Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 21

FSCO A05-002302

BETWEEN:

ISABELITA PAUL

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David Leitch

Heard:

November 29, 2006 at the offices of the Financial Services Commission of Ontario in Toronto and December 6, 2006 by telephone conference

Appearances:

Jason Singer for Ms. Paul at the November 29, 2006 hearing only

Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

The Applicant, Isabelita Paul, was injured in a motor vehicle accident on July 31, 2004 and claimed statutory accident benefits payable under the Schedule¹ from Dominion of Canada General Insurance Company ("Dominion"). Pursuant to section 42 of the Schedule, Dominion scheduled insurer examinations of Ms. Paul on December 23 and 30, 2004 and again on September 13 and 20, 2006. Dominion alleged in this Preliminary Issue Hearing that Ms. Paul failed or refused to submit to these examinations and that she did not finally submit to an insurer examination until October 19, 2006. For this reason, it took the position that Ms. Paul was ineligible to receive certain benefits for the period commencing December 23, 2004 and ending on October 19, 2006. The parties were unable to resolve this and other issues at mediation and an Application for Arbitration was filed at the Commission.

Ms. Paul attended a Pre-hearing conference before Arbitrator Muir where her alleged failures or refusals to attend insurer examinations were identified as potential grounds for challenging her right to claim certain benefits. Through her participation in the Pre-hearing, she was made aware that these challenges would be the subject of a Preliminary Issue Hearing commencing on November 29, 2006 at the Commission's offices. This information was confirmed in Arbitrator Muir's Pre-hearing letter, dated June 26, 2006, and in a Notice of Preliminary Issue Hearing.

On November 24, 2006, Ms. Paul instructed her counsel, Mr. Jason Singer, to request an adjournment of the Preliminary Issue Hearing set to commence on November 29, 2006. This request was denied by Arbitrator Muzzi. When the matter came on before me on November 29, 2006, Ms. Paul did not appear and Mr. Singer asked to be removed as her representative. In Mr. Singer's letter dated November 28, 2006, addressed to the Commission with a copy to Ms. Paul, he stated that he had been "unable to obtain any instructions from my client apart from the request for an adjournment" and that "there has been a breakdown in the solicitor and client relationship". I adjourned the hearing to 3:00 p.m. on December 6, 2006 by telephone conference in order to allow sufficient time for Ms. Paul to receive both Mr. Singer's letter dated November 28, 2006 advising her of his intention to withdraw as her representative, and my letter of November 29, 2006 setting out the specific issues to be determined on the resumption of the Preliminary Issue Hearing on December 6, 2006. Of the five issues identified in my letter, and in the enclosed Notice of Resumption of Preliminary Issue Hearing, Dominion withdrew two, leaving the following three issues for determination:

1. Is Mr. Singer permitted to withdraw as Ms. Paul's representative?

2. Is Ms. Paul ineligible to receive caregiver, non-earner, attendant care and housekeeping benefits for the period commencing December 23, 2004 and ending on October 19, 2006 by reason of her failures or refusals to submit to insurer examinations on December 23 and 30, 2004 and on September 13 and 20, 2006?

3. Is Dominion entitled to an order for expenses thrown away in this proceeding in the amount of $5,000?

Result:

1. Mr. Singer is permitted to withdraw as Ms. Paul's representative effective December 6, 2006.

2. Ms. Paul is not eligible to receive attendant care benefits for the period commencing December 23, 2004 and ending on June 28, 2006 and is not eligible to receive housekeeping benefits for the period commencing on September 13, 2006 and ending on October 19, 2006.

3. Dominion is entitled to expenses in relation to this Preliminary Issue Hearing in the amount of $1,000.

Notice to the Applicant of the hearing on December 6, 2006

Mr. Singer's letter of November 28, 2006 had provided what he understood to be Ms. Paul's last known address and telephone number. The address Mr. Singer provided was the same as the address recorded in the Commission's file. Accordingly, my letter of November 29, 2006, and the enclosed Notice of Resumption of Preliminary Issue Hearing, was sent by Purolator to what both Mr. Singer and the Commission understood to be Ms. Paul's last known address. While that letter was subsequently returned to the Commission, I note that Rule 9.1 of the Dispute Resolution Practice Code — Fourth Edition (the "Code") imposed an obligation on Ms. Paul to provide written notice of any change of her address.

The Applicant's telephone number as provided by Mr. Singer was different than the telephone number recorded in the Commission's file. Nevertheless, Mr. Singer confirmed on November 29, 2006 that he had been able to communicate with Ms. Paul at the telephone number he provided as recently as two weeks earlier. When I attempted to call Ms. Paul at that number at 3:00 p.m. on December 6, 2006, there was no answer. Of course, it is now clear that since Ms. Paul never received my letter of November 29, 2006 and the Notice of Resumption of Preliminary Issue Hearing, she may have been unaware that I would telephone her at that time. However, Rule 9.1 of the Code also states that the "Dispute Resolution Group is entitled to rely upon the last known address ...contained in its records". Pursuant to this Rule, I now find that Ms. Paul was put on valid notice that the hearing that commenced on November 29, 2006, of which she was fully aware, was adjourned to be resumed by telephone conference at 3:00 p.m. on December 6, 2006.² I attempted, but was unable, to reach Mr. Singer by telephone. Ms. Takahashi participated in the hearing by telephone.

Issue 1: Mr. Singer's request to withdraw as the Applicant's representative

My letter of November 29, 2006 made the following observations about Mr. Singer's request for an order allowing him to withdraw as Ms. Paul's representative:

I was not prepared to make that order today because Mr. Singer's letter of November 28, 2006 [indicating his desire to withdraw] will not yet have reached the Applicant. However, in accordance with the Dispute Resolution Practice Code, I will presume that the Applicant has received that letter by or before Tuesday, December 5, 2006. Since Ms. Takahashi indicated that she will not oppose Mr. Singer's removal as the Applicant's representative, I will make the order requested by Mr. Singer on December 6, 2006 unless both he and the Applicant confirm on that date that they have re-established a solicitor-client relationship. If the Applicant wishes to retain the services of another representative, she must be prepared on December 6, 2006 to either provide the name and address of her new representative or explain the steps she has taken or will take to find a new representative.

Since neither Ms. Paul nor Mr. Singer participated in the hearing on December 6, 2006 and since Ms. Takahashi continued to be unopposed, I ruled, at the outset of the hearing, that Mr. Singer was permitted to withdraw as Ms. Paul's representative, effective immediately.

Issue 2: Ms. Paul's alleged failures or refusals to submit to insurer examinations

The insurer's right to refuse to pay benefits following an insured's failure or refusal to submit to insurer examinations

The first two alleged failures or refusals to submit to insurer examinations took place in December 2004 and the second two took place in September 2006. In between these two sets of alleged failures or refusals, the Schedule was amended as described below. Ms. Takahashi submitted that the amendments implemented substantive, as opposed to procedural, changes in the law and that, as a result, the law, as amended, could not be applied retroactively. I do not consider it necessary to deal with this argument. In my view, the amendments did not bring about any relevant change, substantive or procedural, in the law governing the present issue, namely, the insurer's right to refuse to pay caregiver, non-earner, attendant care or housekeeping benefits to an insured person who fails or refuses to submit to reasonable insurer examinations.

That right was established by subsections 42(1), (1.1), (2), (3), (5)(b), (8) and (9) of the Schedule as it read in December 2004; see Appendix 1. The same right was continued in subsections 42(1), (2) and 10(b), subsections 35(1), (10)(b) and (11), subsections 37(7) and (8), and subsections 39(13) and (14) of the Schedule as it read in September 2006: see Appendix 2.

I acknowledge that the later provisions are more specific about to the types of benefits to which they apply. However, I reject the suggestion made in a letter from Ms. Paul's representative that the earlier provisions could not apply to housekeeping and home maintenance claims because those claims related to "expenses" as opposed to "benefits".³ In my view, subsection 42(1.1) clearly indicated the type of "application[s]" or claims to which section 42 did not apply. Since subsection 42(1.1) made no reference to section 22, the section dealing with housekeeping and home maintenance claims, I find that the rights created by that version of section 42 also applied to Ms. Paul's claim for housekeeping and home maintenance expenses.

It is also important for the present case to note that section 42 has always been interpreted as requiring the insurer to notify the insured person of the benefit in respect of which the examination is requested. Indeed, a still earlier version of the section was explicit in that regard: see Appendix 3. But even when the section was amended to only require the notice to "state the reasons why the insurer requires the examination", in accordance with section 42(2) of the Schedule as it read in December 2004 (see Appendix 1), or to set out "the reasons for the examination", in accordance with section 42(4) of the Schedule as it read in September 2006, see Appendix 2, Arbitrators have continued to require insurers to identify the benefits in respect of which their examinations are requested.⁴

Attendant care benefits

Dominion's notice of the December 23 and 30, 2004 examinations identified attendant care benefits as one of the benefits in respect of which the examinations were requested⁵ and, in my view, this request was reasonable. Ms. Paul had, prior to the proposed dates for examination, sent Dominion both an application for attendant care benefits and a supporting Form 1⁶ but she had not yet been examined by a health professional of Dominion's choice. Dominion's choice of examiners and proposed method of examination were also appropriate in the circumstances: an in-home examination to be conducted on December 23, 2004 by an Occupational Health Nurse and a medical examination to be conducted on December 30, 2004 by an Orthopaedic Specialist to verify her alleged bony injuries. Dominion's notice of examination informed Ms. Paul that, in accordance with section 42(8) of the Schedule, her failure or refusal to submit to the examinations would affect her eligibility to receive benefits.⁷

Since Ms. Paul did not participate in the hearing, she did not provide her own explanation as to why she failed or refused to submit to these examinations. A telephone message received from Ms. Paul's representative on December 20, 2004 informed Dominion that Ms. Paul would not attend the examinations because "she has heard bad stories about insurer's assessors pushing people beyond their capabilities".⁸ In my view, this did not constitute a valid reason or a reasonable explanation for Ms. Paul's failure or refusal to submit to the proposed examinations. Moreover, it established that Ms. Paul's failure or refusal to submit to the examinations probably had nothing to do with her personal circumstances on the dates of the proposed examinations.

On December 31, 2004, Dominion sent Ms. Paul a letter advising that due to her failure or refusal to submit to the examinations, her benefits would be "stopped until such time as you submit to the insurer examinations". The letter gave Ms. Paul two additional pieces of information: first, that Dominion would pay the withheld benefits in the event she provided a reasonable explanation for her failure or refusal to submit, and second, that she could request that the examinations be rescheduled.⁹ According to the material before me, Ms. Paul never provided Dominion with any additional explanation for her failure or refusal to submit to the examination in December 2004. I, therefore, find that Ms. Paul became ineligible to receive attendant care benefits commencing on December 23, 2004.

By letter dated February 14, 2005, Dominion informed Ms. Paul's representative that it had decided to pay her attendant care benefits from August 1, 2004, the day after the accident, to December 22, 2004, the day before the stop payment took effect.¹⁰ While Ms. Paul continued to file claims for attendant care benefits until at least June 2005¹¹, she apparently gave no indication during this period that she was prepared to attend insurer examinations.

Then, in a letter dated July 10, 2005, her representative purported to impose conditions on her submitting to any insurer examinations, including that they be videotaped and that Ms. Paul be accompanied by her own physician. Dominion responded on October 26, 2005 that the Schedule did not contemplate any payment to an insured person's physician for attending an insurer's examination but it still offered to arrange for insurer examinations.¹² The material before me contained no response to this offer.

Finally, by letter dated April 28, 2006 to Ms. Takahashi, Ms. Paul's representative wrote: "she [Ms. Paul] appears to have calmed down now, and said that she would undergo assessment. I spoke with Lynn Shuryn to arrange but has not been arranged to my knowledge. Could you please arrange?".¹³

Dominion's response to Ms. Paul's new willingness to submit to insurer examinations was, in my view, unsatisfactory. In a letter to Ms. Paul's representative dated May 1, 2006, Ms. Shuryn wrote: "If Ms. Paul is now consenting to attend insurer Examinations, it will be with an assessor of the insurer's choice. Please advise what Ms. Paul's intentions may be."¹⁴ In her reply to Ms. Paul's representative, dated June 26, 2006, Ms. Takahashi took the same tack, observing that "Dominion is awaiting Ms. Paul's reply to Ms. Shuryn's letter of May 1, 2006 as to whether Ms. Paul will consent to now attend Insurer Examinations by Individuals of Dominion's choice."¹⁵ For undisclosed reasons, it was not until another two months later, by letter dated August 31, 2006, that Ms. Shuryn notified Ms. Paul that she was to be examined on September 13 and 20, 2006 in relation to her claim for, among other benefits, attendant care benefits.¹⁶

At paragraph 59 of my decision in Valle and Aviva Canada Inc.¹⁷, I wrote: "... once a claimant has indicated his or her willingness to attend a previously-refused examination, an insurer is not entitled to prolong the suspension by refusing or failing to reschedule the examination with reasonable dispatch." While Ms. Takahashi quoted this comment in her written submissions, neither those submissions nor Ms. Shuryn's Affidavit provided a valid explanation as to why it took Dominion almost five months to schedule Ms. Paul's new insurer examinations. There was certainly no reason to wait for Ms. Paul to agree that those examinations would be conducted by assessors of Dominion's choice. The law clearly gave Dominion that right and Ms. Paul's original refusals demonstrated that she had always understood this. Moreover, her representative's request that Dominion arrange the new examinations was a clear acknowledgement of Dominion's right to choose the assessors. In the absence of a valid explanation for the delay in arranging the new assessments, I find that Dominion failed to arrange them with reasonable dispatch.

Once the new assessments were arranged, Ms. Paul was properly notified and again warned that her failure or refusal to submit to them would affect her eligibility to benefits.¹⁸ Nevertheless, she effectively failed or refused to submit to these examinations by showing up late for both. On September 13, 2006, she appeared 45 minutes late for an assessment by an Orthopaedic Specialist who, since his appointment with Ms. Paul was his last of the day, had left before she arrived.

On September 20, 2006, she appeared at 2:00 p.m. for a psychological assessment that was to have commenced at 9:00 a.m. and ended at 4:00 p.m.¹⁹ Since Ms. Paul did not attend the hearing, she did not provide her own explanation as to why she was unable or unwilling to make these appointments on time. She did, however, finally make it to her rescheduled appointment with the Orthopaedic Specialist on October 19, 2006²⁰, the date on which Dominion accepts that its suspension of benefits came to an end.

In my view, Dominion is not entitled to an order that the suspension continued until October 19, 2006. That would ignore Dominion's own failure to arrange the new examinations with reasonable dispatch. I, therefore, find that the suspension of Ms. Paul's attendant care benefits ended on June 28, 2006, two months after she agreed to submit to new insurer examinations. The first month is intended to reflect the time needed to schedule the new examinations and the second month is intended to reflect the time needed to reschedule the new examinations following an assumed failure or refusal to submit to the first set.

Housekeeping and home maintenance

Dominion's notice of the December 23 and 30, 2004 examinations failed to specifically mention housekeeping and home maintenance as one of the benefits in respect of which the examinations were requested.²¹ It referred instead to "Part VI (Other Expenses)" without identifying any one or more of the four kinds of expenses payable under that Part of the Schedule. In view of its failure to specify the benefit in question, I find that Dominion is not entitled to an order in relation to housekeeping and home maintenance benefits by reason of Ms. Paul's failures or refusals to submit to the December examinations.

Dominion's notice of the September 2006 examinations did specify housekeeping and home maintenance as one of the benefits in respect of which the examinations were requested.²² Dominion is, therefore, entitled to an order suspending Ms. Paul's eligibility to housekeeping and home maintenance benefits by reason of her failure or refusal to submit to those examinations.

Since I have found that there was no prior suspension in effect, there is no issue here regarding Dominion's failure to reschedule examinations with reasonable dispatch. Accordingly, I find that this suspension commenced on September 13, 2006 and ended on October 19, 2006.

Non-earner and caregiver benefits

Dominion's notice of the December 23 and 30, 2004 examinations identified non-earner benefits as one of the benefits in respect of which the examinations were requested²³but, in my view, this request was not reasonable. Having been injured in an accident on July 31, 2004, Ms. Paul was not eligible to receive non-earner benefits pursuant to section 12(7)(a) of the Schedule until the end of January 2005. Ms. Shuryn's Affidavit attempted to justify the examinations in relation to this benefit on the ground that "the six month deductible period for non-earner benefits would soon run out."²⁴ However, the Affidavit did not indicate that Ms. Paul ever applied for non-earner benefits.²⁵

Section 12(7)(a) stipulates that the insured person must have suffered from a complete inability to carry on a normal life for 26 weeks before he or she is eligible to receive non-earner benefits. A dispute might, therefore, arise as to whether an insured person suffered from the required disability during the pre-eligibility period. Nevertheless, that dispute could not be addressed by way of an insurer examination until the insured person actually claimed the benefit. This is made clear by the opening words of section 42(1) as it read in December 2004, and as it continues to read: "For the purpose of determining whether an insured person is entitled to a benefit for which an application is made ..."

(my emphasis). The evidence before me in this case did not establish that Ms. Paul ever applied for non-earner benefits.

As for caregiver benefits, Dominion's notice of the December 2004 examinations did not identify that benefit as one of the benefits in respect of which the examinations were requested.²⁶ Dominion is not, for that reason alone, entitled to an order in relation to caregiver benefits by reason of her failures or refusals to submit to those examinations. In addition, however, Ms. Shuryn's Affidavit stated that Ms. Paul did not claim caregiver benefits until February 2005.²⁷ Dominion was not, therefore, entitled to examine her under section 42(1) in relation to caregiver benefits in December 2004.

Dominion's notice of the September 2006 examinations identified caregiver benefits as one of the benefits in respect of which the examinations were requested but it made no reference to non-earner benefits.²⁸ However, Dominion had been aware since at least February 2005, when it received her claim for caregiver benefits, that Ms. Paul may have qualified for both benefits. Indeed, it had attempted to examine her in relation to both benefits, non-earner benefits in December 2004 and caregiver benefits in September 2006. Moreover, it sought an order declaring her ineligible to both benefits from December 23, 2004. In my view, Dominion was not entitled to examine Ms. Paul in September 2006 in relation to either benefit without putting her to the election required by section 36 of the Schedule which reads as follows:

36(1) Only one of the following benefits may be paid to a person in respect of a period of time:

1. An income replacement benefit.

2. A non-earner benefit.

3. A caregiver benefit.

(2) If a person's application indicates that he or she may qualify for more than one of the benefits referred to in subsection (1), the insurer shall notify the person that he or she must elect within 30 days after receiving the notice which benefit he or she wishes to receive.

(3) The insurer shall deliver the notice under subsection (2) within 10 business days after receiving the person's application.

There is no evidence before me that Dominion put Ms. Paul to the election required by this section. Accordingly, I find that even if the notice of the September examinations had referred to one, the other or both non-earner and caregiver benefits, Dominion would still not have been entitled to an order in relation to either benefit by reason of Ms. Paul's failures or refusals to submit to those examinations.

EXPENSES

Dominion has been partly successful in this Preliminary Issue Hearing and is entitled to expenses which I fix at $1,000. I award Dominion nothing for expenses thrown away since, in my view, the adjournment to December 6, 2006 did not result in any wasted expenses. On the contrary, it gave Ms. Takashashi the time to set out the specific orders she sought and it gave the Commission the time to put Ms. Paul on notice that those orders that might be made against her.

February 7, 2007

David Leitch Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 21

FSCO A05-002302

BETWEEN:

ISABELITA PAUL

Applicant

and

DOMINION OF CANADA GENERAL 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:

1. Mr. Singer is permitted to withdraw as Ms. Paul's representative effective December 6, 2006.

2. Ms. Paul is not eligible to receive attendant care benefits for the period commencing December 23, 2004 and ending on June 28, 2006 and is not eligible to receive housekeeping benefits for the period commencing on September 13, 2006 and ending on October 19, 2006.

3. Dominion is entitled to expenses in relation to this Preliminary Issue Hearing in the amount of $1,000.

David Leitch Arbitrator

Date

APPENDIX 1:

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.

(1.1) Subsection (1) does not apply in respect of an application,

(a) for a benefit that is subject to section 37.1 or 37.2;

(b) for a funeral benefit or death benefit; or

(c) for a medical or rehabilitation benefit under section 14 or 15 unless the claim for the benefit is the subject of proceedings under sections 279 to 284 of the Act.

(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.

(5) For the purpose of the examination,

(a) the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5), (a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5); and

(b) no benefit is payable for the period after the person has failed to attend the examination or failed to comply with subsection (5) and before the insured person submits to an examination under subsection (1) and complies with subsection (5).

(9) If a person subsequently submits to an examination under subsection (1) or complies with subsection (5), the insurer,

(a) shall resume payment of the benefit; and

(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not attending the examination or not complying with subsection (5).

APPENDIX 2:

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.

(2) Subsection (1) does not apply with respect to,

(a) a benefit to which section 37.1 applies, other than an amount claimed for ancillary goods or services referred to in section 37.2; or

(b) a funeral benefit or death benefit.

(10) For the purposes of the examination,

(b) if the attendance of the insured person is required at the examination, the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.

35(1) In this section and section 37,

"specified benefit" means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 22.

(10) If the insured person fails or refuses to comply with subsection 42(10), the insurer,

(b) may refuse to pay specified benefits relating to the period after the insured person failed or refused to comply with subsection 42(10) and before the insured person submits to the examination or provides the material required by that subsection.

(11) If the insured person subsequently complies with subsection 42(10), the insurer shall,

(a) reconsider the application and make a new determination under this section; and

(b) pay all amounts, if any, that were withheld during the period of non-compliance, if the insurer determines that the insured person is entitled to any specified benefits and the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with subsection 42(10).

37(7) If the insured person fails or refuses to comply with subsection 42(10), the insurer may,

(a) make a determination that the insured person is no longer entitled to the specified benefit; and

(b) despite subsection (9), refuse to pay specified benefits relating to the period after the insured person failed or refused to comply with subsection 42(10) and before the insured person submits to the examination or provides the material required under that subsection.

(8) If the insured person subsequently complies with subsection 42(10), the insurer shall,

(a) reconsider the insured person's entitlement to the specified benefit and make a determination;

(b) subject to the insurer's determination, resume payment of the specified benefit; and

(c) pay all amounts, if any, that were withheld during the period of non-compliance if the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with subsection 42(10).

(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.

Attendant Care Benefit

39(13) If an insured person fails or refuses to comply with subsection 42(10), the insurer may,

(a) make a determination that the insured person is not entitled to attendant care benefits; and

(b) refuse to pay attendant care benefits relating to the period after the person failed or refused to comply with subsection 42(10) and before the insured person submits to the examination and provides the material required by subsection 42(10).

(14) If an insured person subsequently complies with subsection 42(10), the insurer shall,

(a) reconsider the application and make a determination under this section;

(b) subject to the new determination, resume payment of attendant care benefits; and

(c) pay all amounts, if any, that were withheld during the period of non-compliance, if the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with subsection 42(10).

APPENDIX 3:

42(1) For the purpose of determining whether an insured person is entitled to a benefit, except a funeral or death benefit, an insurer may give the insured person notice requiring him or her 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 benefit to which the examination relates.

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

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of examination.

(5) For the purpose of the examination,

(a) the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.

(6) The person or persons who conduct the examination shall prepare a report and provide a copy of the report to the insurer.

(7) An insurer that receives a report under subsection (6) shall provide the insured person with a copy of the report within seven days.

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5),

(a) the insurer may stop payment of the benefit relatred to the examination until the person submits to the examination or complies with subsection (5) after which time the insurer shall resume payment of the benefit; and

(b) no benefit is payable for the period after the giving of the notice under subsection (1) or the failure to comply with subsection (5) and before the insured person submits to the examination and complies with subsection (5).

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended, made under the authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended.
2. 2My letter of November 29, 2006 and the Notice of Resumption of Preliminary Issue Hearing incorrectly indicated that the date of one of the insurer examinations was December 20, 2004 rather than the correct date of December 30, 2004. In my view, this minor error did affect the validity of the notice given to Ms. Paul.
3. 3Affidavit of Lynn Shuryn, Tab X.
4. 4Robinson and ING Insurance Company of Canada, FSCO A03-00623, February 9, 2004, Ramalingam and State Farm Mutual Automobile Insurance Company, FSCO A02-001646, December 17, 2004, Shirkhodaei and State Farm Mutual Automobile Insurance Company, A04-000523, February 21, 2005.
5. 5Affidavit of Lynn Shuryn, Tab K. The notice also referred to medical and rehabilitation benefits but entitlement to those kinds of benefits was not at issue before me.
6. 6Affidavit of Lynn Shuryn, Tabs L and M.
7. 7Affidavit of Lynn Shuryn, Tabs J and K.
8. 8Affidavit of Lynn Shuryn, Tab C.
9. 9Affidavit of Lynn Shuryn, Tab O.
10. 10Affidavit of Lynn Shuryn, Tab S.
11. 11Affidavit of Lynn Shuryn, Tab Z.
12. 12Affidavit of Lynn Shuryn, Tab FF.
13. 13Affidavit of Lynn Shuryn, Tab II.
14. 14Affidavit of Lynn Shuryn, Tab JJ.
15. 15Affidavit of Lynn Shuryn, Tab KK.
16. 16Affidavit of Lynn Shuryn, Tab LL.
17. 17(FSCO A04-000773, August 30, 2005)
18. 18Affidavit of Lynn Shuryn, Tab LL. The warning erroneously referred to section 42(8) of the Schedule but, as noted above, by September 2006, the insurer's right to stop paying attendant care benefits for failure or refusal to submit had been moved to section 39(13) of the Schedule. In my view, this error did not affect the validity of the notice.
19. 19Affidavit of Lynn Shuryn, Tab OO.
20. 20Affidavit of Lynn Shuryn, Tab PP.
21. 21Affidavit of Lynn Shuryn, Tab K.
22. 22Affidavit of Lynn Shuryn, Tab LL.
23. 23Affidavit of Lynn Shuryn, Tab K. The notice also referred to medical and rehabilitation benefits but entitlement to those kinds of benefits was not at issue before me.
24. 24Affidavit of Lynn Shuryn, paragraph 17.
25. 25The Affidavit did not refer to or attach Ms. Paul's Application for Benefits and did not establish whether that Application was received before or after the notice of the December examinations was sent out.
26. 26Affidavit of Lynn Shuryn, Tab K.
27. 27Affidavit of Lynn Shuryn, paragraph 25.
28. 28Affidavit of Lynn Shuryn, Tab LL.