Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 48

Appeal P96-00085

OFFICE OF THE DIRECTOR OF ARBITRATIONS

GENERAL ACCIDENT ASSURANCE COMPANY

Appellant

and

PETER GLYNN

Respondent

Before:

Susan Naylor, Director's Delegate

Counsel:

Robert H. Rogers (for General Accident)

David Bryan Holub (for Mr. Glynn)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Paragraph 2 of the arbitrator's order dated November 25, 1996 is rescinded and the following substituted:
Unless the parties agree otherwise or unless otherwise ordered, the arbitration hearing scheduled for June 3, 4 and 5, 1997 shall be adjourned if Mr. Glynn does not attend a psychiatric examination by Dr. Gary Chaimowitz, arranged on reasonable notice.
Mr. Glynn is entitled to his appeal expenses.

March 17, 1997

Susan Naylor Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal is from a preliminary arbitration order, dated November 25, 1996. The arbitrator found that General Accident's requirement that Peter Glynn attend two medical examinations, a psychiatric examination and a neuropsychological assessment, was reasonable and within its rights. However, she declined General Accident's request for an order that the arbitration proceeding be stayed, or that the main hearing be conditionally adjourned, because of Mr. Glynn's refusal to attend. General Accident appeals this order and asks for a ruling that the main hearing on Mr. Glynn's entitlement to benefits scheduled for June 3, 4 and 5, 1997, be adjourned until he complies with the requirement.

An insurer's right to require an applicant attend a medical examination and to chose the doctor or specialist to conduct the examination is set out in section 23(2) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 ("the Schedule"). The purpose of this provision is to enable an insurer to fairly and appropriately assess an applicant's claim for weekly income benefits. In Whitney and Co-operators, (March 31, 1993, OIC A-001005) I indicated that this was not merely an insurer's right, but an obligation it owed to its insured. Section 23(2) states:

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)

II. PRELIMINARY ISSUE

The general rule set out in section 43.1 of the Dispute Resolution Practice Code precludes an appeal "of a preliminary or interim order of an arbitrator until an arbitrator has finally decided all of the issues in dispute in the arbitration, unless the order being appealed finally determines the rights of the parties". This would bar the appeal in this case from proceeding until the main hearing on Mr. Glynn's entitlement to benefits has taken place. Section 67.1 allows for some flexibility to depart from this general rule where the circumstances warrant. It states:

The adjudicator may on such terms as he or she considers appropriate:

(b) decide that any Rule does not apply in respect of a proceeding.

In exercising the discretion to allow an appeal to proceed, appeals adjudicators have considered the over-arching principle set out in Rule 1.1: that the rules should be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute.

There are compelling reasons for proceeding with this appeal even though it involves a preliminary order. The dispute over Mr. Glynn's attendance at these medical examinations has largely shaped the process and pace of the proceedings to date, and has resulted in substantial delay - by the time the arbitration hearing takes place in early June, 1997, almost a year will have passed from the date of the preliminary hearing. An expedited appeal allows the question to be dealt with and, depending on the outcome, any arrangements for further medical examinations to be made, without delaying the scheduled hearing or risking the necessity of a complete re-hearing. This is a sensible and practical approach. The medical evidence in issue goes to the heart of Mr. Glynn's case. In the event that the appeal is deferred until the completion of the arbitration and is successful, it is quite probable that the entire case would have to be re-heard, resulting in yet more delay and expense.

III. ANALYSIS

This appeal is limited to the arbitrator's refusal to order that the hearing be adjourned until Mr. Glynn attended the examinations, not with the other matters dealt with by the arbitrator. I granted an adjournment sine die on similar terms in Belair Insurance Company and F.S. (June 11, 1996, P96-00039), in which I made the following remarks:

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 would 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. In the exercise of such discretion, the arbitrator is not ordering a medical examination, as discussed in Granic, in the absence of an express or implied power to do so. Rather, the adjudicator is controlling the exercise of an extant power to require a medical examination conferred on one of the parties to the process. (Decision, page 13)

The arbitrator here did not feel that a similar order was necessary to permit an adequate hearing to be held, considering the assessments already performed and the late date of General Accident's request. This latter point clearly bothered the arbitrator. She found that General Accident did not formally request the examinations until shortly before the hearing and concluded that "the speed and informality of the dispute resolution process do not allow for the insurer to investigate the Applicant's claim indefinitely." (Decision, page 14)

In Peterson and Royal Insurance Company of Canada, (February 6, 1996, OIC P-006241) I discussed the principles governing when the arbitrator's exercise of discretion may be disturbed:

An adjournment is a matter of discretion, not of right. Arbitrators have the authority to control their own processes within the Commission's rules of procedure, including the right to determine whether an adjournment should be granted. The exercise of this discretion should not be interfered with on appeal, unless there are cogent reasons for doing so. Previous cases have made it clear that it is not the function of the appeals adjudicator to second-guess the arbitrator's judgement. However, there must be some scope for intervention where the discretion is exercised on the basis of misapprehended facts. (Decision, page 5)

Put simply, the exercise of an arbitrator's discretion is not to be interfered with on appeal unless it is clearly wrong or there is substantial reason for doing so.

The arbitrator reviewed the available medical evidence in some detail in coming to her conclusion that General Accident's request for both examinations was reasonable. She then considered the timing of the request in addressing the remedy available to General Accident. I might have considered the context and timing in the initial inquiry as to whether the request was reasonable, but I do not think anything turns on the slightly different approach.

The arbitrator was provided with the medical reports the parties felt were the most pertinent for the purposes of the preliminary hearing. There was no oral testimony. I also have the benefit of those reports and the oral submissions of the parties on the appeal. The medical evidence is reviewed in some detail by the arbitrator and it will not be repeated here. However, the chronology of events is important.

According to the evidence and the arbitrator's findings, Mr. Glynn suffered serious injuries in the accident, including a fractured skull and damage to the right temporal lobe. His medical condition is quite complicated and he has seen numerous specialists over the years since the accident. His complaints of poor concentration, irritability, memory loss, fatigue, headaches and mood swings are longstanding, and are well-recorded by the neuropsychologist who assessed him at General

Accident's request in early 1992. There is a sharp conflict in the medical evidence about whether these problems are disabling.

General Accident's request for additional examinations derives from the report of an expert, Dr. Dermer, who was retained to review Mr. Glynn's claim in late 1995.¹ Mr. Glynn commenced arbitration proceedings around the end of that year.² His benefits had been terminated eight months earlier as of April 21, 1995. The termination was largely based on a February 3, 1995 report by Dr. Burke, a rehabilitation counsellor whose curriculum vitae indicates he specialises in the analysis, treatment planning and case-management of individuals with brain and spinal cord injuries. Dr. Burke concluded that any residual cognitive deficits or other problems Mr. Glynn had did not disable him from competitive employment. It is fair to say that aspects of Dr. Burke's report were subject to some criticism in later medical reports, although Mr. Glynn's doctors themselves are divided about his ultimate conclusion.

Mr. Glynn promptly applied for mediation, which was completed in mid-July 1995. After that time, he received a comprehensive medical-legal report from Dr. Mazurek, a neurologist who had seem him on several occasions in the previous year. That report, dated late August 1995, was later made available to General Accident and formed a core component of Dr. Dermer's review and recommendations.

In his report, Dr. Mazurek agreed with Dr. Burke that Mr. Glynn's cognitive impairments were not disabling but stated that "the unknown quantity here is Mr. Glynn's emotional instability". He felt that the uncertain effect of this on Mr. Glynn's employability was complicated by the possible post-accident development of a bipolar mood disorder. Dr. Mazurek recommended a psychiatric assessment.

Although it was known that Mr. Glyn had been referred to Dr. Eppel, a psychiatrist, for depression and was briefly admitted to a facility, (Homewood Hospital), in early 1994, the possibility that Mr. Glynn's mood swings were a psychiatric disability was not raised until Dr. Mazurek's report.

Dr. Dermer made two recommendations in light of Dr. Mazurek's report. Firstly, he suggested the need for an updated neuropsychological assessment to determine residual cognitive impairment and disability. He felt that this was needed because there were conflicting medical opinions on point and because neither Dr. Mazurek nor Dr. Burke were qualified experts in neuropsychological evaluation. Secondly, he recommended a psychiatric assessment to determine the existence, cause and effect of a mood disorder. Dr. Dermer suggested that the records of Dr. Eppel and Homewood Hospital be made available.

Counsel for General Accident requested the records and at the pre-hearing held on April 3, 1996, Mr. Glynn was ordered to produce them. The pre-hearing letter of the following day indicates that General Accident raised the possibility that it would request a psychiatric examination, but did not make a decision at that time. The pre-hearing letter contains only a brief summary of the discussions, but correspondence between counsel confirms that General Accident was holding-off on a decision on the necessity of a psychiatric examination until it received Mr. Glynn's psychiatric records. The pre-hearing letter did not mention anything about a neuropsychological examination. Both counsel agreed to a three-day hearing, starting on July 2, 1996, three months from then.

General Accident's lawyer diligently followed-up on the productions, stressing the need for urgency.³ They did not receive them. Finally on May 18, 1996, he wrote to Mr. Glynn's lawyer stating that, to avoid prejudice, he had gone ahead and arranged a neuropsychological assessment with Dr. Joel Goldberg for June 10, 11 and 12, 1996, and was in the process of arranging the psychiatric examination (with Dr. Gary Chaimowitz). When Mr. Glynn advised that he would not attend the examinations without an arbitrator's ruling, the parties contacted the Commission. For a number of reasons, including the need for the ruling and because of delayed productions, the arbitration hearing was adjourned on consent and the motion set down for the day the hearing was to have commenced.

The arbitrator expressed a reluctance to make a procedural or interim order barring Mr. Glynn from proceeding to arbitration because she felt that she did not have the authority to compel him to attend an examination. In Belair and F.S, however, I stressed the importance of balancing the interests of both parties in determining whether the matter should be adjourned.

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 timing of a request is a factor in considering its reasonableness; it becomes very important where it would delay the process. 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. (Decision, page 7)

IV. CONCLUSION - NEUROPSYCHOLOGICAL EXAMINATION

I find that there is no reason to interfere with the arbitrator's ruling in regard to the neuropsychological examination. While an updated assessment might be helpful in resolving the conflict in the medical evidence or providing a firmer basis for the opinions expressed, little explanation was given for the late nature of the request.

From early on, the claim advanced by Mr. Glynn has included cognitive impairment and disability, and benefits were terminated on the basis of a review of his cognitive functioning. Mr. Glynn did not change the nature of his claim after benefits were terminated and no new significant medical information was advanced as to his cognitive impairments. General Accident provided no compelling reason why the neuropsychological assessment could not have been scheduled earlier or why it depended upon the production of outstanding documents. General Accident argued that the examination could have been completed in time for the hearing and would not have necessitated an adjournment, had Mr. Glynn attended. It further argued that in any event, the hearing had to be adjourned for other reasons, and the time-frame considered by the arbitrator was therefore artificial. However, unless good reason is shown, it is not acceptable to subject an applicant to further medical examinations, especially one such as this stretching over three days, at such a late stage in the process. It smacks of the kind of trial brinkmanship, or attempt to have the last word in experts' reports, that I criticised in Belair and F.S. and is presumed to prejudice the applicant. For this reason, I find no basis to disturb this part of the arbitrator's order.

V. CONCLUSION - PSYCHIATRIC EXAMINATION

The psychiatric examination, however, is a different matter and in my view, the arbitrator did not take sufficient account of the different circumstances.

Mr. Glynn's psychiatric condition really did not become an issue until after benefits were terminated and around the time arbitration was commenced. Until Dr. Mazurek's report, there was little reason to think that there was a significant psychiatric component to Mr. Glynn's condition, notwithstanding his prior treatment for depression. General Accident has never had a psychiatric assessment of its own performed, and its ability to fairly evaluate Mr. Glynn's claim may be severely compromised if it is not permitted to do so.

General Accident acted reasonably and without undue delay in having Mr. Glynn's claim reviewed in light of Dr. Mazurek's findings, and in deciding to wait for the psychiatric records before determining whether an examination was necessary. At that point, it had very little to go on. The arbitrator acknowledged the merits of this approach but concluded that the insurer could not be allowed to investigate the claim "indefinitely". I agree with this view in principle, but I do not believe it realistically allowed for the speed of events in this case. The pre-hearing took place only about three months after the commencement of the arbitration and not much more after receipt of Dr. Dermer's report. The hearing was scheduled for three months later. During this relatively brief time-frame, General Accident diligently pursued the records it was seeking. At the pre-hearing, it raised the possibility that it might require an examination and there is no evidence that it was warned that any further delay would prejudice its right in this regard. In the event, General Accident advised that it was going ahead, despite not receiving the records it had asked for. That was six weeks before the date of the scheduled hearing, not two weeks as suggested by the arbitrator.⁴ The psychiatric records were not provided until the end of June. Throughout, Mr. Glynn knew that General Accident was waiting on the medical records before deciding whether to schedule the psychiatric examination. There was no element of surprise.

It is not clear to me that the arbitrator took sufficient account of the particular context in which the request for a psychiatric examination took place in considering whether to grant General Accident the ruling it sought. In my view, this justifies a departure from her order. General Accident is entitled to require that Mr. Glynn attend a psychiatric assessment. It provided a reasonable excuse for the delay in seeking the examination. On the particular facts, it should not be prejudiced by being compelled to proceed to a hearing in the face of Mr. Glynn's refusal to attend.

Neither counsel challenged my authority to make an appropriate order, although a date for the psychiatric examination had not in fact been arranged. The scheduling of the examination was pre-empted by Mr. Glynn's anticipatory refusal to go. The scheduling of the psychiatric examination should now take place as quickly as possible, on reasonable notice to, and in consultation with, Mr. Glynn. The doctor’s report should be provided to Mr. Glynn no later than 30 days before the commencement of the hearing, unless otherwise ordered. If an appointment cannot be arranged on such terms with Dr. Chaimowitz at this stage, the order may be varied to provide for examination by another psychiatrist. If there is a dispute over who should conduct the examination, the notice provided or any other ancillary matter, I shall deal with the issue on an expedited basis by telephone conference call. In the event that Mr. Glyn refuses to go to the examination, the hearing scheduled for June 3, 4 and 5, 1997 will be adjourned, until he complies or the parties otherwise agree or I order otherwise.

Mr. Glynn’s frustration with the multitude of medical appointments he has undergone is understandable. Unfortunately, for whatever reason, an adversarial situation developed between the parties that may also have contributed to the events in issue here. I am referring this matter to a pre-hearing arbitrator, in the hope that some of the issues between the parties, including any relating to this order, can be resolved consensually.

Mr. Glynn is entitled to his appeal expenses.