Neutral Citation: 1999 ONFSCDRS 88

FSCO A98-000693

BETWEEN:

ALICIA PETERS

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

M. Kaye Joachim

Heard:

By telephone conference call on May 6, 1999.

Appearances:

Theodore C. Dueck for Mrs. Peters

Terry R. Shillington for Guarantee Company of North America

The Applicant, Alicia Peters, was injured in a motor vehicle accident on December 3, 1995. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee terminated weekly caregiver benefits on December 3, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Peters 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 Mrs. Peters' refusal to submit to a medical examination with Dr. Israel without a tape recorder, unreasonable?

Mrs. Peters' refusal to submit to a medical examination with Dr. Israel without a tape recorder, is unreasonable.

Following a pre-hearing held December 14, 1998, the hearing in this matter was scheduled to proceed on May 4, 5 and 6, 1999 in Kitchener to determine whether Mrs. Peters is entitled to ongoing caregiver benefits beyond December 3, 1997 under section 18 of the Schedule.

The Insurer arranged to have Mrs. Peters examined by Dr. Israel on March 19, 1999. Dr. Israel had previously examined Mrs. Peters, at the Insurer's request, and submitted two reports dated June 20, 1997 and November 3, 1997. The Applicant's counsel did not object to the scheduled examination or date, but advised that Mrs. Peter's rehabilitation consultant would attend with her to observe the examination. The Insurer advised that it considered this an unreasonable request. The Applicant did not pursue the issue, but instead attended at the examination with a tape recorder, because she felt that Dr. Israel's approach to her in previous examinations had been intentionally rude and intimidating. The Insurer's counsel urged Dr. Israel (for the sake of expedition) to proceed with the examination. Dr. Israel refused to continue the examination with the tape recorder running. Mrs. Peters was offered the option of having her husband remain with her throughout the examination. Mrs. Peters, upon the advice of counsel, refused to continue with the examination if it was not recorded.

The Insurer seeks a ruling whether Mrs. Peters' refusal to submit to a medical examination by Dr. Israel without a tape recorder is unreasonable. A further medical examination with Dr. Israel is scheduled on May 28, 1999. The hearing on the merits has been adjourned, for various reasons, including this preliminary hearing, to June 28, 29 and 30, 1999.

Tape Recording Defence Medicals:

The Insurer relied on the decision of the Ontario Court of Appeal in Bellamy v. Johnson² as the appropriate approach in these circumstances. In that case, the master ordered the plaintiff to submit to a defence medical examination pursuant to section 105 of the 1990 Courts of Justice Act and Rule 33 of the Rules of Civil Procedure, and also ordered that the plaintiff could record the examination with a tape recorder. The basis for the order was the "demonstrated defence orientation" of the doctor and the "demonstrated lack of accuracy" in his report. The order of the master was set aside on appeal and the plaintiff's appeal to the Divisional Court was dismissed. The Court of Appeal dismissed the plaintiff's further appeal.

The Court of Appeal held that a party undergoing a medical examination pursuant to section 105 of the Courts of Justice Act has no right to record the conversations which occur during the examination. However, the Court, as part of its obligation to supervise the discovery process, may set terms and conditions relating to the examination, including a condition relating to the recording of the examination. The onus is on the plaintiff to demonstrate the need for the recording. In Bellamy, the Court of Appeal found that the plaintiff did not make out a case for tape recording the medical examination.

The majority of the Court held that there was no evidence to support the master's conclusions that the doctor demonstrated a defence orientation or a lack of accuracy in his records.

Mr. Justice Doherty's decision sets out the considerations which should inform a decision permitting the tape recording of conversations which occur during a defence medical. Most importantly, would the tape recording interfere with the examiner's ability to provide the information which the examination was designed to obtain? If not, would the tape recording affect the likelihood of reasonable settlements or the fairness or effectiveness of the trial?

Each application to permit tape-recording during the examination will depend on its own facts. If the moving party demonstrates the potential for a bona fide concern as the reliability of the doctor's or plaintiff's account of any statements made during the examination, and if the moving party proposes a method and terms of recording the examination which would provide both parties with a full and accurate record of those statements in a timely fashion, then an order permitting the recording would be appropriate.³

Mr. Justice Doherty found that the mechanics of taping the examination would not physically interfere with the examination. He was not convinced that a tape recorder would have such an "intimidating" effect so as to interfere with the conduct of an effective medical examination. Further, he found that the interference with the development of "trust" was not a significant factor, as there was no "doctor-patient" relationship created during a defence medical. Accordingly, he found that tape recording the medical examination would not impair the doctor's ability to conduct an effective defence medical.

Mr. Justice Doherty noted that a recording that would produce a full and accurate record which could be made available to all the parties in a timely fashion would enhance settlement prospects.

Also, where statements made during the examination are likely to be contested, a full and reliable record would expedite the trial.

However, merely permitting the plaintiff to tape record statements made during the examination would not necessarily result in a more reliable or more complete record. There was no suggestion that the plaintiff was prepared to take steps to ensure the accuracy of the initial recording, to preserve its integrity pending trial, or to make the tape available to the defence in a timely fashion following the examination. Mr. Justice Doherty concluded that without appropriate safeguards, merely permitting the plaintiff to tape record the examination would not promote the likelihood of settlement or enhance the fairness or effectiveness of the trial.

Similarities Between Defence Medicals and Insurer's Medical Examinations:

The reasons for obtaining a defence medical in a civil action and requesting a medical examination under the Schedule are similar.

A defence medical forms an integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue. The discovery process is designed to enable the parties to learn the case they have to meet, which in turn will increase settlement and ensure a fair and effective trial.⁴

Arbitrators have consistently held that the primary purpose of an insurer's medical examination under 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.⁵This obligation continues, even after the termination of benefits.

However, the fact that the primary purpose of the insurer's medical examination provision is to assist in the insurer's assessment of the claim does not mean that it cannot also be used to serve the ends of procedural fairness within the adjudication process.⁶

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.⁷

Thus, the insurer's medical examination under the Schedule, in addition to serving the purpose of enabling the insurer to assess an applicant's claim, is important in the adjudication process and can be used to ensure adequate disclosure, enhance the likelihood of settlement, and promote a fair, informed hearing. Therefore, it is appropriate to consider whether the proposed tape recording would serve these purposes.

Differences Between Defence Medicals and Insurer's Medical Examinations;

There are also important distinctions between defence medicals and insurer's medical examinations which should be considered.

In civil actions, unless the plaintiff consents, the onus is on the defendant to obtain an order to compel the plaintiff to undergo a physical or mental examination. It is at this stage that an order permitting the plaintiff to tape record the proceedings would be requested. Additional motions must be made if subsequent examinations are sought.⁸

Under the Schedule, insurers can require applicants to submit to medical examinations, as often as reasonably necessary.⁹ Arbitrators have no authority to compel insureds to attend medical examinations.¹⁰ They simply determine whether an insured person has failed to make himself or herself reasonably available for, or failed to submit to, an insurer's medical examination.

Thus, the focus of the inquiry is different under the Schedule. Rather than determining whether to impose conditions on an order compelling the plaintiff to submit to a medical examination, the issue arises in the context of determining whether an insured has, in effect, refused to submit to a medical examination by insisting on tape recording the proceedings.

The system for determining benefits under the Schedule represents a departure from the adversarial model of tort litigation. Generally, issues of fault are irrelevant and disputes about the extent and duration of disability are resolved through a series of procedures, including the use of insurer's medical examinations and designated assessment centres. Insurer's medical examinations, while performed by medical practitioners chosen by the insurer, are part of a non-adversarial, ongoing process of determining entitlement to benefits under the Schedule.

The non-adversarial nature of the process militates against routinely tape recording medical examinations. To assume at the outset that a medical practitioner selected by the insurer is biased against the insured, and that disputes will inevitably arise, would be to adopt an unnecessarily adversarial approach. Accordingly, I am satisfied that the applicant has the onus of demonstrating some basis to warrant tape recording a medical examination.

On the other hand, the medical examination should be as open and transparent as possible. An insurer's medical examination forms an integral part of the assessment process and insurers rely heavily on it to determine an applicant's entitlement to benefits. While applicants may refuse to submit to a medical examination if the request is unreasonable, the potential consequences of a refusal exerts pressure on applicants to co-operate.¹¹ Unlike tort actions, the Schedule contemplates ongoing benefits, necessitating ongoing assessments. As a result, insureds seeking benefits under the Schedule are likely to be more frequently examined than under the civil system. The need for accountability and openness would justify imposing a less stringent standard on applicants who seek to tape record an insurer's medical examination.

I note that an arbitrator's finding that an applicant is acting reasonably in tape recording an examination does not compel the medical practitioner to proceed with the examination. If the practitioner declines to conduct the examination under those circumstances, this would require the insurer to select another medical practitioner, which may or may not give rise to a further request by the applicant to tape record those proceedings.

Finally, I note that requiring an insured to submit to medical examination is "inherently intrusive and an invasion of individual privacy."¹² The insurer's right to request an examination as often as reasonably necessary must be balanced against the applicant's right to privacy. Procedural protections requested by applicants which reduce the inherent intrusiveness of the examination or enhance their right to privacy, while not undermining the purpose of the insurer's medical examination, should be permitted. An example of a protection which might be considered would be allowing the applicant to have a family member present for reasons of modesty or embarrassment.¹³

I conclude that an applicant has no inherent right to tape record statements made during an insurer's medical examination, although he or she may seek the medical practitioner's consent to do so. As a practical matter, it would be advisable to make this request in advance of the examination, as a medical practitioner is likely to be taken aback¹⁴ if an applicant attends at an examination with a tape recorder in hand. In the absence of consent, an applicant may make a motion to an arbitrator for a determination whether tape recording the proceedings is reasonable in the circumstances. Or, the insurer may make a motion that the applicant's refusal to submit to the examination unless permitted to tape record the proceedings, is unreasonable.

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.

Applying these principles to the facts before me, I find that it is not reasonable for Mrs. Peters to refuse to submit to a medical examination with Dr. Israel unless she is permitted to tape record the proceedings. She stated that Dr. Israel was deliberately rude to her in a previous examination. She also disputed a particular observation he made in his report (that her difficulty ascending the examination table was not due to her impairment). I am satisfied that these matters would be more appropriately dealt with by her giving viva voce evidence, and her counsel cross-examining Dr. Israel during the arbitration hearing, rather than by tape recording the examination. Dr. Israel's initial reports do not indicate any bias, negative attitudes, or significant factual disputes, which might warrant tape recording a further examination.

There was no suggestion in this case that Mrs. Peters sought to tape record the proceedings to ensure her privacy rights. I note that Dr. Israel was amenable to having her husband remain with her during the examination, which would have addressed such a concern.

I concur with the observation of the Court of Appeal that without some procedural safeguards to ensure the accuracy and reliability of the tape recording, the resulting recording is no more reliable than any account of the proceedings that Mrs. Peters could give herself. The Applicant's counsel suggested that Dr. Israel could tape record the proceedings as well, and a comparison of the two tapes would ensure accuracy. I am not satisfied that the use of a tape recording (or two) is likely to reduce the potential for disputes between the parties as to what transpired. On the contrary, such a recording (or two recordings) simply adds another contentious layer to the proceedings, whereby the parties may dispute the accuracy of the recording, the quality of the tape, or whether the tape has been selectively used or edited.

Accordingly, I find that Mrs. Peters' refusal to submit to a medical examination with Dr. Israel without a tape recorder, is unreasonable.

EXPENSES:

If the parties are unable to resolve the issue of the expenses of this preliminary motion, they may make written submissions to me.

May 13, 1999

M. Kaye Joachim Arbitrator

Date