Neutral Citation: 1999 ONFSCDRS 163
FSCO A98-000400

Between:

Carolyn Rodriguez
Applicant

and

Wawanesa Mutual Insurance Company
Insurer

Decision on a Preliminary Issue

Before: Donald Hale

Heard: August 23, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:
Linda Wolanski for Ms. Rodriguez
Guy Farrell for Wawanesa Mutual Insurance Company

The Applicant, Carolyn Rodriguez, was injured in a motor vehicle accident on February 23, 1993. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income benefits on March 14, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Rodriguez applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Ms. Rodriguez reasonably entitled to refuse to attend a psychiatric examination unless accompanied by her husband or mother?

Ms. Rodriguez is not reasonably entitled to refuse to attend a psychiatric examination unless accompanied by her husband or mother.

Following the pre-hearing held on August 6, 1998, the hearing in this matter was scheduled to proceed on August 23, 24, 25 and 26, 1999 to determine a number of issues in dispute between the parties, including Ms. Rodriguez' continued entitlement to income replacement benefits under section 12(5)(b) of the Schedule.

On February 18, 1999, the Insurer advised Ms. Rodriguez' counsel that a psychiatric examination with Dr. H. Stancer, a psychiatrist, had been arranged. The appointment was scheduled to take place on May 6, 1999. As a result of a fire in the Rodriguez family home in April 1999 and other scheduling difficulties, the parties agreed that the examination would not take place until July 26, 1999. Dr. Stancer was not available to conduct the examination at that time. Instead, the Insurer advised Ms. Rodriguez that it would be performed by Dr. Hoffman. Ms. Rodriguez indicated that, although she had no objection to attending the requested examination, she would only attend on the condition that her husband or mother be allowed to accompany her. The Insurer objected to this condition and brought this motion to address the propriety of Ms. Rodriguez' request. The Insurer seeks a ruling that Ms. Rodriguez is not entitled to attend the scheduled psychiatric examination accompanied by either her husband or her mother. The scheduling of the psychiatric examination by Dr. Hoffman has been postponed pending the outcome of this preliminary issue hearing. The hearing of the main issues in dispute between the parties has also been adjourned to December 13, 14, 15 and 16, 1999.

The Insurer submits that its right to ask for a psychiatric examination is not in dispute and that no question has been raised by the Applicant as to the professional qualifications of either Dr. Stancer or Dr. Hoffman. The Insurer points out that some of the questions which may be posed to Ms. Rodriguez in the course of her examination may reflect on her relationship with her husband or mother and that her answers may be tailored differently if either of these individuals are present during the examination. The Insurer argues that no evidence has been tendered which may lead to the conclusion that Ms. Rodriguez would be harmed psychologically if she was required to attend the examination alone. The Insurer suggests that the presence of her husband would be potentially intimidating to both the examining doctor and Ms. Rodriguez. The Insurer submits that a truly independent examination must be held in the absence of either Ms. Rodriguez' husband or her mother.

By way of summary, the Insurer submits that there is no reason why a normal and appropriate examination to properly evaluate Ms. Rodriguez' psychiatric condition should not be held. Accordingly, it seeks an automatic stay of these proceedings pending her attendance, alone, for the requested examination. The Insurer submits that it must assess Ms. Rodriguez as soon as possible, as the hearing has been set for December of this year.

In support of her position that she be allowed to attend the psychiatric examination accompanied by her husband or mother, Ms. Rodriguez filed a report from her treating psychiatrist, Dr. M. Mamelak, dated March 23, 1998, and three letters to her counsel from her treating psychologist, Dr. Angela Fountain, dated April 19, July 6 and 19, 1999. The letter dated July 6, 1999 explored the reasons why Dr. Fountain believes that it is necessary that Ms. Rodriguez be accompanied by her husband at the examination. She indicates that Ms. Rodriguez:

routinely requests the attendance of her husband at all her assessments and treatment. She makes this request based on her experience and perception of being mistreated in the past by various professionals that have been required to examine or assess her. As her attending psychologist, I support this request.

Dr. Fountain goes on to state that:

There are no reasons why a professional would refuse having Mr. Rodriguez attend his wife's examinations other than Carolyn's suggestion in her June 10, 1999 correspondence to you [her counsel] that some of the doctors scheduled to examine her may have their own personal discomforts regarding Mr. Rodriguez' presence.

I have not been provided with a copy of the June 10, 1999 letter from Ms. Rodriguez to her counsel which is referred to by Dr. Fountain and I am unable to comment accordingly on Ms. Rodriguez' perception of the potential impact which Mr. Rodriguez' presence may have on the Insurer's psychiatric examiners.

Ms. Rodriguez submits that she has been under a great deal of stress and is emotionally fragile, having been involved in four motor vehicle accidents between February 1993 and August 1995. She has been required to undergo a number of insurer examinations and has found them upsetting and invasive. For this reason, Ms. Rodriguez feels she requires that someone she can trust be present with her during the scheduled psychiatric examination. In addition, an intruder interrupted an examination which Ms. Rodriguez was required to attend in 1994, causing her emotional upset and reinforcing her reluctance to attend such examinations alone.

Review of the Authorities

In Peters and Guarantee Company of North America,² Arbitrator Joachim discussed the propriety of a request by the Applicant to tape record an insurer's examination. The examining doctor and the Insurer in that case objected to her doing so. The Applicant refused to attend for the examination unless she was allowed to tape record the entire examination. Arbitrator Joachim reviewed the reasons of the Ontario Court of Appeal in Bellamy v. Johnson³ where it was held that, in the circumstances of that case, a party undergoing a medical examination pursuant to section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure had no right to record the conversations which occur during the examination.

While distinguishing an examination conducted under those provisions with those conducted under the auspices of the Schedule, Arbitrator Joachim adopted the principles established in Bellamy, and held that the appropriate test is one of reasonableness:

The onus is on the applicant to satisfy the arbitrator that the refusal to submit to the examination unless the proceedings are tape recorded, is reasonable. The applicant must also demonstrate that the proposed method of tape recording the examination will not interfere with the medical examination, the likelihood of achieving a settlement, or the fairness and effectiveness of the arbitration hearing.⁴

Similarly, Bellair Insurance Company Inc. and F.S.⁵ articulated the purposes of the insurer's medical examination as follows:

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.

In my view, the principles set out by Arbitrator Joachim in Peters with respect to the right of an Applicant to set conditions on her attendance for an insurer's medical examination are equally applicable to the present circumstances. I find that Ms. Rodriguez bears the onus of establishing that her refusal to attend an insurer's examination unless accompanied by her husband or mother is reasonable, and that such accompaniment will not interfere with the examination, the likelihood of achieving a settlement, or the fairness and effectiveness of the arbitration hearing.

Findings

In my view, it is not reasonable for Ms. Rodriguez to refuse to submit to a medical examination unless she is accompanied. I was not provided with any evidence to indicate that either Dr. Stancer or Dr. Hoffman bring to the examination any bias or preconceived notions about her condition. I am unaware if either of these doctors have ever examined the Applicant in the past.

There was also no suggestion on the part of Ms. Rodriguez that she wished to have her husband or mother present at the examination to ensure that her privacy rights are protected, or for reasons of modesty or embarrassment. It would appear that the request was based on the perceived "moral support" which her husband or mother could provide, and the fact that her husband had been present at earlier examinations.

I conclude that I have not been provided with sufficient evidence to establish that the presence of Ms. Rodriguez' husband or mother at her examination is reasonable. I note that I do not have the authority to order Ms. Rodriguez to attend the examination alone.⁶ However, if she refuses to attend the examination unless accompanied, the arbitrator who conducts the hearing into the main issues in dispute between these parties may draw an adverse inference from such a refusal, in light of my finding that Ms. Rodriguez' request to be accompanied at the examination is not reasonable.

EXPENSES:

I exercise my discretion to award Ms. Rodriguez her expenses incurred in this preliminary issue hearing.

August 26, 1999

Donald Hale
Arbitrator

ARBITRATION ORDER