Neutral Citation: 2004 ONFSCDRS 97

FSCO A03-000476

BETWEEN:

PAUL VIJAYASINGHAM

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUES

Before:

Judith Killoran

Heard:

February 9, 10 and April 22, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Brian Sherman for Mr. Vijayasingham

Pamela M. Stevens for RBC General Insurance Company

Issues:

The Applicant, Paul Vijayasingham, alleges that he was injured in a motor vehicle accident on October 6, 2002. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC terminated weekly income replacement benefits on November 28, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Vijayasingham 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:

Was Mr. Vijayasingham involved in an automobile accident on October 6, 2002?
Is Mr. Vijayasingham precluded from proceeding to arbitration with his disputes for benefits because he failed to appear at insurer's examinations requested under section 42 of the Schedule?

Result:

Mr. Vijayasingham was involved in an automobile accident on October 6, 2002.
Mr. Vijayasingham may proceed to arbitration. The insurer's examinations scheduled by RBC were not reasonably necessary.

EVIDENCE AND ANALYSIS:

Was Mr. Vijayasingham involved in an automobile accident on October 6, 2002?

Mr. Vijayasingham claimed that he was a passenger in a 1990 Nissan Stanza which lost control, struck the guardrail and another car, while travelling west on the Gardiner Expressway on October 6, 2002. The vehicle was driven by Janarthanan Ratnasingham. On November 4, 2002, Mr. Vijayasingham gave a statement to RBC and signed an acknowledgement that he received the relevant documents necessary to make a claim.

Mr. Ratnasingham testified that he was driving a vehicle owned by his father on the night of the accident. There were three passengers in the vehicle. He went to a nightclub with his passengers to pick up Persanna Subramaniam. He then drove Mr. Subramaniam to an apartment to get his car keys and return to the nightclub. Later, Mr. Ratnasingham was involved in a collision on the Gardiner Expressway. Mr. Subramaniam was following in his white Honda Civic. Mr. Ratnasingham confirmed there were four occupants in his vehicle, not five, as described in the police report. The front seat passenger was his cousin, Prasad Thiruchelvan, and the rear passengers were Paul Vijayasingham, the Applicant, and Sabrina Ali.

Mr. Vijayasingham testified that he and his girlfriend, Sabrina, were picked up by Mr. Ratnasingham. He confirmed the above account and the names of the occupants in the vehicle.

Prasad Thiruchelvan testified that his cousin, Mr. Ratnasingham, drove the car. He confirmed essentially the same account of events as related by the other witnesses. Sabrina Ali did the same.

Constable Michael Marchen testified that he was first notified at 2:19 a.m. about an accident on the Gardiner Expressway. When he arrived, there were three vehicles - two were seriously damaged. He acknowledged that he did not sort out who the various people were. He did remember two people who appeared to be a couple, which would fit with Paul Vijayasingham and Sabrina Ali. However, he remembered Mr. Subramanian and thought that he was the person with Sabrina Ali. His collision field notes state that Mr. Ratnasingham's vehicle had a rear passenger named Paul.²

I find that the testimony of Mr. Vijayasingham and his witnesses was credible about the events on the night of the accident. There were some minor discrepancies in their accounts but nothing of material significance. Constable Marchen, the police officer who attended at the accident, was neither able to confirm or deny that Mr. Vijayasingham was a passenger in the vehicle driven by Mr. Ratnasingham. However, I heard compelling testimony from four witnesses that Mr. Vijayasingham was a passenger. Accordingly, I find that Mr. Vijayasingham was a passenger in the vehicle driven by Mr. Ratnasingham.

Is Mr. Vijayasingham precluded from proceeding to arbitration with his disputes for benefits because he failed to appear at insurer's examinations requested under section 42 of the Schedule?

On November 6, 2002, RBC advised Mr. Ratnasingham that it accepted the treatment plan from Westend Chiropractic dated October 9, 2002 for $1,800 of chiropractic, electrotherapy and soft tissue therapy. At the same time, RBC rejected a second treatment plan from Westend Chiropractic on the grounds that it appeared excessive and therefore not reasonable or necessary for the treatment or rehabilitation of the injuries sustained in the accident. RBC also issued an Explanation of Benefits confirming that IRB cheques had been issued for the weeks from October 14 to November 10, 2002 in the amount of $1,608.

On November 13, 2002, Herrold and Vernon Disability Management Inc. scheduled, on behalf of RBC, six assessments for Mr. Vijayasingham from December 2, 2002 to January 13, 2003. They were the following: an Occupational Therapy in-home assessment; a functional capacity evaluation in Mississauga; an orthopaedic insurer's examination in Toronto; a neurological insurer's examination in Scarborough; a psychological insurer's examination in Thornhill; and a maxillofacial insurer's examination on Weston Road in Toronto.

Mr. Brian Leila testified for the Applicant. He works as a paralegal with Fair Claims Consultants Inc. He testified that he phoned RBC to question why the assessments were requested. For example, an assessment with a psychologist was requested, although Mr. Vijayasingham had made no psychological claim. Mr. Vijayasingham had applied for income replacement benefits and some medical/rehabilitation. Also, no claims were made for maxillofacial therapy nor for housekeeping. No applications for those benefits have been made to date.

In a letter dated November 14, 2002, Brian Leila objected to the assessments on the grounds that they were not reasonable. In his correspondence he pointed out that Mr. Vijayasingham had made no psychological claim, and the assessments were in different locations. Mr. Leila suggested that Mr. Vijayasingham should be seen at one place by the neurologist and the orthopaedic assessors, or one assessment should be cancelled. Mr. Leila also suggested that the occupational therapist should complete the Form 1 at the time of the Functional Abilities Evaluation so that an in-home assessment would not be required.

On November 26, 2002, RBC responded to the correspondence by confirming that it had cancelled the psychological assessment but the other assessments were deemed reasonable and necessary.

On November 28, 2002, RBC informed Mr. Vijayasingham that, according to subsection 30(4) of the Schedule, it was not required to pay income replacement benefits and housekeeping and home maintenance benefits because he had been charged with a criminal offence. RBC claimed under section 47 that it was owed $2,257.56 which must be repaid by Mr. Vijayasingham for income replacement benefits which RBC had paid to him.

On December 3, 2002, RBC informed Mr. Vijayasingham that as he did not attend the in-home assessment scheduled for December 2, 2002, it was ceasing his income replacement benefits as of December 3, 2002. Mr. Leila responded on December 6, 2002, that Mr. Vijayasingham was at the house with his mother but he had to leave to attend physiotherapy. Mr. Vijayasingham confirmed this in his testimony at the hearing.

On March 14, 2003, Mr. Leila wrote to RBC to confirm that RBC had finally acknowledged at the mediation that day its erroneous denial based on the allegation that Mr. Vijayasingham had been charged with a criminal offence. Mr. Leila stated in the letter that Mr. Vijayasingham had not attended the section 42 assessments based on the denial. However, at the mediation, RBC then alleged that Mr. Vijayasingham was not a passenger in the vehicle involved in the accident.

On March 27, 2003, RBC requested Mr. Vijayasingham's attendance at five new insurer's examinations (in-home assessment, FAE, psychological, neurological and orthopaedic) between April 14 and May 5, 2003.

In a letter dated March 31, 2003, Mr. Leila argued that the five assessments to determine Mr. Vijayasingham's entitlement to an Obus Forme back support and transportation to therapy were not reasonable. Mr. Leila asked for more information outlining which benefits Mr. Vijayasingham was being assessed for and why so many assessments were needed for two benefits. In another letter, dated April 1, 2003, Mr. Leila commented on the fact that RBC was now claiming that the assessments were for income replacement benefits which had been terminated on November 28, 2002. It appears that Mr. Leila received no response to his questions or correspondence. On April 4, 2003, Mr. Leila sent a letter to RBC commenting on the lack of response and advising that Mr. Vijayasingham would not be attending the assessments.

I also heard evidence from Ms. Guida Fernandes, an RBC adjuster. She testified that RBC scheduled a series of insurer's examinations to obtain more information about the nature of Mr. Vijayasingham's injuries. She testified that the termination of Mr. Vijayasingham's benefits on November 28, 2002 was done in error. In her view, RBC had ongoing exposure and therefore was entitled to schedule insurer's examinations. Ms. Fernandes conceded that benefits were never reinstated for Mr. Vijayasingham.

Mr. Vijayasingham testified that he was worried about attending the assessments if RBC's position was that he was not a passenger in the car. He was concerned that he might have to pay for the assessments.

ANALYSIS AND CONCLUSION

The relevant subsections of section 42 of the Schedule state:

(3) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured 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.

(4) The notice shall state the reasons why the insurer requires the examination and shall specify a date for the examination that is at least five business days after the person receives the notice.

(5) The insurer may require examinations as often as is reasonably necessary.

On March 5, 2004, Mr. Brian Sherman wrote to me about the recent release of a decision, Hakimi and ING Insurance Company of Canada.³ He submitted that it was relevant to the case before me. I resumed the preliminary issues hearing on April 22, 2004 by teleconference. I heard submissions from both parties with respect to the Hakimi decision.

Mr. Sherman submitted that although the facts were not entirely similar, the arbitrator in Hakimi commented that there was no evidence that Mr. Hakimi claimed attendant care. He had returned to work and there were no other medical or rehabilitation claims on the file. In these circumstances, the arbitrator was not persuaded that an insurer's examination would yield any useful information. The arbitrator also commented on the failure of ING to respond to any of the correspondence from Mr. Hakimi's representative questioning the appropriateness of the request for examinations. She observed that as the applicant and the insurer were in a first-party relationship, she did not accept that the insurer could sit back and wait for its insured to run afoul of the provisions of the Schedule and then seek to prevent him from proceeding through the arbitration process.

I agree with Arbitrator's Alves reasoning in Hakimi, which is consistent with caselaw at the Commission. The case before me is similar to Hakimi with respect to the reasonableness of the insurer's examinations. The second round of examinations were requested by RBC three months after Mr. Vijayasingham completed his treatments. The other similarity is the series of letters sent to the Insurer requesting an explanation for the requested assessments. No response was given to the letters to RBC from Mr. Leila. I, too, am troubled in this case which involves a first-party relationship between the Applicant and the Insurer. RBC owed a duty of fairness to its own insured and it did not measure up to its responsibilities by taking an early, unjustified adversarial position with Mr. Vijayasingham.

Two of the insurer's examinations were in-home assessments and another was neurological. No claims had been advanced for housekeeping expenses nor for neurological issues in a treatment plan. There was no treatment plan filed for psychological services, but a psychological assessment was booked. There was no alleged TMJ problem or related treatment plan, but there was an assessment scheduled with a maxillofacial specialist.

Mr. Vijayasingham made no application for benefits which related to the assessments requested by RBC. The treatments for which Mr. Vijayasingham sought payment were concluded prior to the scheduling of the second round of assessments.⁴ I find that he conducted himself quite reasonably when he did not attend the first and second set of assessments.

I have also considered the manner in which RBC has chosen to adjust this file. RBC's past conduct was to allege that Mr. Vijayasingham was not entitled to receive benefits because he had been charged with a criminal offence and then, when that was proven to be untrue, to allege that he was not a passenger in Mr. Ratnasingham's vehicle. Mr. Vijayasingham's experience with RBC was that he had been asked to repay $2,200 when RBC made the erroneous allegation that he had been charged with a criminal offence. I sympathize with Mr. Vijayasingham's reluctance to attend the examinations when RBC's allegation was that he was not involved in an accident. It appeared not only fruitless to attend, but also potentially expensive because Mr. Vijayasingham was concerned that he would be invoiced by RBC for the cost of the examinations. I find that the insurer's examinations requested by RBC were not reasonable and necessary.

EXPENSES:

I leave the issue of expenses to the discretion of the hearing arbitrator.

June 17, 2004

Judith Killoran Arbitrator

Date