Neutral Citation: 1995 ONICDRG 141
ONTARIO INSURANCE COMMISSION
BETWEEN:
TARANGIT TAKHAR
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Background
The Applicant, Tarangit Takhar, was injured in a motor vehicle accident on May 23, 1993. The Insurer, Allstate Insurance Company of Canada ("Allstate"), sought an order that Mrs. Takhar attend a medical examination and a functional capacities evaluation under section 23(2) of the Schedule1.
The report of Dr. Ranjit dated April 18, 1995 was filed as evidence on the consent of the parties.
Issues :
Is it reasonable for Allstate to require Mrs. Takhar to attend a medical examination in London at the offices of the qualified medical practioner of its choice under section 23(2) of the Schedule?
Can Allstate require Mrs. Takhar to attend for a functional capacities evaluation at the Canadian Back Institute under section 23(2) of the Schedule?
Result:
It is reasonable for Allstate to require Mrs. Takhar to attend for the medical examination at the doctor of its choice, provided that Mrs. Takhar can be seen by him in a location closer to her place of residence.
Allstate cannot require Mrs.Takhar to attend for a functional capacities evaluation.
Present at the Hearing:
Applicant:
Tarangit Takhar
Applicant's Representative:
Rodney Godard Barrister and Solicitor
Insurer's Representative:
Brian A. Foster Barrister and Solicitor
Insurer's Officer:
Ms. Belluze
Exhibits:
There were no exhibits filed.
Documentation before the Arbitrator:
Report of Mediator dated, May 3, 1995.
Application for Arbitration dated, June 9, 1995.
Response by Insurer dated, May 11, 1995.
Medical Report of Dr. Ranjit dated, April 18, 1995
Cases considered:
See Schedule A attached.
Hearing:
The hearing of the preliminary issue was held by teleconference, on September 5, 1995 before me, Fern Kirsch, arbitrator.
Reasons:
Subsection 23(2) of the Schedule provides 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 insured person in accordance with the law relating to autopsies.
In this case, the parties agreed that the request for an independent medical examination had been made on "reasonable notice", that the selected doctor was a "qualified medical practitioner" and that an independent medical examination was "required" by the Insurer.
The parties disagreed as to the "reasonableness" of the requests by the Insurer. Counsel for the Applicant did not wish Mrs. Takhar to attend at the Insurer's choice of doctor as he claimed the doctor would be biased against her. Further, the doctor's office is located in London, and Mrs. Takhar resides in Windsor.
In Scott2, with which I agree, Arbitrator Naylor stated as follows at page 18:
The right of an insurer to require that the Applicant attend a medical examination under section 23(2) provides the insurance company with an effective opportunity to fairly assess the applicant's medical condition, on an independent basis. The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the injured person's right to privacy. For this reason, the insurer's right to an independent medical examination is qualified - it may only be "as often as it (the insurer) reasonably requires.
The exercise of the right to a medical examination under the Schedule is inherently intrusive and an invasion of individual privacy. However, it is legislatively mandated. Neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. "Reasonableness" is an objective standard. Some latitude must be left for a range of circumstances, which fall within its parameters. It is not for an arbitrator to "second-guess" the actions or motives of the company in requiring a medical examination.
The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed.
[Emphasis added]
No evidence was provided of the alleged bias of the proposed doctor. Even if some evidence of bias had been provided by counsel, it probably would have been insufficient to restrict the Insurer's choice of a qualified medical advisor under section 23(2) of the Schedule. The hearing arbitrator would be able to receive the evidence, hear the submissions, and give the evidence its appropriate weight. I therefore do not have concerns in this regard about Allstate's choice of doctor.
I do have concerns about whether it is reasonable for Allstate to require Mrs. Takhar to travel from London to Windsor in order to attend the examination. Allstate has failed to show me that it is reasonable to require Mrs. Takhar to attend in London, when she lives in Windsor. I was advised that the doctor sometimes sees patients in Chatham, which is located much closer to Mrs. Takhar's home. This would be a reasonable place for Mrs. Takhar's examination to occur. Allstate can choose the doctor that Mrs. Takhar must attend, provided that Mrs. Takhar does not have to travel to London for the examination.
The Insurer seeks an Order compelling Mrs. Takhar to attend before the selected doctor. The cases from the Ontario Insurance Commission are clear that I do not have jurisdiction to compel the attendance at the examination.3 However, if the Applicant fails to attend at the examination, the hearing arbitrator may not allow the arbitration to proceed.4
Functional Capacities Evaluation
Allstate also sought an order that Mrs. Takhar attend for a functional capacities evaluation at the Canadian Back Institute, under section 23(2) of the Schedule. The only factual material before me to support this request was the Report of Dr. Ranjit, Mrs. Takhar's family physician, dated April 18, 1995. This report stated that Mrs. Takhar's "full functional ability can be adequately evaluated only by a full functional abilities evaluation".
The issue is whether the Insurer can require Mrs. Takhar to attend an examination performed by other than a "qualified medical pracitioner.
Counsel for Allstate submitted that a "functional abilities evaluation" falls within the meaning of section 23(2) of the Schedule, and stated that it is reasonable and appropriate in these circumstances that Mrs. Takhar attend the evaluation. Counsel for Mrs. Takhar denies that the assessment is an examination within the meaning of section 23(2).
In the case of Tandazo5 with which I agree, Senior Arbitrator Naylor stated as follows:
I accept that section 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 a applicant's 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.
[emphasis added]
This is not an exceptional case. There is no evidence here that the doctor chosen by the Insurer requires the assessment of an undesignated health professional6 in order to assist in his evaluation of the Applicant's condition.
Allstate cannot require Mrs Takhar to attend for a functional capacities evaluation.
Order:
It is reasonable for Allstate to require Mrs. Takhar to attend for the medical examination at the doctor of its choice, provided that Mrs. Takhar can be seen by him in a location much closer to her place of residence.
Allstate cannot require Mrs. Takhar to attend for a functional capacities evaluation.
October 10, 1995
Fern Kirsch Arbitrator
Date
Schedule A
Lucy Beiler and Alpina Insurance Company, August 9, 1994, OIC File No. A-003051
Jose Granchelli and Royal Insurance Company of Canada, October 4, 1995, OIC File No. A-015225
Maria Granic and Allstate Insurance Company, January 30, 1995, OIC File No. A-006615
Kevin Hanna and Royal Insurance Company of Canada, December 2, 1994, OIC File No. A-005409
Zoila Mora and Pafco Insurance Company Limited, March 20, 1995, OIC File No. A-011093, (letter decision of Arbitrator Makepeace)
Ragir Murtty and Allstate Insurance Company of Canada, March 21, 1995 File No. 011527 (letter decision of Arbitrator Mackintosh)
Si VNguyen and Allstate Insurance Company of Canada, June 22, 1994, OIC File No. A-005553
Edward J. Opatowski and Wawanesa Mutual Insurance Company, September 22, 1992, OIC file No. A-000381
Patricia Scott and TTC, September 4, 1992, OIC File No. A-00116
Maria Mercedes Tandazo and Allstate Insurance Company of Canada, January 25, 1994, OIC File No. A-0003532
Footnotes
- Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
- Patricia Scott and TTC, September 4, 1992, OIC File No. A-00116
- Maria Granic and Allstate, January 30, 1995, OIC File No. A-006615
- Section 25 of the Schedule. Edward J. Opatowski and Wawanesa Mutual Insurance Company, September 22, 1992, OIC File No. A-000381 Jose Granchelli and Royal Insurance Company of Canada, October 4, 1995, OIC File No. A-015225
- Maria Mercedes Tandazo and Allstate Insurance Company of Canada, January 25, 1994, OIC File No. A-003532 at page 6 and 7.
- (here The Canadian Back Institute)