG, $3,360.00 in medical and rehabilitation benefits remain unused. She submitted that even if her injuries are to be determined as falling within the MIG, any one of the disputed treatment plans could be funded within the remaining limits of the MIG.

State Farm’s Submissions on the issues in dispute

State Farm highlighted that after the December 5, 2010 motor vehicle accident, Ms. Amidi traveled extensively, including multiple motor vehicle trips to visit her partner in Niagara Falls, New York.

State Farm denied all medical benefits at issue on the basis that Ms. Amidi’s injuries fell under the MIG. In support of its position, State Farm relies on Dr. Tepperman’s reports, dated May 26, 2011, June 20, 2011 and November 26, 2012,⁵ all of which found that Ms. Amidi suffered a minor injury and was subject to the MIG.

With respect to the cost of examination in dispute, State Farm is relying on its Explanation of Benefits (OCF-9), dated December 6, 2011, denying the Treatment and Assessment Plan (OCF-18), dated November 17, 2011, in the amount of $1,800.00, as this OCF-18 was not previously approved before the expense was incurred on November 14, 2011 and thus cannot be considered as prior approval is required under the Schedule.

In his Addendum Report, dated November 26, 2012, Dr. Tepperman reviewed the clinical notes of Dr. Esmond, who was Ms. Amidi’s family doctor. The following x-rays were included in Dr. Esmond’s notes:

• an x-ray of Ms. Amidi’s knees on December 17, 2010 (12 days after the motor vehicle accident) which was normal, her cervical spine was normal, chest and ribs were normal except for a previous injury to her left posterior 10th rib;
• an x-ray of the pelvis and right hip on February 15, 2011 which was normal;
• radiological investigations completed on March 22, 2011, ultrasound of both shoulders revealed small amount of fluid collection in the subacromail/subdeltoid bursa on the right side in keeping with bursitis and an ultrasound on the knees noted persistence of fluid collection adjacent to the lateral collateral ligament, this time seen bilaterally again suggesting a change from an inflammatory reaction.

After reviewing the above records, Dr. Tepperman remained of the opinion that Ms. Amidi’s injuries were minor and thus subject to the MIG.

State Farm also relied on Ms. Amidi’s testimony during the Arbitration that she sustained a slip and fall on ice and snow after the motor vehicle accident of December 5, 2010 and submitted that while there was limited evidence about this event, it was likely that Ms. Amidi sustained injury as a result of this post-motor vehicle accident event.

State Farm submits that Ms. Amidi has the burden of proving eligibility for statutory accident benefits. The Insurer relies on the decision in Scarlett and Belair Insurance Company Inc.,⁶ where the Director's Delegate clarified the law with respect to the applicability of the MIG:

The law, briefly, provides that

a minor injury means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury [SABS, s. 3(1)]

an insured who sustains an impairment that is predominantly a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses (including assessments) [SABS, s. 18(1)]

an exception for pre-existing conditions may apply based on "compelling evidence". [SABS, s. 18(2)]

In the decision, the Director’s Delegate found that in the event that the claimant's impairments fell within the MIG, section 18 and section 38(3)(c)(i) of the Schedule allowed for exceptions in the face of "compelling evidence" showing the insured person had a pre-existing medical condition that would prevent the insured person from achieving maximal medical recovery from the minor injury if the insured was subject to the monetary limit under the MIG.

In this case, according to State Farm, Ms. Amidi has not provided any medical opinions which have found that she had an injury that falls outside the MIG or indicates she had a pre-existing condition which would remove her from the MIG.

State Farm notes the x-rays taken in December 2010 after the accident did not document any objective injury to her knee or neck. And while in November 2011, close to a year after the accident, an MRI did show a ligament tear in the left knee, it is unclear this could be related to the accident, since the x-rays taken earlier showed no such tear.

The evidence shows that Ms. Amidi also suffered a fall after the December 5, 2010 accident, but her complete medical records post-accident were not provided and she failed to comply with a Pre-Hearing Order to provide her complete medical records.

As well, Dr. Tepperman addressed the November 14, 2011 MRI findings in his Addendum Report, dated November 26, 2012, and found that the while injury was likely pre-existing, it still did not exempt Ms. Amidi from the MIG. He came to this conclusion based on several factors including the following: 1) nowhere in the clinical records is there any mention of any left knee problems and investigations did not reveal any significant abnormalities, 2) in December 2001, she was involved in a motor vehicle accident with injuries the nature of which she could not reveal, and 3) his examination did not reveal any evidence of internal derangement of her left knee.⁷

State Farm also noted that Ms. Amidi had never provided any report that commented specifically upon and/or challenged Dr. Tepperman's opinion. And while I note Ms. Amidi’s Arbitration Brief has been excluded as evidence in the Hearing, there appears to be no such report in it that makes reference or comments on Dr. Tepperman's findings.

State Farm also takes the position that I should draw an adverse inference as Ms. Amidi failed to provide supporting documentation related to the benefits being claimed. It relies on Rule 34.1(d) of the Code which states: “Where a party fails to comply with a time requirement established by these Rules or by order or agreement, or fails to produce documents in compliance with an order or agreement, an arbitrator may draw an adverse inference against a party”. State Farm argues that had all the medical records been provided, they would establish that Ms. Amidi did not suffer any injury that would exempt her from the MIG.

Findings

MIG

From all of the evidence before me, I find that Ms. Amidi’s injuries do fall within the MIG. While I found Ms. Amidi to be a credible witness and note she provided evidence on experiencing pain and experiencing a reduced level of activity after the accident, mainly related to her ability to participate in sports, her testimony has not persuaded me that her injuries fall outside the MIG.

I note Ms. Amidi did not provide any medical reports to State Farm taking the position that her injuries fall outside the MIG. As well, from reviewing the medical documentation before me, including some of Ms. Amidi’s family doctor’s chart, she has not met her onus to show her injuries fall outside the MIG.

Ms. Amidi has argued that the proposed treatment plans at issue should serve as medical opinions that her injuries fall outside the MIG. She did not provide me with any authority, case law or FSCO decisions to support the argument that a treatment plan should be considered as a medical report. And after reviewing the three treatment plans in dispute, I do not find that they provide medical opinions showing Ms. Amidi’s injuries fall outside the MIG.

I also find that while Ms. Amidi is hearing impaired, there was no testimony provided by her or that showed and persuaded me that her hearing impairment condition prevented her from achieving maximal medical recovery from the minor injury if she was subject to the monetary limit under the MIG.

In further support of me finding her injuries fall within the MIG, I am relying on the reports from Dr. Tepperman that find Ms. Amidi’s injuries are minor and she should be considered under the MIG.

As Ms. Amidi did not provide any medical report commenting on Dr. Tepperman’s findings and as she has failed to produce all medical documents relevant to the issues in dispute, I am left to rely on Dr. Tepperman’s findings.

Ms. Amidi took the position that as only $140.00 in medical and rehabilitation benefits were paid in her claim and under the MIG, $3,360.00 in medical and rehabilitation benefits remain unused if her injuries were determined falling within the MIG. She took the position any one of the disputed treatment plans could be funded within the remaining limits of the MIG. However, in reviewing all three treatment plans, I note that they were all submitted as OCF-18s and not as an OCF-23 (Pre-approved Framework Treatment Confirmation Form). The treatment plans were also all of the opinion that Ms. Amidi’s impairment was not predominantly a minor injury as referred to in the MIG.⁸

As well, on the evidence before me Ms. Amidi has not shown that the treatment plans in dispute were reasonable and necessary.

I was also not provided any authority, case law or FSCO decisions that would assist me in awarding any treatment plans in dispute that were filed as an OCF-18 when the maximum amount under the MIG had not been paid out. In the circumstances of this case as outlined above, I do not believe it would be appropriate to do so. Ms. Amidi had the option of submitting treatment plans by way of an OCF-23.

With respect to the cost of examination in the sum of $1,800.00 for the undertaking of a MRI on November 14, 2011 as per an OCF-18, dated November 17, 2011, Ms. Amidi has provided no evidence to show that she submitted the treatment plan prior to incurring the expense and thus as per the Schedule she is not entitled to the $1,800.00. I also note that the treatment plan for this cost of examination was not put into evidence before me, nor was it spoken to by Ms. Amidi during her testimony, or referred to in closing submissions.

EXPENSES:

I note both parties made some submissions on expenses with respect to the issues withdrawn prior to the Hearing. The parties are encouraged to resolve the issue of expenses for this matter on their own. If they are unable to do so, they may schedule an Expense Hearing in writing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

March 21, 2016

Marshall Schnapp Arbitrator

Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 88

FSCO A13-002558

BETWEEN:

ANNE AMIDI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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:

1. Ms. Amidi is not entitled to the following medical benefits:

a) $2,882.43 for an OCF-18, dated December 8, 2010, completed by Dr. Merchant (Chiropractor) of Physiocare & Rehab;

b) $2,013.84 for an OCF-18, dated April 20, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab; and

c) $1,650.68 for an OCF-18, dated July 5, 2011, completed by Jaswinder Lamba (Physiotherapist) of Physiocare & Rehab.

2. Ms. Amidi is not entitled to a cost of examination in the sum of $1,800.00 for the undertaking of a MRI on November 14, 2011 as per an OCF-18, dated November 17, 2011.

3. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

March 21, 2016

Marshall Schnapp Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Chung and Unifund Assurance Company, (FSCO A09-000198, May 31, 2010) and Cyr and State Farm Mutual Automobile Insurance Company, (FSCO A12-003716, March 24, 2015).
3. 3Burgess and Pembridge Insurance Company (FSCO A11-001160, June 6, 2014).
4. 4Hotchkiss and Kingsway General Insurance Company, (FSCO A10-003016, December 16, 2011).
5. 5Exhibit 1, State Farm Arbitration Brief, Tab 12 a, b, and d.
6. 6Belair Insurance Company Inc. and Scarlett (FSCO Appeal P13-00014, November 28, 2013).
7. 7Exhibit 1, Arbitration Brief, Tab 12 at p. 104.
8. 8Exhibit 1, Arbitration Brief, Tab 12 at p. 104.