Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 99
FSCO A05-002629
BETWEEN:
CHANDRAKUMARAN VELLIPURAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Maggy Murray
Heard:
Written submissions were received on April 27 and May 11, 2006.
Appearances:
David S. Wilson for Mr. Vellipuram
Michael W. Smith for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Chandrakumaran Vellipuram, was injured in a motor vehicle accident on January 1, 2004. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated weekly income replacement benefits on October 3, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Vellipuram 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 issues are:
Whether State Farm is entitled to an Order permitting it to schedule post-104 week examinations of Mr. Vellipuram.
Whether Mr. Vellipuram is required to attend post-104 week examinations.
Result:
State Farm is not entitled to an Order permitting it to schedule post-104 week examinations of Mr. Vellipuram.
I have no jurisdiction to Order Mr. Vellipuram to attend post-104 week examinations.
EVIDENCE AND ANALYSIS:
Background:
The test for eligibility for income replacement benefits for the first 104 weeks after disability is whether the insured suffers a substantial inability to perform the essential tasks of his employment at the time of the accident ("pre-104 week disability test").2 After 104 weeks, the test changes and is more difficult to satisfy. It is whether the insured suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience ("post-104 week disability test").3
State Farm submits that it is entitled to have Mr. Vellipuram attend post-104 week examinations to determine his entitlement to income replacement benefits. Since filing the Application for Arbitration, counsel for Mr. Vellipuram served State Farm with a report by a vocational analyst and a report by an orthopaedic surgeon which allegedly support Mr. Vellipuram's entitlement to income replacement benefits beyond 104 weeks of disability. State Farm wants to respond to the reports of the vocational analyst and the orthopaedic surgeon and to assess Mr. Vellipuram's entitlement to income replacement benefits and determine whether he meets the post-104 week disability test.
Mr. Vellipuram underwent the following insurer's examinations: (a) Orthopaedic surgeon's examination on May 6, 2005 which concluded that he did not meet the pre-104 week disability test; (b) Neuropsychological examination on June 22, 2005 which concluded that he did not meet the post-104 week disability test; and (c) psychiatric examination on June 17, 2005 which concluded that he did not meet the post-104 week disability test.
Law:
An insurer's right to examine its insured is set out in section 42 of the Schedule which states:
42(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.
(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.
(8) A notice under subsection (4) or (7) may be verbal if a written confirmation is given as soon as practicable afterwards.
On March 1, 2006, s.42 of the Schedule was amended to provide that verbal notice of an assessment is permitted if it is followed by written confirmation.
ANALYSIS:
Issue One:
Section 42 of the Schedule permits insurers to schedule examinations to determine if an insured person is or continues to be entitled to a benefit under the Schedule. Therefore, it is unnecessary for me to grant an Order giving State Farm permission in advance to invoke a process contemplated by the Schedule.
Issue Two:
An arbitrator does not have jurisdiction to order an insured to attend an examination.4
Section 42 of the Schedule requires an insurer to provide the insured with notice of an examination. The notice must contain certain particulars. State Farm has not served Mr. Vellipuram with any notice of the proposed examinations and therefore failed to provide the particulars required by s.42(4) of the Schedule. Because Mr. Vellipuram was not provided with any notice from State Farm that complies with s.42 of the Schedule, he has no information to allow him to determine whether or not he should attend the examinations. Accordingly, State Farm's motion is dismissed.5
EXPENSES:
Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.
June 15, 2006
Maggy Murray
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 99
FSCO A05-002629
BETWEEN:
CHANDRAKUMARAN VELLIPURAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
State Farm is not entitled to an Order permitting it to schedule post-104 week examinations of Mr. Vellipuram.
State Farm's motion for an Order requiring Mr. Vellipuram to attend post-104 week examinations is dismissed.
If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.
June 15, 2006
Maggy Murray
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Section 5(1) of the Schedule.
- Section 5(2)(b) of the Schedule.
- Granic and Allstate Insurance Company of Canada at 10 (OIC A-006615, January 30, 1995); Nirwan and Kingsway General Insurance Company at 4 (FSCO A04-001704, October 4, 2005).
- For cases dealing with the notice provisions of s.42 of the Schedule, see: M.S.D. and Citadel General Assurance Company at 5 (FSCO A01-001561, February 19, 2003); Shirkhodaei and State Farm Mutual Automobile Insurance Company at 4-5 (FSCO A04-000523, February 21, 2005); Ramalingam and State Farm Mutual Automobile Insurance Company at 5 (FSCO A02-001646, December 17, 2004); Kathiresapillai and ING Insurance Co. of Canada at 8 (FSCO A04-002101, December 22, 2005).