Neutral Citation: 1995 ONICDRG 194

File No.: A-012031

ONTARIO INSURANCE COMMISSION

BETWEEN:

GEORGE A. KOTA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

The Applicant, George A. Kota, was injured in a motor vehicle accident on June 3, 1991. Before the accident he worked as a dry-wall subcontractor. Mr. Kota has not returned to any form of employment since the accident. Wawanesa paid him weekly income benefits of $600.00 under Ontario Regulation 672¹ from June 10, 1991 to June 3, 1994 (156 weeks). The Insurer terminated benefits on the basis that Mr. Kota was not disabled from any occupation or employment for which he was reasonably suited by education, training or experience, which is the test of entitlement to benefits beyond three years after an accident. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing was scheduled to proceed before me on November 21, 1995. At the commencement of the hearing, Mr. Heckel, on behalf of the Insurer, argued that Mr. Kota could not proceed with arbitration because he allegedly failed to attend on an insurance medical examination (IME) on November 17, 1995. Mr. Besunder, on behalf of Mr. Kota, asserted that the hearing should proceed. After hearing submissions, I ruled that the hearing was stayed pending attendance by Mr. Kota at a psychiatric IME, with written reasons to follow.

The issues in this hearing are:

1. Did Mr. Kota fail to make himself reasonably available for an IME?

2. If so, may Mr. Kota proceed with arbitration?

3. Is the Insurer entitled to an assessment against Mr. Kota?

Result:

1. Mr. Kota failed to make himself reasonably available for an IME.

2. Mr. Kota may not proceed with this arbitration unless he makes himself reasonably available for a psychiatric medical examination.

3. Expenses are reserved to the hearing arbitrator.

Hearing:

The hearing was held in Toronto, Ontario, on November 21, 1995, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

George A. Kota

Applicant's

Robert A. Besunder

Representative:

Barrister and Solicitor

Insurer's

Gregory P. Heckel

Representative:

Barrister and Solicitor

Court Reporter:

Michelle Pahl

Canadian Verbatim

No witnesses were called. Five documents were filed as exhibits, and are listed in Schedule "A."

Facts:

Wawanesa paid section 12 benefits to Mr. Kota for a three year period following his accident of June 3, 1991, on the basis that he was unable to perform the essential tasks of his pre-accident employment as a dry-wall subcontractor. In order to qualify for benefits beyond three years post-accident, he must prove that he is unable to perform "any occupation or employment for which [he] is reasonably suited by education, training or experience." Wawanesa concluded that he failed to meet that test and therefore terminated his benefits at the three year mark, i.e. on June 3, 1994.

Mr. Kota proceeded through mediation, which did not resolve the claim. He participated at a pre-hearing conference on July 10, 1995, at which time the parties agreed to a hearing date of November 21 and 22, 1995. In September of 1995, Mr. Besunder sent Mr. Heckel a medical report from Dr. P.K. John, a psychiatrist who assessed Mr. Kota. The report is dated August 24, 1995, and states in part:

It is my opinion that Mr. Kota has suffered from major depression. This has been a significant factor in his continued inability to function adequately... this patient had a variety of symptoms suggesting depression. These included headaches, feelings that life was not worth living, inability to sleep and suicidal thoughts...From a psychiatric point of view his condition would have prevented him from engaging in any occupation or employment for which he is reasonably suited by education, training and experience....[emphasis added]

This letter was the first suggestion that Mr. Kota was suffering from major depression, and referred directly to the test for ongoing benefits. As a result, Mr. Heckel notified Mr. Besunder by letter dated October 6, 1995 that he "require[d] a further independent medical examination on that issue." Mr. Besunder states that he never received that letter. Although I have no reason to disbelieve him, I note that by the end of October he nonetheless received a copy of a letter dated October 20, 1995 from Wawanesa to Mr. Kota advising that an IME had been scheduled with Dr. Margulies, a psychiatrist, to take place on November 10. Upon receipt of that notice, Mr. Besunder objected to the manner in which the appointment had been communicated and sought clarification of its purpose.

Ultimately, for reasons which are not relevant to my decision, an IME did not take place on November 10 and the matter was not sorted out until the parties attended a further pre-hearing with Arbitrator Robinson on November 16. This resulted in an agreement among both counsel and Mr. Kota that he would attend an IME with Dr. Margulies on November 17, five days before the hearing date. The appointment was scheduled for 10:30 a.m. and was to last until 12 noon.

Unfortunately, Mr. Kota slept in on November 17 and did not arrive at Dr. Margulies' office until 11:10 a.m. Dr. Margulies immediately contacted Mr. Heckel, who in turn attempted, unsuccessfully, to reach Mr. Besunder. Mr. Heckel then instructed Dr. Margulies to proceed as far as he could with the examination. By this time, it was 11:30 a.m. and as a further misfortune, Dr. Margulies had another prearranged appointment for 12:00 noon; he spent approximately 40 minutes with Mr. Kota which, according to Dr. Margulies' letter of November 17, 1995, "proved to be insufficient to come to even a presumptive or speculative opinion."

Dr. Margulies arranged a further appointment with Mr. Kota for December 20, 1995, whereupon he would complete the examination and prepare a report. Mr. Heckel then suggested to Mr. Besunder that the arbitration be adjourned for that purpose; however, Mr. Besunder rejected that option and attended at the Commission on November 21 ready to proceed with his case. He reiterated to me that he was not consenting to an adjournment.

Analysis:

In this case, the Insurer has raised two preliminary issues. The first is a question of fact: did Mr. Kota make himself reasonably available for an IME? The second is a question of law: if Mr. Kota failed to make himself reasonably available for an IME, is he precluded from proceeding with arbitration?²

The relevant provisions are found in sections 23(2) and 25 of the Schedule:

23.--(2) 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.

25. No person may commence a mediation proceeding under section 280 of the Insurance Act in respect of benefits under this Schedule unless the requirements of section 22 have been satisfied and the insured person has made himself or herself reasonably available for any examination required under section 23.[emphasis added]

Did Mr. Kota make himself reasonably available for an IME?

Submissions and Findings:

Mr. Besunder did not dispute the reasonableness of the Insurer's request for a psychiatric IME; he argued, however, that there was no obligation on Mr. Kota to make himself "available" because the Insurer did not give "reasonable notice" of the appointment, as required by section 23(2).

Mr. Besunder submitted that although the Insurer knew by July of 1995 that Mr. Kota had been diagnosed with major depression, it did not request an IME until October of 1995 and then arranged the initial appointment for November 10, only one month before the hearing. Moreover, he argued, when the November 10 appointment failed to take place, the Insurer gave only two days notice of the second appointment for November 17. Mr. Besunder submits that I should conclude from all this that the Insurer has unfairly and unnecessarily scheduled matters "at the 11th hour."

I do not agree with that characterization of the Insurer's conduct. The Insurer notified Mr. Kota of the first IME over two weeks before the appointment, and scheduled it well in advance of the hearing. Although Mr. Besunder objected to the appointment, it was for reasons other than insufficient notice; if he had sincere concerns regarding notice, he could and should have raised them then. Furthermore, though the second appointment was scheduled on short notice and very close to the hearing date, that was necessitated by the failure to attend on the first date and was, moreover, agreed to by both counsel and Mr. Kota in order to insure that the IME would occur before the hearing.

I therefore conclude that under the circumstances the Insurer gave adequate notice of the IME to Mr. Kota.

Mr. Besunder's alternative argument is that Mr. Kota was "reasonably available" for the IME. He emphasizes that Mr. Kota did in fact attend the appointment on November 17; although he arrived late, that was due to circumstances beyond his control. Mr. Besunder referred to medical reports stating that Mr. Kota was on Prozac to control insomnia and depression, and suggested that sleeping in was a longstanding side effect of the medication. Mr. Kota had apparently missed or arrived late at other appointments due to this condition.

An Applicant may properly raise medical reasons for failing to attend an IME.³ However, Mr. Kota did not testify and there is no direct evidence to suggest that his use of medication was the reason for his arriving late to the IME on the day in question. Even if it were true, it does not, in my view, excuse Mr. Kota's tardiness. If, as Mr. Besunder suggests, Mr. Kota had experienced such side effects from the medication for some time, he was alert to the risk and should have taken measures to prevent a re-occurrence, such as using an alarm clock or requesting a "wake-up call" from a friend. This is particularly so given both the importance and urgency of this appointment.

The question then arises as to whether Mr. Kota's attendance, albeit 40 minutes late, nonetheless satisfies the requirement under section 25 that the Insured make himself "reasonably available." Mr. Besunder argued that as nearly an hour of the appointment time remained when Mr. Kota arrived, he was sufficiently "available" for the examination.

Mr. Heckel submitted that the late attendance by Mr. Kota was, practically speaking, a non-attendance. It effectively precluded any meaningful assessment by Dr. Margulies and therefore left the Insurer without a psychiatric opinion. To find otherwise, he argued, would allow an Applicant to thwart the process by deliberately arriving so late that it precluded a reasonable opportunity for examination.

The purpose of section 23 is to allow the Insurer a reasonable opportunity to evaluate an ongoing claim for weekly benefits.⁴ An Applicant who attends an IME at an unreasonably late hour has frustrated that purpose, and therefore, in my view, has failed to make himself reasonably available. What is "unreasonably late" will depend on the facts in each case; in this case, I find that Mr. Kota's arrival 40 minutes after a 90 minute appointment was scheduled to begin is unreasonably late. In so finding, I am mindful of Dr. Margulies' statement that he was left with insufficient time "to come to even a presumptive or speculative opinion". This is not surprising, given the subtle and detailed examination required to form a psychiatric opinion.

I therefore conclude that Mr. Kota did not make himself reasonably available for the appointment with Dr. Margulies on November 17.

May Mr. Kota proceed with arbitration?

Submissions and Findings:

The Insurer submitted that Mr. Kota's failure to attend the IME with Dr. Margulies is a complete bar to his proceeding with arbitration. He relied on Hanna, wherein Arbitrator Draper interpreted section 25 to state that an applicant cannot access the dispute resolution process at all unless he has made himself reasonably available for a medical examination.

It is not necessary for me to decide whether failure to attend an IMR should in all cases bar an Applicant from proceeding. On the facts of this case I have no hesitation in concluding that the Insurer would be unduly prejudiced if Mr. Kota was allowed to proceed without permitting the Insurer to obtain a psychiatric IME. In July, 1995, Mr. Besunder served the Insurer with an expert psychiatric opinion, which concluded that "from a psychiatric point of view" Mr. Kota could not engage in "any occupation or employment for which he is reasonably suited by education, training and experience." This opinion refers directly to the test for weekly income benefits beyond three years post-accident, which is the very issue at stake in this arbitration. It would be highly unfair to require the Insurer to defend this claim without an opportunity to evaluate the psychiatric evidence through its own expert. As noted by Arbitrator Draper in Hanna, this is particularly true where, as here, the applicant's claim for ongoing weekly income benefits "extends for a lengthy period, or beyond 156 weeks."

I therefore conclude that Mr. Kota may not proceed with this arbitration unless he makes himself reasonably available for a psychiatric examination.

Costs:

I decline to make an award of expenses now, and reserve that matter to the hearing arbitrator.

Order:

1. Mr. Kota may not proceed with this arbitration unless he makes himself reasonably available for a psychiatric medical examination.

2. Expenses are reserved to the hearing arbitrator.

December 22, 1995

Deena Baltman

Arbitrator

Date

Appendix

Exhibits:

Medical Brief

Letter to Gregory Heckel from Dr. A.I. Margulies, dated November 17, 1995

Letter to George Kota from Ian Mascarenhas, dated October 20, 1995

Letter to Gregory Heckel from Robert Besunder, dated October 30, 1995

Letter to Robert Besunder from Gregory Heckel, dated October 6, 1995

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2This approach is similar to that taken by Senior Arbitrator Rotter in Edward J. Opatowski and Wawanesa Mutual Insurance Company, September 22, 1992, OIC File No. A-00038.
3. 3Opatowski, supra
4. 4Kevin Hanna and Royal Insurance Company, December 2, 1994, OIC File No. A-005409