Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 206
FSCO A15-006080
BETWEEN:
(ARTHER) DARREN ARSENAULT
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Marshall Schnapp
Heard: In person at ADR Chambers on May 5 and 17, 2017, and by written submissions completed on May 19, 2017
Appearances:
Mr. Maurice Benzaquen, Lawyer, and Mr. Carlos Ortiz, Licensed Paralegal, participated for Mr. (Arther) Darren Arsenault
Ms. Emma Katz, Lawyer, participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mr. (Arther) Darren Arsenault, was injured in a motor vehicle accident (“MVA”) on September 16, 2012 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 Mr. Arsenault, through his 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:
Is Mr. Arsenault entitled to a payment of $2,460.00 for a physiatry assessment by All Health Medical Centre, dated October 16, 2014?
Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Arsenault?
Is Mr. Arsenault is entitled to interest on the amounts outstanding in accordance with the Schedule?
Is either party entitled to its expenses of the Hearing?
Result:
Mr. Arsenault is entitled to a payment of $2,460.00 for a physiatry assessment by All Health Medical Centre, dated October 16, 2014.
State Farm is not liable to pay a special award because it unreasonably delayed payments to Mr. Arsenault.
Mr. Arsenault is entitled to interest on the amounts outstanding in accordance with the Schedule.
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.
PRELIMINARY ISSUES
Special Award
As Applicant’s counsel completed his opening submissions, he requested that the issue of a special award be added to the Hearing. The Insurer opposed this request. I received written submissions on the issue.
It was the Applicant’s position that due to the Insurer providing a copy of the adjuster’s redacted log notes only two (2) days before the Hearing, on May 3, 2017, in breach of Section 32.2 of the Dispute Resolution Practice Code, that it was only at this time the Applicant was in a position to recognize this was an appropriate situation to ask for a special award. According to the Applicant, in reviewing the adjuster notes, he became aware that the Insurer made multiple references to the severity of the collision, the extensive list of physical injuries and psychological sequelae, the aggravation of pre-existing physical injuries, and complications in the recovery process attributable to the Applicant's pre-existing Post-Traumatic Stress Disorder (“PTSD”), and thus the evidence of the log notes would support a finding that the Insurer unreasonably withheld the assessment in dispute.
The Insurer opposed adding the issue of a special award. It noted a claim for a special award was not included in the Application for Arbitration or the Amended Application for Arbitration. It also submitted that while the Insurer was proactive in requesting productions from the Applicant, the Applicant was very late in making a request for the log notes. The Applicant also had a further opportunity following receipt of the log notes to advise of his intention to request that a special award be added as an issue to the Arbitration. The Insurer takes the position that the log notes did not provide new evidence confirming the Insurer’s knowledge of a pre-accident psychological issue, as an entire Motion was held over whether pre-accident psychological records were relevant.
Reasons for Decision on adding Special Award
After considering counsel’s submissions, I ruled that the issue of the special award may be added to the Arbitration Hearing. I found that past decisions on adding this issue support my decision, as well as the plain wording of s. 282(10) of the [Insurance Act](https://www