Ontario Insurance Commission
Neutral Citation: 1996 ONICDRG 197 OIC A96-000004
Between: Peter Glynn, Applicant and General Accident Assurance Co. of Canada, Insurer
Decision on Preliminary Issue
Issues:
The Applicant, Peter Glynn, was injured in a motor vehicle accident on March 16, 1991. He applied for and received statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under Ontario Regulation 672.1 The Insurer paid weekly income benefits of $384 per week until April 21, 1995, when benefits were terminated. Mr. Glynn claims ongoing weekly income benefits, as well as supplementary medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation and Mr. Glynn applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A pre-hearing discussion was held on April 3, 1996. At that time, the hearing of the matter was scheduled for July 2, 3 and 4, 1996. The hearing was adjourned shortly before the scheduled hearing dates, but the first day of hearing was reserved for a hearing of the Insurer's motion to stay the proceeding on the basis that the Applicant has refused to attend for two medical examinations requested by the Insurer.
Result:
The Applicant has not complied with section 23(2) of the Schedule.
The Insurer's request for a stay is denied.
Hearing:
The hearing was held in Guelph, Ontario, on July 2, 1996, before me, Nancy Makepeace, Arbitrator.
Present at the Hearing:
Applicant: Peter Glynn
Mr. Glynn's Representative: David Bryan Holub Barrister and Solicitor
General Accident's Representative: Robert H. Rogers Barrister and Solicitor
The Applicant's wife also attended the hearing.
There were no witnesses. Both counsel made oral submissions and filed medical reports. Following the hearing, the Applicant filed further reports by letter of July 3, 1996, and the Insurer by letters of July 4 and July 17, 1996. The Applicant also made additional submissions by letter of June 5, 1996, with which was enclosed Dr. Nicholls' June 4, 1996 report. A list of Exhibits is appended to the decision.
Background:
The Applicant is in his late thirties. He is married and the father of five children. Before the accident, he had worked as a spray painter for about seven months, at a salary of $480 per week. He has previously worked in other unskilled and semi-skilled occupations, including painting and retail meat preparation.
The Applicant suffered serious injuries in the motor vehicle accident of March 16, 1991, including a fractured pelvis, a basal skull fracture, and a fracture of the L2-3 vertebra. His post-accident problems have included diabetes insipidus and possible post-traumatic seizures, although these problems seem to have resolved. He complains of ongoing cognitive deficits, emotional lability and mood swings.
The Applicant received weekly income benefits of $384 per week between March 23, 1991 and April 21, 1995, when benefits were terminated.
The Insurer's Request for Insurer Medical Examinations:
During the pre-hearing discussion of April 3, 1996, the Insurer's counsel stated that the Insurer might request that the Applicant be examined by a psychiatrist chosen by the Insurer. The Applicant's counsel stated that the Applicant would resist any such request. By letter of May 18, 1996, the Insurer requested that the Applicant be examined by Dr. Gary Chaimowitz, a psychiatrist, and Dr. Joel Goldberg, a psychologist. The Applicant continues to dispute this request.
The Law:
The Insurer's right to require the Applicant to attend for an Insurer Medical Examination ("IME") is set out in sections 23(2) and 25 of the Schedule, the relevant parts of which are as follows:
23(2) In respect of claims under Part IV [weekly benefits], the insurer, may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, pscyhological advisor or chiropractor as often as it reasonably requires, ...
25 No person may commence a mediation proceeding under section 280 of the Insurance Act in respect of benefits under this Schedule unless ... the insured person has made himself or herself reasonably available for any examination required under section 23.
I find that the Insurer's right to require the Applicant to attend an Insurer Medical Examination is subject to the following requirements under sections 23(2) and 25:
(i) The examination must be required in respect of a claim for weekly benefits.
(ii) The Insurer may require an IME "as often as it reasonably requires."
(iii) The Insurer must give the Applicant "reasonable notice" that it requires the examination.
(iv) The examination must be performed by a "qualified medical practitioner, psychological advisor or chiropractor."
If the Insurer satisfies these requirements, the Applicant must make himself "reasonably available" for the required examination.
In this case, the Applicant took the position that both IMEs requested were unreasonable, and refused to make himself available for examination.
Is the Insurer's Requirement Reasonable?
Psychiatric examination by Dr. Gary Chaimowitz
I find that the Insurer's request that the Applicant attend an examination by Dr. Chaimowitz, a psychiatrist, is reasonable.
The medical records filed in this proceeding indicate that the experts disagree about the nature and cause of the Applicant's mood swings and other emotional problems. Dr. S. Dermer, a psychiatrist who reviewed the Applicant's medical records on behalf of the Insurer, felt that the Applicant might suffer from Bipolar Mood Disorder and recommended a psychiatric assessment to explore this possibility. In reaching this conclusion, Dr. Dermer relied in part on the earlier report of Dr. M. Mazurek, a neurologist who had assessed the Applicant at the request of his counsel; Dr. Mazurek came to the same conclusion.
Dr. A. Nicholls, the Applicant's treating psychologist, opined in June 1996 that the Applicant's cyclical mood swings are a result of hypothalamic damage sustained in the accident. Although she did not accept that the problem is psychiatric in origin, as between psychiatric diagnoses, she preferred a diagnosis of Mood Disorder due to a General Medical Condition, or a diagnosis of Reactive Depression. Dr. Nicholls opposed a psychiatric assessment and suggested another assessment by an endocrinologist.
In this proceeding, it is neither necessary nor possible for me to determine the cause of the Applicant's mood-related symptoms, although that may well be an issue for the arbitrator in the ultimate hearing. It is, of course, open to the Applicant to rely on the evidence of an endocrinologist or psychiatrist of his choosing at the hearing. The key point for the purpose of this proceeding is that the Applicant suffers from symptoms which have several possible diagnoses.
The medical records filed also indicate that the Applicant had pre-accident psychiatric problems which may have been of some significance. In 1978, and again in 1994, the Applicant was admitted to the Homewood Health Centre, a private hospital specializing in drug, alcohol and mental health problems. The Insurer claims that the Applicant's cognitive and emotional problems since the accident are related to pre-existing problems rather than the accident. The Applicant claims that he has not been treated for drug-related problems since 1980.
Again, it is not my mandate in this proceeding to determine whether the Applicant's ongoing symptoms relate to the accident or to pre-existing problems. The significance of the pre-accident history, for the purpose of this proceeding, is that it raises an issue which, in my view, the Insurer is entitled to explore.
Finally, the experts who have reviewed the Applicant's case disagree as to whether his mood problems are disabling. Mr. Burke, a rehabilitation specialist, opined that they are not disabling. Dr. Mazurek, a neurologist, thinks the Applicant's emotional lability, if persistent, may limit his employability.
In my view, in considering whether an insurer's request for an IME is reasonable, it is appropriate to balance the insurer's need for an expert assessment of its insured against the insured person's right to privacy. Privacy is an especially important consideration when the insurer requests an examination by a psychiatrist.
In this case, the Insurer has never had the opportunity to have the Applicant examined by a psychiatrist of its choosing. Further, while Dr. Nicholls recommended two other psychiatrists in her June 4, 1996 report, I find that section 23 gives the insurer the right to choose who will conduct the IME, subject to the requirements of section 23(2) and 25. Neither Dr. Nicholls nor Mr. Holub put forward any concern about Dr. Chaimowitz. The Applicant is, of course, entitled to be assessed or treated by any psychiatrist of his choosing, and to rely on that expert's reports at the hearing.
I conclude that the Insurer's requirement for a psychiatric assessment of the Applicant by Dr. Chaimowitz is reasonable under section 23(2).
Neuropsychological assessment by Dr. Joel Goldberg
The experts who have assessed the Applicant disagree about his employability. Dr. Nicholls, the Applicant's treating psychologist, stated that the Applicant is unemployable because of cognitive impairments. She has provided a number of reports, including two medical-legal reports to the Applicant's counsel in June 1995. In contrast, Dr. Allan Finlayson conducted a neuropsychological assessment of the Applicant on behalf of the Insurer in April 1992, and found that the Applicant's "residual deficits are relatively minor." The Applicant has not undergone a neuropsychological assessment by an expert chosen by the Insurer since that time.
Mr. Burke, the rehabilitation specialist who assessed the Applicant for the Insurer, opined that the Applicant's cognitive impairments do not disable him from returning to his pre-accident job. Dr. M. Mazurek, who prepared a medical-legal assessment for the Applicant, concluded that any impairments the Applicant has do not disable him from working, although there might be some "subtle" cognitive impairments. On the basis of his two and a half hour neurological assessment, Dr. Mazurek agreed with Mr. Burke that the Applicant's "intellectual function seemed ... more than adequate for many types of employment", including "the type of jobs he held in the past." (As stated above, Dr. Mazurek felt that the Applicant's emotional lability might be disabling.)
Mr. Holub submitted that it is not reasonable for the Insurer to require a neuropsychological assessment of the Applicant because the Applicant's MRI and CT scans show objective evidence of brain damage. However, these tests do not establish disability or impairment. They do not show how the Applicant's organic brain damage affects his ability to function in the workplace, which is the question before the Arbitrator.
The Applicant also disputed the Insurer's requirement on the ground that Dr. Nicholls is better qualified than Mr. Burke, whose Ph.D is not in psychology but in rehabilitation. I find that the relative qualifications of the parties' experts may well be an issue at the ultimate hearing, but it is not determinative in this preliminary issue hearing. In any event, my ruling does not rely only on Mr. Burke's report. I am satisfied that the dispute between Dr. Nicholls, on the one hand, Mr. Burke, Dr. Finlayson and Dr. Mazurek, on the other hand, justifies the Insurer's request that the Applicant be assessed by a neuropsychologist of its choosing.
The Applicant submitted that if any neuropsychological assessment is performed, it should focus specifically on the Applicant's information-processing problems. He relied on the June 4, 1996 report of Dr. Nicholls, who opposed "yet another standard evaluation" to determine whether the Applicant has had brain damage, on the ground that both she and Dr. Finlayson found "mild impairment." Dr. Nicholls states that she "would like to have input into the final decision regarding referral, as appropriate qualifications are necessary." I find that section 23 gives the insurer the right to choose the nature and scope of the required examination, as well as the assessor, as long as the examination is reasonable, the assessment is performed by a medical doctor, psychologist or chiropractor, and the request is made only as often as is reasonable. In any event, the Applicant raised no particular objections to the choice of Dr. Goldberg. With respect to Dr. Nicholls' view that any assessment should focus on the Applicant's information-processing problems, I do not agree that the expert chosen by the Insurer is required to accept the view of the Applicant's treating psychologist as to the nature of the Applicant's problems.
Arbitrators have stated in previous decisions that nothing in section 23 restricts the Insurer to one Insurer Medical Examination, or even one examination by any particular specialist.2 I agree. The plain wording of section 23(2) permits an Insurer to request an IME "as often as it reasonably requires." Clearly the drafters contemplated the possibility that an insurer might reasonably require multiple examinations.
Whatever further assessments the Applicant needs for treatment purposes, I find the Insurer's requirement that the Applicant have a neuropsychological assessment performed by Dr. Goldberg reasonable under section 23(2).
The Application of Sections 23(2) and 25 of the Schedule.
The Insurer moved for a stay of the proceeding, pending the Applicant's attendance at the two requested IMEs. The Insurer relied on section 25 of the Schedule, which states that "[n]o person may commence a mediation proceeding" unless he has made himself reasonably available for an examination required under section 23. The Insurer submitted that this section means that the arbitration proceeding should be stayed pending the Applicant's compliance with the Insurer's requirement. The Insurer relied on the appeal decision of Susan Naylor, Director's Delegate, in F.S. and Belair Insurance Company Inc.3
The F.S. Decision
In the decision at first instance in F.S., Arbitrator Lawrence Blackman found that the applicant had failed to make herself reasonably available for an examination required under section 23(2) of the Schedule. However, he did not accept the insurer's argument that the hearing should be stayed and the insurer reimbursed its $2,000 assessment as a consequence of the applicant's non-compliance.
On appeal, Director's Delegate Susan Naylor reiterated the principle, consistently stated by arbitrators, that "the purpose of section 23(2) of the Schedule is to enable an insurer to fairly and effectively assess a claim for weekly disability benefits." She held further that section 23(2)
is not limited to requests made before the termination of benefits of the commencement of mediation. Otherwise, an insurer might not have a fair or effective opportunity to evaluate the claim. This is especially true in a case such as this, which involves ongoing benefits where the basis of the claim substantially changed after mediation commenced. I see nothing in the language, or the intent, of section 23(2) to so qualify its scope.
However, Director's Delegate Naylor stated that
Determining the appropriateness of a request for an examination requires a balancing of the interests of the parties, in the context of the particular facts....The closer a request is made to a hearing, the closer the scrutiny of its reasonableness, to ensure that there is no avoidable delay or that the insured's preparation for the hearing is not prejudiced. Trial brinkmanship is not a feature of the dispute resolution process.
With respect to the application of section 25 where mediation has already been commenced and completed, Director's Delegate Naylor agreed with Arbitrator Blackman that "in the context, it is difficult to read more into the language of section 25 than exists on a plain reading of the provision." She then made the following comments:
However, even if section 25 has no applicability to a request made after a party has initiated dispute resolution, it does not follow that an insurer's right to an examination effectively terminates after this time or that an arbitrator is therefore deprived of the authority to deal with an unreasonable refusal to attend. In my view, section 23(2) has meaning independent of section 25.
After an applicant has accessed dispute resolution, the exercise of an insurer's right to require an examination and the consequences of any refusal to attend, are subject to the principles and rules of the applicant's chosen forum for adjudicating the dispute. In the courts, the insurer's right to an examination is subordinated to the court's power to order a medical examination, on motion of a party, under section 105 of the Courts of Justice Act, R.S.O. 1990, Chap C. 43. In the arbitration process, the insurer's right to require an examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute. The objectives are generally served by permitting insurers to arrange timely medical examinations, in appropriate cases.
The Insurance Act and the Statutory Powers Procedure Act, R.S.O. 1990, Chap S. 22, as amended, contemplate the making of orders, including the authority to make interim orders subject to conditions, to conduct a fair hearing: orders that balance the rights of both parties while safeguarding the interests of the party being examined. The arbitrator's power includes the discretion, in appropriate cases, to refuse to adjourn a hearing to allow an insurer time to conduct a medical examination, where to do so whould be unfair to the applicant. It also includes the power, under section 21 of the Statutory Powers Procedure Act, to adjourn the hearing "to permit an adequate hearing to be held", in the event that an applicant has refused to attend a reasonably required examination.
Director's Delegate Naylor stayed the Arbitrator's Order and adjourned the hearing pending the applicant's attendance at the requested examination, unless the parties agreed otherwise.
The Right to Request an IME after Mediation has Commenced
Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure set out procedures by which an insurer may obtain a "defence medical" as part of the discovery phase of a civil action.4 There are no such provisions in the Insurance Act and the Statututory Accident Benefits Schedule. Arbitrators have consistently held that the purpose of section 23(2) is to enable insurers to assess and adjust weekly benefit claims. However, section 23(2) allows an insurer to require an IME "as often as it reasonably requires" "in respect of claims under Part IV." Nothing in the language of the section restricts its application to claims made before an applicant commences mediation. I agree with Director's Delegate Naylor that an insurer may require an IME in respect of an ongoing claim even if the insured person has already commenced and completed mediation with regard to the termination of benefits.
The Consequences of Non-Compliance:
Section 25 states that "no [insured person] may commence a mediation proceeding" unless he has made himself reasonably available for any examination required under section 23(2). These are the only words of the Schedule dealing with the consequences of an insured person's refusal to attend a required IME. I agree with Arbitrator Blackman that these words, "when read in their grammatical and ordinary sense, are clear and unambiguous, and denote the start of, or the initial access to mediation."
In my view, if the insured person refused to make himself reasonably available for an IME required before he commenced mediation, the combined effect of section 25 of the Schedule and section 281(2) of the Act is to deprive an arbitrator of jurisdiction to hear the matter, even though mediation was commenced and completed. Where, as in this case, the Insurer required an IME after the mediation commenced, I find that section 25 has no application. I agree with Director's Delegate Naylor that section 23(2) continues to apply where there is an ongoing claim for benefits continuing after the date of termination. However, I find that in the absence of section 25, the Schedule and the Act provide no clear enforcement mechanism.
Director's Delegate Naylor relied on an arbitrator's power under section 21 of the Statutory Powers Procedure Act, ("S.P.P.A") to adjourn a hearing on her own initiative where an adjournment is required in order "to permit an adequate hearing to be held." In this case, although I am satisfied that the Insurer's IME requests are reasonable under section 23(2) of the Schedule, I am not persuaded that the requested IMEs are required in order to permit an adequate hearing to be held, considering the assessments already performed and the late date of the Insurer's request.
The Insurer first raised the possibility that it might request a psychiatric IME during the pre-hearing discussion on April 3, 1996, but no formal request was made at that time. The possibility of an IME conducted by a neuropsychologist was not mentioned at all. During the same discussion, the hearing was scheduled for July 2, 3 and 4, 1996, with the consent of both parties. The Insurer did not give notice that it would require the two IMEs until May 18, 1996, only two weeks before the start of the scheduled hearing.
The Insurer's counsel explained that it decided to require the IMEs only after reviewing Dr. Mazurek's report, which it received in late 1995 or early 1996. In the meantime, the Insurer obtained the reports of Mr. Burke on February 3, 1995 and Dr. Dermer on November 17, 1995. The Insurer's counsel also noted that the notes and records of the Homewood Hospital and Dr. Eppel, the psychiatrist who admitted the Applicant to that institution, were ordered disclosed pursuant to the April 3, 1996 pre-hearing, but were obtained by both parties in late June.
An insurer is certainly entitled to consider its case before deciding whether to require that the insured person attend an IME. Indeed, given the invasion of privacy involved in an IME - especially an examination by a psychiatrist - an insurer is to be commended for carefully considering whether the examination is necessary before making the request. However, the speed and informality of the dispute resolution process do not allow for the insurer to investigate the Applicant's claim indefinitely.
The Commission's policy is to grant adjournments "sparingly," and "only in exceptional circumstances (for example, a severe, long-term illness)."5 A copy of the policy was enclosed with the pre-hearing letter to both parties, as is the usual practice of the Commission. In this case, I would not have adjourned the hearing in order to allow the Insurer to obtain an additional IME report.
For these reasons, I do not find this an appropriate case for the exercise of my discretion to adjourn the hearing under section 21 of the S.P.P.A. Moreover, I am reluctant to make an interim or procedural order which would bar the Applicant from proceeding to an arbitration hearing unless he attends for IMEs requested by the Insurer. I agree with Arbitrator Shemin Manji, for the reasons she gave in Granic,6 that arbitrators do not have power to order an insured person to attend an IME.
The Insurer seeks a stay of proceedings pending the Applicant's compliance with the Insurer's IME request. I am unable to find any provision in the Act or the Schedule expressly giving an arbitrator power to stay proceedings.7 In contrast, section 106 of the Courts of Justice Act expressly gives "a court" power to stay proceedings.8 Administrative tribunals are creatures of statute and have only those powers expressly granted or necessarily implied by statute.9 I am not satisfied that I have power to stay these proceedings pending the Applicant's compliance with the Insurer's IME requirement.
This does not mean that the Insurer is without recourse if the Applicant continues to refuse to attend the requested IMEs. Depending on the circumstances and the evidence presented at the hearing, the Arbitrator may find it appropriate to draw an adverse inference from the Applicant's refusal, or to refuse the Applicant his arbitration expenses. If the Arbitrator finds that the application for arbitration was frivolous, vexatious or an abuse of process, a penalty may be ordered against the Applicant under section 282(11.2) of the Act.
Order:
The Applicant has failed to make himself reasonably available for medical examinations required under section 23(2) of the Schedule with Dr. Gary Chaimowitz and Dr. Joel Goldberg.
The Insurer's motion for a stay of proceedings is dismissed. The hearing will be scheduled forthwith.
November 25, 1996
Nancy Makepeace Arbitrator
APPENDIX
Exhibit 1 Index to Applicant's Medical Brief
Exhibit 2 Dr. Anne R. Nicholls, psychologist, report of June 4, 1996 prepared at the request of Applicant's counsel
Exhibit 3 Report of Dr. Michael F. Mazurek, neurologist, to Applicant's counsel, dated August 21, 1995
Exhibit 4 Curriculum vitae of Dr. Joel O. Goldberg
Exhibit 5 Report of William H. Burke, Ph.D., CRC, February 3, 1995
Exhibit 6 Curriculum vitae of Mr. Burke
Exhibit 7 Reports of Anne R. Nicholls, Ph.D., C.Psych., dated June 15, 1993 (to Innovative Rehabilitation); January 27, 1994 (to Dr. Ameis); February 10, 1994 (to Dr. Ameis); and June 30, 1995 (to Applicant's counsel)
Exhibit 8 Neuropsychological consultation report, M.A.J. Finlayson, Ph.D., C.Psych., dated July 7, 1992
Exhibit 9 Report of Dr. S.W. Dermer, psychiatrist, November 17, 1995
Exhibit 10 Report of Dr. A. Ameis to Innovative Rehabilitation, January 12, 1994; and Letter from Dr. Ameis to Mr. & Mrs. Glynn, July 27, 1995
Exhibit 11 Report of Dr. Raymond C. Lo, Neurologist, to Applicant's counsel, dated June 30, 1993
Exhibit 12 Report of Dr. Alice Parker, family doctor, to Applicant's counsel, dated May 28, 1995
Exhibit 13 Reports of Dr. Paul E. Cooper, neurologist, to Dr. Alice Parker, dated October 19, 1995, and to Applicant's counsel, dated January 14 and January 15, 1996
105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners. (3) Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance in the allegation.
- The implied jurisdiction is required as a matter of practical necessity to permit the agency to accomplish its mandate; and
- The question of the implied jurisdiction to perform an act is not one which Parliament or the Legislatures have expressly addressed in other legislation."
Footnotes
- Prior 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.
- Scott and Toronto Transit Commission (Markel Insurance) (Preliminary Motion) (September 4, 1992), OIC A-001116
- F.S. and Belair Insurance Company Inc. (June 11, 1996), OIC P-95000392
- The key provisions of the Courts of Justice Act are as follows:
- Practice Note 7
- Granic and Allstate Insurance Company (January 30, 1995), OIC A-006615
- The only reference to stays is section 283(6) of the Act, which states "An appeal does not stay the order of the arbitrator unless the Director decides otherwise."
- Section 106 reads as follows: "A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just."
- In Granic (see footnote 6), the insurer submitted that the Insurance Act or the Statutory Accident Benefit Schedule give an arbitrator power to compel an insured person to attend an insurer medical examination by necessary implication. Arbitrator Shemin Manji dismissed this submission, relying in part on the decision of the Federal Court of Appeal in Reference Re National Energy Board Act (1986), 1986 CanLII 4033 (FCA), 19 Admin. L.R. 301 (F.C.A.). Arbitrator Manji made the following comments about that decision, with which I agree: "the Federal Court of Appeal, at page 314, indicated that the doctrine of jurisdiction by necessary implication can be applied only if: