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

Neutral Citation: 2017 ONFSCDRS 162

FSCO A14-009545

BETWEEN:

ROSALINA D’SILVA

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Janette Mills

Heard: In person at ADR Chambers on February 13 and 14, 2017 with written submissions due March 31, 2017

Appearances:

Ms. Rosalina D’Silva participated Mr. Jason Kimelman participated for Ms. Rosalina D’Silva Mr. Amit Gogna participated for Personal Insurance Company of Canada

Issues:

The Applicant, Ms. Rosalina D’Silva, was injured in a motor vehicle accident on October 7, 2012 and sought accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, 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. Are the Applicant’s impairments properly characterized as predominantly minor in nature and subject to the Minor Injury Guideline (“MIG”)?

2. Is the Applicant entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre as follows:

a) $2,499.56 for a treatment plan, dated April 2, 2013;

b) $2,872.70 for a treatment plan, dated August 22, 2013; and

c) $2,072.70 for a treatment plan, dated January 16, 2014?

3. Is the Applicant entitled to payments for the cost of examinations for services provided by Med-Assess in the following amounts:

a) $1,470.33 for an in-home assessment, dated November 27, 2012?

b) $1,979.36 for a psychological assessment, dated August 3, 2013?

4. Is Personal liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

5. Is the Applicant entitled to interest for the overdue payment of benefits?

6. Is either party entitled to its expenses for this Arbitration Hearing?

Result:

1. The Applicant’s impairments are properly characterized as predominantly minor in nature and subject to the MIG.

2. The Applicant is not entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre as follows:

a) $2,499.56 for a treatment plan, dated April 2, 2013;

b) $2,872.70 for a treatment plan, dated August 22, 2013; and

c) $2,072.70 for a treatment plan, dated January 16, 2014.

3. The Applicant is not entitled to payments for the cost of examinations for services provided by Med-Assess in the following amounts:

a) $1,470.33 for an in-home assessment, dated November 27, 2012; and

b) $1,979.36 for a psychological assessment, dated August 3, 2013.

4. Personal is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.

5. The Applicant is not entitled to interest for the overdue payment of benefits.

6. No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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

The Applicant was 47 years old at the time of the accident. She was unemployed and lived together with her sister and her niece. The accident occurred when the vehicle, which was being driven by her sister, was “T-boned” at an intersection. The Applicant was sitting in the right rear passenger seat of the vehicle. She was wearing her seat belt. The vehicle was stationary when it was hit. The vehicle was later determined to be a “write off”.

Positions of the Parties

The Insurer submits that the Applicant sustained soft tissue injuries and for this reason comes within the MIG. There is nothing unusual about her injuries, and no pre-existing injury or psychological condition that warrants removing her from that designation. The Applicant has received all benefits owing to her under the MIG, and Personal is not required to pay the Applicant any additional benefits.

The Applicant submits that she has pre-existing conditions that should have been considered when determining whether or not she falls within the MIG. These pre-existing conditions make it impossible for her to recover from the injuries sustained in the accident within the timelines and treatment guide as anticipated by the MIG. Further, she suffers from chronic pain and has psychological issues that should remove her from the MIG.

The Evidence

The Accident

The Applicant testified that the impact caused the right side of her head and right shoulder to hit the passenger car window. She testified that her left hand hit the car seat/console area and her glasses fell off. The police arrived and an ambulance was called. She could not breathe properly and was crying with pain when the paramedics tried to remove her from the vehicle. She was taken to St. Joseph’s Hospital in Toronto, where she was treated. X-rays revealed that she had sustained bruising to her ribs, but nothing was broken. She was discharged after approximately an hour and prescribed Tylenol #3 for pain.

The Applicant’s Injuries

The Applicant described trying to sleep after the accident, but experiencing nightmares and pain. She testified that she became depressed and was crying a lot. She began getting headaches, shoulder pain, rib pain and hand pain. As a result, her niece’s friend referred her to Natural Touch Rehab Centre, and three days after the accident, she went for an assessment. She met with Dr. Okem and Dr. Bongers, both chiropractors, who advised that she required therapy. She subsequently attended twice each week for approximately one and a half years, until her funds ran out.

The Applicant’s Pre-Existing Injuries

The Applicant testified that prior to the accident, she had injured her left wrist as a result of a fall. She has a metal plate in that wrist. She also fractured her left foot when she fell down stairs. In addition, she had fractured her left hip in a car accident. She testified that she cannot sit properly on her left hip and cannot use her left wrist well. These injuries occurred between 1980-2002.

The Applicant’s Life after the Accident

At the time of the accident, the Applicant had been offered a job working for a friend in a soon to be start-up company. She was to do clerical work for that company. She anticipated starting work at the beginning of October 2012. However, due to the pain she was experiencing from the accident, she was unable to work.

The Applicant testified that she had tried to work on two occasions since the accident, and on both occasions, she could not cope with the physical demands of the job due to pain in her hand and the stress to her back and ribs. Her most recent attempt to return to work was in 2015. She is currently receiving social assistance.

On cross-examination, the Applicant testified that she had not worked for four-and-a-half years prior to the accident nor had she had any medical treatment of any sort in the year prior to the accident. Immediately following the accident, she had pain to her ribs. Her head and back pain manifested themselves the next day. The Applicant testified that, contrary to the hospital report, she lost consciousness. She testified that she had told the treating doctor and did not know why it wasn’t recorded in her medical records.

The Applicant testified that she sees her family doctor twice each month, and described her current symptoms as back pain, pain to the right side of her head, shoulder pain, left hip pain and left wrist pain. Her headaches are intermittent and she still gets nightmares. Her sleep is impaired, she is unable to focus, and has anxiety. She currently takes medication for her pain and anxiety. The Applicant was taking over-the-counter medication for her pre-accident pain. She testified that she had told her doctor about her on-going pre-accident pain. However, the OHIP records indicate that she had not seen her doctor between 2008 and 2014.

Natural Touch Rehab Centre

The Applicant testified that the treatment she was receiving at Natural Touch Rehab Centre was helping her and that she was improving and beginning to feel good. However, she was notified by Personal in a letter, dated October 10, 2013, that she had exhausted funds available to her under the MIG. The Applicant testified that she continued with treatment until January 2014. She stopped treatment as she could no longer afford to pay. Since that time, her condition has deteriorated. Shortly after the accident, the Applicant’s ability to do household chores and to care for herself was limited. A friend of her sister’s would bring food in to the home for her, her sister and her niece. Currently, she manages better but still cannot bend or twist properly, and going to the washroom remains difficult.

As a result of the two treatment plans submitted, the Insurer sent her to see a psychologist and to a pain specialist on two occasions. According to the Applicant, she had discussed her pre-existing injuries with both the psychologist and pain specialist. However, she testified that these discussions were not reflected accurately in either of their respective reports. The Applicant also testified that Dr. Okem had not accurately reflected her injuries in the two OCF-3s he completed.

Dr. Okem – Chiropractor

Dr. Okem testified that the Applicant first attended at Natural Touch Rehab Centre three days after her accident. His records indicated that the Applicant reported pre-existing injuries as broken leg, left arm plates and a fractured pelvis. The Applicant did not report loss of consciousness during the accident nor did she report injuries to her left forearm.

Natural Touch Rehab Centre submitted an OCF-23 and an OCF-3 on October 23, 2012. The OCF-3 indicated that the Applicant had difficulties with the activities of everyday life and housekeeping. An in-home assessment was done by Med-Assess on November 27, 2013 and was refused by the Insurer. Med-Assess is currently owed $1,620.33 for that assessment.

Another OCF-3 was done on November 28, 2012, and a treatment plan was submitted on January 15, 2013. On January 2, 2013, an OCF-24 was submitted, discharging the Applicant from the MIG, with a suggestion to continue treatment and concluded that the Applicant was seventy percent improved. Further treatment plans were submitted on May 7, 2013, August 3, 2013, August 27, 2013, and January 16, 2014. The Applicant continued to have treatment up until January 31, 2014, when she no longer had funds to pay. Natural Touch Rehab Centre is currently owed $5,360.66.

In a progress report, dated January 16, 2014, Dr. Bongers reported the Applicant had improved ninety-five percent and that there were no new complaints. However, Dr. Okem testified that her prior issues were continuing to have some effect and impacted her recovery. He had no notes to this effect, and was not explicit as to how he came to this conclusion. He testified that at the time the OCF-24 was completed on January 2, 2013, discharging her under the MIG, there was not sufficient evidence to put her outside of the MIG. He did not refer her to see other specialists for chronic pain; given that she was in the MIG, he felt it would be futile.

Dr. Jaroszynski – Orthopedic Surgeon

Dr. Jaroszynski testified that he met the Applicant on two occasions. First, in March 2013, when he assessed her for a potential non-earner benefit claim, and in June 2013, when he assessed her for the MIG. He has no independent recollection of their meetings. On each occasion, he would have spent approximately 30 to 45 minutes with her.

Dr. Jaroszynski testified that he was aware of the Applicant’s pre-existing injuries, and that he had recorded them as a left forearm fracture in 1998 and a pelvic fracture in 1980. She reported no ongoing problems with either. When they met, the Applicant was complaining of chest wall pain. He examined her by observing her walk, sit, move her joints and also with manual/hands on examination. He measured her range of motion. She demonstrated no significant tenderness along her spine, but was still tender in the anterior chest wall. He diagnosed her as suffering from a chest wall contusion. He felt her range of motion decreases had more to do with age than injury. Chest wall contusions can take anywhere from 3 to 12 months to resolve. They rarely require treatment. However, short term chiropractic or physio can help. He observed nothing out of the ordinary.

On the second occasion they met, it was for a shorter period of time. The request was for additional passive treatment. The Applicant confirmed her continuing symptoms regarding chest wall pain. In his view, additional treatment was inappropriate and he felt her injuries fell within the MIG. In addition, there was no pre-existing medical condition that would warrant removing her from the MIG. He had no recollection of her losing her balance during the testing, but did note it in the report. He had no concern for her to continue with the assessment.

Dr. Dancyger – Psychologist

Dr. Dancyger testified that he met with the Applicant on November 14, 2013. He conducted a one-on-one interview. He had no independent recollection of the length of the interview, but testified that most of his interviews last from 2 to 4 hours, depending on the tests that are administered. His questions would have been routine questions directed at issues such as sadness, emotional distress and how she was feeling. The questions he posed would not have been limited to how she was feeling on that day only.

He also discussed her physical feelings. He described the Applicant as friendly and cooperative, and he felt they had a good rapport. The Applicant reported that she was experiencing intermittent pain in her left ribs (which had become worse due to a cough), headaches, anxiety, dizziness, and sleep disturbance (again due to her cough). She also expressed concern that she was not working and had not worked for four-and-a-half years prior to her accident.

During the course of approximately one hour, Dr. Dancyger administered two psychological tests. The test results suggested that the Applicant did not meet the criteria for any diagnosis, and he did not feel that a further psychological assessment was warranted.

Dr. Dancyger acknowledged that the Applicant was still reporting pain but in his view she presented as someone with good affect. He acknowledged it was his professional responsibility to look into the issues raised in the OCF-18, but did not think they warranted any further investigation.

Ms. Maya Polywjanyj – Psychological Associate

Ms. Maya Polywjanyj is a psychological associate. She did not meet the Applicant, but reviewed a pre-screening assessment performed by a therapist under her direction, for the purpose of determining whether the Applicant’s condition warranted a psychological assessment. The pre-screening assessment indicated that the Applicant showed signs of severe body pain, head pain with concurrent sensitivity to light and sound, and sleep disturbance. In addition, her symptoms fit the information regarding the accident. Given that her symptoms were 10 months post-accident, it was considered necessary for a further complete psychological examination.

Ms. Polywjanyj testified that the Applicant’s provisional diagnosis was one of adjustment disorder with mixed anxiety and depressed mood and passenger-related anxiety (since the Applicant informed that she avoided travelling and experienced physical symptoms of stress when in a vehicle). She further testified that the pre-screen test showed enough to warrant moving forward with a thorough psychological examination. If that examination affirmed the provisional diagnosis then therapy would be in order.

Ms. Safina Singh

Ms. Safina Singh testified that she was the adjuster on the Applicant’s file from the date of the accident up until the Application for Arbitration was filed. The first Explanation of Benefits (“EOB”) letter sent was on October 23, 2012, which informed the Applicant that she was in the MIG. This was based on the OCF-23 and the OCF-3 from Natural Touch Rehab Centre. She testified that she relied on Natural Touch Rehab Centre’s assessment of the Applicant. The witness testified that the Applicant was approved for $3,500.00 of treatment, as per the MIG. In addition, she was incorrectly paid $45.00 for an ambulance fee and monies for her glasses.

In sum, the amounts paid exceed that which the Applicant was eligible for under the MIG. This was an error on Ms. Singh’s part. She never advised the Applicant that her injuries did not fall within the MIG, and the EOB letters issued explained that the MIG applied. Ms. Singh testified that she never met with the Applicant nor did she speak with her on the telephone, although she had attempted to do so.

Legislative Scheme and Burden of Proof

The Applicant has the burden of proof of establishing entitlement to the appropriate levels of benefits. Accordingly, the Applicant must prove on a balance of probabilities that she is entitled to the denied treatment plans in dispute and that she is not subject to the MIG limit prescribed in section 18(1) of the Schedule as follows:

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 18 (1).

(2) Despite subsection (1), the $3,500 limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that 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. O. Reg. 34/10, s. 18 (2); O. Reg. 347/13, s. 1.

Superintendent’s Guideline No. 02/11—Minor Injury Guideline

2. Definitions

This Guideline is focused on the application of a functional restoration approach in the management of minor injuries in the acute and sub-acute phases of the injury.

For the purposes of this Guideline:

a) minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.

b) sprain means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.

c) strain means an injury to one or more muscles, including a partial but not a complete tear.

d) subluxation means a partial but not a complete dislocation of a joint.

e) whiplash injury means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force.

f) whiplash associated disorder means a whiplash injury that:

(i) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(ii) does not exhibit a fracture in or dislocation of the spine.

g) Functional restoration refers to an approach in which the health practitioner is oriented toward function and to the delivery of interventions that help the insured person to reduce or manage his/her pain and associated psycho-social symptoms. Interventions are focused on what the insured person needs to do in order to function at his/her pre-accident level in his/her home and work environment. The insured person is assessed to determine the level of current functioning relative to these critical demands and any functional limitations that have arisen as a result of the injury. The interventions delivered by the health practitioner or by regulated health professionals coordinated or supervised by the health practitioner are then designed to address these areas of limitation such that the individual will be able to maintain and/or resume normal activities at home and at work.

h) Recommended interventions refers to interventions that are ideally provided each time the insured person attends the health practitioner’s clinic.

i) Discretionary interventions refers to interventions that are provided at the discretion of the health practitioner based upon the specific needs of the insured person. These interventions should not be interpreted to be less important in the treatment of the insured person.

3. Impairments that come within this Guideline

Subject to the exception in Section 4 below, an insured person’s impairment comes within this Guideline if the impairment is predominantly a minor injury.

4. Impairments that do not come within this Guideline

An insured person’s impairment does not come within this Guideline if the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the SABS or is limited to the goods and services authorized under this Guideline.

Compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.

Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.

Analysis

1. Are the Applicant’s impairments properly characterized as predominantly minor in nature and subject to the MIG?

The Applicant urges me to find that her injuries fall outside of the MIG. The Applicant submits that there are three reasons for doing so: (1) she had pre-existing injuries; (2) she suffered from chronic pain and complaints; and (3) the Insurer paid above the MIG limits, thereby explicitly acknowledging that the Applicant’s injuries could not be treated within the MIG limits. I do not accept these submissions.

(1) Pre-Existing Injuries

In regard to the pre-existing injuries, there is no compelling evidence before me that the Applicant has a pre-existing condition that would prevent her from achieving maximal recovery from the minor injury if subject to the MIG. Compelling evidence means more than just credible evidence.²

I find the Applicant to be a poor historian. The Applicant testified that she had sustained prior injuries, which I accept. However, she was frequently unclear as to when they took place and the extent and nature of the injuries. At one point, she had indicated that her injuries in 1980 were to both hips, and on another occasion, it was said to be one hip that had been injured. I cannot accept that all of the healthcare professionals that she came into contact with, including her treating chiropractor, had either intentionally or inadvertently misrepresented or misreported her injuries, as she testified. In my view, this is not reasonable and I find the Applicant’s evidence in this regard to be unreliable.

The impact that her pre-existing injuries had on her life both before and after the accident is unclear. During his testimony, Dr. Okem opined that the Applicant’s pre-existing injuries warranted a removal from the MIG. However, he had never reviewed the Applicant’s pre-accident medical records, and was unable to say how her pre-existing injuries had affected her activities before the accident. In addition, he was erroneously relying on her self-report of surgical management the year prior to being assessed by him—something that did not happen.

It is reasonable to expect that reliable evidence of pre-existing injuries and their impact on the Applicant’s life could be found in her medical records. However, the medical records before me did not pre-date the accident, and the Applicant’s OHIP records demonstrate that she had not seen her family doctor for the four years preceding the accident. In addition, the Applicant testified that prior to her accident, she was not receiving any chiropractic, massage or psychological therapy.

The onus is on the Applicant to establish that her pre-existing injuries would prevent her from achieving maximal recovery. In my view, there is no persuasive evidence before me upon which to make such a finding. As a result, I find that the evidence of a pre-existing condition is not sufficiently compelling as to warrant an exception from the MIG.

(2) Chronic Pain And Complaints

The Applicant submits that she has a number of accident-related complaints, such as headaches, psychological impairments, sleeplessness and chronic pain. She has been seeing her family physician since January 2016, and is currently receiving medication for these complaints. The Applicant submits that this evidence was not properly considered by the Insurer and should have removed her from the MIG.

In October 2012, Dr. Okem diagnosed the Applicant with predominantly minor injuries. Based on his diagnosis, the Applicant was considered by the Insurer to be in the MIG. Dr. Okem testified that at the time the OCF-24 discharging her under the MIG was completed in January 2013, there was insufficient evidence to put her outside of the MIG. Furthermore, his associate, Dr. Bongers, noted in January 2014 that she was ninety-five percent better.

Dr. Jaroszynski also assessed the Applicant as coming within the MIG. The Applicant submits that Dr. Jaroszynski’s evidence should not be accepted; that he was not thorough in his examination and did not take into consideration her past history or complaints of headaches. Dr. Jaroszynski was aware of her left forearm and left pelvic fracture. Those were the only two injuries she reported to him. Dr. Jaroszynski diagnosed the Applicant as suffering from a chest wall contusion, which typically takes three to four months to resolve but may take up to 12 months to resolve.

Dr. Jaroszynski was not asked to assess the Applicant for chronic pain, and made no finding in that regard. The Applicant submits that Dr. Jaroszynski’s assessments were lacking and cannot be relied upon. But even if I were to disregard Dr. Jaroszynski’s evidence, there is no persuasive evidence from which I can conclude that the Applicant suffers from chronic pain as a result of the accident. As stated above, the evidence from her own healthcare provider is to the contrary; in January 2014, she was considered to be ninety-five percent better.

The medical records before me start in May 2014 and run to early 2016 (the complete date is partially obscured, but given that the records were sent to counsel for the Applicant on May 20, 2016, it is reasonable to assume they run up to this date). The records indicate she was seen, inter alia, for neck, back and shoulder pain in May 2014 on two occasions. She was treated with Tylenol #3 and Ativan. She did not see her family doctor again until early 2016. Nor did her family doctor send her to see a specialist or other health care provider available under OHIP either in 2014 or in 2016.

In sum, while I find that there is some evidence from the Applicant’s testimony and her family doctor’s records that the Applicant was experiencing pain in 2014 and 2016, her treatment was conservative in nature, and there is no persuasive evidence before me that she was experiencing chronic pain.

In regard to psychological impairment, I am also in agreement with the Insurer that there is no persuasive evidence that the Applicant suffers from a psychological impairment. Dr. Dancyger testified that the Applicant did not suffer from any psychological impairment as a result of the accident, and that the OCF-18 requesting a psychological assessment was not reasonable. The highest evidence of a psychological impairment comes from Ms. Polywjanyj, who testified that the Applicant suffered from a “provisional diagnosis” of an adjustment disorder with mixed anxiety and depressed mood, as well as a passenger related phobia.

The Applicant submits that Dr. Dancyger’s evidence should not be relied upon because he did not conduct a thorough assessment and did not administer a full personality test, and his actions appeared to suggest that he had pre-determined that the Applicant was not suffering from a psychological impairment. Furthermore, the Applicant testified that she is taking medication for anxiety. However, there is no persuasive evidence upon which I can make a finding that this supports the conclusion she is suffering from a psychological impairment as a result of the accident. Nor is there anything in her medical records to substantiate this view. As above, even if I were to disregard Dr. Dancyger’s evidence, there is no persuasive evidence before me upon which I can reasonably conclude that the Applicant is suffering a psychological impairment as a result of the accident and should be removed from the MIG.

(3) Insurer paid above the MIG limits, thereby explicitly acknowledging that the Applicant’s injuries could not be treated within the MIG limits.

The Applicant submits that the Insurer paid “far in excess” of the MIG limit of $3,500.00 and in doing so, explicitly acknowledged that the Applicant’s injuries fell outside of the MIG limits. The Applicant asserts that section 38(11) of the Schedule is authority for the fact that if the Insurer does not comply with the Schedule, the Insurer is precluded from taking the position that the Applicant is within the MIG, and the Insurer ought to be deemed in law to have accepted that the Applicant fell outside the MIG and ought to be barred from arguing otherwise.

In my view, section 38(11) of the Schedule is not helpful. This section, below, refers to the notice provision contained in section 38(8) of the Schedule, and cannot reasonably be interpreted to extend to overpayment.

38. (1) This section applies to,

(a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and

(b) all applications for approval of assessments or examinations. O. Reg. 34/10, s. 38 (1).

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. O. Reg. 34/10, s. 38 (8); O. Reg. 14/13, s. 5.

(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8). O. Reg. 34/10, s. 38 (11).

In addition, I agree with the Insurer that the evidence before me supports the position that the overpayment was an error. I note that contrary to the Applicant’s submission, the overpayment was not “far in excess” of the MIG limit, but was $45.00 for an ambulance fee and monies for her glasses, for a total amount of $3,865.00.³ I am also in agreement with Arbitrator Evans in McDonald and Guarantee Company of North America, that a mistake is not a waiver and that Insurers are entitled to repayment even if they make mistakes.⁴ I also note section 52(1) of the Schedule which supports this view:

52. (1) Subject to subsection (3), a person is liable to repay to the insurer,

(a) any benefit described in this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud.

For the above reasons, the Applicant has failed to establish on a balance of probabilities that her impairments are not properly characterized as predominantly minor in nature and subject to the MIG.

2. Is the Applicant entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre as follows:

a) $2,499.56 for a treatment plan, dated April 2, 2013;

b) $2,872.70 for a treatment plan, dated August 22, 2013; and

c) $2,072.70 for a treatment plan, dated January 16, 2014?

The Insurer has already paid out the maximum amount under the MIG; no other medical benefits are payable under the Schedule.

3. Is the Applicant entitled to payments for the cost of examinations for services provided by Med-Assess in the following amounts:

a) $1,470.33 for an in-home assessment, dated November 27, 2012; and

b) $1,979.36 for a psychological assessment, dated August 3, 2013?

The Insurer has already paid out the maximum amount under the MIG; no other cost of examinations are payable under the Schedule.

4. Is Personal liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

Since all of the Applicant’s claims are dismissed, the issue of a special award is moot.

5. Is the Applicant entitled to interest for the overdue payment of benefits?

Since all of the Applicant’s claims are dismissed, the issue of interest on overdue payment of benefits is moot.

EXPENSES:

No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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.

June 12, 2017

Janette Mills Arbitrator

Date

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

Neutral Citation: 2017 ONFSCDRS 162

FSCO A14-009545

BETWEEN:

ROSALINA D’SILVA

Applicant

and

THE PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant’s impairments are properly characterized as predominantly minor in nature and subject to the Minor Injury Guideline.

2. The Applicant is not entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre as follows:

a) $2,499.56 for a treatment plan, dated April 2, 2013;

b) $2,872.70 for a treatment plan, dated August 22, 2013; and

c) $2,072.70 for a treatment plan, dated January 16, 2014.

3. The Applicant is not entitled to payments for the cost of examinations for services provided by Med-Assess in the following amounts:

a) $1,470.33 for an in-home assessment, dated November 27, 2012; and

b) $1,979.36 for a psychological assessment, dated August 3, 2013.

4. Personal is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.

5. The Applicant is not entitled to interest for the overdue payment of benefits.

6. No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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.

June 12, 2017

Janette Mills Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Belair Insurance Company Inc. and Scarlett (FSCO Appeal P13-00014, November 28, 2013), at paras. 32, 35, 41-42.
3. 3Joint Document Brief, at Tab 29.
4. 4McDonald and Guarantee Company of North America, 2002 CarswellOnt 5361 at para. 39.