Neutral Citation: 1997 ONICDRG 112

OIC A96-001035

ONTARIO INSURANCE COMMISSION

BETWEEN:

FIDEL A. LOPEZ

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

DECISION ON PRELIMINARY ISSUES

Issues:

The Applicant, Fidel A. Lopez, was injured in a motor vehicle accident on January 31, 1996. He sought statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule¹ Canadian General has paid no benefits to Mr. Lopez. The parties were unable to resolve their disputes through mediation and Mr. Lopez applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues in this hearing are:

Is Mr. Lopez precluded from commencing an arbitration proceeding because:

(1) he failed to submit an Application for Accident Benefits as required by section 59 of the Schedule?

(2) he failed to make himself reasonably available for examination under section 65 of the Schedule?

Result:

1. Mr. Lopez is not precluded from commencing an arbitration proceeding in respect of his statutory accident benefit claims because he failed to comply with section 59 of the Schedule?

2. Mr. Lopez is precluded from commencing an arbitration proceeding in respect of his statutory accident benefit claims because he failed to make himself reasonably available for examination under section 65 of the Schedule?

Hearing:

The hearing of these preliminary issues was held at the offices of the Ontario Insurance Commission in North York, Ontario, on April 22, 1997, before me, Asfaw Seife, Arbitrator. The proceedings were recorded by Elizabeth Monteiro of Professional Court Reporters.

Present at the Hearing:

Applicant:

Fidel A. Lopez

Mr. Lopez's

Ian Little

Representative:

Barrister and Solicitor

Canadian General's

J. Claude Blouin

Representative:

Barrister and Solicitor

Canadian General's

Lita Beredo

Officer:

Senior Claims Representative

Witness:

Fidel Lopez

Exhibits:

Insurer's Document Brief with 19 tabs

The Law:

Section 71.1 of the Schedule states that a person who has not complied with section 59 of the Schedule or has not made himself or herself reasonably available for an examination under section 65 of the Schedule shall not commence a mediation proceeding under section 280 of the Act. Section 281(2) of the Act provides that no person may refer issues in dispute to an arbitrator unless mediation was sought and failed. Therefore, a person who is precluded from accessing mediation is also precluded from referring the matter to arbitration.

Section 59 of the Schedule states:

59. (1) A person who wants to apply for benefits under this Regulation shall notify the insurer within thirty days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and including information to assist the person in making any possible elections.

(3) The person shall submit an application for benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a time limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse.

(Emphasis added)

Section 94 of the Schedule states that the application forms referred to in section 59(2)(a) shall be in a form approved by the Commissioner of Insurance.

The relevant portions of section 65 state as follows:

65.- (1) An insurer may, for the purposes of part any of Parts II to VIII, X and XIII and as often as reasonably necessary, give an insured person notice requiring the person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(5.1) If the insured person fails or refuses to submit to an examination under subsection (1), the insurer may withhold payment of the weekly benefits under Part II, section 15 or Part IV, V or VI until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

1. Did Mr. Lopez fail to submit an Application for Accident Benefits as required by section 59(3) of the Schedule?

The parties agree that subsections 59 (1) and (2) have been complied with. Canadian General's position is that Mr. Lopez has failed to comply with section 59(3) of the Schedule because he has not furnished a fully "completed" application for benefits within the stipulated time limits.

Mr. Lopez contends that he has submitted the requisite application form within the prescribed time limits. He has not invoked section 59(4).

There is no dispute in this case regarding the dates when notices, application forms, letters and other correspondence were sent or received by either party. Mr. Lopez submitted his first claim for accident benefits on February 19, 1996, using the prescribed Application for Accident Benefits form (OCF-1). The application was accompanied with a Health Practitioner’s Certificate and an authorization by Mr. Lopez directing Canadian General to send all correspondence to his representative, Mr. Juan Carranza, Barrister and Solicitor.

On March 6, 1996, Canadian General returned the application and the Health Practitioner's Certificate to Mr. Lopez because they were not "fully completed." It requested that Mr. Lopez resubmit his application after completing each part of the application, and drawing a line through inapplicable portions of the form.

Counsel for Mr. Lopez conceded that this application did not contain sufficient information and did not constitute a proper application under the Schedule. However, he argued that the defects in the first application were rectified in a second application submitted by Mr. Lopez on March 18, 1996. Mr. Lopez's 1995 T4 slips, his pay stubs from his employer and copies of Employment Insurance benefit warrants were attached to this application.

There is no question that the second application was submitted within the prescribed time limit; the only issue is whether it complies with section 59(3) of the Schedule.

The parties agree that an application for accident benefits must be reasonably complete, and must provide sufficient information to permit the insurer to properly assess the claim. On behalf of Canadian General, Mr. Blouin submits that the second application was not reasonably complete because it was not accompanied by an Employer's Confirmation of Income form. Counsel for Mr. Lopez contends that the application contains sufficient information to enable the Insurer to properly assess Mr. Lopez'claim.

Having reviewed the contents of the application, the additional information supplied by Mr. Lopez and the conduct of Canadian General following the receipt of the second application, I find that Mr. Lopez has complied substantially with the requirements of section 59(3) of the Schedule.

Mr. Lopez completed all applicable parts of the application form. In particular, he provided information requested under Part 7 (employment status), Part 8 (student status), Part 9 (whether the applicant was a primary caregiver), Part 10 (his employment history), and Part 11 (income tax status).

In addition, Mr. Lopez has attached with his application financial documents about his income. These documents contain substantial information about the amount of income earned by Mr. Lopez prior to the accident, the name and address of his employers during the year preceding the accident and his employment/student status at the time of the accident. Further to a request by Canadian General, Mr. Lopez provided additional financial information by submitting his income tax returns for 1994 and 1995.

In an "Explanation of Assessment by Insurance Company" form sent to Mr. Lopez after receipt of the second application, Canadian General indicated that it was unable to calculate Mr. Lopez's weekly income replacement benefits because he did not submit the Employer's Confirmation of Income forms from the companies where he worked, and certified copies of his income tax records for the years worked. It did not reject the application as being incomplete, as it did the first time.

By letter dated April 11, 1996, Ms. Merlese Thorne, the Insurer's Senior Claims representative, advised Mr. Carranza that the Insurer was refusing benefits to Mr. Lopez, pending receipt of a certified copy of his income tax returns and copies of his cash cheques from his job at Impeccably Cleaners.

I find that Canadian General's concern was not that Mr. Lopez did not fully complete the application form, rather it was the reliability of the information contained in the application form and the documents he supplied in support of his claim.

The Employers Confirmation of Income is a form that is completed and signed by the applicant and his/her employer. It is designed to elicit from the employer confirmation of the applicant’s income, collateral benefits, if any, the details of his/her employment, and particulars about the employer. This form is not part of the Application for Accident Benefits form. It is not required to be completed, unless the insurance company asks the applicant to do so specifically.

Claimants have a responsibility to provide the insurer with documents required to verify information contained in an application for accident benefits, including a completed Employer’s Confirmation of Income, when such documents have been requested by the insurer. Failure to do so may give the insurer reasonable grounds for withholding or delaying benefits; however, in my view, the absence of such documents should not invalidate an otherwise complete application form and bar the applicant from disputing the insurer's decision by referring the matter to mediation or arbitration.

As stated in several arbitration decisions, an application for accident benefits meets the requirements of the legislation if it provides sufficient particulars to reasonably assist the insurer to process the application and assess the claim fairly and expeditiously. In the circumstances of this case, I find that the second application is complete, and along with information contained in documents supplied by Mr. Lopez, provides Canadian General with sufficient information to start processing the claim and to assess the claim, despite the absence of the Employer’s Confirmation of Income form. Accordingly, I find that Mr. Lopez has complied with section 59 of the Schedule.

2. Did Mr. Lopez fail to make himself reasonably available for an examination under section 65 of the Schedule?

It is not disputed that Canadian General scheduled three appointments for Mr. Lopez for examinations under section 65 of the Schedule: April 18 and 24, 1996, and June 19, 1996, at Riverfront Medical Evaluations. There is no issue that Canadian General has given Mr. Lopez proper and adequate notification of each appointment. Mr. Lopez did not attend any of the appointments. Section 71(1)(c) requires the insured person to make himself "reasonably available for an examination under section 65." The issue is whether Mr. Lopez made himself reasonably available.

With regard to the appointments of April 18 and 24, 1996, Mr. Carranza informed Canadian General that Mr. Lopez would not be able to attend, at least two days before the appointments. Mr. Carranza explained in his letters cancelling the appointments that on both the dates, Mr. Lopez had "personal family matters" which prevented him from attending the examinations.

Mr. Lopez' testimony as to why he did not attend the April appointments was quite different from what Mr. Carranza told Canadian General. Mr. Lopez gave two contradictory accounts of why he did not attend. In examination in chief, he testified that he did not receive the notices for the April appointments until after the appointment dates had passed. He explained that the notice letters had been delivered to his next door neighbour by Canada Post by mistake. Once he received the letters, he testified that he called the doctor's office to tell them what happened. He did not call Canadian General.

Under cross-examination, Mr. Lopez testified that the reason he was not able to attend the April appointments was because he was "sick, stressed and had no money" and "may be" because he was in New York or Florida at the time. He said he could not remember ever receiving the notice letters for the April appointments. He said the "personal matter" Mr. Carranza referred to in his letters was his being in Florida at the time of the appointments. Mr. Lopez testified that he never gave Mr. Carranza any instructions about cancelling the appointments.

On June 4, 1996, Mr. Carranza wrote to Canadian General requesting a rescheduling of the appointments. The examination was then scheduled for June 19, 1996. The medical facility where the examination was scheduled sent notice of the rescheduled appointment to Mr. Lopez on June 6, 1996. This was confirmed by a letter from Canadian General dated June 11, 1996.

Mr. Lopez did not attend at the June 19, 1996 appointment. Canadian General received no request to cancel or reschedule the appointment, nor did it receive any explanation from Mr. Carranza or Mr. Lopez as to why Mr. Lopez did not attend.

Mr. Lopez testified that he was aware of the appointment ahead of time but did not attend because Mr. Carranza told him on June 14, 1996, that he had already asked Canadian General to cancel the appointment. Mr. Lopez testified that he had no discussions with Mr. Carranza about his medical appointments since he spoke to him on June 14, 1996.

I find Mr.Lopez's evidence confusing, contradictory and inconsistent with the documentary evidence. Although he gave Canadian General sufficient advance notice that he was unable to attend the appointments scheduled in April 1996, I am not satisfied that Mr. Lopez made himself reasonably available for an examination. He offered no explanation for missing the June 19, 1996 appointment other than saying that his lawyer told him not to attend. He did not request the appointment to be rescheduled.

Having considered the entire evidence, I find that Mr. Lopez has not made himself reasonably available for an examination under section 65, and consequently, he is precluded from proceeding to arbitration in respect of his statutory accident benefit claims.

Expenses:

I make no orders regarding expenses. I heard no submissions from either party on this issue.

Order:

Mr. Lopez is precluded from commencing an arbitration proceeding in respect of his statutory accident benefit claims because he failed to make himself reasonably available for examination under section 65 of the Schedule.

June 20, 1997

Asfaw Seife Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.