Neutral Citation: 1999 ONFSCDRS 55

FSCO A97-001439

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SANBETU CHIDI TESFAY

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

M. Kaye Joachim

Heard:

March 2, 3, and 4, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Reynold Kim for Ms. Tesfay

Todd J. McCarthy for Allstate Insurance Company of Canada

Issues:

The Applicant, Sanbetu Chidi Tesfay, was injured in a motor vehicle accident on November 12, 1996. She applied for, but did not receive, statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Tesfay applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

1. Did Ms. Tesfay fail to submit an application for benefits within the times prescribed in Part X of the Schedule?

2. Did Ms. Tesfay fail to provide information reasonably required to assist the Insurer in determining entitlement, under section 33 of the Schedule?

3. Did Ms. Tesfay fail to provide information reasonably necessary for the disability assessment, under section 43(2) of the Schedule or fail to make herself reasonably available for a disability assessment under section 43 of the Schedule?

4. Did Ms. Tesfay fail to make herself reasonably available for an insurer medical examination under section 42 of the Schedule?

5. What are the consequences of any of these alleged breaches?

Results:

1. Ms. Tesfay had a reasonable excuse for failing to submit an application for benefits more than 30 days after receipt of same, so that she was not in breach of the time limits prescribed by Part X of the Schedule.0

2. Ms. Tesfay did not fail to provide information or to attend examinations or assessments under sections 33, 42 or 43 of the Schedule. Accordingly, Ms. Tesfay is entitled to access the dispute resolution process and has not forfeited benefits for any period of entitlement.

EVIDENCE AND ANALYSIS:

The Insurer argued that as a consequence of Ms. Tesfay's late filing of her application for benefits, coupled with her failure to provide requested information, or attend assessments and examinations, she is precluded from proceeding to mediation, and hence arbitration. Alternatively, the Insurer argues that she has forfeited benefits during the time she failed to provide the information or attend the requested assessments and examinations.

Obligation to provide information and attend examinations and assessments

The Schedule imposes obligations on insured persons and insurers to cooperate in the expeditious assessment of claims for benefits. Insured persons are obliged to promptly notify the insurer of an accident and a claim for benefits² and to furnish the insurer with information reasonably required to assess an application.³ They are also required to make themselves reasonably available for examinations requested by insurers for the purpose of determining entitlement to benefits,⁴ and to cooperate with the Disability Assessment Centre (DAC) process.⁵Insurers are required to provide application forms and information to assist claimants in applying for benefits,⁶ and to promptly determine entitlement to benefits.⁷

Cooperation by insured persons and insurers at this stage facilitates expeditious and timely decisions on eligibility, early intervention and treatment, and the prompt payment of benefits. Conversely, a failure to cooperate and comply with statutory obligations fosters delay in processing claims, and may hinder the recovery process.

The Schedule does more than invoke the hope that insured persons and insurers cooperate in the expeditious resolution of claims. It provides consequences for non-compliance with its requirements. Insurers who fail to make timely payments must pay interest, and if they unreasonably delay or withhold benefits, they are subject to special awards.⁸ Insured persons who fail to make timely applications, or fail to make themselves reasonably available for examinations or assessments, may be denied access to the dispute resolution process.⁹ In addition, insured persons may forfeit benefits during the period when they refused to provide the information or attend the examination.¹⁰

Determining the appropriateness of a request for information or an examination requires a balancing of the interests of the parties. The greater the consequence to the insured person in terms of delaying access to the dispute resolution process, or denying entitlement to benefits, the more closely an arbitrator should scrutinize the reasonableness of the Insurer's request for information or examination.¹¹ Where the information or examination requested is reasonably required for the assessment of the claim, the reasonableness of the insured person's response to those requests will also be scrutinized.

1. Did Ms. Tesfay fail to submit an application for benefits within the times prescribed by Part X of the Schedule?[^12]

The Insurer argued that Ms. Tesfay should be denied access to the dispute resolution process because she filed her application for benefits outside the 30-day limit prescribed in Part X.¹³

The Applicant objected to my jurisdiction to consider the Insurer's arguments with respect to late filing of the application, on the basis that the issue was not mediated. I find that the Amended Report of Mediator, when read in conjunction with the Insurer's letter of August 12, 1997, indicates that the issue was mediated.

There is no dispute that the Applicant promptly notified the Insurer of the accident and her injuries. She concedes that although she received the application for benefits on November 18, 1997, she did not complete it until January 21, 1998. Although section 32 of the Schedule states that an application for benefits must be submitted within 30 days after it is received, section 31 provides an exception, if the person has a reasonable explanation. I accept as reasonable the Applicant's explanation that she gave the application to Dr. Ramroopsingh to complete, but that he failed to do so.

2. Did Ms. Tesfay fail to provide information reasonably required to assist the Insurer in determining entitlement, under section 33 of the Schedule?

The Insurer asserts that the Applicant did not respond promptly to its reasonable requests for information required to determine eligibility for benefits and so forfeited her entitlement to benefits until she eventually provided the information.¹⁴ The Applicant asserts that she only refused unreasonable requests. I have attempted to set out the facts as the parties themselves became aware of them, because the reasonableness of the Insurer's requests for information and examinations, and the Applicant's response, should be judged in light of the information available at the time of the request.

On the day following the accident, the Applicant's husband notified the insurance adjuster, Ms. Tammy Norn of the incident. He subsequently advised her that Ms. Tesfay had been taken by ambulance to the hospital and released for follow-up care with her family doctor. Ms. Tesfay advised her that she was experiencing soreness in her back, left side and legs, disturbed sleep, blurred vision, right ear hearing loss, and that she had difficulty bending, dressing, combing her hair, and standing for long periods. Mr. Tesfay's husband advised the adjuster that Ms. Tesfay returned to work on November 25, 1996, because she feared losing her job, but that she was still in a great deal of pain. He also told her that Ms. Tesfay began having physiotherapy treatment in late December 1996, approximately three times per week. The Applicant eventually ceased working on January 16, 1997, by which time the insurance file had been transferred to another adjuster, Mr. Jim Krause.

Mr. Krause met with Ms. Tesfay on January 21, 1997 at her home. He helped her complete the accident benefit application form and obtained a signed statement based on his interview questions. Ms. Tesfay advised him that she had been experiencing neck and back pain since the accident, and that she was also experiencing dizziness, constant headaches, decreased hearing in her left ear, vision problems in her left eye, pain in her left chest, fatigue, and confusion.

Shortly after this, Ms. Tesfay retained a law firm to assist her with her claim for statutory accident benefits and further communication on the claim took place between the adjuster and various representatives of the law firm.¹⁵ It was not disputed that the actions of the law firm bind Ms. Tesfay.

On March 3, 1997, the adjuster denied Ms. Tesfay's claim for income replacement benefits on the basis of insufficient information. By this time, the Insurer had an uninterrupted history of complaints from the date of the accident, despite the Applicant's temporary return to work from November 25, 1996 to January 16, 1997. It had a completed application and a signed statement from the Applicant outlining her physiotherapy treatment and follow-up care with Dr. Ramroopsingh for the first two months after the accident, and with Dr. Sokol from January 20, 1997. It had two signed authorizations from Ms. Tesfay enabling the Insurer to seek information relating to the accident and her pre-accident health conditions from Dr. Ramroopsingh and Dr. Sokol. It had a disability certificate from Dr. Sokol, confirming cervical, dorsal, chest, temporomandibular joint and left elbow tenderness, and a treatment plan, recommending further physiotherapy at ACT Health Group as well as psychological counselling with Dr. Giddens. It had Dr. Sokol's clinical notes and records. It had an Employer's Confirmation of Income, confirming that Mrs. Tesfay had been steadily employed full time for nine months prior to the accident as a visiting homemaker and giving a description of the essential tasks of that job. It had a treatment plan from ACT Health Group recommending further physiotherapy for headaches and cervical, lumbar and right hip strain.

Despite this information, the Insurer asserts that it lacked sufficient information to make a determination as to causation. The adjuster testified that he needed to explore whether there was anything in Ms. Tesfay's pre-accident history or whether anything happened during her return to work (November 25, 1996 to January 16, 1997) which could account for her symptoms. The Insurer argued that it needed Dr. Ramroopsingh's clinical notes and records (pre- and post-accident), and an OHIP summary for three years prior to the accident, and that Ms. Tesfay had failed to provide this material.

At this stage, I find that Ms. Tesfay had not failed to provide the Insurer with any information reasonably required to assist it in determining entitlement. While Dr. Ramroopsingh's clinical notes and records confirming treatment from the date of accident until the date Ms. Tesfay switched to Dr. Sokol would have been useful, Ms. Tesfay had already provided detailed, contemporaneous information to the adjuster about her symptoms and her treatment.

Even if Dr. Ramroopsingh's clinical notes and records from November 13, 1996 were required (and I am not satisfied they were), I find that by providing the adjuster with a signed OCF 5 form, Ms. Tesfay had given the adjuster the means to obtain Dr. Ramroopsingh's records and complied with her duty to "provide" such information. I do not accept that either Ms. Tesfay or her counsel had any obligation to personally attend at the doctor's office in order to obtain the requested medical information.¹⁶ In fact, at this stage, Mr. Krause did not expect that either. He had written directly to Dr. Ramroopsingh requesting his clinical notes and records, but Dr. Ramroopsingh had not yet responded.

At this early stage, I do not find that the request for pre-accident medical records from Dr. Ramroopsingh or an OHIP summary from three years pre-accident was required. The Insurer conceded that where an Applicant ceases work immediately after an accident, the Insurer would not generally require pre-accident medical information to determine initial entitlement. I agree. The inevitable delay occasioned by the time needed to obtain an OHIP summary¹⁷ or pre-accident medical records would frustrate the statutory purpose of an expeditious assessment of initial entitlement.

The Insurer argued that pre-accident medical records were crucial in this case because of Mrs. Tesfay's return to work for six weeks, and because of the discrepancy between her initially reported symptoms and those reported to Mr. Krause on January 21, 1997.¹⁸ I find nothing in those circumstances that require detailed pre-accident medical records to assess initial entitlement. It is not unusual for insured persons to experience some delay in the onset of symptoms or to return to work for some period before succumbing to the effects of the accident. In this case, there was a continuous flow of information between the Applicant (or her husband) and the adjuster, confirming the presence of ongoing symptoms. The adjuster was specifically advised that the Applicant had returned to work, despite her pain, because she feared losing her job. With respect to the possibility that something had occurred after her return to work, the pre-accident medical records would not address that concern. I am not persuaded that the circumstances in this case required the provision of pre-accident records in order to determine initial entitlement.

In any event, even if some pre-accident information was reasonably required at this early stage, the authorization provided by Ms. Tesfay would have allowed the Insurer to obtain information about her pre-accident health status. In providing the authorization, I find she "provided" the information required.

March 3, 1997 to February 5, 1998

In February 1997, the Applicant filed an Application for Mediation, disputing the Insurer's refusal to pay weekly benefits and medical expenses. A mediation was held in June 1997. During the mediation, Applicant's counsel stated that the Insurer was not entitled to any information other than the application and a written statement from the Applicant. The Insurer relied on this as evidence of the Applicant's uncooperative behaviour. I note that the Insurer's position at mediation was equally intransigent, to the effect that no benefits had been paid or would be paid until the Applicant produced the information that the Insurer requested.¹⁹ Whatever may have been said in the heat of mediation, I note that the Report of Mediator does not record any requests by the Insurer for documents.

By the end of March 1997, the Insurer had obtained the ambulance records and the hospital records. These records confirmed that Ms. Tesfay had struck her head but sustained no loss of consciousness. At the hospital she complained of left hip and back pain, headache and dizziness upon sitting up. X-rays of the hip, pelvis and cervical spine disclosed no evidence of fracture. These records corroborated the initial complaints reported to the Insurer.

A worksite evaluation of Ms. Tesfay's duties as a visiting homemaker was completed. The Insurer learned that Ms. Tesfay's position was still available,²⁰ and that she could return to reduced hours, but that modified duties were not available. By May 1997, the Insurer had progress and discharge reports from the ACT Health Group. Dr. Sokol had also submitted an updated disability certificate. The Insurer conducted surveillance of Ms. Tesfay's activities in March and July 1997.

By July 1997, the Insurer had three medical opinions from practitioners of its own choosing. Dr. F. K. Deegan reported that Ms. Tesfay had suffered soft tissue injuries in the accident, but was not prevented from returning to work by reason of any physical injuries. He suggested that Dr. Ramroopsingh's clinical notes and records from the date of the accident until January 20, 1997 (the date Ms. Tesfay began seeing Dr. Sokol) would be "helpful to understand the progression of her problems resulting in her stopping work on January 17, 1997 after having returned to full-time work on November 24, 1996." Dr. Seiden, after reviewing the available medical information, concluded that Ms. Tesfay was not suffering any significant physical impairment related to the accident. He did not require any further information to assist him in coming to this conclusion.

Dr. Harvey C. Stancer conducted a psychiatric assessment for the Insurer. He felt that a pre-accident history (such as would be provided by Dr. Ramroopsingh's clinical notes and records) was required in order to resolve causation for a psychiatric diagnosis. He had "difficulty" relating all of her present difficulties to the accident.

The Applicant continued to claim ongoing weekly benefits and expenses for physiotherapy and psychological counselling. Several medical practitioners had identified that emotional or psychological factors were prolonging her disability. I find that by approximately July 1997, the request for pre-accident medical information became reasonable, in light of Ms. Tesfay's ongoing emotional reaction to the accident.

As previously stated, Ms. Tesfay had already provided the Insurer with an authorization to obtain Dr. Ramroopsingh's records. The adjuster vigorously pursued those records, and Ms. Tesfay's counsel followed up in June 1997 with a written request for Dr. Ramroopsingh's clinical notes and records from one year pre-accident. Despite the adjuster's and the Applicant's requests, Dr. Ramroopsingh did not respond.

In light of Dr. Ramroopsingh's failure to cooperate in providing any pre-accident medical information, the Insurer's request for an OHIP summary became a reasonable alternative means to obtain information about the Applicant's pre-accident medical condition. In June 1997, the Applicant's counsel made a written request for an OHIP summary from five years pre-accident.

The circumstances of this case highlight a problem with the assessment process. Applicants and insurers have no power to compel independent medical practitioners (or employers or government officials) to provide information in a timely fashion. It is not until the case reaches the dispute resolution stage that an arbitrator has the jurisdiction to order a third party to produce documents.

What is the appropriate approach in such cases? The Insurer argued that the Applicant must bear the consequences of Dr. Ramroopsingh's failure to produce his clinical notes and records. The Insurer argued that section 33 imposes an obligation on the Applicant to provide information, and since she was unable to provide the required information, she must forfeit any benefits she might otherwise be entitled to until Dr. Ramroopsingh provided his records. I reject this proposition. I cannot accept that section 33 mandates that insured persons forfeit benefits because third parties may fail to provide information required to adjust the claim. It would take explicit statutory wording to reach such an extraordinary conclusion, and I find nothing in section 33 which compels this unjust result.

The approach suggested by the Insurer does not balance the interests of the parties. It tips the scale rather heavily in favour of insurers. Faced with a medical practitioner's failure to provide medical records or information, an insured person has few options, other than proceeding to the dispute resolution stage to obtain an order for production. Insurers faced with a lack of information due to the inaction of third parties have various options. They could try to obtain similar information from alternative sources. They could delay making a decision on entitlement, and attempt to defend themselves against a special award on the basis that they did not have sufficient information upon which to reach a decision.²¹ They could, with cooperation from an insured person, proceed to the dispute resolution stage and obtain an order for production. They could make a decision on entitlement based on the available information. At worst, the insurer could mistakenly pay benefits which, had the information been received in a more timely fashion, it would not otherwise have paid. That consequence must be compared with the consequence advocated by the Insurer in this case, which is to deprive the Applicant of benefits she might otherwise be entitled to.

In my view, section 33 should be interpreted in a purposive, rather than a punitive, manner. The purpose of section 33 is to ensure that insured persons facilitate the insurer's ability to obtain sufficient information to assess a claim for benefits. Having regard to that purpose, I conclude that the provision of an authorization to the Insurer in January 1997 in respect of Dr. Ramroopsingh, coupled with the Applicant's written requests to Dr. Ramroopsingh and the Ministry of Health in June 1997, were sufficient to comply with section 33 during this period. Accordingly, the Applicant has not forfeited any entitlement to benefits during this period, under subsection 33(2) of the Schedule.

February 5, 1998 and ongoing

A pre-hearing was held on February 5, 1998. The pre-hearing arbitrator stayed the proceedings for 30 days, pending production of Dr. Ramroopsingh's clinical notes and records and an OHIP summary.²² Counsel for Ms. Tesfay did not dispute that Dr. Ramroopsingh's clinical notes and records or an OHIP summary were reasonably required at that stage. However, counsel failed to advise the pre-hearing adjudicator of his firm's request in June of 1997 to obtain those records, which may have affected the arbitrator's decision to impose the stay.²³

Dr. Ramroopsingh ultimately provided some of the requested records in April 1998, and the remainder of the records were forwarded later. In addition, Ms. Tesfay followed up with the Ministry of Health, which finally produced an OHIP summary in June 1998. I find that since February 5, 1998, Ms. Tesfay has made diligent attempts to obtain Dr. Ramroopsingh's clinical notes and records and the OHIP summary, and has complied with her obligations under section 33 during this period.

I conclude that Ms. Tesfay has not failed to provide information reasonably required to assess her claim so as to disentitle her to any benefits on the basis of section 33(2).

3. Did Ms. Tesfay fail to provide information reasonably necessary for a disability assessment as required by subsection 43(2) of the Schedule or fail to make herself reasonably available for a disability assessment under section 43 of the Schedule?

The Insurer argued that Ms. Tesfay failed to provide information reasonably required for a disability assessment, and should be permanently denied access to the dispute resolution process as a result.²⁴ Alternatively, the Insurer argued that Ms. Tesfay should forfeit benefits during the period when she failed to provide the information required.²⁵

Upon receipt of Dr. Sokol's treatment plan referring Ms. Tesfay to ACT Health Group for physiotherapy and to Dr. Giddens for psychological counselling, the Insurer immediately requested a Medical Rehabilitation DAC assessment under section 43 and asked Ms. Tesfay to sign the necessary OCF 14. It refused to pay any expenses until the assessment was performed. Ms. Tesfay provided the OCF 14 to the Insurer on June 10, 1997.

On June 13, 1997, the adjuster sought to have the Assessment Centre confirm his view that significant pre-accident medical records were required to assess the requested ongoing treatment. To this end the adjuster wrote:

I am still awaiting the treatment plan from Dr. Giddens as to psychological treatment suggested. I have also requested an OHIP Summary which would assist in providing a clearer pre accident history. In addition, I have made arrangements for an independent psychiatric evaluation to take place on July 7, 1997. I expect there may be some delay in providing the material requested directly from the claimant's representative.

As causation is in question and material is presently being withheld as to history and relevance of other possible pre-existing conditions, is it possible to comment on whether or not the treatment plan or other treatment is reasonable and necessary for the insured's treatment or rehabilitation and solely as a result of the accident? Would a response not be served better by awaiting the material necessary to clarify pre accident condition? Is it possible to comment unequivocally as to causation without further external clarification?

Mount Sinai Hospital, the Designated Assessment Centre, responded that before proceeding with the Medical Rehabilitation DAC assessment, it required a treatment plan and a current progress report from her treating psychologist (Dr. Giddens), an updated treatment plan and progress report from ACT and reports of consultations with Drs. Picard and Goldfarb.

Not satisfied with this response, the adjuster persisted in requesting a specific response to the suggestions in June 1997. Mount Sinai obligingly responded:

In answer to your specific question, I can confirm that without information regarding this claimant's pre-accident medical history, it would not be possible for the assessment team to unequivocally state whether the treatments are reasonable and necessary and required solely as a result of the motor vehicle accident.

The Centre specified that it required treatment plans and progress reports from Dr. Giddens and the ACT Health Group, reports of consultations from Drs. Picard and Goldfarb, and clinical notes and records from Drs. Ramroopsingh and Sokol. Mount Sinai did not identify a pre-accident OHIP summary as one of the pieces of information it required.

By October 1997, after several months had elapsed from the date the assessment was requested and the information was not forthcoming, the Centre closed its file. The Insurer argued that Ms. Tesfay has breached subsection 43(2)(a) by failing to provide information reasonably necessary to conduct the Medical Rehabilitation DAC assessment and had breached subsection 43(3) by failing to make herself reasonably available for an assessment.

I find that the adjuster's conduct in suggesting what information the assessors should demand was inappropriate. The legislation contemplates an arm's length relationship between insurers and assessment centres. If assessment centres are instructed on what information should be requested, their neutrality is undermined.

Further, the test for entitlement as set out by the adjuster is simply wrong. There is no requirement in the legislation that the accident be the sole cause of the injuries. Causation need not be established unequivocally. If the Applicant establishes, on a balance of probabilities, that the injuries from the car accident materially contributed to her condition, she is entitled to benefits,²⁶ I give little weight to the Assessment Centre's conclusion that it could not unequivocally state whether treatments are reasonable and necessary and required solely as a result of the motor vehicle accident without the pre-accident records, since they applied the wrong test and were so clearly influenced by the adjuster's suggestions.

Despite these concerns, I make the following observations about the items requested by the Centre.

The ACT Health Group had discharged Ms. Tesfay at the end of April 1997 and therefore there was no ongoing treatment to be assessed. The adjuster never asked Ms. Tesfay to provide an updated treatment plan or progress report from the ACT Health Group. Therefore, this information was not reasonably required for the DAC assessment, and Ms. Tesfay has not failed to provide it.

There was no evidence presented to suggest that the adjuster requested the Applicant to provide the consultation reports from Drs. Picard and Goldfarb. Accordingly, she has not breached any obligation in not providing these documents.

There is no dispute that Dr. Sokol's clinical notes and records had been provided by this time.

I have already addressed Dr. Ramroopsingh's failure to provide his clinical notes and records and my reasons for refusing to find Ms. Tesfay in breach of her obligations under the Schedule because of his inaction.

Dr. Giddens has not submitted either a treatment plan or any information explaining the nature of his counselling sessions with Ms. Tesfay, despite repeated requests from the adjuster. For the reasons discussed above, I do not find that Ms. Tesfay has breached section 43 because her treatment provider has failed to comply with his obligations. Ms. Tesfay may be unable to successfully establish her claim for payment of Dr. Giddens' account for psychological therapy, in light of the absence of a treatment plan and other information from Dr. Giddens. That is a matter to be determined when I hear the merits of this application. For the purpose of my preliminary decision, however, I am satisfied that Ms. Tesfay has not breached subsection 43(2)(a) because Dr. Giddens has refused to supply a treatment plan or progress reports.

I conclude that the Applicant did not fail to provide information reasonably necessary for the conduct of a Medical Rehabilitation DAC assessment or failed to make herself reasonably available for an assessment. Accordingly she is not precluded from applying for mediation under subsection 50(c), nor has she forfeited any benefits under subsection 43(3)(b).

4. Did Ms. Tesfay fail to make herself reasonably available for an examination under section 42 of the Schedule?

The Insurer asserted that the Applicant has failed to make herself available for a worksite analysis by Genex Services of Canada ("Genex") and a medical examination at the Canadian Back Institute ("CBI") on March 3, 1997. Accordingly, the Insurer argued that Ms. Tesfay should be permanently denied access to the dispute resolution process,²⁷ or alternatively, forfeit benefits for the period of time she refused to make herself reasonably available for the examinations requested.²⁸

I find that the Insurer has waived its right to rely on any breach of section 42. In a letter to the Mediator dated August 12, 1997, setting out its position at mediation, the Insurer specifically raised possible breaches of subsections 50(a) (late application) and 50(c), (breach of subsection 43). The Insurer made no mention of section 42 or raised any failure to attend assessments. Nonetheless, I will set out my reasons for rejecting the Insurer's arguments with respect to section 42.

Failure to attend a worksite analysis

In February 1997, the adjuster advised the Applicant's counsel that it required an occupational therapist to provide a detailed worksite analysis of the Applicant's employment position. It stated: "This would not involve a meeting with your client." Counsel for the Applicant agreed that a worksite analysis was necessary and sought approval for funding to arrange one. In the meantime, the Applicant's counsel wrote a letter to Genex "forbidding" them from doing a worksite analysis, in-home, or any assessment other than a section 42 examination. The adjuster nonetheless instructed Genex to go ahead with the worksite assessment. Genex performed a generic worksite assessment for the position of a visiting homemaker with the cooperation of the Applicant's supervisor.

In the meantime, the Insurer refused to fund a worksite assessment by an assessor of the Applicant's own choosing, and suggested (for the first time) that worksite assessments were assessments under section 42. The Applicant's representative responded that if the Insurer wished to arrange a worksite assessment under section 42, the Applicant would attend. Another worksite assessment was never arranged.

It is unnecessary for me to determine whether a worksite assessment by an occupational therapist would fall within section 42, such that an applicant would forfeit benefits if she failed to make herself reasonably available for one. I simply note that in this case, the adjuster and the occupational therapist determined that Ms. Tesfay's presence was not required for an effective worksite assessment. In those circumstances, a further assessment involving the Applicant was not "reasonably necessary" under subsection 42(3), nor did she fail to provide any information which was "reasonably necessary" for the evaluation under subsection 42(5)(a).

Further, an insurer must give reasonable notice of a section 42 examination. Since the consequence of a failure to attend a section 42 assessment is the forfeiture of benefits, I find that reasonable notice requires, at a minimum, written notice, a reasonable time frame between the notice and the examination, a reference to the fact that the examination is being requested under section 42, and a warning of the possible forfeiture of benefits. No such notice was given in this case.

I find that the Applicant did not fail to make herself reasonably available for a worksite examination under section 42.

Failure to Attend an Insurer's Medical Examination, March 3, 1997

The adjuster telephoned the Applicant's representative to advise that it had arranged for an assessment at the Canadian Back Institute on March 3, 1997 under section 42 in order to consider the medical and rehabilitation benefits recommended by the ACT Health Group. The representative refused to accept an oral notice but indicated that if written notice was given, he would recommend that Ms. Tesfay attend. The Insurer sent written notice of its examination on February 28, 1997 by fax and courier. The Applicant left a message for the adjuster on February 28, 1997 advising that she could not attend on March 3, 1997. The adjuster then telephoned Ms. Tesfay on March 3, 1997 to try to persuade her to attend. She advised him that she had a medical appointment and a physiotherapy appointment and that her back was sore at the end of the day (the appointment was scheduled for 5:20 p.m.). The adjuster persisted. He offered to pay for a taxi to enable Ms. Tesfay to attend. The adjuster testified that Ms. Tesfay then agreed to attend. Ms. Tesfay did not attend. The Insurer argues that the failure to attend on March 3, 1997 was a breach of section 42.

I disagree. The three days written notice given on February 28, 1997 for an appointment on March 3, 1997 was insufficient. In addition, Ms. Tesfay had a reasonable excuse for declining to attend, since she already had two medical appointments that day and her back pain worsened as the day went on, making a 5:20 p.m. appointment inappropriate. The Insurer cannot rely on Ms. Tesfay's verbal agreement to attend during her conversation with the adjuster on March 3, 1997. I find that he inappropriately pressured her into agreeing to attend, despite her stated concerns. Further, this direct contact with Ms. Tesfay, who was represented, was inappropriate. The Insurer cannot have it both ways: having relied on the fact that Ms. Tesfay was represented by legal counsel, it should not attempt to deal directly with her.

I conclude that Ms. Tesfay has not failed to make herself reasonably available for an assessment requested under section 42 by reason of her refusal to attend at the Canadian Back Institute on March 3, 1997 and is therefore not disentitled to any benefits as a result. Neither is she denied access to the mediation and arbitration process by virtue of section 50(b).

Conclusion:

I find that Ms. Tesfay has not failed to provide reasonable information or failed to make herself reasonably available for assessments or examinations. I find that the Insurer has taken an overly aggressive and adversarial approach to its rights under section 33, 42 and 43 to require information and assessments. Ms. Tesfay's response to the Insurer's requests for information must be considered in the context that the Insurer has not paid any weekly benefits or treatment expenses, while at the same time ever increasing its demands for information. The result, predictably, has been a delay in processing benefits, and possibly, in Ms. Tesfay's recovery process.

Ms. Tesfay is not precluded under section 50 from applying for mediation. The Insurer's request for a stay of proceedings is denied. Ms. Tesfay is not disentitled to benefits for any period from the date of the accident until the date of this decision by reason of any failure to provide information (section 33), attend medical examinations (section 42) or attend medical assessments (section 43).

Expenses:

If the parties are unable to resolve the issue of expenses of this preliminary hearing, I may be spoken to.

April 7, 1999

M. Kaye Joachim Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 55

FSCO A97-001439

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SANBETU CHIDI TESFAY

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Tesfay is not precluded from applying for mediation, and hence arbitration.

2. Ms. Tesfay is not disentitled to benefits for any period from the date of the accident by reason of any failure to provide information (section 33), attend medical examinations (section 42) or attend medical assessments (section 43).

April 7, 1999

M. Kaye Joachim Arbitrator

Date

Section 32.(3) The person shall submit an application for the benefit to the insurer within 30 days after receiving the application forms.

(a) he or she notified the insurer of the circumstances giving rising to a claim for a benefit and submitted an application for the benefit within the times prescribed by this Part.

1. Any information reasonably required to assist the insurer in determining the person's entitlement to a benefit.

(2) The benefit is not payable for any period before the person complies with subsection (1).

(c) her or she made himself or herself reasonably available for any assessment under section 43 and he or she complied with subsection 43(2) in respect of the assessment.

(2) 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

(3) If an insured person does not make himself or herself reasonably available for an assessment or fails to comply with subsection (2),

(b) no benefit is payable for the period after the insured person failed to make himself or herself reasonably available or failed to comply with subsection (2) and before the insured person makes himself or herself reasonably available and complies with subsection (2).

(b) he or she made himself or herself reasonably available for any examination required by the insurer under section 42;

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96 and 551/96.
2. 2Section 32 of the Schedule, Notice and Application for Benefits.
3. 3Section 33 of the Schedule, Duty of Applicant to Provide Information.
4. 4Section 42 of the Schedule, Insurer Examinations.
5. 5Section 43 of the Schedule, Assessments.
6. 6Supra, Note #2.
7. 7Section 35 of the Schedule, Payment of Income Replacement, Non-Earner or Caregiver Benefit
8. 8Subsection 282(10) of the Insurance Act.
9. 9Section 50 of the Schedule, Assessment before Mediation.
10. 10Subsections 33(2), 42(8)(b) and 43((3)(b) of the Schedule.
11. 11Belair Insurance Company Inc. and F. S. (OIC P96-00039, June 11, 1996) at pp. 7 to 8. The comments of Director Delegate Naylor in Belair were made in the context of an insurer medical examination requested under section 23 of the 1990 Schedule. She suggested that the closer the request for an examination is to a hearing, the greater the scrutiny, because of the possibility of delaying the hearing.
12. 13Section 50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,
13. 14Section 33. (1) A person applying for a benefit under this Regulation shall, within 14 days after receiving a request from the insurer, provide the insurer with the following:
14. 15Mr. Kim, who represented Ms. Tesfay at the hearing, was not the same person who dealt with the processing of her claim, although he works for the same law firm.
15. 16Malabanan and Canadian General Insurance Company (September 9, 1996, OIC A96-000084).
16. 17It took over one year for the Ministry of Health to provide the requested OHIP summary in this case.
17. 18Mr. Krause attached significance to what he identified as new symptoms which had not been mentioned to Ms. Norn, the previous adjuster, including headaches, fatigue, confusion and dizziness. Also, he noted that Ms. Tesfay was now complaining of left (rather than right) ear difficulties, and left eye vision problems (rather than blurred vision). I do not attach any significance to these minor discrepancies. Ms. Tesfay had advised Ms. Norn that she hit her head in the accident (Exhibit 22, Adjuster's notes, November 15, 1996). Symptoms such as headaches and dizziness are common from such impacts. Also, Ms. Norn's notes do not suggest that she ever asked Ms. Tesfay for a complete and detailed list of symptoms, but that she simply recorded whatever was mentioned.
18. 19Exhibit 1, Tab 1, p. 4, Letter dated August 12, 1997.
19. 20The adjuster testified that he questioned the "security" of Ms. Tesfay's position, and whether that contributed to her remaining off work. This confirmation about the continued availability of her job should have reassured him on this point.
20. 21I make no finding at this stage whether the Insurer unreasonably delayed withholding benefits due to the absence of Dr. Ramroopsingh's clinical notes and records.
21. 22A second pre-hearing arbitrator continued the stay, pending production of Dr. Ramroopsingh's clinical notes and records and the stay was finally lifted by a third pre-hearing arbitrator in June 1998. I question the authority of the pre-hearing arbitrators to grant a stay for failure to produce the requested documents. The only basis for denying access to the dispute resolution process under section 50 are a failure to make a timely application, a failure to make oneself reasonably available for a medical examination, a failure to make oneself available for a DAC assessment or a failure to provide information reasonably necessary for a DAC assessment. Nowhere in the pre-hearing arbitrators' letters do they make any of those findings, which are prerequisites to the granting of a stay.
22. 23Exhibit 1, Tab 1, p. 8, Pre-hearing letter, February 5, 1998. The pre-hearing arbitrator specifically stated: "In this case, the documentation requested in the letter of March 21, 1997 involved simply the forwarding of an authorization by Ms. Tesfay or confirmation that a request for the documentation had been made."
23. 24Section 50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,
24. 25Section 43. (1) If an assessment is required to be conducted by a designated assessment centre,
25. 26Matichuk and Commercial Union Assurance Company (March 19, 1999, FSCO A98-000318) and cases cited therein.
26. 27Section 50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,
27. 28Subsection 42.(8)(b) no benefit is payable for the period after the giving of the notice under subsection (1) or the failure to comply with subsection (5) and before the insured person submits to the examination and complies with subsection (5).
28. 12Section 31.(1) A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.