Neutral Citation: 1994 ONICDRG 5
File No. A-003532
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARIA MERCEDES TANDAZO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Maria Mercedes Tandazo, was injured in a motor vehicle accident on October 13, 1992. She is receiving weekly disability benefits of $185 from Allstate Insurance Company (Allstate). These benefits are payable under the No-Fault Benefits Schedule ("the Schedule"), Ontario Regulation 672, R.R.O. 1990, enacted under the Insurance Act, R.S.O. 1990, c. I.8. The No-Fault Benefits Schedule is now referred to as the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, further to Ontario Regulation 779/93.
Mrs. Tandazo was required by Allstate to attend an assessment at the Columbia Centre for Integrated Health Services (the Columbia Centre). The request was made under section 23(2) of the Schedule.
Mrs. Tandazo refused to attend the assessment on the advice of her counsel. The sole issue before me is whether the assessment is authorized under section 23(2) of the Schedule.
Counsel have agreed that Mrs. Tandazo's benefits are not affected by her refusal to attend the examination.
Result:
Mrs. Tandazo is not required to attend an assessment at the Columbia Centre, as requested by the Insurer.
Mrs. Tandazo is entitled to her expenses incurred in respect to the arbitration hearing.
Hearing:
A hearing was held on July 8, 1993, at North York, before me, Susan Naylor, Senior Arbitrator.
Mrs. Tandazo was represented by Altor Shields, Barrister and Solicitor. W.T. McGrenere represented Allstate. Mrs. Tandazo and her daughter, Maria Tandazo, attended the hearing. May Giballini and Josie Pachis attended on behalf of Allstate.
The parties filed an agreed statement of facts. No oral evidence was called. Schedule A to the agreed statement of facts was a brochure published by the Columbia Centre, including staff profiles. A sample assessment report issued by the Columbia Centre was attached as Appendix B. The assessment report did not relate to the Applicant, but to another client of the Applicant's counsel. All identifying features had been removed from this report.
Cases cited:
Attorney General for Ontario v. CEC Edwards Construction (1986), 1986 CanLII 2808 (ON HCJ), 57 O.R. (2d) 782.
Gotch v. Chittenden (1972), 1972 CanLII 532 (ON HCJ), 2 O.R. 272.
Vreken v. Fitchett (1984), 1984 CanLII 1831 (ON HCJ), 45 O.R. (2d) 515.
Patricia Scott and Toronto Transit Commission, OIC File No: A-001116, dated September 4, 1992.
Statutes cited:
Interpretation Act, R.S.O. 1990, c.
Courts of . Justice Act, R.S.O. 1990, c. C.43, s. 105.
Findings:
Mrs. Tandazo was injured in an automobile accident on October 13, 1992. I heard no evidence about the nature of her injuries or her ongoing complaints. Benefits continue to be paid to her on the basis that her injuries prevent her from performing her normal tasks.
Allstate required Mrs. Tandazo to attend a multi-disciplinary assessment at the Columbia Centre. This request was made under section 23(2) of the Schedule, which states as follows:
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 person in accordance with the law relating to autopsies.
Mrs. Tandazo refused to attend the assessment, on the advice of her counsel, because the examination was not going to be conducted by a doctor, psychologist or chiropractor, as required under section 23(2). For ease of reference, I refer to these professionals as designated health practitioners.
The documents filed indicated that the Columbia Centre is a multi-disciplinary rehabilitation facility, specializing in integrated programs for individuals with chronic pain and disability. Schedule A to the agreed statement of facts indicates that the assessment which Mrs. Tandazo was required to attend is a five-day interactional assessment of physical and psychological function comprising biomechanical assessment, functional evaluation, fitness testing, psychosocial assessment and vocational interview. At the end of the five days, a written report is sent to the referring agency. The report recommends whether the applicant should participate in the Centre's rehabilitation program.
The documentation indicates that the clinical team at the Columbia Centre consists of a number of health professionals of various disciplines. For the most part, they are not qualified to practice the disciplines specified in s. 23(2). The sample assessment form marked as Schedule B indicates that the assessment in that case was not carried out by a doctor, psychologist or chiropractor. Counsel for the Insurer conceded that the assessment in this case would not be conducted by a designated health practitioner.
Counsel for the Insurer submitted that the regulation should be interpreted broadly, to allow examinations by other health professionals. He submitted that the rehabilitation of accident victims is an important goal of the accident benefits system. He argued that the proposed examination would facilitate the rehabilitation of the Applicant and so serve the interests of all parties. He argued that to always require the involvement of a designated health practitioner in an assessment would be unnecessarily time-consuming and costly and would elevate form over substance.
I am satisfied that Mrs. Tandazo is not required to attend the proposed assessment.
Section 23(2) represents a balance between competing interests — the insurer's interest in having an opportunity to independently assess the applicant's condition, and the injured person's right to privacy. Accordingly, a number of conditions must be satisfied before an applicant can be required to attend an examination under section 23(2):
the examination must relate to an applicant's entitlement to weekly benefits. Under the Schedule, an insurer cannot require an applicant to attend an examination by a practitioner appointed by it, if the request relates to medical, rehabilitation or care benefits;
the applicant must be given reasonable notice of the appointment;
the requirement of the examination must be reasonable, given the nature of the applicant's claim, condition and circumstances; and
the examination must be "by a qualified medical practitioner, psychological advisor or chiropractor."
Essentially, counsel for the Insurer wishes me to read these latter words out of the regulations. However, fundamental principles of statutory interpretation preclude this. As stated in Interpretation of Legislation, 1991, by Pierre-Andrew Cote:
Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well-drafted, and to express completely what the legislator wanted to say...
A number of cases were cited to me concerning the scope of the power to order medical examinations in civil actions under section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The section is restricted to examinations by a "health practitioner," defined in broadly similar terms to those contained in the Schedule.
Examinations by other health professionals have been ordered under section 105, when the examination is for the purpose of assisting a doctor in his or her diagnosis or prognosis. For example, in Gotch v. Chittenden (1972), 1972 CanLII 532 (ON HCJ), 2 O.R. 272, the plaintiff was ordered to undergo psychological testing although, at the time, psychologists were not included as health practitioners under the legislation. In Vreken v. Fitchett (1984), 1984 CanLII 1831 (ON HCJ), 45 O.R. (2d) 515, the court authorized a vocational assessment as an aid to the physician who was examining the plaintiff.
I accept that s. 23(2) authorizes, in exceptional cases, an assessment by an undesignated health professional where it is necessary to assist a doctor in the evaluation of an applicant's condition. In the arbitration decision, Patricia Scott and Toronto Transit Commission, A-001116, dated September 4, 1992, I stated that the insurer's right to have the applicant independently assessed was not to be construed restrictively:
The scope of the regulation is broad and flexible, in order to reflect the reality of modern inter-active medical practice, and to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition.
However, in all cases, the assessment must be at the request of a health practitioner designated under section 23(2) and must be for the purpose of substantially assisting that person in his or her examination. The section is explicit as to who is to conduct the examination.
It may well be that it is in the best interests of the Applicant's rehabilitation to attend the assessment. However, that is not what I am required to determine. The issue is whether the Applicant can be compelled to attend the assessment under section 23(2). In my opinion, the answer is no, because the request does not comply with a fundamental requirement of the section.
Order:
The Applicant is not required to attend an assessment at the Columbia Centre for Integrated Health Services under section 23(2) of the No-Fault Benefits Schedule, as required by the Insurer.
The Applicant is entitled to her expenses incurred in respect to this arbitration hearing, as set out in Ontario Regulation 664.
January 25, 1994
Susan Naylor
Senior Arbitrator
Date