Jeyapalan Subramaniam v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 335

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 335

FSCO A14-008987

BETWEEN:

JEYAPALAN SUBRAMANIAM Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Isabel Stramwasser

Heard: January 19, 2016, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions received on July 11, 2016.

Appearances: David S. Wilson for Jeyapalan Subramaniam J. Claude Blouin for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Jeyapalan Subramaniam, was injured in a motor vehicle accident on January 22, 2008. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company, payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The disputes went to mediation and, when the parties were unable to resolve them, Mr. Subramaniam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

In part, Mr. Subramaniam’s arbitration seeks payment of the sum of $126,673.00 for home modifications, pursuant to a treatment plan by Carol Kelly, occupational therapist, dated June 2014. In considering the reasonableness and necessity of these modifications, Wawanesa seeks to have Mr. Subramaniam assessed by an orthopaedic surgeon and an occupational therapist. While Mr. Subramaniam agrees to attend the assessment by the occupational therapist, he refuses to attend the one by the orthopaedic surgeon. As a result, Wawanesa brings this preliminary issue motion to preclude Mr. Subramaniam from proceeding to arbitration.

The issue I must decide is the following:

1. Is Mr. Subramaniam precluded from proceeding to arbitration under subsection 55(2) of the Schedule on the ground that he unreasonably refused to attend an insurer’s examination?

Result:

1. Mr. Subramaniam’s arbitration is adjourned under subsection 55(2) of the Schedule until such time as he attends the orthopaedic assessment that was requested in Wawanesa’s notice of August 8, 2014.

REASONS:

What is Wawanesa’s burden of proof at this preliminary issue hearing?

Under subsection 55(2) of the Schedule, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, an individual may not go to mediation if he or she does not comply with section 44, after an insurance company gives proper notice of a medical examination. Mediation is a prerequisite for arbitration.³ As a result, a person may not go to arbitration if he or she receives proper notice of an exam and does not comply with it:

55. An insured person shall not commence a mediation proceeding under section 280 of the Act if any of the following circumstances exist:

56. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

Proper notice of a medical examination means that the notice meets six procedural requirements. Under subsection 44(5), the notice must include:

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession 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 44(6) adds a fifth requirement: the insurer shall give the required notice not less than five business days before the examination, unless the insured person and the insurer agree otherwise.

Lastly, subsection 44(9)2(i) provides a sixth requirement for proper notice. The insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured.

Proper notice also requires that the requested examination be reasonable. Section 44(1) of the Schedule provides that the examination must be for the purposes of assisting an insurer to assess entitlement to a benefit. In addition, medical exams may not be conducted more often than is reasonably necessary:

44(1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

The insured person’s obligations to comply are set out under subsections 44(9)2(ii) and (iii). An insured person (together with the insurer) must provide relevant information and documents to the medical examiner at least five days before the examination. Also, the insured must attend the examination and submit to reasonable assessments. There is no question that Mr. Subramaniam did not comply