Neutral Citation: 1992 ONICDRG 36

File No. A-000381

ONTARIO INSURANCE COMMISSION

BETWEEN:

EDWARD J. OPATOWSKI

Applicant

and

WAWANESA MUTUAL INSURANCE

Insurer

DECISION ON PRELIMINARY MOTION

Issues:

The Applicant, Edward Opatowski, was injured in a motor vehicle accident on August 9, 1990. He applied for and received accident benefits payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule.

The Applicant received benefits under the policy until September 13, 1991, when his benefits were terminated on the basis that he twice failed to attend an independent medical examination arranged by the Insurer. The Applicant claimed ongoing weekly income benefits as well as certain supplementary medical and rehabilitation benefits.

The Applicant applied for mediation of his disputes with the Insurer. When mediation failed to resolve the disputes, the Applicant applied for the appointment of an arbitrator under the Act.

The Insurer moved to have the Applicant's application dismissed on the basis that I have no jurisdiction to hold a hearing. The Insurer states that the Applicant is entitled to neither mediation nor arbitration of the issues in dispute, pursuant to the provisions of section 25 of the No-Fault Benefits Schedule, since he has failed to make himself reasonably available for a medical examination required by the Insurer.

A preliminary hearing was held to determine the following issues:

(1) Did the Applicant fail to make himself reasonably available for an independent medical examination?

(2) If the Applicant did fail to make himself reasonably available for an independent medical examination, is he nevertheless entitled to proceed to mediation and arbitration of his disputes with the Insurer?

The Insurer also claimed the return of its assessment of $1,000.00 levied for participating in the arbitration process.

Result:

The decision is:

1. The Applicant has failed to make himself reasonably available for an independent medical examination, and therefore he is not entitled to arbitration of his disputes with the Insurer.

2. The Insurer is entitled to the return of the $1,000.00 assessment paid in respect of this matter.

Hearing:

A preliminary hearing was held at North York, Ontario, on May 21 and June 9, 1992, before me, Frederika Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Edward Opatowski

Applicant's

Altor Shields

Representative:

Barrister & Solicitor

Insurer's

Lee Samis

Representative:

Barrister & Solicitor

Witness:

Ian Mascarenhas, Senior Adjuster

Wawanesa Mutual Insurance

Documents before the Arbitrator:

Assessment of Claim by Insurer, dated September 16, 1991

Application for appointment of an arbitration in Form 4, dated October 4, 1991

Response in Form 5, dated October 18, 1991

Reports of Mediator dated November 15, 1991 and July 31, 1991

Letter from Samis, Blouin, Dunn, dated June 10, 1992, enclosing two taxi receipts for August 27, 1991

Exhibits:

Exhibit 1

Copy of Registered Letter from Wawanesa Mutual Insurance to Applicant, dated October 24, 1990

Exhibit 2

Copy of Registered Letter from Wawanesa Mutual Insurance to Applicant, dated July 29, 1991

Exhibit 3

Copy of Registered Letter from Wawanesa Mutual Insurance to Applicant, dated August 20, 1991

Exhibit 4

Morris Medical Assessments Reg'd Invoice #0033, dated August 27, 1991, in the amount of $350.00

Exhibit 5

Three registered envelopes from Wawanesa Mutual Insurance to Applicant (unopened)

Exhibit 6

Duplicate Prescription Receipt from Dr. Mark, dated August 29, 1991

Exhibit 7

Letter from Dr. Mark, dated June 2, 1992, Lofranco Longley & Vickar

Exhibit 8

F.I.T. for Work Centres memo to file, dated August 14, 1991

Cases referred to:

Hartley v. Matson (1902) 1902 CanLII 44 (SCC), 32 S.C.R. 575

In Re George Edwin Gray (1919) 1918 CanLII 533 (SCC), 57 S.C.R. 150

His Majesty the King v. National Fish Company Limited 1931 CanLII 726 (CA EXC), [1931] Ex.C.R. 75

Rex v. Comptroller General of Patents [1941] 2 K.B. 306

In the Matter of a Reference as to the Validity of the Regulations in relation to Chemicals enacted by the Governor General of Canada 1943 CanLII 1 (SCC), [1943] S.C.R. 1

Attorney General for Canada v. Hallet & Carey Ltd. 1952 CanLII 336 (UK JCPC), [1952] A.C. 427

The Attorney General for Canada v. Inuit Tapirisat of Canada and the National Anti-Poverty Organization 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735

Thorne's Hardware Limited et al. v. The Queen et al. 1983 CanLII 20 (SCC), [1983] 143 D.L.R. (3d) 577

British Columbia Civil Liberties Association v. Attorney General for British Columbia (1988) 1988 CanLII 182 (BC SC), 24 B.C.L.R. (2d) 189

Dana B. Levenson and The General Accident Assurance Company of Canada, O.I.C. File No. A-000260, dated October 29, 1991, S. Naylor, Senior Arbitrator

Evidence:

Ian Mascarenhas, a senior adjuster with Wawanesa Mutual Insurance, gave evidence on behalf of the Insurer. He testified that he has been employed by the Insurer as a claims adjuster for four years, and dealt with the Applicant's claim for no-fault benefits, arising from the accident on August 9, 1990.

The adjuster testified that he arranged an appointment for the Applicant with an independent medical specialist, Dr. Kronby, to take place on November 14, 1990. He notified the Applicant of the medical appointment by way of a registered letter dated October 24, 1990. A copy of that letter was marked Exhibit 1 to the hearing.

The Applicant attended at the appointment which had been arranged, and his no-fault benefits were continued.

The adjuster testified that he subsequently arranged another appointment for the Applicant with Dr. Kronby, to take place on August 13, 1991.

Again, he notified the Applicant of the appointment by means of a registered letter dated July 29, 1991 (copy marked Exhibit 2).

The Applicant attended at the Insurer's office on August 6, 1991, and the adjuster advised him on that day of the medical examination scheduled for August 13th.

The Applicant did not attend at the medical examination on August 13, 1991.

The adjuster spoke to the Applicant on August 15, 1991. The Applicant complained that he was in pain and upset. The adjuster indicated that another independent medical examination with Dr. Kronby would be arranged, to take place on August 27, 1991.

The adjuster mailed out another notification of an appointment by registered mail, on August 20, 1991 (copy marked Exhibit 3). The adjuster also spoke to the Applicant about the medical appointment on that day, August 20th. I note that Exhibit 3 indicates that the Applicant's appointment was for 3:00 p.m., August 27, 1991.

The adjuster spoke to the Applicant again on August 27, 1991, the day of the appointment, at 9:00 a.m. The Applicant called to indicate that he wished to pick up his cheque for benefits in person, since he was concerned about a postal strike. He also said that he was not able to attend at the independent medical examination that day, because he had hay fever. The adjuster testified that he told the Applicant he had best attend the examination, that it was very important that he attend. He did not warn the Applicant that his benefits would be cut off if he did not attend.

The adjuster testified that in the conversation of August 27, 1991, he did not specifically advise the Applicant of the consequences of a failure to attend at the independent medical examination, because at that point he himself had not decided what those consequences would be. He had not yet decided to terminate the Applicant's benefits.

In cross-examination, the adjuster denied that he told the Applicant not to worry, because another appointment would be set up. He testified that, on the contrary, he advised the Applicant that his failure to attend was a serious matter, and involved charges for the "no-shows".

The adjuster testified that Dr. Kronby's office was one block away from the office of the Insurer. He testified that the Applicant attended at the Insurer's office on August 27th to pick up his benefits cheque, but failed to attend for his medical appointment. Exhibit 4 is the invoice from the doctor's office for the Applicant's two "no-shows". Subsequent to the hearing, the Insurer filed the Applicant's original taxi receipts submitted for a trip on August 27, 1991, between the Applicant's home and the office of the Insurer.

The adjuster testified that he subsequently learned that the Applicant had failed to receive the registered letters notifying him of the appointments. The original letters sent out July 29 and August 20, 1991 (marked Exhibit 5) were returned to the Insurer on September 9, 1991, according to the date stamped on the envelopes by the Post Office. The letters were marked by the Post Office and indicated that personal delivery had been attempted unsuccessfully. A notification of registered mail had been left in the Applicant's mail box but the Applicant never picked up the letters.

The adjuster testified that the Insurer only received one medical report about the Applicant's condition for the period from October 1990 through to July 1991. The Insurer requested further reports from the Applicant's family physician, but the Applicant did not provide any reports, because, he stated, he was in the process of changing doctors.

The Applicant gave evidence under oath. He testified that he had attended at the first examination with Dr. Kronby in October 1990. He testified that he had been advised about the appointment by the insurance company, and he also received information through the normal mail. He did not understand how he could have missed receiving notification of a registered letter and stated that he would have noticed if he received a registered letter.

The Applicant testified that he missed his appointment with Dr. Kronby on August 13, 1991 because he was mistaken about the date, and thought it was to have taken place on August 14th. He testified that Mr. Mascarenhas, the adjuster, phoned him the next day. He apologized to Mr. Mascarenhas for missing the appointment, and asked him to set up another one.

The Applicant went to see Mr. Mascarenhas to submit some outstanding bills and receipts, and was told by Mr. Mascarenhas about the appointment for August 27, 1991.

The Applicant testified that he telephoned Mr. Mascarenhas on August 27th and advised him he had a severe allergy and could not attend at the doctor's appointment. He testified that Mr. Mascarenhas' response was "no problem" -- another appointment would be set up. He testified that he would have attended the appointment if he had known, or been warned, that if he did not do so, his benefits would be cut off.

The Applicant testified that he saw his own doctor two days later, and got a prescription of Garamycin for his eye allergy. He referred to Exhibit 6, a duplicate receipt for a prescription for Garamycin, and Exhibit 7, a letter from his family physician, Dr. Mark. I note that Dr. Mark's letter indicates that he saw the Applicant for "an acute eye infection" on August 29, 1991.

The Applicant confirmed that he was aware of the time and dates of the appointments with Dr. Kronby, but was not clear about their purpose. He originally thought that the appointments had been arranged for therapeutic reasons - to help him get better -- rather than to verify his condition.

The Applicant testified that his emotional and mental state is very precarious. He stated that he was having mental and memory problems, but did not recall receiving a registered mail notification from the Post Office at any time.

Submissions and Findings:

In this case, two preliminary issues have been put before me by the Insurer.

The first is a question of fact: has the Applicant made himself reasonably available for an independent medical examination, as required by the legislation?

The second is a question of law: what are the legal consequences of a failure to make oneself reasonably available for a medical examination, in terms of the ability to pursue the remedies set out in the Insurance Act?

(1) The Factual Issue:

Submissions:

Counsel for the Insurer submitted that, where the Applicant's evidence conflicts with the evidence of Mr. Mascarenhas, I should prefer the evidence of Mr. Mascarenhas. He submitted that the evidence of the Applicant is self-serving, and contradictory.

He submitted that the Insurer should find that the Applicant knew about and failed to attend both medical appointments with Dr. Kronby, which had been scheduled for him in 1991.

He submitted that the Applicant had received reasonable notice of both appointments. He continued to receive benefits while the Insurer was awaiting the results of the independent medical examination. The Insurer was not in a position to warn the Applicant of the consequences of his failure to attend the medical examination, because the Insurer did not wish to prejudge the Applicant's case.

Counsel for the Applicant submitted that the Applicant's failure to attend at the independent medical examination of August 27th does not constitute sufficient grounds for suspending his benefits.

Counsel submitted that, since the Insurer had rescheduled the independent medical examination on the first occasion when the Applicant had failed to attend, it was reasonable to assume that the second examination could also be rescheduled. He submitted that the Applicant's evidence that Mr. Mascarenhas had indicated that the independent medical examination would be again rescheduled is credible and reasonable.

Counsel submitted that the Applicant would have attended at the second independent medical examination, but for his medical problems. He submitted that there was no evidence that the Applicant picked up his benefits cheque from the Insurer on August 27, 1991. Since the Applicant had a reasonable excuse for his failure to attend the independent medical examination, he is entitled to pursue his remedies under the No-Fault Benefits Schedule, including mediation and arbitration.

Findings:

Section 23(2) of the No-Fault Benefits Schedule provides:

In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

Section 25 provides:

No person may commence a mediation proceeding under section 242b [now 280] of the Insurance Act in respect of benefits under this Schedule unless the requirements of section 22 have been satisfied and the insured person has made himself or herself reasonably available for any examination required under section 23.

In this case, I find that the Insurer's requirement that the Applicant be examined by Dr. Kronby was reasonable, under section 23(2).

Similarly, the Insurer provided reasonable notice to the Applicant pursuant to section 23(2). The evidence is that the Applicant did not receive the registered letters sent to him by the Insurer. He either did not receive the notifications left by the Post Office, or failed to act on them by picking up his letters.

However, I find that nothing turns on the Applicant's failure to receive the letters since, in both instances when the doctor's appointments were missed, he was aware of the appointments and had reasonable and adequate verbal notice of them.

The question therefore is whether the Applicant made himself "reasonably available" for the required medical examinations as required by section 25. I note that the legislation is framed in broad and general terms, so as to accommodate an insurer's ongoing need to verify the medical status of its insured. However, section 25 provides that an insured person must make him or herself "reasonably available" (emphasis added), and does not speak to unconditional availability. This wording suggests that an insurer must schedule medical appointments with due regard to the insured person's convenience and particular circumstances. Also, the wording suggests that the Insurer must fairly consider a reasonable excuse for failing to attend the scheduled examination.

The evidence is clear that the Applicant failed to attend, on two occasions, medical examinations which the Insurer required him to attend. The Applicant did not provide an acceptable explanation for his failure to attend the first time: the explanation was that he forgot the appointment date.

The Insurer then arranged for a second appointment, but the Applicant did not attend that one because of medical complaints. I do not find that the medical excuse which he advanced was a reasonable excuse in the circumstances. Medical reasons for failing to attend an independent medical examination may certainly be properly raised. However, I consider that the complaint of an eye allergy in this case is not serious enough to justify the failure to attend a medical appointment.

I accept the evidence of the Insurer that, on the very day of the appointment, the Applicant attended at the Insurer's office to pick up his cheque for benefits. This evidence was corroborated by taxi receipts produced by the Insurer after the hearing. The doctor's office was a block away from the Insurer's office. I find that, since the Applicant was capable of attending at the Insurer's office to pick up his cheque, he was also capable of attending at the independent medical examination. He presented no reasonable explanation why the eye allergy would prevent him from attending at the doctor's office, while allowing him to attend at the Insurer's office. Therefore, I find that the Applicant has failed to make himself reasonably available for a medical examination, contrary to the requirements of sections 23 and 25 of the No-Fault Benefits Schedule.

The Legal Question:

What are the consequences of the Applicant's failure to attend at the independent medical examinations as required?

Counsel for the Insurer submitted that the effect of section 25 of the No-Fault Benefits Schedule is that the Applicant cannot commence mediation proceedings and that, accordingly, any mediation which purportedly took place is a legal nullity. Therefore, the Applicant cannot proceed to arbitration. The arbitration process ought not to have been commenced under section 281(2), since no one can refer a matter to arbitration unless mediation has first been sought.

The Applicant has argued that he is entitled to proceed to arbitration because:

(a) Section 25 of the Regulation is ultra vires, or beyond the authority of Cabinet to enact ("the ultra vires argument").

(b) The Insurer raised its objection to mediation and to proceeding to arbitration too late in the process ("the Levenson argument").

(c) In any case, the statutory requirements have been met because, in fact, mediation was sought, did take place, and failed to resolve the dispute between the parties ("the de facto argument").

I propose to deal with each argument separately.

(a) The "ultra vires" argument:

The Applicant argued that section 25 is ultra vires, or outside the authority of the Cabinet to enact, because it goes beyond the regulation-making authority that was granted by Parliament at section 121(1)(9).

He also argued that section 280(1) of the Insurance Act provides blanket authority for disputing parties to mediate their dispute about no-fault benefits. He cited the case of Hartley v. Matson (1902) 1902 CanLII 44 (SCC), 32 S.C.R. 575, and argued that subordinate legislation cannot directly contradict or take away from what has been provided in a statute.

The right to mediation is set out in section 280(1), (2) and (3) of the Insurance Act which states as follows:

(1) Either the insured person or the insurer may refer to a mediator any matter in dispute in respect of the insured person's entitlement to no-fault benefits or in respect of the amount of no-fault benefits to which the insured person is entitled.

(2) The party seeking mediation shall file an application for the appointment of a mediator with the Commission.

(3) The Director shall ensure that a mediator is appointed promptly.

The Legislature may delegate its authority to legislate by way of regulation. Section 121 of the Insurance Act provides the authority for the Lieutenant Governor in Council to make regulations regarding various matters dealt with under the Insurance Act, as follows:

(1) 9.establishing benefits for the purposes of Part VI that must be provided under contracts evidenced by motor vehicle liability policies and establishing terms, conditions, provisions, exclusions and limits related to such benefits;

(1) 25.prescribing rules of procedure and setting time-limits in respect of mediation, arbitration, appeal and variation proceedings under sections 280 to 284;

The regulation-making authority, which has here been conferred to the Lieutenant Governor in Council, is very broad. In effect, almost the entire scheme for providing no-fault benefits is established by way of regulation, specifically, Regulation 273/90, the No-Fault Benefits Schedule. That regulation sets out the benefits that must be provided, pursuant to section 121 (1) (9), and the terms and conditions, exclusions and limits related to those benefits.

The Regulation, in Part VIII, also establishes procedural rules and time-limits for claiming benefits and resolving disputes about such benefits, pursuant to the authority delegated under section 121(1)25. Both sections 23 and 25 of the No-Fault Benefits Schedule are found under Part VIII.

I conclude that, within the context of the entire legislative scheme, section 25 is a valid enactment, in that it establishes what can be fairly characterized as a "rule of procedure" for accessing mediation proceedings. The procedural rule is that, in order to commence the mediation process, a person must make himself or herself "reasonably available" for an examination under section 23.

Similarly, section 26 of the No-Fault Benefits Schedule sets out time-limits for commencing a mediation proceeding. Clearly, section 121(1)(25) authorizes the setting of such time-limits. A failure to comply with the section 26 time-limits has the same effect as the failure to comply with the requirement under section 25: that is, in both cases, access to the mediation process is denied.

I find that both sections of the Regulation are intra vires, or within the authority of the Lieutenant Governor in Council to enact, pursuant to section 121 (1) (25), notwithstanding that both sections to some extent fetter or deny access to the mediation process.

Counsel for the Applicant drew attention to the decision in Hartley v. Matson, (supra), a case in which the Federal Cabinet purported to enact a regulation taking away the right of appeal to the Supreme Court of Canada. This right had been granted by an act of the Parliament of Canada. The Supreme Court of Canada held that the Governor in-Council has no jurisdiction to take away the right of appeal granted by statute.

However, the law enunciated in Hartley v. Matson is not applicable in the present case. Here, the regulation neither purports to nor effectively eliminates access to mediation. It does not take away something granted by statute, either directly or by implication. Instead, procedural rules have been created which govern access to the mediation process. Such rules are a normal and necessary feature of all dispute resolution systems, including the courts.

I find that sections 121(1)(9) and 121(1)(25) combine to provide the Cabinet with ample authority to make regulations such as that enacted as section 25 of the No-Fault Benefits Schedule.

(b) The "Levenson" argument:

Counsel for the Applicant submitted that the Insurer should have raised its objection to mediation based on section 25 of the No-Fault Benefits Schedule at the start of the mediation process. Counsel cited the interim decision of Senior Arbitrator S. Naylor in the case of Dana B. Levenson and The General Accident Assurance Company of Canada, O.I.C. File No. A-000260, dated October 29, 1991, as authority for the proposition that, after arbitration had been applied for, it was too late to raise the defence of section 25.

Counsel for the Insurer submitted that the ruling in Levenson (supra) is not applicable to the current case. In Levenson, the insurer raised a new ground for denying the insured person benefits at the hearing, after the evidence had been led, in the course of making submissions. Senior Arbitrator Naylor found that it would be manifestly unfair to Ms. Levenson to require her to deal with a new issue at that very late stage of the arbitration proceedings.

Counsel for the Insurer submitted that this case was not analogous to Levenson because the issue of the Applicant's failure to attend at the medical examinations had been raised both at the mediation, and also early in the arbitration process. This is not a new defence, raised at a late stage in the proceedings, and the Applicant has had ample notice of this issue and is prepared to deal with it.

I agree with this submission of counsel. Furthermore, I find that it is unrealistic to require an insurer to formally object to mediation in every case, at the initiation of the mediation process, based on section 25 of the No-Fault Benefits Schedule.

The effect of imposing such a requirement would be to prevent or inhibit the satisfactory resolution of many disputes, where the very question in dispute may be, for example, the reasonableness of the requirement for the medical examination, the adequacy of the notice, or the sufficiency of the excuse for a failure to attend. In many cases, mediation of the dispute may convince otherwise reluctant individuals that it is in their interest to comply with the requirement to attend a medical examination, or persuade insurers of the validity of the excuse offered.

(c) The "de facto" argument:

Counsel for the Applicant submitted that, in any case, it is too late for the Insurer to argue that the Applicant was barred from accessing the mediation process, as mediation has already taken place. He submitted that it was not open to the Insurer to participate in mediation, and then afterwards say the process has no force and effect. Accordingly, the Applicant is free to proceed to arbitrate the dispute, since the section 25 requirement to mediate has, in fact, been complied with.

I cannot accept this argument.

As has been outlined above, section 25 provides that an individual who does not comply with the reasonable requirement by the insurer to attend a medical examination is barred from the mediation process. I have found that section 25 is validly enacted legislation, and presumably the framers of the legislation drafted that section with a specific purpose in mind.

Section 281(2) of the Act provides that, unless mediation is sought and has failed, the parties may neither litigate nor arbitrate their disputes. The section states:

(2) No person may bring a proceeding in any court or refer a matter to arbitration unless mediation has first been sought and has failed.

In effect, the intention of the statutory scheme appears to be to deny formal access to the dispute resolution system to an insured person who fails to comply with the insurer's reasonable requirement for an independent medical examination.

In this case, it is conceded that the Insurer did participate in mediation. The documents before me (the report of Mediator dated November 15, 1991; the Assessment of Claim by Insurer, which the Applicant filed together with his application for the appointment of an arbitrator, as well as the Insurer's Response) show that the Insurer's section 25 argument was raised as an issue in mediation, and as a preliminary issue to the application for the appointment of an arbitrator. I conclude that it would be both unfair and counter-productive, in the context of the entire dispute resolution scheme, on the one hand to encourage insurers to actively participate in the mediation process, and on the other hand to find that they do so at the risk of losing the recourse that is provided to them under section 25 of the Regulation.

Section 25 is the only section in the legislation that provides a remedy for a failure to attend a medical examination. Unless an insurer is able to require attendance at a medical examination, it may well have no way of satisfying itself as to the nature and gravity of an insured person's injuries. If insurers are faced with the option of either waiving their rights under section 25, or refusing to participate in mediation proceedings, I have no doubt that the outcome will be that many fewer cases will be mediated. As a consequence, many more insured people will be deprived of their accident benefits. This is neither a logical nor a desirable result for a system which is meant to deliver benefits swiftly and efficiently, and resolve disputes expeditiously.

Therefore, I find that the effect of the Applicant's failure to make himself reasonably available for a medical examination is that he may not commence a mediation proceeding. Since he may not commence a mediation proceeding, it follows that he may not refer this matter to arbitration, pursuant to section 242c(2) and, accordingly, I have no jurisdiction to hold a hearing in this matter.

Where does this leave the Applicant? In my view, if he continues to assert that he is entitled to no-fault accident benefits, he has the obligation to clearly indicate to the Insurer that he is prepared to make himself available for a medical examination, and to attend at an examination if it is scheduled. If the Insurer chooses not to reschedule the examination, the Applicant has complied with the requirements of the Regulation by communicating his willingness and availability to attend. Accordingly, he is then free to apply for mediation with respect to any continuing dispute with the Insurer.

Request for Return of Assessment:

The Insurer is requesting the return of the $1,000.00 assessment fee paid by the Insurer in respect of the arbitration process.

Ontario Regulation 386/90 provides as follows:

1.–(1) Each insurer that is a party to an arbitration under section 242d [now 282] of the Act shall be assessed $1,000 in respect of the arbitration.

Since I have found that I have no jurisdiction to hold an arbitration in this matter, I must conclude that, similarly, no jurisdiction for assessing $1,000.00 exists. The Insurer, in this case, is not a party to an arbitration, since the procedural requirements for commencing an arbitration hearing have not been complied with.

Therefore, the Insurer is entitled to the return of its $1,000.00 assessment.

Order:

1. The Applicant has failed to make himself reasonably available for an independent medical examination, and therefore he is not entitled to arbitration of his disputes with the Insurer.

2. The Insurer is entitled to the return of the $1,000.00 assessment paid in respect of this matter.

September 22, 1992

Frederika M. Rotter Senior Arbitrator

Date