Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 107
FSCO A05-002144
BETWEEN:
MICHAEL DOUGLAS IVES
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
William J. Renahan
Heard:
By telephone conference call on June 20, 2006.
Written submissions were received up to June 16, 2006.
Appearances:
Joseph Lam for Mr. Ives
Carla Falkeisen for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Michael Douglas Ives, was injured in motor vehicle accidents on September 24, 2001 and February 6, 2002. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company, payable under the Schedule.1 Wawanesa terminated weekly income replacement benefits on July 22, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Ives applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The parties participated in a pre-hearing discussion before Arbitrator Allen on May 1, 2006. At that time, the parties identified the following preliminary issue:
- Is the Applicant reasonably required to make himself available to attend a further insurer's examination pursuant to section 42 of the Schedule?
Result:
- The motion for a preliminary order is dismissed.
EVIDENCE AND ANALYSIS:
Section 42 authorizes an insurer to request an insured attend at a medical examination.
It provides:
- (1) For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession or are social workers or who have expertise in vocational rehabilitation.
I have jurisdiction to determine whether an insurer's examination is reasonably necessary. If I find that it is, I have jurisdiction to stay an arbitration proceeding pending the insured's attendance at the examination.
Subsection (4) sets out what information the insurer must give to the insured in its notice requesting an examination.
(4) Whenever the insurer requires an insured person to be examined under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out, (a) the reasons for the examination;
(b) the type of examination that will be conducted and whether the attendance of the insured person is required during the examination;
(c) the name of the person or persons who will conduct the examination, the regulated health professions to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
Subsection (8) provides that a notice under subsection (4) may be verbal if a written confirmation is given as soon as practicable afterwards.
The Insurer did not give the Insured person the notice required by subsection 42(4). The motion material does not address any of the information that is required by subsection (4). Ms. Falkeisen argued that the Insurer did not have to comply with section 42 because the issue was discussed at the pre-hearing. Mr. Lam said that he was content to go ahead with the motion.
A medical examination is "inherently intrusive and an invasion of individual privacy."2 The legislature has set out information the insurer must give the insured if it seeks an examination, so that the insured can determine whether he or she wants to submit to the procedure. The parties cannot waive compliance with this section. Further, I cannot determine whether the examination is reasonably required without the information required by subsection 42(4).
The motion is therefore dismissed.
EXPENSES:
Mr. Lam asked for expenses.
The current subsection 42(4) came into effect on March 1, 2006. Arbitrator Murray recently discussed this provision and the requirements of compliance in Vellipuram and State Farm Mutual Automobile Insurance Company (FSCO A05-002629, June 15, 2006).
Neither party expressed any interest in complying with section 42 of the Schedule. In these circumstances, each party shall bear their own expenses of this motion.
June 22, 2006
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 107
FSCO A05-002144
BETWEEN:
MICHAEL DOUGLAS IVES
Applicant
and
WAWANESA MUTUAL 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:
- The application for an order declaring that an unspecified medical examination is reasonably required is dismissed.
I. Each party shall bear their own expenses of this motion.
June 22, 2006
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Scott and Toronto Transit Commission (Markel Insurance) (OIC A-001116, September 4, 1992).