December 11, 2015

Literally – A Matter of Interpretation, But More Importantly, It’s a Matter of Proper Notice

Li and Deng v. State Farm, (FSCO A113-002953 & A13-002954) Arbitrator Schnapp.

 

Sue Noorloos

Sue Noorloos

The issue at the hearing was whether the Applicants were precluded from mediating pursuant to section 55.2 of the Schedule for refusing to undergo Insurer Examinations (IE) under section 44 of the Schedule.

State Farm argued the Applicants were precluded.  It scheduled multiple IE’s. The Applicants refused to attend the examinations because a MAG (Ministry of the Attorney General) accredited interpreter was not provided. State Farm arranged for a professional Cantonese interpreter to attend but the Applicants held fast, demanding a MAG accredited interpreter.  When the Applicants failed to show, State Farm refused to pay.

The Applicants agreed they insisted on a MAG-certified interpreter, but gave a valid reason for refusing to attend. State Farm’s over-generalized notice provisions were inadequate.  State Farm failed to set out which benefits were to be assessed and did not provide a medical or other reason for the examination. The letter failed to identify specific benefits under review. It did not accurately distinguish whether the assessment was to establish entitlement to a denied benefit or ongoing entitlement. The letter was not accurate nor clear.

Findings and Conclusion

Arbitrator Schnapp found there is no requirement for a MAG-certified interpreter to be present for several reasons:

1.  There is no explicit legislative requirement;
2.  The insurer offered a number of interpreters qualified and available to interpret;
3.  The Applicant had utilized the services of other Cantonese speakers during other medical examinations who had no obvious accreditation at all;
4.  There was no evidence to show the Applicants could not have understood; and
5.  Where an Applicant fails to attend even one IE to determine whether the interpreter was capable of assisting, the Applicant is not in a position to argue that the interpreter was not competent.

However, Arbitrator Schnapp agreed State Farm’s notice was vague and did not meet the legislative requirements. Relying on Augustin and Unifund Assurance Company,  an insured is “entitled to specific information, including medical reasons, about why they are being required to attend an IE.” Accordingly, the Applicants could mediate the dispute.

Application

The sufficiency of the notice of examination is always relevant as mandated by section 44(5) of the Schedule.  Where an insurer fails to provide the required “medical and other reasons for the examination”, the Insurer may not rely on section 55 and take the position that an Applicant is precluded from mediating the claim.

Now, assuming the notice is clear, the precision of translation of the dialogue between the  assessor and injured party seems to be much less important.

 

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