Neutral Citation: 1992 ONICDRG 35

File No. A-001116

ONTARIO INSURANCE COMMISSION

BETWEEN:

PATRICIA SCOTT

Applicant

and

TORONTO TRANSIT COMMISSION (MARKEL INSURANCE)

Insurer

PRELIMINARY MOTION

Issues:

The Applicant, Patricia Scott, was injured in a motor vehicle accident on June 14, 1991. She applied for and received accident benefits payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), enacted under the Ontario Insurance Act, R.S.O. 1990, c. 1.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule.

The Applicant received weekly disability benefits under the policy until December 6, 1991. The Insurer required her to attend two medical examinations, one, an orthopaedic examination on December 11, 1991, and the other, a psychiatric examination, on December 13, 1991. The Insurer terminated benefits when the Applicant did not attend these appointments.

The issue to be determined at this preliminary hearing is whether the two medical examinations were reasonably required by the Insurer, pursuant to the provisions of s. 23(2) of the No-Fault Benefits Schedule.

A hearing on any further issues arising in this case has been postponed until this decision is rendered.

Result:

The decision is:

1. The Insurer reasonably required an orthopaedic examination of the Applicant on December 11, 1991, under s. 23(2) of the No-Fault Benefits Schedule. The Applicant failed to attend that examination, without reasonable justification.

2. The Insurer reasonably required a psychiatric examination of the Applicant on December 13, 1991, under s. 23(2) of the No-Fault Benefits Schedule. The Applicant failed to attend that examination, without reasonable justification.

3. The Applicant is entitled to her expenses reasonably incurred in respect to the arbitration as prescribed under Ontario Regulation 275/90.

Hearing:

A hearing was held on this issue at North York, Ontario, on August 4, 1992, before me, Susan Naylor, arbitrator.

Present at the hearing were:

Applicant:

Patricia Scott

Applicant's

David Wilson

Representative:

Barrister & Solicitor

Insurer:

Represented by:

Garry Leary

Claims Adjuster

Paul Ballantine

Claims Supervisor

Insurer's

Robert Zigler, Solicitor

Representative:

Toronto Transit Commission

The following gave oral evidence under oath at the hearing:

Witnesses:

The Applicant

Garry Leary

Paul Ballantine

Exhibits:

The following documents were marked as Exhibits to the hearing:

Exhibit 1

Document Brief provided by the Insurer

Exhibit 2

Three medical reports filed on behalf of the Applicant:

• Report from Dr. Abraham Cohen dated July 7, 1992

• Report from Dr. Abraham Cohen, dated June 30, 1992

• Report from Dr. Hans J. Arndt, dated July 21, 1992

The following documents were before the arbitrator, but not marked as Exhibits:

Assessment of Claim by Insurer, dated December 1, 1991

Application for Appointment of an Arbitrator in Form 4, dated April 25, 1992

Response by Insurer, Form 5, dated May 14, 1992

Reply by Insured Person, Form 6, dated May 27, 1992

Amended Report of Mediator, dated March 23, 1992

Pre-hearing letter by Janice Mackintosh, Arbitrator, dated July 3, 1992

Letter from Susan Naylor, Arbitrator, dated July 13, 1992

Evidence:

By agreement of the parties, the Insurer introduced its evidence first.

The Testimony of Mr. Garry Leary, claims adjuster:

Mr. Garry Leary testified at the proceeding. He is a claims adjuster with the Toronto Transit Commission (the "T.T.C."), and has worked as such for about seven years. He was responsible for handling the Applicant's claim.

The first notice he received of this claim was a letter from the Applicant's lawyer, Mr. David Wilson, dated July 19, 1991. This letter is contained at Tab 1 of Exhibit 1. The letter states that the Applicant was a passenger on a T.T.C. bus on June 14, and hit her back, injuring herself, when the bus stopped suddenly. The letter states:

"as your records may indicate, my client has two previous accidents with the TTC, which occurred on June 5, 1987 and September 23, 1989, which matters are currently being handled by your Mr. Hammond. She is presently suffering from a chronic pain disorder and owing to her substantial depression, failed to report this matter previously to your office."

Mr. Leary investigated the accident. He met with the Applicant and her lawyer a week later. However, Mr. Wilson would not allow him to discuss his client's activities before or after the accident. Mr. Leary prepared a memorandum of the meeting, contained in Tab 2 of Exhibit 1.

The Applicant subsequently filed an application for accident benefits, dated September 6, 1991, which is contained at Tab 7 of Exhibit 1. It states that the Applicant fell and suffered injury as a result of improper start-up and stopping of the bus. The question: "Do you suffer a substantial inability to perform the essential tasks in which you would normally engage?", was answered "Yes. Psychological status and pain caused said inability".

A standard-form medical report (Form 4) was attached to the application, from Dr. Abraham Cohen, the Applicant's family physician. The report contains no reference to the accident. Under his physical and mental findings, Dr. Cohen indicates:

neurodermatitis

depression

chronic back

The form lists depression under the heading "other psychological/ psychiatric limitations".

"When did symptoms first appear?"

June 1987

"Have you treated this patient for the same or similar condition prior to the accident (including pre-existing conditions which may be exacerbated by the current injury)?" Yes - June 1987 through the present

Dr. Cohen's primary diagnosis is chronic pain, with depression as the secondary diagnosis. His proposed treatment plan consists of a consultation with a pain clinic and a psychological consultation. No further investigations, medication or physiotherapy are planned.

On the basis of this report, and a subsequent letter from the Applicant's lawyer providing details of her disabilities (Tab 10), disability benefits were paid "on a without prejudice" basis, "in what we (the Insurer) believe to be the spirit of the No-Fault Legislation" (Tab 9). These benefits continued until December 6, 1991.

On October 22, 1991, the Insurer asked for medical authorizations from the Applicant to permit it to communicate directly with the rehabilitation centre that she was attending, and with Dr. Cohen "in order to clarify his report of August 26, 1991" (Tab 14). The letter stated that further consideration would be given to the Applicant's claim, on receipt of the authorizations.

Mr. Leary was not given the authorizations he requested. Mr. Wilson's reasons are set out in his letter of November 4, 1991 (Tab 15). The letter indicates that Mr. Wilson did not think that the Insurer had the authority to require the authorization, and asked for clarification of the request. He expressed a concern that the information obtained might be used in the Applicant's other actions with the T.T.C. The letter states that:

if you have specific questions that you would like to direct to Dr. Cohen in order to clarify his report, please provide me with the same and I shall endeavour to obtain the answers for you.

Mr. Leary responded by letter dated November 8, 1991 (Tab 16). He confirmed that the information requested was strictly for use in respect to the Applicant's claim for no-fault benefits. Citing the regulations as requiring completion of the accident benefits claim form package, approved by the Ontario Insurance Commission, he stated that:

The waivers (both medical and employment) are provided as part of the package and must be completed to entitle the Insured to benefits.

The letter stated that if the Applicant did not complete the medical authorization, the Insurer would have "little alternative" but to terminate the Applicant's benefits.

Mr. Wilson's reply (Tab 17) repeated his objections and stated:

"Please note that I am not simply relying on my client's technical rights. I have found in the past that unless the doctors are required to commit a position in writing, their busy schedule often results in their confusing one patient with another and statements given orally or in a hasty manner are often entirely inaccurate.

On December 2, 1991, Mr. Leary wrote to Mr. Wilson (Tab 18). He requested production of the medical-legal reports in his possession relating to the prior actions, "as you have denied us these medical waivers". He also told him that the Insurer had arranged two independent medical examinations of the Applicant "to assess the benefits due" to her. The first appointment was for December 11, 1991, with Dr. John Zeldin, an orthopaedic specialist. The second appointment was scheduled for December 13, 1991, with Dr. Sherry Zener, a psychiatrist. The instructions to these doctors are contained in Tabs 20 and 21.

Mr. Leary gave two reasons why these two appointments were arranged: because the Applicant refused to sign the waivers and because Dr. Cohen's initial medical certificate was ambiguous, and the Insurer wanted to clarify it.

Mr. Leary was cross-examined extensively on his reasons. He confirmed he had made the request for the medical authorization, in the belief that the Insurer had the right to require it, and that it was part of the claims process. He conceded that, if this assumption were wrong, he was partially proceeding on an erroneous assumption.

The second reason that he arranged the two examinations was that Dr. Cohen's report was ambiguous as regards the relationship of the Applicant's reported symptoms to the accident. Two specialists were necessary to assess the Applicant's condition because her application referred to both physical and psychological injuries. Moreover, six months had elapsed since the accident.

He agreed that, from reading Dr. Cohen's medical report, it was not possible to tell, one way or the other, whether the Applicant's problems were physically based, or psychologically based - "you just don't know".

He agreed that an orthopaedic examination might be one way of assessing the physical findings and resolving the problem of determining the source of disability. If the physical findings of the orthopaedic examination justified the disability, a psychiatric examination would not be necessary. However, Mr. Leary thought that the Insurer would still be entitled to the psychiatric examination. It would depend on the circumstances - one circumstance being, as here, an indication of pre-existing depression.

Mr. Leary stated that he did not know what was involved in a psychiatric examination. He did not consider whether the Applicant might suffer from being required to attend one. He agreed that it could be stressful, and that trust between a psychiatrist and client might take time to build up.

Mr. Leary testified that he spoke to Mr. Wilson by telephone on December 3, 1991. His memorandum of the conversation is contained in Tab 19, and Mr. Wilson's letter confirming the discussion is at Tab 20. Mr. Wilson expressed two concerns about the appointments - the fact that two appointments had been made, and the use of the reports in the other third-party actions involving the T.T.C. Mr. Wilson wanted an opportunity to discuss this latter question with the T.T.C.'s legal counsel, Mr. Hammond, with a view to "hopefully coming to an agreement with respect to the same".

Mr. Wilson subsequently wrote to Mr. Leary, indicating that he had not been able to contact Mr. Hammond to discuss his concerns, despite making several calls to his office. Therefore, the Applicant would not be attending the scheduled appointments. (Tab 22)

In his testimony, Mr. Leary emphasized that he had no access to the T.T.C.'s third-party files in respect to the other tort actions, and that the no-fault files were kept strictly separate. Mr. Hammond correspondingly had no access to his files.

Medical Evidence:

Counsel for the Applicant introduced medical reports from Dr. Cohen, the Applicant's family doctor, dated June 30 and July 7, 1992 and from Dr. Arndt, the Applicant's psychiatrist, dated July 21, 1992, in support of his contention that the two medical examinations were unreasonable. These are marked as Exhibit 2.

Counsel for the Insurer objected to the admission of these reports on the basis that it had been given insufficient time to arrange for its own medical expert, and that it had been provided with no medical information with which to evaluate these reports. If the reports were to be admitted, he requested an adjournment and the production of the Applicant's medical records.

The reports were admitted for the sole purpose of the issue in this proceeding, and subject to a right of the Insurer to cross-examine Dr. Arndt on his report. At the end of the hearing, the Insurer indicated that it did not intend to call Dr. Arndt.

The report of Dr. Arndt dated July 21, 1992 addressed the reasonableness of a request for "yet another psychiatric assessment on behalf of the T.T.C." on December 13, 1991. Dr. Arndt has been the Applicant's treating psychiatrist since December 1989. Dr. Arndt stated that he did not see the Applicant in December 1991, but recommended that she be re-admitted to the psychiatric unit at Northwestern General Hospital on January 6, 1992, because of her poor psychological condition.

Dr. Arndt stated that:

"Clearly, the proposed assessment .... would have just added more stress to this already very taxed patient."

The fact that it was Christmas, an emotionally difficult time, added to the stress. For these reasons, Dr. Arndt stated that it was unreasonable to require the Applicant to attend an assessment in December 1991.

Mr. Leary stated that he was not aware that Dr. Arndt or any other psychiatrist was treating the Applicant in the Fall of 1991. He did not receive a copy of Dr. Arndt's letter until shortly before the hearing. Had he received Dr. Arndt's report earlier, he might have reconsidered the request for a psychiatric examination. He did not request that the Applicant's attending psychiatrist provide a report, directly or through Mr. Wilson, nor did he request any information as to whether the proposed examination would impact negatively upon the Applicant, because he had no information to suggest the same.

He agreed that in circumstances where a person could not attend a medical examination for physical or psychiatric reasons, a second examination could be arranged. He stated that he had never referred anyone for a psychiatric examination before this.

The Testimony of Mr. Paul Ballantine, Claims Supervisor:

Mr. Paul Ballantine also testified on behalf of the Insurer. He is a claims supervisor with the T.T.C, and is responsible for assigning and generally supervising the direction of the files.

He stated that he was familiar with the file, and had assigned the file to Mr. Leary after he received Mr. Wilson's letter at Tab 1. He discussed it with Mr. Leary periodically, before decisions were made. Mr. Ballantine stated that he was involved in the decision to send the Applicant to two medical examinations and gave his reasons for the two appointments. He was concerned because the notice of claim and medical report indicated that the Applicant's symptoms pre-dated the accident. The Insurer could not tell whether the Applicant's injuries arose out of this accident, or the extent to which she was disabled by them. He felt that both the physical and psychological components should be examined and that this would give the Insurer a better understanding of the claim.

On cross-examination, Mr. Ballantine acknowledged that he was aware of medical reports that showed that a person could suffer depression as a result of persistent pain. It was not possible to tell from Dr. Cohen's report whether the Applicant's complaints had a physical or psychological basis. The Applicant might be disabled by either or both.

Mr. Ballantine was also concerned because the Insurer could obtain information directly from the treating physician. He felt that the waiver form formed part of the application package, and part of the claimant's obligations.

He considered that the six-month period that had elapsed since the accident was a relevant factor in considering the need for a medical examination.

Mr. Ballantine confirmed Mr. Leary's testimony that the no-fault and tort claims were kept strictly separate and confidential within the T.T.C. Mr. Ballantine stated that Mr. Wilson had never advised the Insurer that the Applicant was unable to attend the appointments for health reasons. The Insurer was unaware that the Applicant was seeing a psychiatrist at the time.

Mr. Ballantine acknowledged that the appointment that had been made for a psychiatric examination might be unreasonable in retrospect in light of Dr. Arndt's findings. He stated emphatically that he would have most definitely taken the report into account had it been available to him.

The Applicant's Testimony:

The Applicant, Ms. Patricia Scott, gave evidence under oath. She is 38 years old, and came to Canada from Jamaica nineteen years ago. She has worked as a nurse's aide.

She has been involved in several motor vehicle accidents. The first accident was in June 1987, and caused her to miss work for two years. She was involved in a second accident in September 1989, and returned to work after a month's absence. She stopped work in the fall of 1990, because of pain and the pressure of travelling to work. She has not worked since then.

Her family doctor is Dr. Cohen. Dr. Arndt has been her psychiatrist since late 1989. She has also seen several other psychiatrists. She started seeing Dr. Arndt because she was feeling pain and was depressed. Her depression started after the first accident, but her problems got worse after the second accident. She was admitted to the in-patient department at the psychiatric unit of Northwestern General Hospital in December 1990, under the care of Dr. Rosenblatt. After the third accident in 1991, she was much more depressed than before.

She testified that this accident affected her physically and emotionally.

She suffered from headaches, numbness, and spasms in her back. Her lower back was very painful. She was very distraught, confused and very depressed. She had difficulty doing the things she did before. In December 1991, her physical condition had worsened. Her psychological condition had also deteriorated. She became suicidal and threatened her son. She was afraid to be by herself. She had nightmares and could not return to sleep after waking. In January 1992, she was re-admitted to Northwestern Hospital, on Dr. Arndt's recommendation.

She testified that she continues to see Dr. Arndt, and the development of confidence and trust in him is important.

She recalled that she saw a psychiatrist, Dr. Mallison, in June 1991 at the request of the insurance company. This was in connection with her previous claims. She was unhappy to learn that he was a psychiatrist because she thought she was being referred to a doctor to relieve her physical problems. She was very uncomfortable and felt that she could not trust him.

The Applicant testified that she was aware that the insurance company wanted her to go for a psychiatric assessment in December 1991. She testified that she could not have gone to another psychiatrist at that time. She did not like being required to answer the personal questions involved. She did not think the doctors had a right to know those things. She did not understand what the questions had to do with her having "all this pain".

The Applicant was asked whether she had been referred to an orthopaedic specialist. She said that she thought that she had seen several orthopaedic specialists following the second accident, but could not remember the specifics.

The Applicant gave testimony about the medical and rehabilitation treatment she received before and after the accident. She stated that she cannot afford to get any treatment now, and she is unable to help herself. Her problem keeps getting worse. She sees no way out. Her biggest problem is dealing with all the pain that she experiences. She never knew what depression was, until she started experiencing this pain.

Submissions of Counsel:

Counsel for the Insurer:

The Insurer's counsel submitted that the requirement of a medical examination was authorized by the regulations, provided it fell within the "range of reasonableness" under section 23(2).

He submitted that the Applicant's claim was complex as it involved psychological and physical problems.

Counsel for the Applicant submitted that, to properly investigate the claim, it was reasonable to request a medical authorization endorsed by the Ontario Insurance Commission.

While it was open to the insured to refuse to sign the authorization, the insurer was entitled to verify the disability through an independent medical examination.

He submitted that the counsel for the Applicant was only concerned about the use of the medical-legal reports in the other third-party claims, and refused to have his client attend the examinations for tactical reasons.

He questioned the weight to be attributed to Dr. Arndt's report.

Counsel for the Applicant:

Counsel for the Applicant submitted that the arbitrator was entitled to examine the reasons given by the Insurer for a request for a medical examination. He submitted that insurance companies were not authorized to require a medical waiver to allow them to directly contact an applicant's treating physician, and that no adverse consequences should flow from a refusal to comply with an unauthorized request. He submitted that the Insurer should have arranged the orthopaedic examination before scheduling a psychiatric examination.

He submitted that Mr. Leary, on several occasions in his testimony, had taken positions that were unreasonable.

Mr. Wilson submitted that the evidence did not show that he had refused to allow his client to attend the examinations unless he received an undertaking that the reports would not be used in the tort actions. He had a reasonable concern that he wanted to discuss.

He submitted that there was no information to contradict the report of Dr. Arndt that the Applicant was not fit to attend the psychiatric examination.

Findings:

The sole issue before me is whether the Insurer in this case was entitled to require the Applicant to attend two medical examinations; one, an orthopaedic examination scheduled for December 11, 1991, and the other a psychiatric examination scheduled for December 13, 1991.

Section 23(2) of the No-Fault Benefits Schedule states that:

In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

(emphasis added)

It was not disputed that the Applicant received reasonable notice of the medical appointments. The question is whether the Insurer reasonably required the two appointments.

Periodic benefit payments are payable under Part IV of the No-Fault Benefits Schedule. These are intended to provide a stream of income to persons injured in automobile accidents during periods of disability. The scheme is designed to pay benefits promptly, regularly and with a minimum of formality.

Under the regulations, a claim for disability benefits is initiated by completion of a standard-form application for no-fault benefits. Benefits must be paid within 10 days of this (s. 24(2)).

In order to verify an applicant's medical condition, the applicant must, in addition, provide a standard-form medical certificate signed by a specified health professional of his or her choice. It is open to the insurance company to waive this requirement. The certificate sets out "the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident, and a treatment plan." (section 23(1)). In fact, this certificate is not required to be provided immediately when the claim is made - presumably to ensure that benefits are not held up because of it. Under section 24(6), it is only after six weeks have elapsed without receipt of a certificate, that overdue benefits are excused on this ground.

Arbitrators have repeatedly ruled that it is the responsibility of applicants to establish that they are disabled to the extent required under the regulation, as a result of a motor vehicle accident.

The standard-form medical certificate provides a straightforward, meaningful and structured way of enabling applicants to establish their medical condition, qualifying them for benefits. Its presentation is prima facie evidence of disability.

The right of an insurer to require that the Applicant attend a medical examination under section 23(2) provides the insurance company with an effective opportunity to fairly assess the applicant's medical condition, on an independent basis.

The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the injured person's right to privacy. For this reason, the insurer's right to an independent medical examination is qualified - it may only be "as often as it (the insurer) reasonably requires."

The exercise of the right to a medical examination under the No-Fault Benefits Schedule is inherently intrusive and an invasion of individual privacy. However, it is legislatively mandated. Neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. "Reasonableness" is an objective standard. Some latitude must be left for a range of circumstances, which fall within its parameters. It is not for an arbitrator to "second-guess" the actions or motives of the company in requiring a medical examination.

The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed. The regulations do not preclude an insurance company from requiring more than one examination - they expressly authorize an examination as often as reasonably required. Nor, in my view, does the provision preclude, in appropriate cases, examinations by more than one specialist or a multi-disciplinary assessment. The scope of the regulation is broad and flexible, in order to reflect the reality of the requirements of modern interactive medical practice, and to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition.

The issue is whether, in the circumstances of the case, the examination is reasonably required to effectively assess the nature and extent of the applicant's injuries. In making this determination, all the circumstances must be weighed.

In this case, the information provided to the Insurer in support of the Applicant's claim suggested that the Applicant had a complex medical condition, with both physical and psychological dimensions, possibly related to previous accidents.

The notice of claim, contained in Mr. Wilson's letter of July 19, 1991 (Tab 1) indicated that the Applicant had injured her back. It also indicated that the Applicant had ongoing claims for previous accidents with the Insurer and was suffering from a chronic pain disorder and substantial depression.

The application for benefits filed (Tab 7) indicated that the Applicant's disability resulted from her psychological status and pain. Dr. Cohen's medical certificate contained no reference to the accident. It indicated that the Applicant suffered from depression and chronic pain. The report also stated that Dr. Cohen had been treating the Applicant for a similar condition since 1987. The treatment plan indicated a psychological consultation and reference to a pain clinic.

The evidence of both Mr. Leary and Mr. Ballantine was that the Insurer was concerned about the nature and extent of the Applicant's injuries, and their relationship to the accident. Both testified that it was not clear to the Insurer from Dr. Cohen's report whether the Applicant's chronic pain and depression resulted from pre-existing problems or were related to physical or psychological injuries sustained in the automobile accident. Nor did it address the extent to which these injuries disabled her.

The Insurer paid benefits on the strength of Dr. Cohen's medical report, but sought additional medical information to verify the Applicant's condition. When it did not receive that information, it required the Applicant to submit to the two medical examinations.

Essentially the evidence is that the two medical examinations were required because Dr. Cohen's report was ambiguous and because counsel for the Applicant would not provide a medical authorization allowing the Insurer to communicate directly with the Applicant's doctor and rehabilitation centre.

I should like to address the question of the authorization first. Both counsel expended a great deal of time on this issue.

Both the application for benefits and the medical certificate are prescribed forms under s. 29 of the regulations. The Ontario Insurance Commission has developed a package of material to be provided to an applicant for no-fault benefits. It contains several forms prescribed by the regulations, including these two forms. It also contains several other forms, including two waivers to be signed by the applicant: an authorization for employment information directed to the applicant's employer and an authorization for medical information.

The medical waiver authorizes the applicant's treating health professionals to provide the insurer with information relating to the applicant's medical condition and treatment received as a result of the automobile accident.

Mr. Wilson is correct in his assertion that a medical waiver does not form part of the prescribed forms for an application for benefits. An applicant is not required as matter of law to complete the waivers in order to qualify for benefits. Mr. Leary's assumption that the Insurer is entitled to the waiver as part and parcel of the documentation required for benefits is wrong.

However, I do not believe anything turns upon this. The Insurer did not terminate benefits when the Applicant refused to sign the waivers. It continued to pay benefits, but required the Applicant to submit to two independent medical examinations to verify her condition.

Every applicant bears the onus of establishing that he or she is disabled to the extent required under the regulations, as a result of an accident. In my view, the waiver forms are available as a matter of convenience to applicants, to assist them in providing proof of their medical condition.

This may resolve any questions that the insurance company has regarding the claim, and avoid the need altogether for an independent medical examination.

In the arbitration decision of Levenson v. General Accident Assurance Company of Canada, File No. A-000260, dated February 18, 1992, I stated that an insurance company had acted "reasonably and responsibly" in trying to determine the applicant's condition on the basis of the applicant's own medical information, through an authorization, and to regard its right to an independent examination - as stated above, an intrusive right - as a measure for reserve.

If, as here, an applicant chooses not to authorize the insurance company to obtain such medical information directly, the onus remains on the applicant to establish his or her claim. The insurance company correspondingly remains entitled to exercise its right to require a medical examination in order to evaluate the applicant's medical condition "as often as it reasonably requires". The question remains, therefore, whether the required examination is, or examinations are, reasonably required in order to fairly assess the applicant's condition.

Counsel for the Applicant submitted that the requirement for two examinations was unreasonable, because the ambiguity in Dr. Cohen's report could have been resolved by a request for clarification directed through him. This would have been open to the Insurer to do, and was one possible way of resolving the Insurer's concerns.

The fact that there may have been other, alternative means of resolving the ambiguity in the medical report does not, however, make the route selected by the Insurer unreasonable. Counsel for the Applicant is not entitled to determine the means, or the process, by which the Insurer satisfies itself as to the claim. The regulations entitle an insurer to an effective medical assessment independent of an applicant's own sources, and the Insurer resorted to this right.

Here, the evidence that the Applicant placed both her physical and psychological status in issue in these proceedings is unassailable. Prima facie, the Insurer is entitled to independent verification of both dimensions of her claim by appropriate specialists.

The evidence is that the Applicant did not attend the examinations for two reasons: one, because counsel questioned whether the Insurer had a right to two examinations, and secondly because he wished to have an opportunity to discuss use of the resulting medical-legal reports in the other third-party actions.

I have concluded that the regulation authorizes examinations by more than one specialist in appropriate cases. I find that the request for the orthopaedic examination was reasonable, in the circumstances. Indeed, it was not argued that the orthopaedic examination was, of itself, an unreasonable requirement. The objections of Mr. Wilson were directed to the requirement of the psychiatric examination.

Mr. Wilson challenged the sequence of the arranged examinations. He submitted that it was not reasonable for the Insurer to have arranged for a psychiatric examination, because the possibility of an organic basis for the Applicant's complaints had not been ruled out at that time. Since Dr. Cohen's report did not disclose whether the Applicant's symptomatology resulted from physical or psychological causes, he submitted that the Insurer should have conducted the orthopaedic examination first. The physical findings might have rendered the subsequent psychiatric examination unnecessary.

Even were I to accept Mr. Wilson's submissions on this point, it does not justify the Applicant's failure to attend the orthopaedic examination. If counsel for the Applicant believed that the appointment for the second examination was unreasonable, the Applicant could have attended the first examination, but not the second.

Furthermore, I cannot conclude on the basis of the evidence before me that, in this case, it was unreasonable for the Insurer to schedule a psychiatric examination, before the orthopaedic examination had taken place. In arranging for the orthopaedic examination, the Insurer recognized the possibility that the Applicant's symptoms might have an organic basis. However, the documentation filed on behalf of the Applicant did not frame her claim primarily in terms of continuing physical injury, but in terms of her psychological status, chronic pain and depression. It also indicated the existence of pre-existing psychological problems and treatment. In these circumstances, given minimal evidence of physical correlates, the Insurer was not unreasonable in scheduling the psychiatric examination for the Applicant, when it did.

I would note that Mr. Wilson's submissions concerned the scheduling of the two examinations, not the quality of the information that would have been available to the psychiatrist in the examination. The psychiatric examination was scheduled to take place two days after the orthopaedic examination. It is quite possible that the findings from the first examination would have been available at the second. There was no evidence one way or the other in respect to this.

A second reason was advanced for the Applicant's failure to attend the examination. Counsel for the Applicant wanted an opportunity to discuss with the T.T.C.'s legal counsel the possibility of obtaining an undertaking that the reports from the scheduled examinations would not be used in the third-party actions. I accept, on the basis of the evidence, that Mr. Wilson did not demand such an undertaking.

I heard nothing in the course of the hearing that entitled counsel for the Applicant to the undertaking he sought. Both Mr. Ballantine and Mr. Leary testified that there was no exchange of confidential medical information between the two departments, and that the files were kept strictly apart. There was no evidence before me to the contrary. Moreover, if there was an issue respecting the admissibility of the reports in the tort actions, that would appear to be a matter for the court in those proceedings.

Under the regulations, an applicant for no-fault weekly benefits is required to submit to an independent examination, if requested on reasonable notice. Mr. Wilson's inability to contact counsel for the T.T.C. to discuss the other unrelated actions cannot be justification for refusing to have his client attend a mandated medical examination, for which due notice was given.

Counsel for the Applicant submitted that the requirement of the psychiatric examination on December 13, 1991 was unreasonable because his client was not psychologically fit to attend it. In support of his submission, he filed a report by Dr. Arndt, the Applicant's psychiatrist, dated July 21, 1992.

Manifestly, it would not be reasonable for an insurer to require an examination in circumstances in which there is a real possibility of risk that the examination will cause harm - either physical or psychological - to an applicant. However, if an applicant has an objection to attending an examination on such grounds, it is incumbent on the applicant to advise the insurer of the reasons for the objection. For the most part, such information is entirely within the control of the applicant. At the very least, a compelling and timely explanation must be advanced if an applicant is unable to communicate his or her objections to the insurer at the appropriate time.

The regulations require a determination of whether an examination is reasonably required by the insurer. This is an objective inquiry, to be evaluated on the basis of what the insurer knew or ought to have known when the requirement was made.

The evidence in this case is that medical reasons were not advanced to explain why the Applicant would not be attending the examination. Other reasons, however, were given. The evidence is that at that time the Insurer was unaware that the Applicant was under Dr. Arndt's care, or was undergoing psychiatric treatment. It was not until the hearing that the Applicant's psychiatric condition was raised as an issue and that the report of Dr. Arndt was produced.

Counsel for the Applicant questioned the Insurer's witnesses in regards to what they would have done, in retrospect, had the report been made available to them in December 1991. In my view, the questions are of an entirely hypothetical nature, and the answers, of no assistance in determining the issue in this proceeding.

Counsel for the Applicant suggested that the Insurer should have made inquiries in regards to the Applicant's psychiatric condition. However, in previous arbitration decisions, arbitrators have concluded that the obligations of the parties are mutual. As stated by F. Rotter, Senior Arbitrator, in the decisions of Richard Plows and Jevco Insurance Company, Commission File No. A-000175 and A-000588, dated January 16, 1992:

....both sides have a duty to communicate with each other openly and in good faith

Without deciding the issue of the Applicant's fitness, I find that the Insurer neither knew nor ought reasonably to have known that the Applicant was not fit to attend the psychiatric examination in December 1991.

The Applicant was represented by capable counsel throughout these proceedings. If there was a concern about the Applicant's psychological status, counsel for the Applicant should have raised the concern at the appropriate time or, at the very least, have provided some explanation for not having done so. In the absence of any actual or imputed knowledge on the part of the Insurer in regards to the Applicant's fitness to attend the examination, or any extenuating explanation, I cannot conclude that the Applicant has an adequate excuse for failing to attend an examination otherwise reasonably required by the Insurer.

I find therefore that the Insurer reasonably required the orthopaedic examination on December 11, 1991. It also reasonably required the psychiatric examination on December 13, 1991. I further find that the Applicant failed to attend these examinations, without reasonable justification.

A number of issues raised by the parties have been deferred pending this ruling.

Prior to the adjudication of any further issues flowing from this ruling, I am referring this matter for mediated pre-hearing discussions between the parties in order to explore appropriate arrangements for the rescheduling of the medical examinations, and to address the future direction of this case.

Expenses:

The principles governing an award of expenses incurred in connection with an arbitration hearing were discussed in the arbitration decision of Ralph McCormick and Economical Mutual Insurance Company, Commission File No. A-000139 (October 2, 1991) at pages 23-24, and approved by the Director of Arbitrations in Calogero and The Co-Operators General Insurance Company, Commission File No. P-000251 (February 13, 1992).

In McCormick, it was held that, in light of the intent and objectives of the No-Fault Benefits Scheme to facilitate access to the resolution of disputes regarding no-fault benefits, an award of expenses to an applicant should be made unless, in the circumstances of the particular case, the application for arbitration was manifestly frivolous, or vexatious, or the conduct of the applicant unreasonably prolonged the proceedings.

Although I have found that the Applicant failed, without adequate excuse, to attend an examination reasonably required by the Insurer, I find that there was a legitimate dispute between the parties in respect to their respective rights and obligations in this regard. The parties duly proceeded to mediation and arbitration to resolve the dispute. I do not find that the actions of the Applicant in pursuing this issue were frivolous or vexatious, nor do I find that the Applicant unduly prolonged the proceedings.

Therefore, I conclude that the Applicant is entitled to an award for her expenses incurred in respect to this motion.

Decision:

I find that:

1. The Insurer reasonably required an orthopaedic examination of the Applicant on December 11, 1991, under s. 23(2) of the No-Fault Benefits Schedule. The Applicant failed to attend that examination, without reasonable justification.

2. The Insurer reasonably required a psychiatric examination of the Applicant on December 13, 1991, under s. 23(2) of the No-Fault Benefits Schedule. The Applicant failed to attend that examination, without reasonable justification.

3. The Applicant is entitled to her expenses reasonably incurred in respect to the arbitration as prescribed under Ontario Regulation 275/90.

September 4, 1992

Susan Naylor

Arbitrator

Date