Adelino Martinho v. York Fire & Casualty Insurance Company, 1999 ONFSCDRS 59

Neutral Citation: 1999 ONFSCDRS 59

FSCO A98-000878

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ADELINO MARTINHO

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Lawrence Blackman

Heard:

By telephone conference call on February 26, 1999.

On March 8, 1999, I rendered my oral decision on this preliminary issue. On March 9, 1999, I issued my order by letter.

Appearances:

J. David Lindsay for Mr. Martinho

Stanley C. Tessis for York Fire & Casualty Insurance Company

Issues:

The Applicant, Adelino Martinho, was injured in a motor vehicle accident on July 29, 1996. He applied for and received statutory accident benefits from York Fire & Casualty Insurance Company ("York Fire"), payable under the Schedule.¹ York Fire terminated weekly income replacement benefits on April 23, 1997. The parties were unable to resolve their disputes through mediation and Mr. Martinho applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. A pre-hearing discussion was held before me on November 4, 1998. At that time, the Insurer noted as potential witnesses at the hearing, members of a possible insurer's multidisciplinary assessment which it might arrange. The Applicant was silent as to whether he would attend such an assessment.

Following the pre-hearing discussion, the Insurer in fact did arrange a multidisciplinary assessment of the Applicant for December 1998. The Insurer advised the Applicant of these appointments by letter dated November 17, 1998. The Applicant's counsel advised the Insurer by facsimile transmission of November 23, 1998 that Mr. Martinho would not attend. The Insurer was further advised, by letter dated December 2, 1998, that the Applicant was going to attend his own multidisciplinary assessment at Columbia Comprehensive Rehabilitation Centre ("Columbia"). This assessment has now evidently been completed. However, the details of the Columbia assessment, including the specialties of the assessors, are not known except that a request was made to explore the neurological component of the Applicant's claim.

The Insurer now brings a motion, pursuant to section 65 of the Dispute Resolution Practice Code, for the following:

1. An order that the Applicant attend the following medical examinations:

• Dr. J. Richman, a specialist in occupational medicine;

• Dr. S.L. Debow, a psychiatrist;

• Dr. Nexhapi, a psychologist;

• Dr. G. Moddel, a neurologist;

• a work capacity assessment; and,

• a functional abilities assessment.

2. In the alternative, a declaration that the aforesaid attendances are reasonable and an order that the hearing presently scheduled to commence May 3, 1999 be adjourned until the Applicant attends at the medical examinations.

Result:

1. I find that the following medical examinations are reasonably necessary:

(a) An orthopaedic assessment with Dr. G.R. French;

(b) An assessment as to the psychological/emotional sequelae of the accident with either Dr. S.L. Debow or Dr. Nexhapi; and,

(c) A neurological examination with Dr. G. Moddel.

EVIDENCE AND ANALYSIS:

Are the medical examinations reasonably necessary?

The Insurer's right to medical examinations is found in section 65 of the Schedule, which states in part that:

65.—(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.

(3) The person or persons who conduct the examination shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(4) A notice referred to in subsection (1) shall state the expense to which the examination relates.

[emphasis added]

The initial onus is on the Insurer to establish, on a balance of probabilities, that its proposed examinations are reasonably necessary for the purposes of the particular provisions of the Schedule set out above.

The general principles concerning insurers' medical examinations were set out in the decision of Senior Arbitrator Naylor in Scott and Toronto Transit Commission (September 4, 1992, OIC A-001116), wherein she stated that:

The right of an insurer to require that the Applicant attend a medical examination under section 23(2) provides the insurance company with an effective opportunity to fairly assess the applicant's medical condition, on an independent basis.

The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the nnjuredperson'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."

The exercise of the right to a medical examination under the No-Fault Benefits Schedule is inherently intrusive and an invasion of individual privacy.

However, it is legislatively mandated. Neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. "Reasonableness" is an objective standard. Some latitude must be left for a range of circumstances, which fall within its parameters. It is not for an arbitrator to "second-guess" the actions or motives of the company in requiring a medical examination.

The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed. 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.

The issue is whether, in the circumstances of the case, the examination is reasonably required to effectively assess the nature and extent of the applicant's injuries. In making this determination, all the circumstances must be weighed.

[emphasis added]

Applying these principles to the circumstances of this case, I find the following:

1. It is reasonably necessary for the Insurer to now have a further opportunity to investigate Mr. Martinho's ongoing musculo-ligamentous complaints. The Insurer's only medical examination was on September 24, 1996, more than two years ago, when the Applicant saw Dr. G.R. French, an orthopaedic surgeon. The Applicant has an ongoing claim for weekly accident benefits from April 23, 1997. I am persuaded, therefore, that an appointment with Dr. French, if chosen by the Insurer, would be reasonably required.

I did not receive any evidence or submissions as to why it was reasonably necessary to have Dr. Richman, rather than Dr. French, conduct the musculo-ligamentous examination. One criterion for insurers' medical examinations noted by Senior Arbitrator Naylor is the insured person's right to privacy. Dr. French is already familiar with Mr. Martinho's case. I am not persuaded that an appointment with a doctor other than Dr. French to investigate the Applicant's ongoing musculo-ligamentous injuries is reasonably required.

2. The limited medical documentation before me notes certain psychological and/or emotional sequelae to Mr. Martinho following this accident. Audrey Miller, a health and rehabilitation consultant indicates in her February 26, 1997 file review, the January 24, 1997 opinion of Dr. Frank Adams of Columbia Neuro-Rehabilitation Services, that

Mr. Martinho "also suffers from Post-Traumatic Stress Disorder." The January 23, 1997 Mount Sinai Hospital designated assessment centre report states that Mr. Martinho "would benefit from psychological assessment for altered pain perception." The Insurer has not had the Applicant examined by an expert of its choice regarding the psychological or emotional component of the Applicant's condition. I find that an insurer's medical assessment of these consequences of the accident is reasonably necessary.

I did not receive any evidence or submissions, however, as to why it was reasonably necessary for Mr. Martinho to be examined by both a psychologist and a psychiatrist.

Accordingly, I am not persuaded that appointments with both Dr. Debow and Dr. Nexhapi are reasonably necessary. I did not receive any submissions from either party as to which of these two appointments would be more appropriate. I, therefore, leave it to the Insurer to decide with which of these two practitioners it wishes to proceed.

3. The Applicant appears to have an ongoing concern as to a neurological basis for his alleged disability. Genex Services of Canada, Ltd., a case management consultant, indicated neurological concerns in its November 12, 1996 report. The recent referral to Columbia for among other assessments, a neurological examination, indicates that this concern continues. The Insurer has not had a neurological examination of the Applicant conducted to date. Accordingly, I find that a neurological examination by Dr. G. Moddel is reasonably necessary.

4. The Insurer presented no evidence or submissions as to why, in addition to the examinations set out above, work capacity and functional abilities assessments were also reasonably necessary to fairly and effectively assess the Applicant's claim under the Schedule. The Insurer did submit, however, that as the Applicant has undergone his own multidisciplinary assessment, it would be unfair to require the Insurer to proceed to an arbitration hearing without its own multidisciplinary assessment.

I agree with the comments of Arbitrator Allen in her pre-hearing order in Swanson and Wellington Insurance Company (May 26, 1998, FSCO A98-000067), that "the purpose contemplated by [the Schedule] is to permit insurers opportunities, if requested under reasonable circumstances, to have medical examinations conducted on an insured in order that insurers might adjust claims." I further agree with her that the purpose of section 65 is not to allow insurers an opportunity to "acquire medical evidence . . . to bolster its case for the hearing. "

The purpose of section 65 is not to allow an insurer a number of witnesses at a hearing equal to those being called by the Applicant, or to allow a more impressive array of specialists or specialties should a matter proceed to dispute resolution. The purpose of section 65 is to allow an insurer, on a continuing basis, an effective opportunity to assess an applicant's ongoing medical condition, independent of the applicant's own experts, in order to adjust its file. Having no evidence as to why the orthopaedic, neurological and psychological/psychiatric assessments set out above are not reasonably sufficient, keeping in mind the "inherently intrusive" nature of medical examinations, I do not find either a work capacity assessment or a functional abilities assessment to be reasonably necessary.

What are the consequences of the Applicant's failure to attend?

Section 65 of the Schedule sets out only the following consequences for the insured's failure to make himself or herself reasonably available for an insurer's medical examination:

(5) If the insured person fails or refuses to make himself or herself reasonably available for an examination under subsection (1), the insurer is not required to pay the benefits under section 16 or Part VII, VIII, X, or XIII, as specified in the notice under subsection (1), until the person submits to the examination.

(5.1) If the insured person fails or refuses to submit to an examination under subsection (1), the insurer may withhold payment of the weekly benefits under Part II, section 15 or Part IV, V or VI until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

These remedies are not relevant in this case, as the Insurer has denied ongoing weekly benefits on substantive rather than procedural grounds.

The Insured did not argue that the Insurer's examinations arranged for December 1998 were unreasonable because of any scheduling or logistical problems. Rather, he maintained that the Insurer did not have a right to any medical examination. The Applicant presented no other reason for not making himself reasonably available for the appointments.

It is established case law that an insurer's right to medical examinations does not end with any denial or termination of benefits or with the commencement of the Dispute Resolution process.

Director's Delegate Naylor stated in Belair and F.S. (June 11, 1996, OIC P96-00039A) that:

After an applicant has accessed dispute resolution, the exercise of an insurer's right to require an examination and the consequences of any refusal to attend, are subject to the principles and rules of the applicant’s chosen forum for adjudicating the dispute. In the courts, the insurer’s right to an examination is subordinated to the court’s power to order a medical examination, on motion of a party, under section 105 of the Courts of Justice Act, R.S.O. 1990, Chap C.43. 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.

[emphasis added]

My powers to control the arbitration process, however, do not extend to ordering an applicant to attend at a medical examination. This was stated in Granic and Allstate (January 30, 1995, OIC A-006615) by Arbitrator Manji and implicitly approved by Director's Delegate Naylor in Belair and F.S.

Dispute Resolution Group decisions have noted, however, other possible remedies should an applicant fail to make himself or herself reasonably available for an insurer's medical examination. Director's Delegate Naylor held in Belair and F.S. that the arbitrator's power:

...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.

Other remedies include drawing an adverse inference. Arbitrators may also have authority to limit the evidence presented by the Applicant or to limit the scope of the claim in the hearing, either in terms of the benefit period sought or the basis of the claim.

However, at this point, I find it premature to make an order as to what consequences may follow should the Applicant fail to attend the examinations noted above as being reasonably necessary, because:

1. I do not have all relevant particulars of the medical appointments which the Insurer may now choose to arrange in light of my findings noted above. Specifically, I do not know the timing of the appointments or indeed whether the Insurer wishes to have Dr. French again examine the Applicant. These considerations should be taken into account prior to making any further order.

2. The nature of the claim being advanced is obviously relevant in determining what is required for a "fair, informed hearing." The basis of the disability claim herein (and specifically whether a neurological or psychological disability is being advanced) will unfortunately not be clarified until the Columbia multidisciplinary assessment report is available. I, therefore, am of the view that the full medical brief, including the Columbia report, should be available before considering any further order.

April 12, 1999

Lawrence Blackman

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 59

FSCO A98-000878

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ADELINO MARTINHO

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. The following medical examinations are reasonably necessary:

(a) An orthopaedic assessment with Dr. G.R. French;

(b) An assessment as to the psychological/emotional sequelae of the accident with either Dr. S.L. Debow or Dr. Nexhapi; and,

(c) A neurological examination with Dr. G. Moddel.

April 12, 1999

Lawrence Blackman

Arbitrator

Date

Footnotes

1. 1The 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 and 463/96.