Neutral Citation: 1999 ONFSCDRS 74

FSCO A96-001192

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BILL (BRAHIM) BOGIC

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Dirk C. VanderBent

Heard:

By motion record and written submissions received on March 9, 1999.

Appearances:

Michael J. Henry for Mr. Bogic

Mark Greg Abogado for AXA Insurance (Canada)

Issues:

The Applicant, Bill (Brahim) Bogic, was injured in a motor vehicle accident on July 26, 1991. He applied for and received statutory accident benefits from AXA Insurance (Canada) ("AXA"), payable under the Schedule.¹ AXA terminated weekly income benefits on June 25, 1994. The parties were unable to resolve their disputes through mediation, and Mr. Bogic 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 AXA entitled to an order adjourning Mr. Bogic's arbitration until he attends independent medical examinations by an orthopaedic surgeon and a neurologist?

The issue is whether these examinations, each requested pursuant to section 23(2) of the Schedule ("Insurer Examination"), are reasonably required. Mr. Bogic has adduced medical evidence indicating he suffered a closed head injury as a result of the accident. AXA asserts that it was only made aware of this diagnosis after its most recent Insurer Examination which was conducted by an orthopaedic specialist in June 1994. AXA states that it requires a neurological assessment to evaluate this diagnosis, and an updated orthopaedic assessment to evaluate further clinical examinations and medical evaluations conducted since its most recent Insurer Examination.

Result:

The arbitration is adjourned until Mr. Bogic attends the requested examinations, unless the parties agree otherwise.

EVIDENCE AND ANALYSIS:

As a result of the accident, Mr. Bogic suffered probable multiple rib fractures, as well as soft tissue injuries to his neck, back, chest and knees. He was seen by a rheumatologist, a neurologist, and a physiatrist, prior to an Insurer Examination which was conducted on June 3, 1994, by orthopaedic specialist, Dr. J. Zeldin.

Dr. Zeldin concluded that Mr. Bojic suffered moderate to severe myofascial strain injuries to the muscle and ligaments of his neck and back, and various soft-tissue contusions and bruises throughout his chest and knees. At the time of the assessment, he felt that Mr. Bogic might have had some ongoing discomfort consequent upon his pre-existing degenerative disc disease. However, Dr. Zeldin concluded that Mr. Bogic was "long since over the significant physical sequelae of his injury of July 26, 1991," and was physically able to return to work as a real estate agent. This Insurer Examination included a functional capacity evaluation performed on June 3, 1994, in which kinesiologist M. Barnes noted that Mr. Bogic was not capable of performing his light-level job on a full-time basis due to deconditioning and limited flexibility. This report was reviewed by Dr. Zeldin, but he maintained his conclusion that Mr. Bogic had physically recovered from his injuries, and could work as a real estate agent.

After receiving Dr. Zeldin's report, AXA decided that Mr. Bojic no longer qualified for weekly income benefits, and terminated payment effective June 25, 1994.

Mr. Bogic continued to receive medical treatment and investigation, subsequent to Dr. Zeldin's assessment. A Radiographic Digital Analysis conducted on July 14, 1995 showed intersegmental instability at the C2, C3 level as well as some angular motion loss of integrity at C5-6. On September 22, 1995, an MRI of the cervical spine was conducted which showed degenerative disc changes at C5,6 and C6,7. An ECD brain scan was performed on February 12, 1996, which demonstrated focal perfusion deficits. On October 9, 1996, another neurologist, Dr. F. Tyndel, concluded that Mr. Bogic had sustained a head injury and was suffering from a post-traumatic syndrome with the possibility of a non-organic type of dizziness.

On August 21, 1998, Mr. Bogic's counsel delivered to AXA a medical/legal assessment report by physiatrist Dr. J. Somerville, who examined Mr. Bogic on August 11, 1998. She stated that Mr. Bogic's main problem, dizziness, could be benign positional vertigo, or a much more serious condition called vertebral basilar artery insufficiency. She noted that the latter could be due to cervical spine trauma. She concluded that Mr. Bogic had sustained a head injury as well as soft-tissue trauma. She also stated that he suffered from significant ongoing physiological pathology which had been documented through a number of investigations. She expressed the opinion that he was competitively unemployable. She recommended that he undergo an MRI of the brain, a full neuropsychological assessment, and an in-depth otolaryngology assessment.

AXA asserts that prior to the delivery of Dr. Somerville's report, it had received no indication that Mr. Bogic had sustained a closed head injury. Mr. Bogic did not dispute this assertion. Nothing in the motion record indicates that AXA received the results of the Radiographic Digital Analysis, MRI of the cervical spine, or ECD brain scan, prior to the delivery of Dr. Sommerville's report.

Dr. Somerville's recommended investigations were performed. An MRI was completed on November 20, 1998. Mr. Bogic underwent a neuropsychological assessment by psychologist, Dr. G. Snow on December 15, 1998, and an assessment by Otolaryngologist, Dr. Fenton on January 15, 1999. The material filed in support of the motion does not clarify whether these investigations were conducted as Insurer Examinations, or merely facilitated through the Insurer, in the usual course of arranging and funding supplementary medical and rehabilitation benefits. The results of these assessments, if available, were not submitted as evidence.

On August 28, 1998, AXA requested that Mr. Bogic attend an Insurer's Examination with a neurologist. By correspondence dated August 31, 1998, Mr. Bogic took the position that AXA was not entitled to any further Insurer Examinations, stating that AXA must stand on its refusal and the supporting documentation that it relied on for the termination. Mr. Bogic did agree to attend the assessments which Dr. Somerville had recommended for further treatment. On December 29, 1998, AXA renewed its request for an Insurer Examination to be conducted by a neurologist, and added a request for an Insurer Examination to be conducted by an orthopaedic surgeon. AXA confirmed the appointment times in late January and early February 1999. No argument was raised by Mr. Bogic that this notice was inadequate. These appointments have since been rescheduled. The arbitration is currently scheduled to be heard in August 1999.

Analysis:

Mr. Bogic argues that the Insurer must stand on its refusal to pay further benefits and the supporting documentation that it relied on at the time it terminated his benefits. He argues that AXA has failed to establish any exceptional circumstances which would warrant any further Insurer Examinations. The governing legislation in this case is subsection 23(2) of the Schedule, which provides:

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 insured person in accordance with the law relating to autopsies.

This section has been the subject of several arbitrations, which set out the following principles:

Arbitrators have consistently emphasized that the purpose of subsection 23(2) of the Schedule is to enable an insurer to fairly and effectively assess a claim for weekly disability benefits. This is not merely an insurer's right, but an obligation it owes to its insured.²
The regulation attempts to balance an insurer's right to request an examination and an applicant's right to privacy. A request may be made only as often as is reasonably required. However, neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. "Reasonableness" is an objective standard. It is not for an arbitrator to "second-guess" an insurer's actions or motives in requiring a medical examination.³
The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed. An insurer may require more than one examination, or examinations by more than one specialist or a multi-disciplinary assessment.⁴
Subsection 23(2) of the Schedule is not limited to requests made before the termination of benefits or the commencement of mediation.⁵
Where there is a claim for ongoing benefits, and a lengthy period of time has transpired since the most recent examination, it is fair, and hence reasonable for an insurer to request further examinations in order to evaluate an applicant's claim.⁶ Further examinations are also reasonable where there have been changes in the nature of the insured person's medical or psychological condition which are relevant to his or her disability claim.⁷ However, it is unreasonable to request an examination where circumstances indicate that its only apparent purpose is to acquire medical evidence to bolster the insurer's case at a hearing.⁸
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.⁹ The speed and informality of the dispute resolution process do not allow for the insurer to investigate the Applicant's claim indefinitely.¹⁰
While an arbitrator has no authority to compel an insured person to submit to an insurer's examination which has been reasonably requested pursuant to s.23(2),¹¹ an arbitrator may adjourn the hearing until the insured person attends such examination.¹² However, an arbitrator's power includes the discretion, in appropriate cases, to refuse to adjourn a hearing to allow an insurer time to conduct a medical examination, where to do so would be unfair to the applicant.¹³

The fact that an insurer has terminated benefits is not a valid basis on which to refuse a request for an Insurer's Examination. Insurers have an ongoing obligation to assess claims for weekly benefits. It cannot be presumed that the purpose of a subsequent request for an Insurer Examination is only to acquire evidence to bolster the insurer's case. Consequently, I do not accept Mr. Bojic's submission that an insurer is restricted only to the medical evidence on which it based its termination, nor do I accept that the AXA must demonstrate exceptional circumstances to warrant a further medical examination.

Mr. Bojic has not argued that the timing of AXA's requests or the scheduling of the medical appointments were unreasonable. He does, however, assert that AXA has had a fair opportunity to determine the seriousness and true significance of his injuries, and therefore further examination is not reasonably required. I do not accept this submission.

As the head injury diagnosis was made relatively recently, and only became evident after the latest Insurer Examination, AXA must evaluate this aspect of Mr. Bojic's condition if it is to effectively assess his disability claim. I received no evidence to suggest that the neuropsychological and otolaryngological assessments recommended by Dr. Somerville would provide sufficient information to enable AXA to evaluate this aspect of Mr. Bojic's medical condition. AXA's request for an examination was made on a timely basis. I find that it is reasonable to choose a neurologist to assess the nature and extent of Mr. Bojic's head injury, in the context of reviewing the results of his MRI. Therefore, I find that AXA has made a reasonable request for a neurological examination.

I turn now to AXA's request for an Insurer's examination by an orthopaedic surgeon. It has been over four years since AXA has had an orthopaedic Insurer Examination. Dr. Zeldin did not have the benefit of the Radiographic Digital Analysis or the MRI of the cervical spine, which were both conducted after his examination. Other specialists have provided more recent opinions regarding Mr. Bogic's medical condition. AXA has not yet had the opportunity to obtain its own medical evaluation of this information. Consequently, I am unable to agree with Mr. Bogic's assertion that AXA has had a fair opportunity to assess his medical condition. Given the length of time since the last Insurer Examination, and the receipt of further clinical test results and medical opinions, I find that it is reasonable for AXA to request another orthopaedic examination in order to assess Mr. Bogic's claim for weekly income benefits, particularly as his claim is ongoing.

EXPENSES:

The parties may return to me any claim for expenses of this hearing of this motion, if they are unable to resolve such claims between themselves.

April 30, 1999

Dirk C. VanderBent Arbitrator

Date