Financial Services Commission of Ontario
Neutral Citation: 2006 ONFSCDRS 93
FSCO A05-000556
BETWEEN:
JACYNTHA MARY MORAHAN
Applicant
and
AVIVA CANADA INC.
Insurer
PRE-HEARING DECISION
Before: David Leitch
Heard: June 2, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.1
Appearances: David Derfel for Ms. Morahan Grant R. Dow for Aviva Canada Inc.
Issues:
This matter was to have been heard by me commencing on May 1, 2006 but, for reasons set out in my letter dated May 2, 2006, I adjourned it to August 28, 2006, with expenses thrown away to the Applicant. I remained seized of only two issues: the assessment of the Applicant's expenses thrown away and the reasonableness of the Insurer's requests for additional examinations under section 42 of the Schedule2 I heard submissions with respect to both these issues on June 2, 2006 but this decision will deal only with the second issue.3 This issue had to be decided promptly because, as I had recommended, the Insurer's proposed examinations were scheduled to take place immediately after June 2, 2006. As I pointed out in my letter of May 2, 2006, this recommendation did not imply that I had already decided, without hearing argument, that all the Insurer's proposed examinations were reasonable. It was only intended to ensure that if I determined that all or some of these examinations were reasonable, there would be sufficient time after June 2, 2006 to conduct the examinations and obtain the reports without compromising the new hearing dates in August 2006.
However, I had already heard what I considered to be sufficient argument on May 1, 2006 to determine that at least one of the Insurer's requests was reasonable, namely, the request for a functional abilities evaluation. I confirmed that determination, without reasons, in my letter of May 2, 2006. This decision will provide reasons for that determination and will determine the reasonableness of the three other examinations requested by the Insurer, namely:
(a) an orthopaedic examination conducted by an orthopaedic specialist;
(b) a psycho-vocational assessment conducted by a clinical psychologist;
(c) a "2 day situational" conducted by an occupational therapist.
Result:
Only the Insurer's request for a functional abilities evaluation is reasonable.
Background
Ms. Morahan was injured in a motor vehicle accident on November 5, 2003 and received income replacement benefits (IRBs) from the Insurer until June 20, 2005. She claimed reinstatement of IRBs from that date forward, into the post-104 week period which commenced on November 6, 2005. My letter of May 2, 2006 ordered that this be added to the list of issues for arbitration. The Insurer's examinations were requested in relation to the Applicant's claim for income replacement benefits in the post-104 week period.4
My decision to allow the Insurer's request for an adjournment on May 1, 2006 was based, in part, on the fact that the test governing Ms. Morahan's entitlement to IRBs changed in November 2005 to the "any employment" test and, in part, on my finding that in order to assess her eligibility to IRBs in light of that change in test, the Insurer should, at least, be afforded the opportunity to conduct a functional abilities evaluation.
The law
How did the test to determine Ms. Morhan's entitlement to IRBs change once the post-104 week point was reached? The test was no longer whether she "suffers a substantial inability to perform the essential tasks" of her pre-accident employment, as stipulated in section 4(1) paragraph 1, but whether she "is suffering a complete inability to engage in any employment for which ... she is reasonably suited by education, training or experience", as stipulated in section 5(2)(b). Since this change broadened the scope of the enquiry into the Applicant's employability, it also broadened the scope of the Insurer's right to have her examined under section 42.
Nevertheless, the Insurer's right to examine was still limited and controlled by the criterion of reasonableness. As observed by Arbitrator Skinner in Uw