Neutral Citation: 2005 ONFSCDRS 25
FSCO A04-000230
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
EDWARD BISHOP
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A MOTION
Before:
Lorne Slotnick
Heard:
By telephone conference call on February 17, 2005.
Appearances:
William McMaster for Mr. Bishop
Kimberley Dorrington for Aviva Canada Inc.
Issues:
The Applicant, Edward Bishop, was injured in a motor vehicle accident on September 8, 2000. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated weekly income replacement benefits on June 8, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Bishop 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 in this motion is:
- Is Mr. Bishop precluded from proceeding to arbitration until he complies with a request by Aviva to attend an insurer examination, pursuant to section 42 of the Schedule?
Result:
- Mr. Bishop is not precluded from proceeding to arbitration despite his refusal to attend the insurer examination.
EVIDENCE AND ANALYSIS:
Mr. Bishop was employed as a barber before the accident and claims that injuries to his knee caused by the accident prevent him from performing that job, or any other for which he is reasonably suited by education, training or experience. Mr. Bishop's income replacement benefits were terminated after an insurer examination in May, 2001, by Dr. K. Massiah, an orthopaedic surgeon. While I have not seen Dr. Massiah's report, it appears to be common ground that Dr. Massiah concluded Mr. Bishop's injuries were related to pre-existing conditions and were not caused by the accident.
Several weeks after benefits were terminated, Mr. Bishop's knee was replaced. Two years later, he reported hip problems, and underwent hip replacement surgery in the fall of 2004. Aviva says it found out about the planned hip replacement when the pre-hearing discussion took place in August, 2004. It says Mr. Bishop's knee and hip surgery justify another examination by Dr. Massiah. The examination was scheduled for December 10, 2004, but was cancelled after Mr. Bishop advised he would not attend.
The relevant portions of section 42 of the Schedule read as follows
- (1) 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 ....
(2) The notice shall state the reason 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.
(3) The insurer may require examinations as often as is reasonably necessary.
Aside from his other objections to the examination by Dr. Massiah, Mr. Bishop argues that the notice of the appointment does not comply with section 42(2), in that it does not state any reason for the examination. Given my decision below, I find it unnecessary for me to make a finding on this issue.
Mr. Bishop objects to the examination on two main grounds: first, that Dr. Massiah's earlier conclusion that his injuries were not caused by the accident makes it pointless for this doctor to conduct a further examination, no matter what changes have taken place in Mr. Bishop's condition; and second, that the timing of the proposed examination makes it apparent that its primary purpose is to bolster the Insurer's case in the upcoming arbitration.
Aviva points out that more than three years have gone by since the last insurer examination, and that Mr. Bishop has undergone surgery twice during that time. It adds that the timing of the examination, in the fall of 2004, was well before scheduled arbitration dates in April, 2005.
This issue has been considered numerous times by arbitrators at the Financial Services Commission. Occasionally, decisions will grant requests for insurer examinations close to the hearing dates, based on the principles outlined in Bogic and Axa Insurance (Canada) (FSCO A96-001192, April 30, 1999). That decision allowed an insurer examination where there was a significant new element in the applicant's diagnosis that was relevant to an ongoing claim for benefits. The Bogic decision says requests for insurer examinations can be reasonable even though the benefit in question has been terminated for a significant amount of time, and says it is fair - and hence reasonable - for an insurer to request a new examination in some circumstances where a long time has passed since the previous examination.
However, the circumstances here differ significantly from those in Bogic. Aviva cut off the only benefit at issue - income replacement benefits - more than three years ago, after Dr. Massiah concluded that Mr. Bishop's injuries were not caused by the accident. Given this history, I cannot see how a further examination by Dr. Massiah - despite Mr. Bishop's intervening surgery - meets the requirement of section 42 that the examination be "for the purpose of determining whether an insured person is entitled to a benefit for which an application is made." Given that Dr. Massiah believed in 2001 that Mr. Bishop's knee problems were not the result of the accident, the intervening surgery does not provide a valid reason for a further examination.
Further, the circumstances of this case indicate to me that the primary purpose of this insurer examination is to prepare for the upcoming arbitration hearing. The examination is first proposed more than three years after Mr. Bishop's knee surgery but only weeks after an arbitration hearing is set. Where the proposed examination appears to be part of preparation for litigation rather than an ongoing effort to adjust the file, arbitrators have not required applicants to attend. In the circumstances I find the Insurer's request does not meet the requirements of section 42, and that the Applicant is therefore not required to attend.
EXPENSES:
Given Mr. Bishop's success in this motion, he is entitled to his expenses, which I fix at $200.00.
March 3, 2005
Lorne Slotnick
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 25
FSCO A04-000230
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
EDWARD BISHOP
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
It is not necessary for Mr. Bishop to attend the proposed insurer examination in order to proceed to arbitration.
Aviva shall pay Mr. Bishop's expenses, fixed at $200.
March 3, 2005
Lorne Slotnick
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.