May 21, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: March 21, 2016
Heard Before: Adjudicator Marshall Schnapp
REASONS FOR DECISION
Anne Amidi who is deaf was injured in a car accident on December 5, 2010 when as a passenger in the front seat of a car she was hit head on. She recalls hitting her head, knees and chest. She hurt her shoulder and neck and suffered a shock. The air bags deployed. She was taken by ambulance to hospital but was not satisfied with her care and no sign language interpreter was provided. She went home in a lot of pain after the doctor told her she was fine. Her chest pain stopped after a month of sitting. She testified that she had pain in her neck until she got therapy at a clinic in Mississauga. She couldn’t remember its name. She sought accident benefits from State Farm, and when the parties were unable to resolve their disputes through mediation Ms. Amidi applied for arbitration at the FSCO.
The issues in this Hearing are:
Is Ms. Amidi entitled to the following medical benefits:
$2,882.43 for an OCF-18 dated December 8, 2010.
$2,013.84 for an OCF-18 dated April 20, 2011.
$1,650.68 for an OCF-18 dated July 5, 2011.
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?
Is Ms. Amidi entitled to interest for the overdue payment of benefits?
Ms. Amidi is not entitled to the following medical benefits:
$2,882.43 for an OCF-18 dated December 8, 2010.
$2,013.84 for an OCF-18 dated April 20, 2011.
$1,650.68 for an OCF-18,dated July 5, 2011.
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.
A Pre-Hearing discussion took place on June 25, 2014 before Arbitrator Henry, who ordered that the exchange of documents be completed within 60 days. A second Productions Order was made, dated March 18, 2015, and provided Ms. Amidi’s counsel with a deadline of March 30, 2015 to provide all outstanding productions.
At this 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 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. The Arbitrator requested written submissions from both parties on the above Motions. State Farm took the position that as Ms. Amidi has not provided the names of any witnesses she intended to call, she should not be allowed to provide testimony. State Farm relied on Rule 39 and several FSCO decisions in support of this Motion. 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.
It is Ms. Amidi’s position that she 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”. Ms. Amidi submitted that in order to testify, she relied on the several FSCO decisions.
The Arbitrator reviewed the term ‘party’, and its lack of definition, and concluded that the parties agree that an Applicant who may or may not testify as a witness is also a party. In this case Mr. Amidi is a party and wishes to testify on her own behalf. On this basis the Arbitrator was persuaded by Ms. Amidi’s argument that there is no specific provision in the Rules that speaks directly to excusing or excluding a party.
Arbitrator Schnapp noted that it has been generally accepted by Arbitrators and Judges that the Act is a consumer protection mechanism by design. 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. Arbitrator Schnapp noted that he cannot make the leap that State Farm wishes to exclude or excuse Ms. Amidi within the meaning of Rule 41 or 42, as the course of natural justice, and significant common law principles would be violated. On that basis Ms. Amidi may testify at this Arbitration.
Ms. Amidi submits 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 State Farm’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. 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. Ms. Amidi noted that included in her Arbitration Brief were three treatment plans that were issues in this Arbitration.
The only witness Ms. Amidi has put forward is herself, and the Arbitrator has 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. The Arbitrator also noted 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”. The Arbitrator noted 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 Ms. Amidi may testify. The three treatment plans included in the Brief form part of the issues in dispute and are admitted into evidence. 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, and they “must be served on the other party at least 30 days before the first day of the hearing”. On this basis the Arbitrator was 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.
The Arbitrator found Ms. Amidi’s testimony 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 is deaf from infancy. 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 car accident she was not working. According to her she was able to perform her normal activities – taking care of her children, shopping and cleaning before the accident.
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. 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 her former family doctor 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. Ms. Amidi travels by car to New York State a few times a week, and after the accident she travelled to New Jersey, went on a cruise and on a one week trip to Cancun, Mexico.
Ms. Amidi submitted that her injuries should not fall within the Minor Injury Guideline 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 doctors indicated on the treatment plans in dispute that Ms. Amidi’s impairment is not predominantly a minor injury as referred to in the MIG. 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 that even if the ACL tear and/or the meniscus tear in the left knee existed prior to the car accident, her 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. She also argues that her treatment doctors indicated in their treatment plans that her hearing impairment was a barrier to her recovery.
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 highlighted that after the December 5, 2010 car accident, Ms. Amidi traveled extensively, including multiple car trips to New York State. 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 reports, dated May 26, 2011, June 20, 2011 and November 26, 2012, 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.
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 car 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-car accident event. State Farm submits that Ms. Amidi has the burden of proving eligibility for statutory accident benefits.
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.
The Arbitrator noted that the law clearly defines minor injury, and the maximum benefit allowable except in cases where pre-existing conditions may apply based on "compelling evidence". From all of the evidence the Arbitrator found that Ms. Amidi’s injuries do fall within the MIG. While the Arbitrator found Ms. Amidi to be a credible witness and noted 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 did not persuade him that her injuries fall outside the MIG. Ms. Amidi did not provide any medical reports that state that her injuries fall outside the MIG. Ms. Amidi relied on any opinions included in treatment plans but the arbitrator did not consider this sufficient. The arbitrator had only a report from the insurer to rely upon which provided that the injuries were minor and outside the MIG.
The Arbitrator found that while Ms. Amidi is hearing impaired, there was no testimony provided by her or that showed 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. Ms. Amidi also failed to show that the treatment plans in dispute were reasonable and necessary.