Neutral Citation: 1996 ONICDRG 150

OIC A96-000084

ONTARIO INSURANCE COMMISSION

BETWEEN:

BIENVENIDO MALABANAN

Applicant

and

CANADIAN GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Bienvenido Malabanan, was injured in a motor vehicle accident on January 25, 1995. He applied for and received statutory accident benefits from Canadian General Insurance Company ("Canadian General"), payable under the Schedule.¹ Weekly income replacement benefits were terminated by Canadian General on September 15, 1995. The parties were unable to resolve their disputes through mediation and Mr. Malabanan applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Malabanan entitled to weekly income replacement benefits pursuant to section 7 of the Schedule after September 15, 1995?

2. Is Mr. Malabanan entitled to weekly income replacement benefits from either September 16, 1995 to December 6, 1995, or from October 16, 1995 to December 6, 1995 because Canadian General failed to stop weekly income replacement benefits in accordance with section 64 of the Schedule?

Mr. Malabanan also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Malabanan is not entitled to income replacement benefits pursuant to section 7(1) of the Schedule.

2. Mr. Malabanan is entitled to income replacement benefits pursuant to section 64 of the Schedule from October 16, 1995 to December 6, 1995.

3. Mr. Malabanan is entitled to 50 per cent of his expenses in the arbitration hearing.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on August 6 and 7, 1996, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant: Bienvenido Malabanan

Mr. Malabanan's Representative: Ian Little, Barrister and Solicitor

Canadian General's Representative: J. Claude Blouin, Barrister and Solicitor Grainne McCurry, Articling Student

Witnesses: Bienvenido Malabanan Pamela Richardson Dr. Geoffrey French

Exhibits: Seven exhibits were filed

Court Reporter: Elizabeth Monteriro, August 6, 1996 Cheryl Hunt, August 7, 1996

Issue 1: Is Mr. Malabanan entitled to weekly income replacement benefits under section 7 of the Schedule after September 15, 1995?

Background

Mr. Malabanan is 52 years old. He was born in the Philippines and emigrated to Canada in 1971. He is married and has an 8-year-old son.

When Mr. Malabanan arrived in Canada he first trained and worked as a nursing orderly. In 1973 he went to school full time. He graduated as a registered nursing assistant in 1974. At the time of the accident Mr. Malabanan was working full time as a custodian at the Metropolitan Separate School Board.² He also had a part-time job as a registered nursing assistant at the Queen Street Mental Health Centre.³

The accident occurred on January 25, 1995 at about 3:00 p.m. Mr. Malabanan was driving along Dixie Road. He stopped to make a left turn and his vehicle was struck from behind.

Mr. Malabanan testified that he immediately felt dizzy when his car was hit. However, he was able to drive himself home. Later that day he went to see his family doctor, Dr. Silva, who had been treating him since 1978.

Dr. Silva diagnosed that Mr. Malabanan had a neck strain. She recommended that he apply ice and exercise his neck.⁴ Mr. Malabanan took three days off work and then returned to both his full-time and part-time jobs until April 4, 1995.

Mr. Malabanan testified that he changed doctors at the end of March because he did not think Dr. Silva was helping him. His new doctor, Dr. Maida, reported on April 4, 1995 that Mr. Malabanan was suffering from injuries to his upper back, lower back, shoulders, and elbow. As well, he noted that Mr. Malabanan was experiencing headaches, depression, anxiety/phobia and TMJ strain.⁵ Dr. Maida characterized the upper back and lower back injuries as most severe. He also noted that Mr. Malabanan was unfit for all forms of employment and most household chores.⁶

On April 7, 1995 Mr. Malabanan applied for accident benefits⁷ and Canadian General began to pay him income replacement benefits of $816.76 per week beginning April 15, 1995.

On June 14, 1995, at the request of Canadian General, Mr. Malabanan was assessed by Dr. Paitich, an orthopaedic surgeon. In his report of June 14, 1995 Dr. Paitich concluded:

Based on the history I obtained from this man, physical examination, review of the documents as well as a radiographic review, I can find no anatomic or physiologic explanation for any disability in this man with respect to the MVA which occurred on January 25, 1995.

I believe that any disability occurring at this time is completely unrelated to the MVA which occurred on January 25, 1995.

It is my opinion that this man is not disabled with respect to his occupation and it would be my recommendations (sic) that he return to his previous occupation as soon as possible.⁸

As a result of Dr. Paitich's report, Canadian General notified Mr. Malabanan that it would be terminating his benefits. Pursuant to section 64 of the Schedule, Mr. Malabanan requested a referral to a Designated Disability Assessment Centre (DAC).

On November 17, 1995 Mr. Malabanan underwent a DAC examination by Dr. French, an orthopaedic surgeon. In his report Dr. French concluded that, although Mr. Malabanan had some pain, he had "no doubt that he is quite capable of returning to all of his normal activities, including his gainful employment."⁹ (Dr. French's testimony will be dealt with in the Analysis and Findings below)

Dr. Maida sent Mr. Malabanan to see Dr. Silverberg. In his report of January 9, 1996, Dr. Silverberg noted that a CT scan seemed to indicate a left side L5-S1 disc herniation and "... that surgery on the disc might improve the pain in the left lower extremity but would not abolish his neck or low back pain.¹⁰

Dr. Silverberg recommended that Mr. Malabanan see Dr. Vanderlinden, a neurosurgeon.

In his report of February 27, 1996, Dr. Vanderlinden noted that "The CT scan shows a herniated disc on the left side at L5/S1. ... [Mr. Malabanan] shows neurological signs of an S1 rhizopathy, undoubtedly due to a disc herniation at L5/S1." Dr. Vanderlinden recommended that Mr. Malabanan undergo a "microsurgical discectomy."¹¹

Pre-Accident Medical History

Mr. Malabanan's pre-accident medical history indicates that he had a long-standing problem with his lower back which was quite significant.

The evidence shows that in 1978 Mr. Malabanan injured his lower back and was off work for three weeks.¹² In February 1981 Mr. Malabanan saw Dr. Silva several times for low back pain which radiated to his left leg.¹³

In August 1984 Mr. Malabanan was in a car accident and suffered a neck strain. He was off his full-time job for four months and his part-time job for six months.

On February 19, 1985 Mr. Malabanan saw Dr. Silva for low back pain which came on after restraining a patient.¹⁴

On April 12, 1985 Mr. Malabanan saw Dr. Silva for "acute back strain" which came on after he had lifted a patient.¹⁵ On April 23, 1985 Dr. Silva opined that Mr. Malabanan may have a prolapsed disc.¹⁶

In 1987 Mr. Malabanan saw Dr. Silva numerous times for lower back pain which radiated to his left leg causing numbness. Dr. Silva sent Mr. Malabanan to be assessed by Dr. Wood,¹⁷ an orthopaedic surgeon, Dr. Birnbaun,¹⁸ a neurologist and Dr. Muller,¹⁹ a neurosurgeon. In his report of July 28, 1987 Dr. Muller noted:

There is very little doubt that Mr. Malabana (sic) has ruptured his lumbosacral disc and this has resulted in a left S1 radiculopathy. ... I suggested to him that my recommendation was in fact a microdiscectomy. I think that the likelihood of spontaneous resolution of his leg weakness after this period of time is quite remote.²⁰

Dr. Silva's clinical notes and records indicate that Mr. Malabanan continued to see her for flare-ups in his lower back in 1988, 1989, 1990 and 1993.

In 1989 Dr. Silva referred Mr. Malabanan to be assessed by Dr. Wright, an orthopaedic surgeon. He opined that Mr. Malabanan had a herniated disc. He suggested that this should settle down and recommended physiotherapy.

Dr. Silva's last entry with respect to Mr. Malabanan's back pain was on April 26, 1993. Her clinical notes indicated that he had an acute lumbar strain with low back pain radiating to his left leg. She notes that the evening before he had danced quite a lot.

Mr. Malabanan submits that his present lower back problems result from the injuries he received from the accident and that these injuries prevent him from returning to work. Canadian General submits that Mr. Malabanan's lower back problems predate the accident, and that there is no causal link between his present physical problems and the car accident.

Analysis and Findings

The first issue that I must decide is whether Mr. Malabanan is entitled to receive income replacement benefits under section 7(1) of the Schedule. Section 7(1) provides:

An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.

"Impairment" has been defined in section 1 of the Schedule as a "loss or abnormality of psychological or anatomical structure or function."

In order to succeed in his claim, Mr. Malabanan bears the onus of establishing, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his occupation as a result of the motor vehicle accident.

An important element in discharging the burden of proof under section 7(1) is showing that the motor vehicle accident significantly or materially contributed to an insured person's disability.

For the following reasons I find that Mr. Malabanan has not discharged his burden of proof.

Mr. Malabanan saw Dr. Silva four times after the accident from January 25, 1995 until March 4, 1995. Dr. Silva's clinical notes indicate that at all four visits, Mr. Malabanan was suffering from neck strain. No mention was made of any back pain.

Mr. Malabanan testified that he had mentioned having low back pain to Dr. Silva, but that she did not acknowledge his complaint nor did she recommend or provide treatment, except for prescribing Tylenol. For these reasons he decided to change doctors.

I do not accept or believe Mr. Malabanan's assertion that Dr. Silva did not record or pay attention to his complaints of low back pain or that she failed to recommend helpful treatment.

At the time of the accident Mr. Malabanan had been a patient of Dr. Silva for 17 years. Dr. Silva's clinical notes and records show that she not only made detailed notes of all of his complaints, but that she followed up with treatment recommendations as well as referrals to other specialists. Her clinical notes left me with the impression that she was a highly conscientious doctor who paid close attention to her patient, and that she recorded all of his complaints.

In her clinical notes for February 4, 1995, Dr. Silva notes that Mr. Malabanan had a cold and a stuffy nose. I do not find it plausible that after the January 25, 1995 car accident Dr. Silva would take time to record that Mr. Malabanan had a cold, but ignore a complaint of low back pain. Nor do I find it plausible that she would not follow up with any treatment recommendations whether it was in respect of his neck, upper back or lower back. In fact the evidence shows that she did recommend treatment for his injury. I note that in her clinical notes on February 4, 1995 Dr. Silva had written "PHISIO - didn't go."²¹ This would lead me to conclude that, in addition to recommending that Mr. Malabanan ice his neck and do exercises, she had recommended that he attend physiotherapy, which recommendation Mr. Malabanan failed to follow.

I accept the view of Dr. French, the DAC assessor, that Mr. Malabanan's problem with his lower back did not result from the car accident, but is a recurrence of his previous back problem.

Dr. French testified that Mr. Malabanan did not describe any previous medical problems with his back at the time he examined him. Dr. French was only provided with one page of Dr. Silva's clinical notes which recorded the four visits after the January 25, 1995 accident. These clinical notes indicate that the only significant injury that Mr. Malabanan had incurred as a result of the accident was neck strain.

Dr. French testified that medically it was "inconceivable" that if Mr. Malabanan had injured his lower back as a result of the accident, symptoms would show up six weeks later. He stated that whether Mr. Malabanan had received a purely mechanical or bio-chemical injury, i.e. a herniated disc, pain would arise either immediately or at the latest, 10 to 14 days after the injury.

I accept Dr. French's opinion. In my view, it is consistent with Mr. Malabanan's reporting of his previous back problems. Dr. Silva's clinical notes indicate that each time Mr. Malabanan injured his back, either because he had to restrain or lift a patient or danced too much, the symptoms of back pain were almost immediate.

The objective evidence shows that Mr. Malabanan had a long-standing recurring back problem. I note that the diagnosis by Dr. Vanderlinden on February 27, 1996 that Mr. Malabanan had a herniated disc and required surgery is the same diagnosis, in the same area, with the same recommendation as made by Dr. Muller on July 28, 1987.

I find that Mr. Malabanan's present back complaint is a recurrence of his long-standing back problem and does not arise from an injury he received from the car accident. Dr. Silva's primary diagnosis of Mr. Malabanan's injury from the accident was neck strain. No mention was made of any low back injury. Mr. Malabanan continued to work at his two jobs for two months after the accident. There was no objective evidence to show that he was suffering from back pain during this time. One of his employers, Metro Separate School Board, reported that Mr. Malabanan "... had no work restrictions for the time period he worked after his accident from January 25 to April 3, 1995... In fact, Bienvenido worked overtime voluntarily, i.e. came in on 3 Saturdays to serve permits."²² It was only when Mr. Malabanan changed doctors on April 4, 1995 that the issue of a low back injury from the accident arose.

Accordingly, I find that it is more likely than not that Mr. Malabanan had opportunistically changed doctors in April 1995 in order to attribute his recurring back problem to the car accident of January 25, 1995. My conclusion is reinforced by the fact that Mr. Malabanan chose not to reveal his very significant pre-accident back problems to Dr. French. I, therefore, find that Mr. Malabanan has not presented any credible evidence that would link his present back problems to any injury he received in the car accident.

Accordingly, I find that Mr. Malabanan is not entitled to income replacement benefits pursuant to section 7(1) of the Schedule after September 15, 1996.

Issue 2: Is Mr. Malabanan entitled to weekly income replacement benefits from either September 16, 1995 to December 6, 1995, or from October 16, 1995 to December 6, 1995 because Canadian General failed to stop weekly income replacement benefits in accordance with section 64 of the Schedule?

Background

Ms. Pamela Richardson testified on behalf of Canadian General. She is the Rehabilitation Services Manager for the Accident Benefit Claims Services. Her job is to prepare the Disability DAC Referral Package.

Ms. Richardson testified that on July 31, 1995, Mr. Malabanan was informed that his benefits would be terminated, based on an a report by Dr. Paitich who had examined Mr. Malabanan on behalf of Canadian General.²³

On August 9, 1995, Mr. Malabanan's counsel advised Canadian General that pursuant to section 64(3) of the Schedule, Mr. Malabanan was requesting an assessment at a DAC, and wished to have his benefits continued pursuant to section 64(3) until the matter was resolved. This letter was received by Canadian General on August 11, 1995.²⁴

Ms. Richardson testified that a "Field Instructions" form, dated August 22, 1995, indicated that their road staff (an internal courier) was to pick up from Mr. Malabanan's lawyer, an OIC "Permission to Disclose Health Information" form (OCF 5) signed by Mr. Malabanan.²⁵

Ms. Richardson stated that she called Mr. Malabanan's counsel on August 29, 1995 and spoke to a Mr. Mike Mancini. She informed him that the signed OCF 5 form was needed in order to prepare the DAC referral package.

Ms. Richardson testified that a DAC will not make an appointment until it receives a completed referral package. According to the Guidelines,²⁶ where relevant, a referral package should include an OCF 5 form.²⁷ She stated that in this case, because there was a causation issue, the clinical notes and records of Dr. Silva were relevant for the assessment.

On August 31, 1995 Ms. Richardson faxed Mr. Malabanan's counsel as follows:

We request that OCF 5 Forms be signed by Mr...Malabanan for the DAC facility - Dr. Geoffrey R. French along with OCF 5 Forms for Dr. Silva. It will be necessary to secure the clinical notes, pre & post MVA of January 25, 1995 due to the preexisting conditions ... of Mr. Malabanan... All this requested information will be required to formulate the DAC referral package. ...

Failure to comply with this information within 5 days, will result in suspension of accident benefits pursuant to 268.3 of the Insurance Act.²⁸

On September 13, 1995 Canadian General received a letter dated September 5, 1995, which enclosed a signed OCF 5 form executed in the name of Dr. Maida.²⁹

On September 26, 1995, Jenni Jenkins, a claims specialist at Canadian General, wrote to Mr. Malabanan's counsel informing him that because Canadian General had not received the requested OCF 5 form for Dr. Silva and Dr. French, Mr. Malabanan's weekly benefits were suspended effective September 15, 1995.³⁰

On October 16, 1995, Canadian General received two blank OCF 5 forms signed by Mr. Malabanan.³¹

Mr. Malabanan attended a DAC assessment with Dr. French on November 17, 1995. The only clinical notes and records that Dr. French had from Dr. Silva at the time of the assessment were for the period of January 25 to March 4, 1995. No one could explain why Dr. French did not have the complete clinical notes and records of Dr. Silva.

Mr. Malabanan was informed on December 6, 1995 that the DAC assessor had concluded that he was capable of returning to both his jobs.³²

The Law

Section 64 outlines the procedures by which an insurer can terminate an applicant's benefits.³³It is a complicated and densely written section with 14 subsections and 5 sub-sub sections. As well, a 21-page guideline with intricate detailed procedures on how the requirements of this section should be carried out has been issued by the Commission.³⁴

Succinctly, section 64 provides that an insurer may stop payment of benefits 14 days after notice to an insured, unless, before that date, the insured provides written notice requesting an assessment by a DAC. Once the notice is received, all benefits not paid will be paid and payment of up-to-date benefits will resume.

The Insurer must refer the insured to the nearest DAC for an assessment. If the assessment confirms that there is no disability, the insurer can immediately stop payment. If the report says that the insured is disabled, benefits continue. The insurer, however, has a right to dispute its obligation to pay under section 279 to 283 of the Insurance Act.

If an insured refuses to submit to an examination or provide such information as is reasonably necessary for the assessment, the insurer may withhold payment of the weekly benefits until the insured submits to an assessment or provides the required information.

It would appear that section 64 is designed to provide an insured with some protection against an untimely termination of benefits. This section also clearly benefits an insured in that, even if the insured is no longer disabled, he or she will continue to receive benefits until the DAC assessment and report is completed.

Analysis and Findings

In order to decide whether or not Mr. Malabanan is entitled to income replacement benefits pursuant to section 64, I must first decide two sub-issues.

(a) Did Canadian General properly terminate Mr. Malabanan's benefits on September 15, 1995 because he failed to comply with subsection 64(9) by not providing information as is reasonably necessary for the conduct of the DAC assessment?

(b) Did Mr.Malabanan comply with subsection 64(9) by October 16, 1995?

The relevant subsections are as follows:

(9) For the purpose of the assessment,

(a) the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary; and

(14) If the insured person does not submit to an assessment that he or she requests under subsection (3) or does not comply with the requirements of subsection (9), the insurer may withhold payment of the weekly benefits until the person submits to the assessment or complies with subsection (9) respectively, after which time the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid if the assessment report determines that benefits should continue to be paid.

Issue (a) Did Canadian General properly terminate Mr. Malabanan's benefits on September 15, 1995 because he failed to comply with subsection 64(9) by not providing information as is reasonably necessary for the conduct of the DAC assessment?

Mr. Malabanan submitted that the August 31, 1995 letter which gave him five days to provide a signed OCF 5 form on penalty of having his benefits terminated, was an unreasonably short period of time. He submitted, therefore, that Canadian General had improperly terminated his benefits.

As noted above, section 64 provides that an insured should continue to receive benefits until a DAC is completed, even if the insured is no longer disabled. The Guidelines state that "A DAC can not commence an assessment without receiving a completed and signed OCF 5 form."³⁵

In my view, in these circumstances, an insured who requests a DAC, has a responsibility to co-operate fully, honestly and in a timely fashion, so that the DAC assessment can be completed as quickly as is reasonably possible.

Unfortunately, neither section 64 nor the Guidelines give any direction regarding the time frame in which an insured must provide the "reasonably necessary" information required by the DAC pursuant to subsection 64(9). That being the case, I find that for a fair result, the time period in which an insured should be required to provide the information requested pursuant to section 64(9), should depend on what is reasonable in each particular case. The time frame provided should take into consideration the type of information requested and the ability of the insured to provide the information.

In this case I find that five days was a reasonable time frame for Mr. Malabanan to sign a standard form that was readily available. There is no evidence to show that Mr. Malabanan was unable to sign the OCF 5 form during this time period. In fact Mr. Malabanan signed an OCF 5 form executed in the name of Dr. Maida on August 29, 1995 on the same day that Mrs. Richardson spoke to Mr. Malabanan's counsel requesting the OCF 5 form for Dr. Silva.³⁶

Although in this case Canadian General requested that Mr. Malabanan sign the wavier within five days, in reality it gave Mr. Malabanan more than five days to provide the wavier. Canadian General first informed Mr. Malabanan's counsel on August 29, 1995 that the wavier was needed. It reiterated its request in writing on August 31, 1995 and then waited until September 15, 1995 to terminate Mr. Malabanan's benefits. In my view, Mr. Malabanan had more than sufficient time to comply with Canadian General's request for the OCF 5 form.

Accordingly, I find that Mr. Malabanan's benefits were properly terminated on September 15, 1996 pursuant to subsection 64(14) because he had not fulfilled his obligations under subsection 64(9).

Issue (b) Did Mr. Malabanan comply with subsection 64(9) by October 16, 1995?

Canadian General submitted that Ms. Richardson's letter of August 31, 1995 not only required Mr. Malabanan to sign the OCF 5 forms, but also required him to provide Dr. Silva's clinical notes and records. Thus, Mr. Malabanan did not fulfill his obligation under subsection 64(9).

I find that Dr. Silva's clinical notes and records were relevant to the DAC assessment. However, I conclude that it was sufficient for Mr. Malabanan to have signed the OCF 5 form, as opposed to personally providing the clinical notes and records of Dr. Silva. I find that Ms. Richardson's statement in her letter that ... "It will be necessary to secure the clinical notes..." of Dr. Silva merely qualifies her request for the signed OCF 5 forms in the previous sentence.³⁷ In my view it did not require Mr. Malabanan to personally collect and provide Dr. Silva's clinical notes and records.

The Guidelines state that "A DAC can not commence an assessment without receiving a completed and signed OCF 5 form."³⁸ It does not state that it cannot commence an assessment without the relevant clinical notes and records being provided. I, therefore, find that Mr. Malabanan complied with subsection 64(9) by October 16, 1995 when he provided the signed OCF 5 form.

Accordingly, I find that pursuant to section 64(14)(a) Canadian General is required to pay Mr. Malabanan his income replacement benefits from October 16, 1995, when Mr. Malabanan fulfilled his obligation pursuant to section 64(9), until he was notified on December 6, 1995 that the DAC assessor did not find him disabled from performing his jobs as a custodian and a registered nursing assistant.³⁹

Having found that Mr. Malabanan is entitled to income replacement benefits, at the request of the parties, I remain seized of any issue that may arise with respect to the correct amount of the income replacement benefit.

Expenses:

I exercise my discretion to award Mr. Malabanan 50 per cent of his expenses.⁴⁰

Although applicants have been awarded their full expenses, even when they have not been successful in their claim, arbitrators have exercised their discretion not to award expenses in cases where they have found an applicant not to be credible. In this case Mr. Malabanan was partly successful in his claim pursuant to section 64 of the Schedule. However, he was not successful in his claim for income replacement benefits pursuant to section 7 of the Schedule.

I found that Mr. Malabanan did not present credible evidence that his present back problems were a result of the car accident pursuant to section 7. I found that Mr. Malabanan had deliberately attempted to attribute his back problems to the car accident, not only by changing doctors two months after the accident, but also by failing to inform the DAC doctor of his lengthy history of back problems before the accident.

Accordingly, I find that Mr. Malabanan is only entitled to 50 per cent of his expenses in the arbitration hearing.

Order:

1. Canadian General shall pay Mr. Malabanan income replacement benefits pursuant to section 64 from October 16, 1995 until December 6, 1995.

2. Canadian General shall pay Mr. Malabanan 50 per cent of his expenses in the arbitration hearing.

September 9, 1996

Joyce Miller Arbitrator

Date

Appendix A

Job Description of Bienvenido Malabanan at Metro Separate School Board

APPENDIX B

Stoppage in Weekly Benefits

64. (1) An insurer shall not stop payment of weekly benefits under Part II, section 15, Part IV, or Part V on the ground that the insured person no longer suffers from a disability as a result of the accident in respect of which weekly benefits are paid, except in accordance with this section.

(2) The insurer may give notice to the insured person that the insurer will stop paying benefits on a date specified in the notice and the notice shall provide the information contained in subsections (3) to (7) and the reasons for the stoppage in payment.

(3) The insurer may stop payment of the weekly benefits on or after the date specified in the notice unless the insured person gives the insurer written notice that he or she wishes to be assessed in accordance with subsections (5) and (6).

(4) The insurer shall not specify a date for stopping payment under subsection (3) earlier than 14 days after the insured person receives the notice mentioned in subsection (2).

(5) If the insured person gives a notice under subsection (3) and if, within 100 kilometres of the residence of the insured person, there is no designated assessment centre that is authorized to assess impairments of the type sustained by the insured person, the insurer and the insured person shall endeavour to agree on one or more people, at least one of whom shall be a health practitioner, to conduct the assessment.

(6) If there is a designated assessment centre within 100 kilometres of the residence of the insured person or if, within 14 days after the insurer received notice under subsection (3), the insurer and the insured person cannot agree under subsection (5) on who shall conduct the assessment, the designated assessment centre nearest to the residence of the insured person shall conduct the assessment.

(7) If, before the assessment has commenced, the designated assessment centre nearest to the residence of the insured person has disclosed to the insurer and the insured person that it has a conflict of interest with either of the parties within the meaning of that term in the guidelines established by the accident benefits advisory committee under subsection 38 (2),

(a) the designated assessment centre or another centre shall conduct the assessment, if the parties agree; or

(b) the designated assessment centre that is next nearest to the residence of the insured person shall conduct the assessment, if the parties do not agree under clause (a).

(8) If a designated assessment centre is required to conduct the assessment,

(a) the insurer shall, within 15 days, notify the designated assessment centre; and (b) the centre shall promptly notify the insured person and arrange for the assessment.

(9) For the purpose of the assessment,

(a) the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary; and

(b) the insured person shall submit to such reasonable, physical, psychological and mental examinations as are requested by the person or persons who conduct the assessment.

(10) After conducting the assessment, the person or persons who conducted the assessment shall prepare a report and provide a copy of the report to the insurer, the insured person and the insured person's health practitioner.

(11) If the report states that the insured person is no longer suffering from a disability resulting from the accident in respect of which the weekly benefits are paid, the insurer may stop paying the benefits.

(12) If the report states that the insured person continues to suffer from a disability resulting from the accident in respect of which the weekly benefits are paid, the insurer may dispute the obligation to pay benefits in accordance with sections 279 to 283 of the Insurance Act, and, pending the resolution of the dispute, the insurer shall pay the benefits.

(13) Nothing in this section prevents an insured person from disputing a stoppage in the payment of weekly benefits in accordance with sections 279 to 283 of the Insurance Act and, if it is finally determined that payment of the benefits should not have been stopped, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

(14) If the insured person does not submit to an assessment that he or she requests under subsection (3) or does not comply with the requirements of subsection (9), the insurer may withhold payment of the weekly benefits until the person submits to the assessment or complies with subsection (9) respectively, after which time the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid if the assessment report determines that benefits should continue to be paid.

O. Reg. 776/93, s.64

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2See Appendix A for Mr. Malabanan's job description as a custodian. Also see, supra note 2, Tab B-2, Physical Demands Analysis, On-Site Visit, Metro Separate School Board.
3. 3For Mr. Malabanan's job description as a registered nursing assistant, see Ibid, Tab B-2, Physical Demand Analysis, On-Site Visit, Queen Street Mental Hospital. This report notes that Mr. Malabanan worked on the Crisis Admission Floor. He was usually assigned 2-3 patients. His primary job was to observe patients. His job also included handing food trays to patients, occasionally making beds, and moving linen bags onto the Amscar. The most hazardous part of his job was the unpredictability of patients. He had to be available to help other staff when problems arose. Mr. Malabanan testified that he sometimes had to physically restrain patients to prevent them from hurting themselves or others.
4. 4Exhibit 1, Insurer's Document Brief, Tab A-18, clinical notes and records of Dr. Silva, January 25, 1995
5. 5Supra note 4, Tab A-2, Health Practitioner's Certificate dated April 4, 1995
6. 6Ibid
7. 7Supra note 4, Tab 2-1, Application for Accident Benefits
8. 8Supra note 4, Tab A-5, DAC report dated June 14, 1995
9. 9Supra note 4, Tab A-10, report of Dr. French dated November 17, 1995. See also Tab 9 where Dr. French notes in the DAC report: This man is able to perform the normal duties of a school caretaker (custodian) + the duties of a registered practical nurse.
10. 10Supra, note 4, Tab A-16, letter from Dr. Silverberg dated January 9, 1996
11. 11Ibid at Tab A-16, report of Dr. Vanderlinden dated February 27, 1996
12. 12Supra note 4, Tab A-20, Workers' Compensation file for 1978
13. 13Supra note 4, Tab A-18, clinical notes and records of Dr. Silva
14. 14Ibid
15. 15Ibid
16. 16Ibid
17. 17Supra note 4, Tab A-18 at p. 30, report of Dr. Wood dated January 30, 1987; and at p. 33, report of Dr. Wood dated February 19, 1987
18. 18Ibid, at p. 31, report of Dr. Birnbaum dated February 19, 1987
19. 19Ibid, at p. 36, report of Dr. Muller dated July 28, 1987
20. 20Ibid
21. 21Supra note 4, Tab A-18, clinical notes of Dr. Silva dated February 4, 1995
22. 22Supra note 4, Tab B-2, Physical Demands Analysis, On-Site Visit, Metro Separate School Board, June 5, 1995 at p.1
23. 23Exhibit 4 at p.1, letter to Mr. Malabanan from Lora Saccucci, Canadian General's claim representative, dated July 31, 1995
24. 24Ibid, at p.3, letter to Canadian General from Frank Loreto dated August 9, 1995
25. 25Ibid, at p. 4
26. 26Exhibit 5, Accident Benefits Advisory Committee, Guidelines for Designated Disability Assessment Centres, Ontario Insurance Commission, January 1995
27. 27Ibid, at p.9
28. 28Supra note 23 at p.8, letter of Pamela Richardson dated August 31, 1995
29. 29Ibid at p. 9, letter from Frank Loreto dated September 5, 1995
30. 30Ibid at p. 12, letter from Jenni Jenkins dated September 26, 1995
31. 31Ibid at p.13, letter from Frank Loreto dated October 12, 1995
32. 32Supra note 8
33. 33See Appendix B for the full text of section 64
34. 34Supra note 26
35. 35Supra note 26 at p. 8
36. 36Supra note 23 at pp. 9, 11 and 16, letter from Frank Loreto dated September 5, 1995
37. 37Supra note 28
38. 38Supra note 26 at p. 8
39. 39Exhibit 1, Insurer's Document Brief, Tab 9, Assessment of Disability dated November 17, 1995
40. 40See section 282 (11) of the Insurance Act and McCormick and Economical Mutual Insurance Company (October 2, 1991), OIC A-000139