Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 136

FSCO A05-001768

BETWEEN:

SON THI LE

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Richard Feldman

Heard:

May 25, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Alan Leibovitch for Mrs. Le

William A. McClelland for Dominion of Canada General Insurance Company

The Applicant, Son Thi Le, was injured in a motor vehicle accident on August 30, 2004. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Disputes arose between the parties concerning payment of said benefits. The parties were unable to resolve their disputes through mediation and Mrs. Le 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 issue (as stated in the pre-hearing letter of March 6, 2006 and the Notice of Hearing of Preliminary Issue) has been identified by the parties as follows:

Is Mrs. Le precluded from receiving housekeeping and caregiver benefits for the period after she failed to submit to examinations required by Dominion, pursuant to s. 42(8) of the Schedule?

Originally, Dominion also raised an issue concerning whether or not Mrs. Le is precluded (pursuant to s. 50(1)(b) of the Schedule) from proceeding to mediation (and, thus, to arbitration) in relation to her claims for caregiver and housekeeping benefits as a result of her failure or refusal to submit to an examination required by Dominion. This issue was withdrawn by Dominion at the outset of the hearing.

Mrs. Le is not precluded from receiving housekeeping and caregiver benefits, pursuant to s. 42(8) of the Schedule, because she failed to submit to examinations required by Dominion.

Facts

The parties submitted an agreed statement of facts and a number of books of documents which have all been marked as exhibits. I heard the testimony of Lorraine Taylor, accident benefit claims adjuster at Dominion.

The relevant facts are not in dispute and can be summarized as follows:

Mrs. Le was involved in a motor vehicle accident on August 30, 2004 and submitted a claim to Dominion for accident benefits under the Schedule for, amongst other things, caregiver benefits and housekeeping benefits.
As a result of and in accordance with the recommendations contained in a report from Ms. Wong (an occupational therapist from LifeMark Occupational Therapy Associates) following an in-home assessment conducted at the request of Dominion on November 9, 2004, Dominion terminated caregiver benefits but continued to pay housekeeping benefits at the rate suggested by Ms. Wong.
Dominion scheduled a follow-up in-home assessment for February 3, 2005 to re-assess Mrs. Le's entitlement to housekeeping benefits. Mrs. Le failed to participate in this assessment.
Dominion scheduled a Functional Medicine Examination ("F.M.E.") to be conducted on March 18, 2005 and a Psychological Examination to be conducted on March 23, 2005. Mrs. Le did not attend these assessments.
In April 2005, Dominion advised Mrs. Le that it was stopping payment of caregiver benefits and housekeeping benefits based on her failure to participate in the insurer examinations scheduled for March 18, 2005 and March 23, 2005.²

There were a number of other insurer examinations scheduled by Dominion in which Mrs. Le failed to participate but Dominion is not relying on those missed examinations as a defence in this arbitration as Dominion acknowledges that proper notice may not have been given for those assessments. Dominion also acknowledges that adequate notice was not provided for the assessment of March 18, 2005.

With respect to the two assessments that remain in issue (February 3, 2005 and March 23, 2005), Dominion takes the position that, pursuant to s. 42(8) of the Schedule, the Applicant is precluded from receiving housekeeping and caregiver benefits for the period after she failed to submit to those examinations. The Applicant takes the position that Dominion cannot rely upon s. 42(8) unless it has proven that it complied with the statutory prerequisites set out in section 42; in particular, the Applicant puts Dominion to the strict proof of its assertion that adequate notice of these assessments was given to the Applicant and that these assessments were reasonably necessary.

Law

The relevant portions of section 42 of the Schedule are as follows:

42(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 or a person with expertise in vocational rehabilitation.

(2) 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.

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

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section...

(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination...; and

(b) no benefit is payable for the period after the person has failed to attend the examination...and before the person submits to an examination under subsection (1)...

The rules for delivery of a notice are contained in section 68 of the Schedule. A notice can be delivered by:

fax to the person or their representative;
leaving a copy with the person's representative (or an authorized employee in the office of the representative);
personal delivery to the person; or
letter mail, certified mail or registered mail addressed to the person at his or her last known address.³

With respect to delivery of a document by letter mail, in the absence of evidence to the contrary, a person is deemed to receive the document on the fifth business day after the day the document is mailed.⁴ With respect to delivery of a document by fax, the fax transmission must include a detailed cover page that contains all of the information set out in subsection 68(6) of the Schedule.

ANALYSIS

(a) The February 3, 2005 Assessment

Dominion's notice of stoppage⁵ refers only to the Applicant's failure to attend the examinations scheduled for March 18, 2005 and March 23, 2005. It is, therefore, not clear to me that Dominion can now also rely upon the Applicant's failure to participate in the February 3, 2005 assessment as grounds for denying or withholding caregiver benefits and housekeeping and home maintenance benefits.

Assuming, without deciding, that Dominion can rely upon the Applicant's failure to participate in the February 3, 2005 assessment, Dominion must first establish that adequate notice of that assessment was provided to the Applicant before it can rely upon the consequences set out in subsection 42(8) of the Schedule.

On Monday, January 24, 2005, Dominion sent to Mrs. Le by registered mail a notice of the assessment scheduled for February 3, 2005 (Ex. 2, Tab 25). No evidence was adduced to prove if or when this notice was ever actually received by Mrs. Le. The deemed delivery date of a document sent by regular mail is the fifth business day after mailing; in this case, that would be Monday, January 31, 2005. Subsection 42(2) of the Schedule requires that the date of the assessment must be at least five business days after the person receives the notice. I find that Dominion's notice of January 24, 2005 does not comply with s. 42(2) because Dominion has failed to prove, on a balance of probabilities, that it was delivered to the Applicant at least five business days before February 3, 2005.

The notice of January 24, 2005 was also sent by Dominion to Mr. Leibovitch by courier. Dominion maintains that this complies with sections 68 and 42 of the Schedule. Ms. Taylor testified that, in her experience, delivery by courier usually takes one or two business days. Although delivery by courier is not explicitly listed in section 68 of the Schedule as a valid method of service, section 68 permits service by leaving a copy of a document with a person's representative (or an authorized employee in the office of the representative). Dominion adduced no evidence about when or if this document was left with Mr. Leibovitch or an authorized employee of his office.

Dominion argues that the letter dated January 24, 2005 from LifeMark Occupational Therapy Associates ("LifeMark")⁶ was sufficient notice to Mr. Leibovitch and Mrs. Le about the examination scheduled for February 3, 2005. The letter itself indicates that it was sent via facsimile transmission and mail to Mr. Leibovitch and by mail to the Applicant. If it was sent by mail on January 24, 2005, then it would be deemed to be received on January 31, 2005 (i.e. less than 5 business days prior to the examination) and, therefore, would not comply with s. 42(2) of the Schedule. With respect to fax transmission to Mr. Leibovitch, the letter in question is not accompanied by a fax cover page (as required by subsection 68(6) of the Schedule) or transmittal confirmation page. Dominion's witness, Ms. Taylor, did not know if or when this document was ever sent by LifeMark to the Applicant's representative. Dominion did not call any witness from LifeMark. I therefore find that Dominion has not established that the letter dated January 24, 2005 from LifeMark was delivered by fax to the Applicant's representative.

For the foregoing reasons, I find that Dominion failed to provide Mrs. Le with adequate notice of the assessment scheduled for February 3, 2005 and she is not precluded from receiving housekeeping and caregiver benefits, pursuant to s. 42(8) of the Schedule, as a result of her failure to participate in that assessment.

(b) The March 23, 2005 Assessment

On March 9, 2005, Dominion sent a notice (Ex. 2, Tab 37) to the Applicant (copied to her representative) to attend the following insurer's examinations to determine her ongoing entitlement to benefits under Part IV (Caregiver) and Part VI (Housekeeping/Home Maintenance) of the Schedule:

AssessMed

5925 Airport Road

Mississauga, ON

Phone Number: 905-678-2924

Functional Medicine Examination

Date: Friday, March 18, 2005

Time: 8:30 a.m.

Expected Duration: 6 hours

Psychological Examination:

Date: Wednesday, March 23, 2005

Time: 9:30 a.m.

Expected Duration: 6 to 7 hours

Mrs. Le is deemed to have received the notice on March 16, 2005 and the parties agree that Mr. Leibovitch received this notice on March 14, 2005.

Dominion does not dispute that notice of the March 18, 2005 examination was inadequate (i.e. short) but maintains that Mrs. Le received sufficient notice of the March 23, 2005 examination.

The Applicant takes the position that the notice from Dominion dated March 9, 2005 fails to comply with the requirements of the Schedule in both its delivery and its contents. The Applicant argues that the notice was flawed in several respects, including the following: (1) it does not state the name of the person who would be conducting the psychological examination or indicate that the person is a member of a health profession; (2) the notice purports to relate to two dates and, arguably, since it was insufficient notice for the earlier date the entire notice is invalid (i.e. for both dates); and (3) the examination was not reasonably necessary or does not relate to a benefit for which Mrs. Le had applied. In order to resolve this preliminary issue, I find it sufficient to focus on the failure of the Insurer to identify the person who would be conducting the assessment.

Subsection 42(1) of the Schedule states that 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 profession⁷ Although the choice of the medical professional is entirely up to the insurer, the insured person is entitled to be informed of at least the name of the person who will be conducting the examination and, in many cases, the qualifications or area of expertise of that person. In this case, Dominion failed to provide even the name of the person who would be conducting the assessment.

In some circumstances, a defect in a notice from an insurer can be "cured" by information contained in other documents sent to an applicant around the same time as the notice. Dominion has tendered a file copy of a letter from AssessMed dated March 1, 2005 (Ex. 2, Tab 36) that purports to advise the Applicant and her representative of the name of the person who would be conducting the psychological assessment. Dominion adduced no evidence, however, about when or if this letter was ever actually sent to Mrs. Le or her representative. Dominion did not call a witness from AssessMed. Ms. Taylor testified that she did not know if or when this document was actually delivered by AssessMed to the Applicant or her representative. In the absence of such evidence, I find that Dominion cannot rely upon this letter to cure the defect in Dominion's notice.

Since proper notice was not provided of the assessment scheduled for March 23, 2005, I find that Mrs. Le is not precluded from receiving housekeeping and caregiver benefits, pursuant to subsection 42(8) of the Schedule, as a result of her failure to participate in that assessment

CONCLUSION

For the reasons set out above, I find that Mrs. Le is not precluded from receiving housekeeping and caregiver benefits, pursuant to s. 42(8) of the Schedule, because she failed to submit to examinations requested by Dominion (in particular, the follow-up in-home examination scheduled for February 9, 2005 and the psychological examination scheduled for March 23, 2005).

EXPENSES

The parties have made no submissions with respect to the expenses of this preliminary issue hearing. If the parties cannot agree on the issue of entitlement or amount, they may make written submissions on both issues within 30 days of the date of this order.

August 15, 2006

Richard Feldman Arbitrator

Date