Neutral Citation: 1997 ONICDRG 88

OIC A96-001306

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA KASPEROWICZ

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

The Applicant, Maria Kasperowicz, was injured in an automobile accident on November 6, 1992. She applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.¹ Royal terminated weekly benefits on November 17, 1995. The parties were unable to resolve their disputes through mediation and Mrs. Kasperowicz applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The pre-hearing in this case initially took place on December 3, 1996. The pre-hearing was reconvened, by telephone conference call, at Royal's request on April 7, 1997. During the pre-hearing, Royal advised that it was seeking a psychiatric examination and an examination by a physiatrist, under section 23(2) of the Schedule, for the purpose of determining Mrs. Kasperowicz's disability. Royal subsequently advised that the proposed examinations would be conducted by Dr. Feldman, a psychiatrist, on April 17, 1997 and Dr. Smith, a physiatrist, on April 25, 1997.

Mrs. Kasperowicz took the position that Royal's requests were unreasonable.

The issue before me is:

Are Royal's requests that Mrs. Kasperowicz be examined by Drs. Feldman and Smith reasonable?

Result:

Royal's requests are reasonable. However, Royal must provide Mrs. Kasperowicz's solicitors with copies of the reports of Drs. Feldman and Smith at least four weeks before the commencement of the arbitration hearing.

Hearing:

At the resumption of the pre-hearing on April 7, 1997, Mrs. Kasperowicz was represented by Mr. J. Patrick Brown. Royal was represented by Mr. Stanley Tessis. There were no witnesses. Both counsel made oral submissions. I also received written submissions from Mr. Brown on April 11, 1997 and Mr. Tessis on April 14, 1997. I issued my decision in letter format on April 16, 1997.

I found that Royal's requests were reasonable. Notwithstanding my decision, Mrs. Kasperowicz refused to attend for the examinations. A further pre-hearing discussion was held on May 7, 1997 to consider the consequences of her refusal to attend. Mrs. Kasperowicz was represented by Mr. Alden M. Dychtenberg. Royal was represented by Mr. Marc Isaacs. Both parties agreed at that time that since I had determined that Royal's requests were reasonable, the consequence of Mrs. Kasperowicz's refusal to attend for the examinations was that the arbitration proceeding scheduled for June 16 to 19, 1997 would be adjourned until Mrs. Kasperowicz attended the examinations, unless otherwise ordered or the parties agreed otherwise.

My full reasons in respect of the reasonableness of Royal's requests are as follows:

Reasons for Decision:

The Issue

On April 7, 1997, Royal initially moved for a stay of the arbitration proceeding pending Mrs. Kasperowicz's compliance with its request that she attend a multi-disciplinary assessment with Work Able Centres Inc., for the purpose of determining her disability. However, during the course of the pre-hearing, Royal advised that it was no longer seeking a multi-disciplinary assessment but was seeking instead a psychiatric examination and an examination by a physiatrist. Shortly following the pre-hearing, Royal advised that the proposed examinations would be conducted by a Dr. Feldman, a psychiatrist on April 17, 1997 and Dr. Smith, a physiatrist on April 25, 1997.

Mrs. Kasperowicz submitted that Royal was not entitled to require these examinations under section 23(2) of the Schedule. Section 23(2) of the Schedule states as follows:

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 person in accordance with the law relating to autopsies.

Section 23(2) of the Schedule was considered by Senior Arbitrator Susan Naylor in Tandazo and Allstate Insurance Company of Canada (January 25, 1994), OIC A-003532. She concluded that the following conditions must be satisfied by an insurer before it could require an insured person to attend an examination under section 23(2):

1. the examination must relate to an insured person's entitlement to weekly benefits. Under the Schedule, an insurer cannot require an insured person to attend an examination by a practitioner appointed by it, if the request relates to medical, rehabilitation or care benefits;

2. the insured person must be given reasonable notice of the appointment;

3. the requirement of the examination must be reasonable, given the nature of the insured person's claim, condition and circumstances; and

4. the examination must be "by a qualified medical practitioner, psychological advisor or chiropractor."

I agree with Senior Arbitrator Naylor's analysis.

In this case the examinations requested by Royal relate to Mrs. Kasperowicz's entitlement to weekly benefits. Mrs. Kasperowicz did not dispute that reasonable notice was given. She also raised no objection as to the reasonableness of Royal's choice of Drs. Feldman and Smith. The issue in this case is solely whether the requirement of the examinations by these doctors is reasonable, given the nature of Mrs. Kasperowicz's claim, condition and circumstances.

Are the requests reasonable?

I. Background facts[^2]:

Mrs. Kasperowicz is 64 years old. She was a homemaker at the time of the accident. She has not worked since May 1992. She previously worked on a full-time basis at a Deli slicing meats. On November 6, 1992, she was a seat-belted front seat passenger in an automobile driven by her husband when the accident occurred. They were stopped at a light when their vehicle was rear ended by another vehicle.

Following the accident, Mrs. Kasperowicz complained of middle and lower back pain, as well as left arm pain. She was diagnosed as having sustained a cervical and lumbar strain. It was also determined that she likely suffered anterior wedge compression fractures of the 8th thoracic and 12th thoracic vertebras. Following the accident, Mrs. Kasperowicz also complained of insomnia and became very nervous.

Since the accident, Mrs. Kasperowicz's treatment has consisted of pain medication and extensive physiotherapy. However, she reported that the therapy did not improve her condition. Mrs. Kasperowicz's family doctor also referred her for an assessment to a psychiatrist. The psychiatrist, in his report of January 7, 1995, expressed the opinion that she was suffering from post-traumatic stress. Subsequently, Mrs. Kasperowicz commenced psychotherapy and started taking medication for her emotional problems.

In September and October 1995, Mrs. Kasprowicz underwent a number of examinations at the request of Royal. First, on September 21, 1995, she was seen by Dr. R. Saplys, Orthopaedic Surgeon. Dr. Saplys was of the opinion that, from a musculoskeletal perspective, Mrs. Kasprowicz's injuries were stable and did not require any further intervention or treatment in and of themselves. However, he was of the opinion that she had developed chronic pain and required treatment at a chronic pain clinic to help her cope with her pain and carry on with her usual activities of daily living. Dr. Saplys was unable to give Royal a time frame for when Mrs. Kasperowicz would be able to perform her usual activities. He suggested that Royal seek an opinion from a psychiatrist or a psychologist.

Second, on September 25, 1995, Mrs. Kasperowicz was seen by Dr. J. A. Nathanson, a chiropractor. Dr. Nathanson conducted a "past documentation review" and a functional abilities evaluation of Mrs. Kasperowicz. Based on his review of the previous reports and his evaluation of Mrs. Kasperowicz, Dr. Nathanson concluded that Mrs. Kasperowicz "...appear(ed) to be in a functional capacity to be able to perform and carry on her activities of daily living as she ha(d) done for the past 2 years."

Third, on October 2, 1995, Mrs. Kasperowicz was seen by Dr. Jeffrey P. Wyndowe, psychiatrist. Dr. Wyndowe was of the opinion at the time of his assessment that Mrs. Kasperowicz's symptomatology did not support a diagnosis of post-traumatic stress disorder. He was also of the opinion that her symptomatology did not support a diagnosis of major depression, although she may have been depressed at one time. Mrs. Kasperowicz advised him that many of her symptoms had improved since she began seeing her psychiatrist and began taking medication. Dr. Wyndowe believed that symptoms in the nature of anxiety continued to prevent Mrs. Kasperowicz from resuming her previous occupation; however, he did not feel that she was psychologically disabled from pursuing her activities of daily living. Dr. Wyndowe recommended that Mrs. Kasperowicz continue with the psychiatric treatment she was receiving because it was beneficial. He also suggested a behavioural treatment program.

Royal paid Mrs. Kasperowicz weekly benefits under section 13(1) of the Schedule (Benefit If No Income) for a three year period, from November 13, 1992 to November 17, 1995. Royal terminated benefits on November 17, 1995 based on the reports of Drs. Saplys, Nathanson and Wyndowe.

Mrs. Kasperowicz claims that she continues to be entitled to weekly benefits. She claims that her injuries continuously prevent her from engaging in substantially all of the activities in which she would normally engage.

Mrs. Kasperowicz applied for mediation in respect of her claim for weekly benefits on February 8, 1996. Mediation failed. Mrs. Kasperowicz subsequently applied for arbitration approximately 4 months later - on August 13, 1996.

Analysis and findings

This case involves a continuing claim for disability benefits for a period in excess of 156 weeks. Mrs. Kasperowicz is relying on the physical as well as psychological injuries she sustained in the accident, in support of her claim. Thus she has placed both her physical and psychological condition in issue. Prima facie, Royal is entitled to independent verification of both dimensions of her claim by appropriate specialists.

Mrs. Kasperowicz submits that Royal does not have an absolute right to require her to undergo an examination by a medical practitioner of its choice. She submits that there has to be a limit on the number of examinations that Royal can require her to undergo. Royal has already required her to undergo multiple examinations by health practitioners of its choice, including the examinations by Drs. Saplys, Nathanson and Wyndowe.

The plain wording of section 23(2) of the Schedule permits an insurer to request "...an examination of the insured person...as often as it reasonably requires." In Scott and Toronto Transit Commission (Markel Insurance)(September 4, 1992), OIC A-001116, Senior Arbitrator Naylor considered this provision and made the following comments:

...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.

I agree with these comments.³

The question in this case is whether the examinations by Drs. Feldman and Smith are reasonably required to fairly assess Mrs. Kasperowicz's condition.

Royal has little current medical information about Mrs. Kasperowicz's condition. Despite repeated requests by Mr. Tessis, Mrs. Kasperowicz has not, to date, produced the bulk of Royal's requests for production of the clinical notes and records of her treating physicians. The most recent medical report in Royal's medical brief is a report from her family doctor, Dr. Weinstock, dated January 18, 1996. In his report Dr. Weinstock indicates that he last saw Mrs. Kasperowicz on December 28, 1995, almost 15 months ago. There is no report from a physician, a psychiatrist or a psychologist after January 18, 1996, to assist Royal in assessing Mrs. Kasperowicz's condition after December 28, 1995.⁴

The Schedule entitles an insurer to a medical assessment independent of the insured person's own sources. I agree with the principle expressed in the case law that an insurer's ongoing right to require an independent medical examination is important to an informed adjudication of an insured person's entitlement to benefits.⁵ In this case Royal has not invoked this right since October 2, 1995.

Mrs. Kasperowicz submits that there is no need for the assessments requested by Royal in this case because "...the complexion of this claim has remained constant throughout" and has not changed since October 2, 1995. Mrs. Kasperowicz states that Royal has had full knowledge of her psychological and physiological problems since the examinations of Drs. Saplys, Nathanson and Wyndowe. She notes that in the appeal decision in Belair Insurance Company Inc. and F.S. (June 11, 1996), OIC P-96-00039A, the Director's Delegate specifically indicated in the facts of that case, that Belair was entitled to a psychiatric examination in order to evaluate the new direction of the claim. In that case the Director's Delegate indicated that "...at the time benefits were terminated and mediation initiated, there was little suggestion of a significant psychological component to Ms. S's claim. It was only after this that her doctors identified the extent of her emotional difficulties, and the case started to taken on an entirely different complexion." Mrs. Kasperowicz submits that in her case there have been no changes in her condition unlike the facts in the Belair case.

I do not accept this submission. In this case, Royal has little current medical information about Mrs. Kasperowicz. Thus, it is not in a position to confirm Mrs. Kasperowicz's assertion that there have been no changes in her physical or psychological condition since September and October 1995. In his report of October 7, 1995, Dr. Jeffrey P. Wyndowe, psychiatrist, indicated that Mrs. Kasperowicz's claim was an evolving one. Specifically, he noted that at the time of his assessment of Mrs. Kasperowicz, she was receiving psychiatric treatment and he was of the opinion that this treatment was beneficial. An examination by a psychiatrist of its choice would assist Royal in determining, independent of Mrs. Kasperowicz, the extent to which the psychiatric treatment Mrs. Kasperowicz has received since she saw Dr. Wyndowe on October 2, 1995, has benefited her and affected her ability to engage in substantially all of the activities in which she would normally engage prior to the accident.

Mrs. Kasperowicz submits that the reason for Royal's request for these examinations is not to determine whether she qualifies for weekly benefits under section 13(8)(b) of the Schedule but to bolster its case at the upcoming arbitration, otherwise it would have taken steps to follow up on Mrs. Kasperowicz's ongoing problems sooner rather than on the eve of the arbitration. She submits that it was clear from the results of Royal's previous independent medical examinations that she may be suffering "...a significant psychological component." In the functional abilities evaluation, Dr. Nathanson stated as of September 25, 1995 "(i)t is hoped that Mrs. Kasperowicz does complete her psychiatric assessment and therapy." In Dr. Saplys' report of September 21, 1995 he stated that "...she does require modalities to help her cope with her chronic pain and carry on with the usual activities of daily living...". Mrs. Kasperowicz submits that it has been approximately a year and half since Royal has requested these additional examinations. This clearly indicates that it has failed to properly review her claim in a timely manner, despite having knowledge of her ongoing problems.

Whatever may have motivated Royal to request the examinations when it did, I agree with the comments of Senior Arbitrator Naylor in Scott that "reasonableness" is an objective standard, not a subjective one, and that some latitude must be left for a range of circumstances, which fall within its parameters.

Applying the objective standard, I note that there has been no report from a physician, a psychiatrist or a psychologist after January 18, 1996 to assist Royal in assessing Mrs. Kasperowicz's condition. There has also been limited production of medical information.

Further, it has now been more than a year and a half since Mrs. Kasperowicz last attended at a medical examination at Royal's request although she has been receiving psychiatric treatment in the interim. I also note from Royal's production requests that she attended at the Emergency department of a hospital on April 10, 1996 and August 13, 1996.⁶ I find it fair, and hence reasonable for Mrs. Kasperowicz to attend the April 17, 1997 and April 25, 1997 examinations scheduled with Dr. Feldman, psychiatrist, and Dr. Smith, physiatrist, to evaluate the physiological and psychological aspects of her ongoing claim for disability benefits.

Mrs. Kasperowicz submits that she may be prejudiced because of the proximity of the timing of Royal's requests for the examinations to the arbitration hearing. The examinations are scheduled for April 17 and 25, 1997. The arbitration hearing is scheduled for June 16 to 19, 1997.

Royal submits that the examinations by Drs. Feldman and Smith and the filing of their reports will not delay the arbitration hearing.

I agree with Director's Delegate Susan Naylor in Belair and F.S. 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 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.

I do not find that the examinations at this point will unduly prejudice Mrs. Kasperowicz's ability to proceed with the hearing. While Mrs. Kasperowicz indicated that she may be prejudiced because of the timing of the requests, she did not claim that she would not be able to respond to the reports of Drs. Feldman and Smith if these reports were produced promptly following the examinations. Accordingly, I order Royal to provide Mrs. Kasperowicz's solicitors with copies of Drs. Feldman and Smith's reports at least four (4) weeks before the commencement of the arbitration hearing, so that Mrs. Kasperowicz's preparation for the hearing is not prejudiced.

I note that the time constraints in this matter do not arise solely as a result of Royal's conduct. Royal might have requested the examinations somewhat earlier than it did. However, part of the delay was caused by Mrs. Kasperowicz's delay in deciding whether or not she was going to pursue a claim for weekly benefits under section 12 of the Schedule. Royal was only advised that she would not be proceeding with a claim for benefits under section 12, by a letter dated March 31, 1997. Part of the delay was also caused by her delay in producing the clinical notes and records of her treating physicians. Royal wanted to obtain independent opinions in respect of her condition, taking into account the opinions of her treating physicians since December 1995.

In conclusion, I find that Royal's request that Mrs. Kasperowicz be examined by Drs. Feldman and Smith is reasonable in all the circumstances.

Order:

Royal's requests that Mrs. Kasperowicz be examined by Drs. Feldman and Smith are reasonable. However, Royal must provide Mrs. Kasperowicz's solicitors with copies of the reports of Drs. Feldman and Smith at least four weeks before the commencement of the arbitration hearing.

May 29, 1997

Shemin Manji

Arbitrator

Date

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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 3Other arbitrators have also agreed with Senior Arbitrator Naylor. See Ramjeet and State Farm Insurance Company (December 23, 1993), A-004685, Mora and Pafco Insurance Company Limited (March 20, 1995), OIC A-011093 and Glynn and General Accident Assurance Co. Of Canada (November 25, 1996), OIC A96-000004.
3. 4By letters dated March 4 and March 9, 1997, Royal received clinical notes and records from Dr. Anis, the Creditview Rehabilitation Clinic and Dr. Swiercsik. However, I was provided with no evidence and the parties made no submissions in respect of how helpful these notes were in assessing her current condition.
4. 5See Worthman and AXA Insurance (Canada) (March 13, 1997), OIC A96-000486. See also my decision in Granic and Allstate Insurance Company (January 30, 1995), OIC A-006615. See also, Belair Insurance Company Inc. and F.S. (Appeal decision) (June 11, 1996), OIC P96-00039A and Glynn and General Accident Assurance Company (supra).
5. 6Letter dated February 20, 1997 from Mr. Tessis to Mr. Brown
6. 2These facts are derived from Dr. R. Saplys' report dated September 21, 1995, Dr. J.A. Nathanson's report dated September 25, 1995 and Dr. Jeffrey P. Wyndowe's report dated October 7, 1995. These reports were filed by Royal prior to the initial pre-hearing.