Neutral Citation: 1999 ONFSCDRS 167

FSCO A-007940

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHARON RILEY

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Shari L. Novick

Heard: August 18, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Rebecca Nelson for Ms. Riley

Robert Besunder and Rudolph Lobl for Pilot Insurance Company (by teleconference)

Issues:

The Applicant, Sharon Riley, was injured in a motor vehicle accident on October 13, 1990. She received weekly income benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule,¹ for 156 weeks. At an arbitration hearing held in January 1995, it was determined that Ms. Riley was entitled to ongoing weekly benefits pursuant to subsection 12(5)(b) of the Schedule.

In February of 1999 Pilot applied for a revocation or variation of the arbitrator's order on the ground that the Applicant is working as a recording artist with a gospel singing group, or alternatively, that she is able to work. At a pre-hearing held on May 27, 1999, Pilot advised that it had scheduled a medical assessment for Ms. Riley in September of 1999. Counsel for Ms. Riley subsequently advised that she would not be attending. The Insurer brings this motion to determine whether it is entitled to have the Applicant assessed by a physiatrist.

The issue on this motion is:

Is the medical assessment scheduled for Ms. Riley with Dr. A. Ameis on September 8, 1999 reasonable, within the meaning of subsection 23(2) of the Schedule?

Result:

The assessment scheduled for September 8, 1999 with Dr. A. Ameis is reasonable.

EVIDENCE AND ANALYSIS:

As set out above, an application for the variation or revocation of the arbitrator's order was filed by the Insurer in February 1999. A pre-hearing was held in this matter on May 27, 1999, during which the issues for hearing were clarified and the exchange of documents was discussed. The parties also agreed that the matter would proceed to hearing on October 18, 19 and 20, 1999. Counsel for the Insurer advised at that time that a medical assessment had been arranged for September 27, 1999 for Ms. Riley with Dr. Ameis, a physiatrist. Counsel for the Applicant expressed some concern that there would not be enough time to review Dr. Ameis' report prior to the hearing. Counsel advised that he would seek instructions from Ms. Riley about whether she was prepared to attend the appointment.

In the interim, the Insurer was able to obtain an earlier appointment with Dr. Ameis. Counsel for the Applicant submits that it would not be reasonable to require Ms. Riley's attendance at this appointment, now scheduled for September 8, 1999. The Insurer seeks a ruling that it would be reasonable to require Ms. Riley to attend.

Subsection 23(2) of the Schedule provides insurers with the right to require insured persons to attend medical examinations. It states:

23—(2) 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.

The material filed in support of this motion indicates that Ms. Riley last underwent an insurer's examination on April 1, 1997.

Counsel for the Applicant's objections to Dr. Ameis' examination are twofold: She contends that the Insurer has scheduled this assessment in order to bolster its case for the upcoming variation application and not for the purpose of assessing Ms. Riley's claim, and expresses a concern that the Applicant may not have adequate time to respond to any report submitted by Dr. Ameis.

I see no merit in either of these arguments and find that the Insurer's actions in scheduling the assessment with Dr. Ameis were reasonable. Subsection 23(2) provides an insurer with the right to require an insured receiving benefits under Part IV to undergo a medical examination as often as it reasonably requires, providing reasonable notice is given. Ms. Riley continues to receive weekly benefits under Part IV of the Schedule, although the arbitral jurisprudence makes clear that this is not a precondition to an insurer requiring an applicant to attend an examination.

There is no suggestion that Ms. Riley has not been given adequate notice of the appointment with Dr. Ameis.

I do not find it unreasonable for the Insurer in this case to want to assess the Applicant's condition, given the amount of time that has passed since she was last assessed. Counsel for the Insurer suggested that the upcoming variation application was not the motivating factor behind scheduling the assessment, and pointed out that the Schedule imposes an obligation on insurers to assess their insureds on a regular basis. Without addressing that submission, I agree with counsel's contention that the Insurer's motivation for requiring the examination should not be the focus of the inquiry. The arbitrator stated in her decision that with the appropriate rehabilitation and vocational assistance Ms. Riley could be expected to engage in suitable employment at some point, depending on her medical condition. Ms. Riley has not been assessed by any medical professional in over two years. In the circumstances, I find it reasonable for the Insurer to require that she attend the assessment that has been arranged.

The appointment with Dr. Ameis is now scheduled for September 8, almost six weeks prior to the hearing of the variation application. I would urge the Insurer to advise Dr. Ameis that the hearing is upcoming and request that his report be delivered in an expedited fashion. If that can be accomplished, the Applicant will have sufficient time to respond to the report, if she so chooses. In any event, Ms. Riley has been aware of the upcoming variation application since early this year, and has had sufficient time to marshall whatever medical evidence she feels is necessary for the hearing.

In the circumstances, I find that the Insurer has acted in accordance with subsection 23(2) in scheduling an appointment for Ms. Riley with Dr. Ameis.

EXPENSES

I find that each party should be liable for their own costs of this motion and exercise my discretion to decline to award costs to either party.

August 31, 1999

Shari L. Novick Arbitrator

Date