The recent FSCO decision in Quinones v. Unifund, (FSCO A12-000866, August 2, 2013), discusses the obligations placed on Insurers under s. 44(5) of the Statutory Accident Benefits Schedule (“the Schedule”) with regard to scheduling an Insurer’s Examination. The decision highlights the fact that unless an Insurer complies with the requirements set out in s. 44, an Insurer will not be able to penalize an Insured for failing to attend an Insurer’s Examination.
In this case, Unifund argued that Ms. Quinones was prohibited from proceeding to Arbitration pursuant to s. 55(2) of the Schedule because she failed to comply with s. 44 of the Schedule by failing to attend a scheduled Insurer’s Examination.
The Insurer had notified Ms. Quinones that it required her to undergo an Insurer Examination to determine her eligibility to receive attendant care and housekeeping benefits. In the first Notice of Examination sent by the Insurer, the location where the examination was to take place was not provided and the Notice of Examination did not state the name of the person who would conduct the examination.
In two subsequent Notices of Examinations, the name of the person who would conduct the examination was provided; however, she was only referred to as an “OT”. The Notice did not specifically state that the assessor was an “occupational therapist”.
Subsequently, when the occupational therapist attended at Ms. Quinones home to conduct the Insurer’s Examination, Ms. Quinones was not at home and the assessment was not completed. As Ms. Quinones failed to attend the examination, the Insurer brought a preliminary motion at FSCO for an Order that the Arbitration hearing be stayed pending Ms. Quinones attendance at an Insurer’s Examination.
Ms. Quinones however argued that the Insurer did not comply with the requirements of s. 44(5) of the Schedule, which requires, among other things, that the Insurer advise the Insured of the medical and any other reasons for the examination and 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.
Arbitrator Murray found that in this case, the Insurer’s Notices of Examination stated that the assessor was an “OT”. However, Arbitrator Murray noted that an “OT” is not a health professional within the meaning of the Regulated Health Professions Act. As such, Unifund’s Notices of Examination did not set out the regulated health profession to which the assessor belonged. Arbitrator Murray reiterated that Insurers must “explicitly and unambiguously advise” Insureds in “straightforward and clear language, directed towards an unsophisticated person,” of the information set out in s. 44(5) of the Schedule. According to Arbitrator Murray, an unsophisticated person may not know what an “OT” is.
As such, Arbitrator Murray found that Unifund’s Notices of Examination were confusing and noted that:
Requiring an Applicant to piece together information from scattered documents "is contrary to Smith"and Arbitrators have rejected the piecemeal approach.
Therefore, as Unifund had failed to provide all the particulars required by s. 44(5) of the Schedule, it was not entitled to an Order prohibiting the Applicant from proceeding to Arbitration based on her failure to attend an Insurer’s Examination.
 Smith v. Co-Operators General Insurance Co,  2 S.C.R. 129.