Neutral Citation: 1999 ONFSCDRS 152

FSCO A99-000016

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JANE CHAFE-MOOTE

Applicant

and

PRUDENTIAL OF AMERICA GENERAL INSURANCE COMPANY (CANADA)

Insurer

DECISION ON PRELIMINARY ISSUES

Before:

Judith Killoran

Heard:

May 31, June 1 and 2, 1999, in London, Ontario Final Submissions by Teleconference on June 3, 1999

Appearances:

Monique R. Bennett for Mrs. Chafe-Moote Deborah Neilson for Prudential of America General Insurance Company (Canada)

Issues:

The Applicant, Jane Chafe-Moote, was injured in a motor vehicle accident on January 16, 1994. She applied for and received statutory accident benefits from Prudential of America General Insurance Company (Canada) ("Prudential"),¹ payable under the Schedule.² Mrs. Chafe-Moote refused to attend a multi-disciplinary insurer examination in Toronto scheduled for February 19 and 20, 1998. As a result, her caregiver benefits and housekeeping benefits were terminated on April 3 and August 9, 1998 respectively. Later, Mrs. Chafe-Moote refused to attend insurer examinations scheduled for August 25, September 14, 15 and 18, 1998. By letter dated August 27, 1998, Prudential informed her that no further caregiver benefits or housekeeping and home maintenance expenses would be considered. The parties were unable to resolve their disputes through mediation and Mrs. Chafe-Moote applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The preliminary issues are:

1. Did Prudential comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in Toronto on February 19 and 20, 1998?

2. Did Prudential comply with section 65 of the Schedule when it requested that Mrs. Chafe- Moote attend insurer examinations in London on August 25, September 14, 15 and 18, 1998?

3. Is Prudential liable to pay a special award under subsection 282(10) of the Act because it unreasonably withheld or delayed payments to Mrs. Chafe-Moote?

4. Is either party liable to pay the other's expenses under subsection 282(11) of the Act?

Result:

1. Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in Toronto on February 19 and 20, 1998.

2. Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in London on August 25, September 14, 15 and 18, 1998.

3. Prudential is liable to pay a special award to Mrs. Chafe-Moote equal to 50 per cent of the outstanding benefits owed to her together with interest on all amounts owing at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

4. Prudential must pay Mrs. Chafe-Moote's expenses of this preliminary issue hearing.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Chafe-Moote was born on June 16, 1959 and lives in London, Ontario. She is married to Dr. Doug Moote, a pediatric radiologist, and they have two children: Michael who is nine years old and Rachel who is seven years old. Mrs. Chafe-Moote graduated from the Ontario College of Art and Design in 1984. She worked as an illustrator but decided to stay at home to be a full-time mother after her son's birth in 1989. Dr. Moote worked very long hours and the couple felt it was important to have one parent at home.

On January 16, 1994, the family was returning from Toronto westbound on the 401 when a driver in the right hand lane swerved into the driver's side of their car. Mrs. Chafe-Moote was driving. Her son Michael, who was two and a half years old, was beside her in the front seat. Her husband was in the back seat with their daughter, Rachel, who was only one year old. The car flipped over the guardrails and landed upside down in the snow. The family was taken by ambulance to hospital.

Mrs. Chafe-Moote was the most seriously injured. She had facial cuts with bruising and swelling. She had jaw pain and bruising along the shoulder girdle, down the arms and in the back and pelvis area. Mrs. Chafe-Moote was x-rayed at Woodstock General Hospital and sent home. However, she experienced such severe pain in her neck and back extending to her left leg that her mother-in-law moved in for two weeks after the accident to look after the children.

Mrs. Chafe-Moote continued to experience cervical, shoulder girdle and lumbar pain after the accident. She had truncal pain extending into the buttocks, thighs, calves and feet together with jaw and bitemporal pain, and headaches. She began seeing a chiropractor on January 18, 1994 and in the spring commenced physiotherapy and psychological treatment. Her condition worsened and in the fall of 1994 she was wearing a thoracolumbar brace.

By spring 1995, Mrs. Chafe-Moote had difficulty walking. She began seeing Dr. M. Fleming, a family practitioner, on July 25, 1995. Dr. Fleming referred Mrs. Chafe-Moote to Dr. K. Gurr, an orthopaedic specialist, who arranged for a selective root block on July 27, 1995. Mrs. Chafe-Moote was subsequently diagnosed with left sciatica due to a left posteriolateral disc herniation. Dr. Gurr performed a discectomy in September 1995 which improved her endurance and walking capacity but did not relieve her low back and left leg pain. Mrs. Chafe-Moote's convalescence from the surgery was slow and painful.

Statutory Requirements for Insurer Examinations

Since the accident, Prudential has required Mrs. Chafe-Moote to attend a series of medical examinations.³ Mrs. Chafe-Moote, her family, her health care providers and her legal representatives consider the length and the number of these examinations to be excessive. Prudential's right to medical examinations is found in section 65 of the Schedule, which provides in part that:

(1) An insurer may, for the purposes of any of Parts II to VIII, X and XIII and as often as reasonably necessary, give an insured person notice requiring the person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) An examination under subsection (1) shall be scheduled by the insurer and, for that purpose, the insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

The initial onus is on Prudential to establish on a balance of probabilities that its proposed examinations fulfill the requirements of reasonability set out above. The general principle concerning insurer examinations has been summarized as follows:

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".⁴

Evidence of Mrs. Chafe-Moote and Family:

After the accident, Mrs. Chafe-Moote felt sore all over. The pain in both her legs slowly got worse and she had acute pains in the lumbar area, face, neck, and arms. She became increasingly frustrated with her inability to do the simplest things, such as prepare meals, bathe her children and do laundry. She found sleeping difficult and she had many nightmares about the accident. A police officer at the scene had told her that in another one or two seconds her car would have hit the cement abutment and her entire family could have been killed. She envisioned this happening over and over again.

Dr. Moote, Mrs. Chafe-Moote's husband, testified that before the accident, his wife was very lively and athletic. In fact, they had met in high school because they were both members of the swim team. Mrs. Chafe-Moote's days had been filled with constant activity, particularly with her children. Outside help was never hired because she performed all the household tasks. Mrs. Chafe-Moote's father, Joseph Chafe, and her brother, Michael Chafe, corroborated this testimony.

Michael Chafe lives in Texas and works as a nurse. Mrs. Chafe-Moote asked her brother to move into her home to help with the children and household chores after her back surgery in September 1995. Mr. Chafe came again in late December 1997 and stayed until May/June 1998 to help his sister, because she was having serious difficulties. He assisted her with the children, preparing meals and running errands while she attempted to do as much as she could. She needed to lie down to rest at least three times a day.

Mr. Chafe testified about the dramatic change in his sister's personality and her overall outlook on life after the accident. He described how his sister was not coping very well during 1997 and 1998. He witnessed panic attacks on four or five occasions. According to him, Mrs. Chafe-Moote had become very sad, withdrawn and confused in conversations. Joseph Chafe, Mrs. Chafe-Moote's father, reinforced this testimony and testified that his daughter did not seem "with it" physically or emotionally and became progressively more depressed.

Mrs. Chafe-Moote and her family members testified that she continues to be incapacitated in many ways. She has limited ability to cook and waits for her husband to arrive home to help with the children. Dr. Moote explained that his wife used to be very organized and meticulous. Now, she is confused about writing out something as simple as a grocery list and cannot think clearly.

Dr. Moote testified, and his testimony was corroborated by Mrs. Chafe-Moote's father and brother, that his wife became completely debilitated in 1996 and 1997 after she underwent a large number of medical assessments requested by Prudential.

Mrs. Chafe-Moote cooperated with Prudential but wondered why so many assessments were occurring so soon after her surgery in September 1995. On December 6, 1995, she attended an insurer examination with Dr. Sol Goldenberg, an orthopaedic specialist. On January 15, 1996, she attended a medical rehabilitation DAC assessment with Dr. P. J. Potter, a physiatrist, and K. Wolsey, a physiotherapist. On January 19, 1996, she attended a medical rehabilitation DAC assessment with Dr. E. Helmes, a psychologist. On March 29, 1996, she attended an occupational therapy assessment and on November 22, December 5, and December 9, 1996, she attended insurer examinations with Dr. Tony Iezzi, a psychologist. On November 26, 1996, she attended an insurer examination with Dr. Robert Farley, an orthopaedic specialist. On December 4 and December 12, 1996, she attended a medical rehabilitation DAC assessment with Dr. W. Newby, a psychologist, Dr. A.B. Deathe, a physiatrist, and Ms. Lisa Manto, a physiotherapist. On April 29, 1997, she attended a disability DAC assessment with Dr. Asha Bhardwaj, a consultant in physical medicine and rehabilitation. The series of long appointments and assessments was immensely stressful for Mrs. Chafe-Moote.

Mrs. Chafe-Moote described being increasingly unable to cope with life, family, and her daily functions. Her anxiety increased along with her pain. She became progressively more detached from her family and wanted to end her life at one point. Her husband had to dissuade her from doing so. Dr. Moote noticed how Mrs. Chafe-Moote's anxiety had increased, her sense of worth diminished and she felt everything about her life was questioned by the Insurer.

On December 5, 1997, Prudential asked Mrs. Chafe-Moote to attend further examinations scheduled for February 19 and 20, 1998 in Toronto.⁵ She was to be assessed by Dr. A. Ameis, a physiatrist, Dr. S. Bacal, a psychologist, and Dr. Urovitz, an orthopaedic specialist, for a functional capacity evaluation. Mrs. Chafe-Moote refused to attend this series of examinations. According to her family and health care providers, she could not possibly have left her family to travel alone to Toronto for two or three days in the winter.

Mrs. Chafe-Moote testified that she was willing to follow the rules and attend all the assessments scheduled, but had felt that the demands from Prudential were becoming onerous. She testified that she was usually told by Prudential, in a peremptory fashion, about days and times which had been scheduled for insurer examinations and DAC assessments, giving her little or no input into the scheduling.

Mrs. Chafe-Moote's dental problems were another source of pain and stress. Despite three reports from different dentists concurring on the treatment required and attributing her dental problems to the accident,⁶ Mrs. Chafe-Moote requested a dental DAC assessment because of Prudential's resistance to paying her dental claims. On April 29, 1998, she was assessed by Dr. B. Barnard who agreed that the accident was the source of her dental problems.

Mrs. Chafe-Moote attended a medical rehabilitation DAC assessment with Dr. P. J. Potter, a physiatrist, on May 6, 1998. Dr. Potter assessed her for ongoing physiotherapy, massage, chiropractic, and psychiatric needs. Next, she attended a medical rehabilitation DAC assessment with Dr. W. Newby, a psychologist, on May 22, 1998. The assessment extended for most of the day and Mrs. Chafe-Moote had a panic attack in the middle of the morning session. She called Ike Lindenburger, her therapist, for emergency assistance. However, she stayed up late that evening to complete the data collection questionnaires. Dr. Newby encouraged Prudential to support Mrs. Chafe-Moote's rehabilitation efforts and minimize its demands.⁷ By the end of May 1998, the medical/rehabilitation assessments were completed. However, in August 1998, Prudential provided just over a week's notice for another series of insurer examinations in London.⁸ Mrs. Chafe-Moote was to be assessed by Dr. G. Turral, a psychologist, Dr. Fred Langer, an orthopaedic specialist, and Nancy Haston & Associates for a functional abilities evaluation, and in addition, an in-home occupational therapy assessment was to be scheduled directly by Rehabilitation Occupational Therapy Inc. Mrs. Chafe-Moote refused to attend these examinations.

Medical Evidence — Dr. Fleming, Dr. Gurr, Ike Lindenburger and Dr. Merskey:

Dr. Fleming, a physician in family practice, first saw Mrs. Chafe-Moote on July 25, 1995 when she was complaining of lower back pain accompanying any movement of her legs. Dr. Fleming referred Mrs. Chafe-Moote to Dr. Gurr, an orthopaedic specialist, who performed a discectomy on Mrs. Chafe-Moote in September 1995. When operating, Dr. Gurr identified fibrosis, adhesion of the nerve root to the disc underneath it, and more than anticipated significant scarring. He followed Mrs. Chafe-Moote post-surgery from October 4, 1995 to August 23, 1996 and in that time, her symptoms were exacerbated and she needed a number of medications.

Dr. Gurr issued a report which commented on Dr. Farley's report from an insurer examination.⁹ Dr. Gurr took exception to many parts of the report. For example, Dr. Farley claimed that there was an enormous functional overlay and Mrs. Chafe-Moote might need rehabilitative physiotherapy for four months only. Dr. Gurr pointed out that no one was challenging Mrs. Chafe-Moote in the physiotherapy field and that she had attended a reputable professional clinic. There were no reasons to disbelieve her on grounds of credibility. Dr. Gurr anticipated no time limit on housekeeping support and did not expect any further improvements in pain and function for Mrs. Chafe-Moote.

Dr. Fleming testified about Mrs. Chafe-Moote's concern and agitation over the number of medical assessments which she had to attend. Dr. Fleming wrote four letters to Prudential dated March 25, 1998, August 28, 1998, November 16, 1998 and April 12, 1999, objecting to the manner in which Mrs. Chafe-Moote was being treated.¹⁰ She felt her patient was being treated unfairly and required to prove her disability over and over again.

Dr. Fleming wrote to Prudential on August 28, 1998 about Mrs. Chafe-Moote's inability to carry out her activities of daily living after speaking with Prudential's adjuster, Brian Samec. Mr. Samec advised her that each assessment was assessing something different. He outlined the difference between the rehabilitation and disability DAC assessment process. Dr. Fleming testified that, in any event, in her opinion, Mrs. Chafe-Moote had been subjected to inappropriate treatment.

Dr. Fleming's letter of April 12, 1999 to Prudential was sent when Mrs. Chafe-Moote started seeing Dr. Merskey, a psychiatrist. Dr. Fleming questioned taking away her major support, Mr. Lindenburger, her therapist, at a time of crisis. She emphasized that the situation was becoming more grave. Mrs. Chafe-Moote was expressing suicidal ideation and did not see the point of going on. In Dr. Fleming's opinion, due to Prudential's unacceptable treatment, the psychiatric counselling for Mrs. Chafe-Moote was limited to crisis management and could not move to deeper coping strategies for the ongoing injuries from the accident. Dr. Fleming testified that Mrs. Chafe-Moote requires a year or more of being left in peace in order to begin the process of recovery.

Ike Lindenburger does rehabilitation counselling with a psycho-social perspective. Dr. R. Teasell, a physiatrist, had referred Mrs. Chafe-Moote to Mr. Lindenburger in November 1995. Mr. Lindenburger continued to see Mrs. Chafe-Moote until very recently and in the three and a half year period of treatment, he has noticed a deterioration in her condition rather than any recovery.

Mr. Lindenburger testified that Mrs. Chafe-Moote is not functioning and not getting any better. She has tested in the severe range in psychometric tests, rating as severely depressed in the Beck Depression scale while the Burns test revealed severe anxiety. According to Mr. Lindenburger, the entire medico-legal process became a consuming crisis for Mrs. Chafe-Moote and was steady fodder in her counselling sessions.

On January 6, 1998, Mr. Lindenburger wrote to Brian Samec, Prudential's Senior Claims Specialist, specifying that it was not reasonable for Mrs. Chafe-Moote to travel to Toronto for another assessment. Later in the year, Mrs. Chafe-Moote became extremely upset during the period of assessments in London and would telephone Mr. Lindenburger in crisis situations. She discussed suicide and had suicidal ideation about how everybody would be better off without her. This suicidal ideation would come and go over the three and a half year period of counselling with Mr. Lindenburger. Dr. Newby makes reference to it in his report¹¹ as well. Mr. Lindenburger's sessions with Mrs. Chafe-Moote came to an end because the Insurer terminated its payments.

After Prudential terminated benefits for individual counselling, Mr. Lindenburger wrote to the Insurer objecting and indicating that Mrs. Chafe-Moote required ongoing counselling in order to cope.¹²

Dr. Harold Merskey is a psychiatrist who is an expert in chronic pain. Dr. Fleming, Ike Lindenburger and Dr. Teasell consulted and together decided to refer Mrs. Chafe-Moote to Dr. Merskey. He met with Mrs. Chafe-Moote for seven or eight hours on April 9, 1999 to review her pre- and post-accident health.¹³ He found that Mrs. Chafe-Moote was rather quiet and attempted to be controlled but was subject to severe anxiety and was somewhat depressed. She generally stood for much of the interview or lay on the examining couch. She was wan and intense and appeared to be in pain.

Mrs. Chafe-Moote told Dr. Merskey of her ordeal with the insurance process. He concluded that Prudential's treatment of her was contributing to her distress. Dr. Merskey diagnosed spinal sprain affecting her cervical and lumbar areas which had developed into fibromyalgia. In his opinion, she had a psychiatric condition of anxiety and depression as a result of her physical disability.

Dr. Merskey testified that the length and number of assessments requested by Prudential was excessive. In his view, the assessment process was extremely burdensome to Mrs. Chafe-Moote and significantly worsened her depression. He described the level of pain Mrs. Chafe-Moote experiences as the sort which drives people to suicide. In Dr. Merskey's opinion, a review of the medical information should have revealed that, in February 1998, Mrs. Chafe-Moote was physically and emotionally unable to travel to Toronto.

Mrs. Chafe-Moote saw two psychologists, Dr. Newby and Dr. Iezzi, in December 1996 for psychological assessments. In Dr. Merskey's view, these assessments were redundant as she had attended an assessment with Dr. Helmes, a psychologist, on January 19, 1996. Mrs. Chafe-Moote also attended a medical rehabilitation DAC assessment with Dr. Potter on May 6, 1998 and then a further insurer examination with Dr. Newby on May 22, 1998. According to Dr. Merskey, Dr. Newby's assessment for six and a half hours made the psychiatric assessment scheduled for August 1998 unnecessary.

Brian Samec — Senior Claims Specialist from Prudential

Mr. Samec explained that caregiver benefits were terminated because of Mrs. Chafe-Moote's refusal to attend the various insurer examinations scheduled for February 1998 in Toronto. Payment for caregiver benefits from April 1998 to August 1998 was made just weeks before the arbitration hearing in order to resolve some of the outstanding disputes. Payment was made until the date of the second DAC assessment which was not attended by Mrs. Chafe-Moote in August 1998. Although Mr. Samec was familiar with Ike Lindenburger's report and Dr. Fleming's correspondence,¹⁴ he insisted that he was not worried about any threat to Mrs. Chafe-Moote's health and perceived no grave risk. Mr. Samec justified the request for further insurer examinations in August and September by explaining that the medical rehabilitation DAC assessment of May 1998 was related to treatment and did not address Mrs. Chafe-Moote's ability to function in the home. Mr. Samec testified that he considered that eight assessments in a one year period was reasonable, depending on the circumstances involved.

Findings:

I find that Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in Toronto on February 19 and 20, 1998. I also find that Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend further insurer examinations in London on August 25, September 14, 15 and 18, 1998.

Prudential made little effort to balance Mrs. Chafe-Moote's right to privacy with its right to require medical examinations. I find that the length and number of assessments and examinations it requested were excessive. As well, I am mindful that Prudential received a great deal of necessary information about Mrs. Chafe-Moote from a variety of other sources. For example, Prudential received reports from Suzanne Helfenstein, the physiotherapist who saw Mrs. Chafe-Moote twice weekly, from Jean Fitzmaurice, the rehabilitative consultant, Ike Lindenburger, Mrs. Chafe-Moote's therapist and Dr. Fleming, Mrs. Chafe-Moote's physician.

Interestingly, all the reports, assessments, and examinations, in the main, supported Mrs. Chafe-Moote's claims. Even Dr. Farley's report, which Prudential relied on, at one point, to discontinue caregiver benefits and restrict housekeeping help to a further four months, acknowledged that Mrs. Chafe-Moote should be seen by a psychologist and a physiotherapist who could develop a plan for her rehabilitation.

I accept Prudential's evidence that DAC assessments can be for different purposes. Certainly the distinction between a medical/rehabilitation DAC assessment and a disability DAC assessment is valid. However, I find that Prudential made little effort to coordinate its assessments and examinations to avoid duplication. As well, section 65 of the Schedule requires that the Insurer make reasonable efforts to schedule the examination for a time that is convenient for the injured person. This was not done. The Insurer must provide reasonable notice, and in the case of the examinations scheduled for August 25, September 14, 15 and 18, 1998, this was not done. Prudential provided little more than a week's notice.

Prudential requested in its final submissions that I order Mrs. Chafe-Moote to attend insurer examinations within six months of the release of this decision. It is not within my jurisdiction to order Mrs. Chafe-Moote to do so. However, it is within my jurisdiction to rule on whether I find it reasonably necessary to have Mrs. Chafe-Moote attend insurer examinations within six months. I accept the testimony of Dr. Fleming, Mrs. Chafe-Moote's physician, that Mrs. Chafe-Moote requires at least one year of being left alone in order to make any progress. As well, I have considered the medical evidence which links Mrs. Chafe-Moote's deterioration and suicidal ideation to the length and number of assessments requested by Prudential. To date, Mrs. Chafe-Moote has been involved with more than 32 health care providers and examiners. Therefore, I find that it is not reasonably necessary for Mrs. Chafe-Moote to attend further insurer examinations within six months.

SPECIAL AWARD:

Section 281(10) of the Act provides:

If the arbitrator finds that an insurer unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the statutory accident benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

I find that Prudential unreasonably withheld and delayed benefits. Therefore, I order a special award, in accordance with subsection 282(10) of the Act. I agree with Arbitrator Joachim in Rocco and AXA Insurance (Canada)¹⁵ where she stated:

I find nothing in section 282(10) of the Insurance Act which allows an Insurer to defeat the imposition of a special award by making payment just before the commencement of the hearing. The subsection specifically refers to payments which have been "unreasonably withheld or delayed". In my view, a withholding or delaying of benefits until shortly before the hearing can attract a special award, if the Insurer's actions are unreasonable.

The amounts which were unreasonably withheld include the $7,802.04 sum for caregiver benefits from April 5, 1998 to August 29, 1998 which was forwarded to Mrs. Chafe-Moote on April 27, 1999. This sum was mailed directly to Mrs. Chafe-Moote, not to her legal representatives, with no explanation.

Prudential treated Mrs. Chafe-Moote so inappropriately that a number of her health care providers wrote to the Insurer to complain. For example, on March 25, 1998, Dr. Fleming wrote and expressed her disapproval in these words:

I feel that Jane is also under considerable stress due to the inappropriate, excessive and seemingly endless assessments which [the insurer] has insisted she undergo in order to prove her disability. Jane has received excellent care and has made every effort to rehabilitate herself without success. These relentless assessments only cause more pain and mental anguish which can only be detrimental to Jane's recovery.¹⁶

In light of these facts, I find that this is an appropriate case in which to award the maximum amount in terms of a special award; that is, 50 per cent of the amount to which Mrs. Chafe-Moote is entitled together with interest.

EXPENSES:

I exercise my discretion to award Mrs. Chafe-Moote her expenses of this preliminary issue hearing.

August 6, 1999

Judith Killoran Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 152

FSCO A99-000016

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JANE CHAFE-MOOTE

Applicant

and

PRUDENTIAL OF AMERICA GENERAL INSURANCE COMPANY (CANADA)

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in Toronto on February 19 and 20, 1998.

2. Prudential did not comply with section 65 of the Schedule when it requested that Mrs. Chafe-Moote attend insurer examinations in London on August 25, September 14, 15 and 18, 1998.

3. Prudential must pay a special award to Mrs. Chafe-Moote equal to 50 per cent of the outstanding benefits owed to her together with interest on all amounts owing at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

4. Prudential must pay Mrs. Chafe-Moote's expenses of the preliminary issue hearing.

August 6, 1999

Judith Killoran Arbitrator

Date

APPENDIX

Chronology of Insurer's Referrals, Examinations and DAC Assessments Requested

Since the accident, the insurer has requested that Mrs. Chafe-Moote attend numerous examinations as follows:

1. December 6, 1995

Dr. Sol Goldenberg, orthopaedic specialist

2. January 15, 1996 Medical Rehabilitation DAC

Dr. P.J. Potter, physiatrist and Kelly Wolsey, physiotherapist

3. January 19, 1996 Medical Rehabilitation DAC

Dr. E. Helmes, psychologist

4. March 29, 1996 Occupational Therapy Assessment

Patricia Morand, occupational therapist

5. November 22, December 5, and December 9, 1996 - Insurer Examination

Dr. Tony Iezzi, psychologist

6. November 26, 1996 Insurer Examination

Dr. Robert Farley, orthopaedic specialist

7. December 4 and December 12, 1996 Medical Rehabilitation DAC

Dr. W. Newby, psychologist Dr. A.B. Deathe, physiatrist Lisa Manto, physiotherapist

8. April 29, 1997 Disability DAC

Dr. Asha Bhardwaj, Consultant, Physical Medicine and Rehabilitation

9. February 19 and 20, 1998 Insurer Examinations

Dr. A. Ameis, physiatrist Dr. S. Bacal, psychologist Dr. E. Urovitz, orthopaedic specialist (FCE)

• Mrs. Chafe-Moote did not attend this series of examinations.

10. April 29, 1998 Dental DAC assessment

Dr. B.J. Barnard, dentist

11. May 6, 1998 Medical Rehabilitation DAC

Dr. P.J. Potter, physiatrist, and Lisa Manto, physiotherapist

12. May 22, 1998 Insurer Examination

Dr. W. Newby, psychologist

13. August 25, Sept, 14, 15 and 18, 1998 Insurer Examinations

Dr. G. Turral, psychologist Nancy Haston & Associates (FAE) Dr. Fred Langer, orthopaedic

plus an in-home occupational therapy assessment to be scheduled directly by Rehabilition Occupational Therapy Inc.

*Mrs. Chafe-Moote did not attend this series of examinations.

Footnotes

1. 1The Insurer will be referred to as Prudential, although Prudential is now part of the Liberty Mutual Group.
2. 2The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
3. 3See Appendix to this decision for complete history.
4. 4Scott and Toronto Transit Commission (OIC A-001116, September 4, 1992)
5. 5Exhibit 5, Tab 4, letter dated December 5, 1997 from Prudential
6. 6Exhibit 1, Tabs 9, 68, 69 - Dental Reports of Drs. J. DeMarco, W. Frydman and M. Friedman
7. 7Exhibit 2, Tab 6, Dr. W. Newby's report of May 22, 1998
8. 8Exhibit 5, Tab 21, letter of August 11, 1998 from Prudential
9. 9Exhibit 1, Tab 58, Dr. Farley's Report of November 26, 1996
10. 10Exhibit 5, Tabs 13 and 28, correspondence from Dr. Fleming to Prudential
11. 11Exhibit 1, Tab 61, Dr. W. Newby's Report of July 25, 1997, pg. 5
12. 12Exhibit 5, Tab 27, I. Lindenburger's letter to Prudential
13. 13Exhibit 2, Tabs 73, 74, Clinical Notes and Report
14. 14Exhibit 2, Tab 49, Lindenburger Report of January 6, 1998
15. 15(FSCO A97-00093, March 10, 1999)
16. 16Exhibit 5, Tab 13, Dr. M. Fleming's letter to Prudential dated March 25, 1998