Brenda Lee v. Certas Direct Insurance Company, 2004 ONFSCDRS 76

Financial Services Commission of Ontario

Neutral Citation: 2004 ONFSCDRS 76 FSCO A03-000041

BETWEEN:

BRENDA LEE Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Lorne Slotnick

Heard: By telephone conference call on May 20, 2004.

Appearances: Gordon Good for Ms. Lee Renate Eschlboeck for Certas Direct Insurance Company

Issues:

The Applicant, Brenda Lee, was injured in a motor vehicle accident on January 8, 1999. She applied for and received statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.¹ Certas terminated weekly income replacement benefits in December, 1999. The parties were unable to resolve their disputes through mediation, and Ms. Lee applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue on this motion by Certas is:

1. Is Ms. Lee precluded from proceeding to arbitration because she failed to make herself reasonably available for a vocational assessment examination by David Antflick?

Result:

1. The vocational assessment examination is not reasonably necessary, and Ms. Lee is not required to attend in order to proceed to the arbitration hearing scheduled for July 19, 2004.

EVIDENCE AND ANALYSIS:

The hearing in this case was originally scheduled to start on January 26, 2004. A few weeks before that date, Certas retained David Antflick, a vocational evaluation specialist, to conduct a paper review of the documentation related to Ms. Lee's file. Mr. Antflick produced a report dated December 16, 2003, which was served on the applicant a week later. The Antflick report concluded that Ms. Lee is not "incapable of performing the essential activities of any employment for which she is reasonably suited by education, training or experience."

Mr. Antflick did not meet Ms. Lee, but he states in his report, "while my preferred method of evaluation normally includes more than a paper review, given the comprehensiveness of the brief, I am confident that my conclusions are reliable." At the end of his report, he adds, "I believe I have answered your request comprehensively."

The applicant responded with its own report, written by another vocational specialist, Jacqueline Kobayashi. Ms. Kobayashi, I was advised by applicant's counsel, did not meet Ms. Lee in person but interviewed her over the phone. Her report was served on Certas less than one business day before the hearing was to commence in January, 2004. That same day, the parties held settlement discussions with an arbitrator, who granted an adjournment of the hearing until July, based on neither party's being able to proceed on January 26.

Certas now seeks to have Ms. Lee attend a vocational assessment with Mr. Antflick and argues that the hearing should not proceed until she does. The applicant has refused to attend.

Certas argues that this refusal to attend contravenes section 42 of the Schedule, which requires the insured person to be examined by health professionals or vocational rehabilitation experts "as often as is reasonably necessary." The insurer says it wants the assessment as part of its ongoing obligation to assess Ms. Lee's claim for income replacement benefits. Certas also argued that Mr. Antflick's inability to interview Ms. Lee will create an unfairness at the hearing because of Ms. Kobayashi's opportunity to talk to the applicant.

The applicant points to Mr. Antflick's statements that his report is comprehensive, and says the letter in April, 2004 requesting that Ms. Lee attend an assessment with Mr. Antflick is the insurer's first request under section 42 for a vocational assessment, even though income replacement benefits were cut off more than four years previously. Clearly in these circumstances, the applicant argues, this request is being made as part of the preparation for the upcoming arbitration hearing, rather than as part of the insurer's ongoing obligation to assess the claim.

I agree with the applicant that the request by the insurer is mainly, if not exclusively, about preparing for the hearing in July. As such, it does not meet the requirements of section 42, which states that insurer examinations are "for the purpose of determining whether an insured person is entitled to a benefit for which an application is made."

This issue has been discussed in numerous FSCO decisions, including Nandkumar and Economical Mutual Insurance Company (FSCO A03-000831), where the arbitrator said, "In my view, requests for the insurer medical examinations during the final stages of a legal dispute must be regarded as inherently linked to their interests in advocating their position, as opposed to normal adjusting investigation."

In this case, the insurer waited more than four years, until shortly before the hearing, to request that Ms. Lee attend an assessment with Mr. Antflick, who has already issued a report in recent months about the applicant - a report that he describes as reliable and comprehensive. I do not see how the insurer can require under section 42 that the applicant attend this assessment.

I find that Ms. Lee is not required to attend the assessment by Mr. Antflick. The arbitration hearing will therefore proceed as scheduled.

EXPENSES:

I will leave the question of expenses to the hearing arbitrator.

May 21, 2004

Lorne Slotnick Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 76 FSCO A03-000041

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BRENDA LEE Applicant

and

CERTAS DIRECT INSURANCE COMPANY 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. Lee may proceed to arbitration without attending the vocational assessment with Mr. Antflick requested by Certas.

May 21, 2004

Lorne Slotnick Arbitrator

Date

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, 551/96, 303/98, 114/00 and 482/01.