Dispute Resolution Services
Services de règlement des différends
Neutral Citation: 2020 ONFSCDRS 13
FSCO A12-005384
BETWEEN:
LYNDA FEDERICO
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Before: Isabel Stramwasser
Heard: Written submissions received on May 15, May 28, June 1, June 3 and June 5, 2020.
Appearances: David S. Wilson for Ms. Federico
Jonathan Schrieder for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Lynda Federico, was injured in a motor vehicle accident on December 22, 2007. She applied for, and received, statutory accident benefits from State Farm Mutual Automobile Insurance Company under the Schedule.1 Disputes arose between the parties, which they were unable to resolve through mediation. Ms. Federico applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.2
On May 1, 2020, I rendered a decision on Ms. Federico’s entitlement to a special award. The conclusion of that decision, in its entirety, reads as follows:
The evidence leads me to conclude that State Farm unreasonably withheld payments to Ms. Federico of the two treatment plans in dispute, contrary to s.282(10) of the Insurance Act, and that, as a result, the insurer must pay a special award on both benefits claimed.
The parties may make written submissions on the quantum of the special award as follows:
Each submission is limited to 20 pages, double-spaced, 12 point font, not including calculations.
The submissions shall include the information required by Persofsky (1. confirming the amount paid under the Huberman order for both treatment plans and section 46 interest; 4. providing the maximum special award for each treatment plan using the same dates the parties used to calculate section 46 interest on the treatment plans payable under the Huberman order; and, 5. addressing relevant factors, including the six headings at pages 32-33 of Persofsky: amount; delay; obligations including pay-pending-dispute provisions; other factors; mitigating factors; and, other penalties).
Argument shall reference amounts awarded in other cases. An average of the amounts of all special awards would be a helpful baseline for the analysis.
Ms. Federico may make her submissions within 14 days of this decision.
State Farm may reply within 8 days of receiving Ms. Federico’s submissions.
Ms. Federico has a right of reply for 8 days after receiving State Farm’s argument.
Given that the tribunal is closing in June 2020, the parties may make submissions on the expenses of the hearings before me on entitlement and quantum of the special award at the same time as they make their substantive submissions on quantum of the special award. If the parties choose to make submissions on expenses, they shall address the criteria in the Expense Regulation (except regarding degree of success in the outcome of the hearing). To be clear, the same time limits apply for submissions on expenses as for submissions on quantum of the special award, but expense submissions are not included in the 20-page limit for quantum submissions.
In summary, that order set out the following timeline for submissions:
May 15, 2020 for Ms. Federico’s submissions on quantum of special award and expenses of the special award hearings before me;
May 23, 2020 for State Farm’s reply; and,
May 31, 2020 for Ms. Federico’s response.
When my office had still not received any submissions from State Farm on May 27, 2020, we sent a reminder. State Farm stated that it would provide submissions on May 28, 2020 and explained that it was confused about timelines and that the pandemic