Neutral Citation: 1999 ONFSCDRS 29

FSCO A97-001486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ORLANDO PERTILI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Stewart M. McMahon

Heard:

Written submissions were received on February 1 and 2, 1999.

(No formal agreed statement of facts was filed. Counsel prepared memoranda containing mixed statements of fact and law)

Appearances:

Barry Edson for Mr. Pertili

Albert Conforzi for Zurich Insurance Company

Issue:

On January 26, 1999, the Insurer's counsel wrote to the Applicant's counsel indicating that he had arranged for Mr. Pertili to be examined by a psychiatrist on February 3, 1999. The Applicant's counsel replied that in his view the request was unreasonable and that his client would not attend. At my suggestion, the appointment was adjourned to allow me to consider this matter, and is now scheduled for February 17, 1999. The issue is whether the proposed examination is reasonably necessary to allow the Insurer to determine if Mr. Pertili is entitled to ongoing income replacement benefits.

Result:

1. The proposed examination by Dr. Bail, to be conducted on February 17, 1999, is reasonably necessary.

(i) The Law

Paragraph 42(1) of the Schedule¹ provides that an insurer may require the insured person to be examined by a physician for "the purpose of determining whether an insured person is entitled to a benefit." Sub-paragraph 42(3) provides that the insurer may require such an examination "as often as is reasonably necessary." What is reasonable is a question of fact. As was noted by Director's Delegate Naylor in Belair Insurance Company Inc. and F. S. (OIC P96-00039A, June 11, 1996), "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."

Mr. Edson, on behalf of Mr. Pertili, argues that the request is not reasonable for the following reasons: (1) the Insurer has long known that there is a significant psychological component to the Applicant's claim, (2) the Insurer has in fact fully explored this issue, and (3) the lateness of the request smacks of brinkmanship.

The number and nature of previous examinations, the length of time that the insurer has known of a particular complaint, and the timing of the examination, are all common themes explored in cases considering Insurer Examinations (IEs), and I am satisfied each of them merits scrutiny in this instance.

(ii) The Facts and Analysis

Mr. Pertili was injured in a motor vehicle accident on November 7, 1996, and in due course, the Insurer began to pay an income replacement benefit. In March 1997, the Insurer arranged for two IEs. One was a work capacity evaluation, the other a psychological examination by Dr. Peter Bernstein, C. Psych.

The authors of the work capacity evaluation concluded that there was no physical impairment, and therefore, by their definition, no disability.

Dr. Bernstein concluded that the motor vehicle accident was "the most likely explanation for his current presentation as temporarily psychologically impaired." In an addendum prepared approximately a month later, Dr. Bernstein opined that the treatment plan suggested by Mr. Pertili's treating psychologist was appropriate if it was limited to approximately 12 to 15 more sessions. In a further addendum prepared on May 2, 1997, Dr. Bernstein suggested that "participation in psychological therapies in tandem with a gradual return to work is not psychologically contraindicated." The Insurer terminated income replacement benefits a few weeks later on May 25, 1997. The sole issue for arbitration is entitlement to ongoing income replacement benefits.

The Insurer's counsel noted that since that time Mr. Pertili has continued to attend on various medical practitioners who have delivered reports in support of his claim. Counsel cited a number of reports that highlight the psychological aspects of the claim, and submitted that "fairness and justice" demands that his client have an opportunity to properly investigate the matter by way of a psychiatric examination. The submissions make no mention of subsequent examinations undertaken at the behest of the Insurer, and the clear implication is that none have been conducted. In point of fact the Insurer has had the benefit of a number of subsequent examinations.

In late June and early July, 1997, Mr. Pertili attended a multi-disciplinary medical and rehabilitation assessment at a Designated Assessment Centre (DAC), that included an assessment by a psychologist. Dr. de Sorkin, C. Psych. reported that Mr. Pertili presented as extremely anxious and somewhat depressed, and that he was experiencing post traumatic symptomatology including anxiety attacks, claustrophobia and behavioural changes. Dr. de Sorkin linked these symptoms to the accident.

A second multi-disciplinary medical and rehabilitation DAC was conducted a little more than a year later in November 1998. Dr. Bacal, C. Psych., concluded that Mr. Pertili demonstrated "substantial accident related impairments of psychological function" which required continuous treatment.

The Insurer's counsel noted that the above reports arose out of medical and rehabilitation DACs that are concerned with treatment rather than disability. This point is well taken, and care must be taken not to foster the misuse of DAC reports. However, in assessing whether an insurer reasonably requires further examinations, the totality of the available medical evidence must be considered. In this instance, the DAC reports do not directly address the issue of disability, but they do speak in a very direct way to Mr. Pertili's psychological health and the link between his condition and the accident. These two questions will be central to the determination of Mr. Pertili's entitlement to an income replacement benefit.

More to the point, the Insurer's submission completely ignores the fact that shortly before the second DAC, the Insurer arranged for Dr. Bernstein; who conducted the first psychological IE, to conduct a follow up examination on July 21, 1998. In that report, Dr. Bernstein reversed his earlier finding that Mr. Pertili was fit to return to work, but suggested that the existing disability was "not as a direct result of the subject motor vehicle accident." He suggested that the accident was now exerting only a "minimal contribution." This report, commissioned less than a year ago, directly addresses the issue to be arbitrated. If this were the end of the matter I would not have found the Insurer's request for another examination reasonably necessary.

As it turns out, notwithstanding the numerous psychological opinions, the Applicant's counsel referred Mr. Pertili to a psychiatrist for an assessment that was conducted on November 4, 1998. It can be inferred from this referral that counsel believed that to properly assess his client's entitlement to continued benefits, he required not merely a psychologist's opinion, but also that of a psychiatrist. Dr. Gerber diagnosed post traumatic stress disorder, a panic disorder with agoraphobia, and a major depressive disorder. Dr. Gerber connected these conditions directly to the accident. The psychologist who conducted the medical and rehabilitation DAC a couple of weeks later was not made aware of the psychiatric examination.

The fact that counsel saw fit to refer his client for a psychiatric examination severely undermines his submission that the Insurer's request is unreasonable. Counsel's reply that the psychiatrist's report does not offer a new diagnosis is no answer to the fact that the Applicant wishes to deprive the Insurer of that which he found appropriate, namely a psychiatric opinion. In my view, in the circumstances of this case, the Insurer's request is reasonable.

Finally, I wish to address the issue of timeliness. As noted above, the Applicant submits that the initial notice of the appointment, which came approximately two months before the scheduled hearing date, smacks of trial brinkmanship. Medical appointments arranged at the last minute are problematic at best, and I echo the strong comments made by Director's Delegate Naylor in both Belair and F. S. Supra, and Glynn and General Accident Assurance Co. (OIC P96-00085, March 17, 1997), about the timeliness of examinations. This examination was arranged very late in the process, and in other circumstances I would have given more heed to the Applicant's objections. However, in this case, Applicant's counsel failed to disclose the existence of his own psychiatrist's report until the delivery of his submissions on this motion. In the circumstances, it hardly behoves counsel to cry foul.

Conclusion:

I am satisfied that the Insurer's request to have Mr. Pertili examined by Dr. Bail is reasonably necessary to allow the Insurer to assess the Applicant's entitlement to ongoing income replacement benefits.

Expenses:

The expenses of the preliminary issue are left to the discretion of the hearing arbitrator.

February 17, 1999

Stewart M. McMahon

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96 and 551/96.