October 23, 2015

Picking your Battles: Unreasonableness Can Cost You Your Benefits

Chen v State Farm Mutual Automobile Insurance Company, FSCO A13-006689, Arbitrator Barry S. Arbus (preliminary hearing).

 

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Kasia Kosacka

MVC on December 1, 2010. Mr. Chen sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”). At issue in the arbitration was the type of interpreter Mr. Chen was entitled to, and whether or not Mr. Chen was precluded by section 55.2 of the Schedule from mediating or arbitrating claims for five different treatment plans because he failed to attend the IMEs arranged by State Farm.

Around February 11, 2011, Mr. Chen submitted an Application for Accident Benefits and noted in the application that his spoken language was “Mandarin”. Mr. Chen’s representative wrote to State Farm refusing to attend the five IMEs to address his treatment plans unless State Farm agreed to provide an interpreter accredited by the Ministry of the Attorney General (“MAG”). State Farm arranged for Mandarin translators through two different agencies, but neither of them were MAG accredited. State Farm indicated that there was an extreme shortage of MAG accredited interpreters in the province of Ontario, and that the interpreters provided by them were from qualified agencies that were also used by FSCO and other arbitration proceedings. State Farm’s position was that the scheduled assessments were required in order to determine whether Mr. Chen’s injuries fell under the Minor Injury Guideline and to determine if the treatment plans in dispute were reasonable and necessary.

Mr. Chen’s representative argued that Mr. Chen was entitled to receive the highest standard of interpretation when determination of ongoing treatment was at stake, and that the insurer’s obligation to “deal fairly and in utmost good faith” includes a duty to reassure the Applicant that its investigation and assessments are indeed fair and in good faith. It would follow that the provision of a MAG interpreter would meet this obligation.

Arbitrator Arbus concluded that Mr. Chen was not entitled to an interpreter accredited by the MAG to be present at the IMEs, and that he was precluded from mediating and arbitrating the claims for the five treatment plans because he failed to attend the IMEs. There was no authority to support Mr. Chen’s entitlement to a MAG accredited interpreter. State Farm was prepared to provide qualified interpreters. State Farm met its duty of good faith and reasonableness in offering a non-accredited interpreter. Arbitrator Arbus also noted that Mr. Chen did attend several other IMEs without the assistance of a MAG accredited interpreter, and no issue was raised with those. There was never a situation where an interpreter was present, and where Mr. Chen and his counsel claimed they were unsatisfied with the quality of the interpreter. The test for an interpreter is “competence, independence and accuracy” and not whether he or she has a MAG accreditation.

Implications

This is an example of a case where the unreasonableness of the Applicant and his representative cost him potential future benefits. The lesson learned here is that it is important to be aware of the limitations of the argument one is advancing, and it is necessary to assess whether or not advancing it is worth all the potential complications that may arise.

 

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