Sameh El-Sayed v. RBC General Insurance Company, 2004 ONFSCDRS 78

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2004 ONFSCDRS 78

FSCO A03-000064

BETWEEN:

SAMEH EL-SAYED

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Suesan Alves

Heard:

December 1, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

L. Brent Vickar for Mr. El-Sayed

David A. Di Lella for RBC General Insurance Company

Issues:

Mr. El-Sayed was injured in a motor vehicle accident on May 23, 2002. RBC arranged for insurer examinations by an occupational therapist, an orthopaedic surgeon, a physiotherapist and a kinesiologist. Mr. El-Sayed attended the assessment by the occupational therapist, but disputed that the remaining assessments were reasonable. RBC suspended Mr. El-Sayed's benefits and he applied for mediation and arbitration.

RBC submits that at the time Mr. El-Sayed applied for mediation and arbitration he had not attended the requested examinations and was precluded from bringing his claims to mediation and arbitration by section 50 of the Schedule. RBC submits that Mr. El-Sayed's applications for mediation and arbitration were therefore nullities, and that Mr. El-Sayed must reapply to mediation and arbitration with respect to all issues. RBC also seeks an order that Mr. El-Sayed is disentitled to benefits during the period he failed to attend the examinations by virtue of section 42(8)(b) of the Schedule.

The issues are:

1. Were the assessments requested by RBC under section 42 of the Schedule reasonable?

2. If yes, was Mr. El-Sayed precluded from proceeding to mediation and arbitration on his claims for income replacement and housekeeping and home maintenance benefits by section 50(b) of the Schedule?

3. Is Mr. El-Sayed disentitled to benefits during the period he failed to attend the examinations by section 42(8)(b) of the Schedule.

Result:

1. RBC has not established that the requested examinations were reasonable.

2. Mr. El-Sayed was not precluded from proceeding to mediation and arbitration by section 50(b) of the Schedule.

3. Mr. El-Sayed is not disentitled to benefits under section 42(8)(b) of the Schedule.

4. If the parties are unable to agree on expenses, that issue may now be addressed.

5. Counsel should contact the case administrator to schedule a date for the arbitration hearing.

EVIDENCE AND ANALYSIS:

Section 42 of the Schedule permits an insurer on reasonable notice, to request examinations of an insured person "as often as reasonably required" to determine whether he or she is entitled to a benefit. The insured person is obliged to attend reasonable physical, psychological, mental and functional examinations. The first question then is whether RBC's requests for insurer examinations were reasonable.

Were the assessments reasonable?

The hearing proceeded by way of documentary evidence. The Insurer filed a Preliminary Issues Brief which was made Exhibit 1.

Mr. El-Sayed submitted an application for accident benefits to RBC Insurance Company following a motor vehicle accident on May 23, 2002. According to his application for accident benefits, Mr. El-Sayed was a passenger in a vehicle which was involved in an accident, and sustained injuries which prevented him from working as a general help cabinet maker.

RBC received Mr. El-Sayed's application for accident benefits on June 12, 2002. The following day, RBC sent him a cheque for two weeks of income replacement benefits and a disability certificate for completion and return by July 9, 2002.

On June 25, 2002, L & A Consultants wrote Mr. El-Sayed and informed him that RBC had retained them to conduct an in-home assessment by an occupational therapist on July 9, 2002 at 10:00 a.m under section 42 of the Schedule. According to the letter, the examination was requested to establish Mr. El-Sayed's "eligibility for one or more of the following benefits: Income Replacement, Medical and Rehabilitation, Care Giving, Attendant Care, Housekeeping & Home Maintenance, Non-Earner"

On June 26, 2002 RBC wrote Mr. El-Sayed and informed him that the occupational therapist would assess his entitlement to caregiver, attendant care and housekeeping benefits.

On June 28, 2002 RBC wrote Mr. El-Sayed and informed him that it had arranged for him to attend an examination by an orthopaedic surgeon on July 16, 2002, together with part 1 of a functional abilities examination (FAE) by a physiotherapist. Part 2 of the FAE would be conducted by a kinesiologist on July 18, 2002.¹ The letter stated that the examinations were scheduled for the purpose of assisting with the assessment of Mr. El-Sayed's entitlement to income replacement, medical/rehabilitation and housekeeping benefits.

On July 3, 2002, Mr. El-Sayed's representative at the time, Mr. Nterekas, a paralegal wrote RBC stating that one assessment on July 9, 2002 should be sufficient to determine his client's current level of function. He suggested that once the report of that assessment was available, RBC could then determine whether further assessments would be of benefit. Mr. Nterekas advised that his client would not be attending the July 16 and 18, 2002 assessments

On July 3, 2002, the RBC claims handler, Ms. Amos wrote Mr. Nterekas, confirmed the dates of the appointments, and stated that Mr. El-Sayed's entitlement to housekeeping benefits was best addressed by an occupational therapist who could observe Mr. Nterekas' abilities within his own home; an orthopaedic assessment would provide detailed information about his injuries; while the functional abilities evaluation would address the functional abilities which could not be addressed by the occupational therapist during the in home assessment. RBC maintained its position that the examinations were reasonable and necessary and required to fully assess Mr. El-Sayed's entitlement to benefits.

Mr. Nterekas responded that Mr. El-Sayed would attend one insurer's examination, "you decide which one and advise."

Ms. Amos replied "RBC Insurance has provided in our previous fax, an explanation of our reasoning for the 3 scheduled IE's for Mr. El-Sayed. If Mr. El-Sayed does not attend all 3 scheduled IE's, his benefits will be suspended under s.42. "Mr. Nterekas again advised that Mr. El-Sayed would attend the in-home assessment but not the remaining examinations.

Mr. El-Sayed attended the occupational therapy assessment. Based on that assessment RBC paid Mr. El-Sayed some housekeeping benefits. Ms. Amos confirmed that Mr. El-Sayed had not attended the orthopaedic and functional abilities examinations on July 16 and 18, 2002 and suspended his benefits.

On August 15, 2002, Mr. El-Sayed applied for mediation. He filed his application for arbitration on January 20, 2003. On January 27, and 28, 2003, Mr. El-Sayed attended re-scheduled orthopaedic and FAE examinations. According to the Explanation of Benefits, the insurer's examiners were of the opinion that Mr. El-Sayed was disabled, and RBC then resumed payment of his income replacement benefits. Mr. El-Sayed's income replacement benefits were put in stoppage in March 2003.

Law

The question of whether an insurer examination is reasonable has been considered in a number of arbitration and appeal decisions. The arbitral case law establishes that the onus is on the insurer to establish that the requested examinations were reasonable.

The arbitrator's focus should be on information available to the insurer at the time the request was made. The arbitrator's role is to weigh all the circumstances to determine whether an insurer's examination is reasonably necessary for the insurer to effectively assess entitlement.²An insurer's request must be determined in light of the nature of the applicant's injuries, the history of any treatment and /or assessments, and the relevance of the proposed examination to the issues in dispute in the arbitration.³

"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 an examination."⁴

Findings and analysis

I was not provided with evidence of Mr. El-Sayed's injuries, or of the relevance of the examinations to Mr. El-Sayed's claims. The letter of June 25, 2002 suggests that initially RBC was prepared to have an occupational therapist assess Mr. El-Sayed's entitlement to all the benefits he claimed.⁵ Two days later, RBC requested additional assessments. I had no evidence as to what information RBC had at the time it requested the additional assessments. I find that I lack sufficient evidence to determine whether RBC's requests for the orthopaedic and functional abilities assessments were reasonable. I conclude that RBC has failed to discharge the onus on it to establish that the assessments it requested were reasonable.

Section 50(b) of the Schedule prevents a person from commencing a mediation proceeding if he has not made himself reasonably available for an insurer assessment under section 42 of the Schedule. Since RBC has failed to establish that the examinations were reasonable, there is no basis for concluding that section 50(b) of the Schedule prevented Mr. El-Sayed from applying for mediation or arbitration. Mr. El-Sayed's applications for mediation and arbitration were therefore proper, and Mr. El-Sayed may proceed to an arbitration hearing. Counsel should contact the case administrator to schedule dates for the hearing.

EXPENSES:

If the parties are unable to agree on expenses, that issue may now be addressed.

May 28, 2004

Suesan Alves

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 78

FSCO A03-000064

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SAMEH EL-SAYED

Applicant

and

RBC GENERAL 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. RBC has not established that the requested examinations were reasonable.

2. Mr. El-Sayed is not precluded from proceeding to mediation and arbitration by section 50 of the Schedule.

3. Mr. El-Sayed is not disentitled from receiving benefits under section 42(8)(b) of the Schedule.

4. If the parties are unable to agree on expenses, that issue may now be addressed.

5. Counsel should contact the case administrator to schedule a date for the arbitration hearing.

May 28, 2004

Suesan Alves

Arbitrator

Date

Footnotes

1. 1Letter from RBC dated June 28, 2002
2. 2Chafe-Moote and Prudential of America General Insurance Company of Canada, (FSCO A99-000016, August 6, 1999), and confirmed on appeal Prudential of America General Insurance Company of Canada and Chafe-Moote, (FSCO P99-00044, September 8, 2000)
3. 3Vidinopulos and Liberty Mutual Insurance Company of Canada, (FSCO A00-000977, December 5, 2001)
4. 4Belair Insurance Company Inc. and F. S. (OIC P96-00039, June 11, 1996) dealt with the 1990 Schedule. Arbitrator Joachim adopted that approach in relation to the 1996 Schedule in Tesfay and Allstate Insurance Company of Canada, (FSCO A97-001439, April 7, 1999). On appeal, Director's Delegate Makepeace found no error of law in applying that principle to the 1996 Schedule (FSCO P99-00023A, June 21, 1999).
5. 5The Occupational Therapy Act, S.O. 1991, c. 33, s. 3 defines the scope of practice of occupational therapy as follows: "The practice of occupational therapy is the assessment of function and adaptive behaviour and the treatment and prevention of disorders which affect function or adaptive behaviour to develop, maintain, rehabilitate or augment function or adaptive behaviour in the areas of self-care, productivity and leisure."