Neutral Citation: 2005 ONFSCDRS 45

FSCO A04-001008

BETWEEN:

ELIZABETH WALL

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Fred Sampliner

Heard: By telephone conference call on January 27, 2005.

Appearances:

James R. Turnbull for Mrs. Wall

Matt Duffy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Elizabeth Wall, was injured in a motor vehicle accident on April 6, 2001, and received income replacement benefits until November 25, 2003 from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties did not resolve Mrs. Wall's continuing entitlement claim through mediation, and she applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mrs. Wall refused to attend an examination that State Farm scheduled with an orthopaedic specialist in November 2004.

The preliminary issue is:

Is the medical examination State Farm scheduled for Mrs. Wall to attend with Dr. J.Y. Mah reasonable?
If so, what are the consequences of Mrs. Wall's failure to attend?

Result:

The medical examination that State Farm scheduled for Mrs. Wall to attend with Dr. J.Y. Mah is not reasonable.
Mrs. Wall's failure to attend bears no consequence to her.

EVIDENCE AND ANALYSIS:

State Farm has the right under section 42 of the Schedule to request Mrs. Wall to attend an examination by a qualified health practitioner or vocational expert as often as is reasonably necessary to determine her ongoing entitlement to income replacement benefits. Dr. J.Y. Mah first examined Mrs. Wall in February 2002 for State Farm, and concluded that her problems stem from a pre-existing condition, not from the accident. He did not change his opinion when he examined her a second time in May 2003, finding her recovery had reached a plateau.

State Farm makes the same legal argument as in my recently released Zaborowski² decision, that section 42 examinations are automatically reasonable when there is a significant time passage from the last one. I reject State Farm's argument that section 42 was intended to provide for regular insurer examinations because the section's plain language does not set this out in any way.

State Farm also argues that it must be afforded a reasonable opportunity to test the strength of Mrs. Wall's claim.³ However, the evidence is that Dr. Mah has rendered full opinions, and nothing indicates that Mrs. Wall's condition has changed since his last examination. Based on this, I am not persuaded that Dr. Mah is likely to change his opinion or offer any new opinion evidence for the hearing.

Thus, State Farm has not established a reason for Dr. Mah's examination of Mrs. Wall, and I am not persuaded it is reasonable or necessary. I find that Mrs. Wall is not precluded from proceeding to the arbitration hearing on the merits of her claims.

EXPENSES:

I leave the issue of expenses on this preliminary issue to the hearing arbitrator.

April 8, 2005

Fred Sampliner Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 45

FSCO A04-001008

FINANCIAL SERVICES COMMISSION OF ONTARIO