FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2000 ONFSCDRS 12 FSCO A96-001699

BETWEEN:

ANA MALESHEVICH Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: K. Julaine Palmer Heard: By written submissions Appearances: Karl Arvai for Mrs. Maleshevich Cameron C. R. Godden for Guardian Insurance Company of Canada

Issues:

These proceedings arise as a result of Mrs. Maleshevich's involvement in three motor vehicle accidents in 1990, 1993 and 1995, when she was insured by Guardian Insurance Company of Canada ("Guardian"). She was also involved in a fourth motor vehicle accident in 1997, when she was insured by another company. Mrs. Maleshevich claims she has sustained serious and permanent injuries to her head, neck, back, knees, and ankle. In addition, she says she continues to suffer from depression, post-traumatic stress, anxiety, sleep difficulties, memory problems and difficulties in concentration. She says she has been unable to work as a real estate agent, or in any other job, since the first accident.

Guardian paid Mrs. Maleshevich weekly income benefits from the first accident, according to the terms of the Schedule,¹ until April 1, 1995. A prehearing of this case was held in December 1997, when an arbitration date in November 1998 was set. Mrs. Maleshevich retained new counsel shortly before the hearing, which was adjourned until March 1999, peremptory to Mrs. Maleshevich. In February 1999 a second new solicitor for Mrs. Maleshevich advised he had just been retained and requested a further adjournment of the hearing, which was granted, again peremptory to Mrs. Maleshevich, until October 1999. As a condition of obtaining the second adjournment, the Applicant agreed that she would not receive any consideration for interest between November 28, 1998 and October 4, 1999. Just before the hearing was to begin, the parties settled the matter. However, shortly thereafter, Mrs. Maleshevich exercised her rights under Ontario Regulation 780/93 to rescind the settlement. The hearing was then re-scheduled for eight days beginning on April 10, 2000.

On September 17 and 20, 1999 Mrs. Maleshevich served the five following reports on Guardian:

• Dr. Eldon Tunks, psychiatrist, dated August 23, 1999
• Dr. James Sweeney, neuro-psychologist, dated September 14, 1999
• Dr. Scott Garner, physiatrist, dated September 9, 1999
• Dr. Ken Bowler, physiatrist, performing a medical-rehabilitation DAC assessment relating to the July 23, 1997 accident
• Dr. Nick Cuberovic, family physician, dated September 20, 1999

By letter dated November 1, 1999 Guardian's counsel advised they were "seeing to the scheduling of update IMEs of Mrs. Maleshevich and we would ask that you confirm that she will attend upon the return of same." No details of these examinations were enclosed or followed. Mrs. Maleshevich's counsel did not reply to this letter. No further communication between the parties on this issue occurred until Guardian served its motion documents on December 24, 1999, in which particulars of the examinations sought were disclosed. Only a date for the examination by the endocrinologist, Dr. J. Meyerson, was set out in this material. That date was typed as February 7, 1999 [sic], which I believe would be understood by all parties to mean February 7, 2000.

Guardian requests the following orders:

1. That Mrs. Maleshevich be ordered to attend: a psychological evaluation with Dr. H. Shah; a work capacity evaluation and functional abilities evaluation with Dr. J. Richman; a vocational evaluation with Adams-Webber, Pett; and an independent medical examination with Dr. J. Meyerson, endocrinologist, on February 7, 1999 [sic].

2. That Mrs. Maleshevich be ordered to pay Guardian's expenses of this preliminary hearing.

Mrs. Maleshevich denies that Guardian is entitled to the requested examinations. Mrs. Maleshevich also cross-applies for an order that Guardian pay outstanding medical and rehabilitation expenses and for an order that Guardian pay certain expenses pending a final order in the proceedings.

Mrs. Maleshevich filed her affidavit and supporting documents in relation to the application and cross-application on January 14, 2000. I determined that I would deal with Guardian's request on the basis of the filed documents and the Commission file, without oral submissions, as provided by Rule 64.4 of the Dispute Resolution Practice Code.

This decision deals only with the original application respecting the five examinations sought by Guardian. I will deal with the cross-application in a subsequent decision, after Guardian has had an opportunity to respond.

Result:

1. Guardian's request for an examination by Dr. Jeffrey Meyerson, endocrinologist, on February 7, 2000 is reasonable. That report should be delivered by March 6, 2000.

2. It would be reasonable for Mrs. Maleshevich to attend on Dr. Jack Richman, M.D. on February 21, 2000, or at an earlier date, if it can be arranged, for his personal examination and assessment of her disability. That report should be provided to Mrs. Maleshevich no later than March 3, 2000. It is not reasonable to require Mrs. Maleshevich to participate in a functional abilities evaluation.

3. Guardian's request for Mrs. Maleshevich to attend for a vocational assessment on March 13, 2000 is not reasonable.

4. Guardian's request for a psychological evaluation of Mrs. Maleshevich by Dr. Hemendra Shah is reasonable. That report should be delivered by March 10, 2000.

EVIDENCE AND ANALYSIS:

Insurer's Submissions

Psychological Assessment:

Guardian submits that it received a report of Dr. J. H. Ennis, psychiatrist, dated November 15, 1999 under cover of correspondence from Mrs. Maleshevich's counsel dated November 26, 1999. Dr. Ennis has treated Mrs. Maleshevich since July 1998. Guardian submits it was never advised Dr. Ennis was treating Mrs. Maleshevich, nor were his records ever produced.² Guardian also submits that it received a neuropsychological and psychological assessment report of Dr. J. E. Sweeney, dated September 14, 1999. Guardian says that it has not obtained a psychological evaluation of Mrs. Maleshevich from a psychologist in whom it has confidence since June 1994. For this reason, coupled with the fact of Mrs. Maleshevich's ongoing psychiatric treatment, it submits it is entitled to a psychological evaluation with Dr. H. Shah, a psychologist who can assess Mrs. Maleshevich in Hamilton, close to her home.

Work Capacity Evaluation and Functional Abilities Evaluation:

Guardian requests a work capacity evaluation and functional abilities evaluation with Dr. J. Richman, a medical doctor who has practised full-time in the area of occupational medicine since 1977. Guardian says it has not obtained an insurer's examination with respect to the physical aspects of Mrs. Maleshevich's complaints since June 1994. A solicitor in the offices of Guardian's counsel deposed that the first available appointment for the physiatrist who examined Mrs. Maleshevich in 1994 is not until May 2000, after this matter is scheduled to be heard.

Insurer's Medical Examination - Endocrinologist:

Guardian requests an evaluation by an endocrinologist to obtain that specialist's opinion of the effect of hypothyroidism on Mrs. Maleshevich's cognitive function. The Insurer says Dr. Tunks' report of August 23, 1999 was the first occasion when it learned that hypothyroidism could have contributed to Mrs. Maleshevich's impaired cognitive functioning. In December 1999, Guardian scheduled an examination by an endocrinologist in Hamilton for February 7, 2000. Guardian advised this in its application material served December 24, 1999 and reiterated it in its letter of January 13, 2000. In her affidavit of January 12, 2000, Mrs. Maleshevich deposed that she would not be "available between January 24 and February 8, 2000" as she would be "out of town obtaining treatment."

Vocational Assessment:

The Insurer has not obtained a vocational evaluation of Mrs. Maleshevich. It says it is entitled to this because Dr. Garner is of the opinion that Mrs. Maleshevich would never return to any future competitive employment and because she was involved in a fourth accident in July 1997. Mrs. Maleshevich submits that has not obtained a vocational evaluation in preparing her case for arbitration.

Applicant's Submissions:

Mrs. Maleshevich says that Guardian has been aware of her ongoing need for psychological treatment from February 1995. She says Guardian refused to resume paying for her psychological treatment with Dr. John Schneider in December 1997 as recommended by her family doctor. She says she was eventually referred to a psychiatrist, Dr. Ennis, whose treatment, I presume, is paid by OHIP.

She says that since the Insurer did not indicate any wish to have her further examined before October 4, 1999, the fact that there has been "no development" provides the Insurer with no grounds for further assessments. Mrs. Maleshevich also says that if Guardian proceeds with the five additional examinations it seeks, she will have to retain new experts at considerable expense, in order to respond to the opinions of Guardian's new experts. She doubts that this could be done in time to allow the case to be heard as scheduled, in April 2000. She also deposes that she feels harassed by the number of examinations the Insurer wants her to attend.

Mrs. Maleshevich presented a brief of authorities and a Statement of Fact and Law in support of her position. Guardian also prepared a brief of authorities and a lengthy application document outlining its grounds for its requests.

Analysis:

Determining the appropriateness of Guardian's requests here requires a balancing of the interests of both parties. The timing is very important, if granting its requests would delay the hearing.³

Endocrinologist Examination:

In Mrs. Maleshevich's case, a question has been raised about the relationship of hypothyroidism to her pain disorder. Mrs. Maleshevich deposed that the Insurer was aware of her hypothyroid condition "well in advance of the October 4, 1999 arbitration date." She cites in support clinical notes of her family doctors from 1989, 1991, 1992, 1995, 1997, and 1998. I do not know when these clinical notes were made available to Guardian.

On page 26 of his report of August 23, 1999, Dr. E. Tunks comments on the "deleterious effect on her cognitive functioning" that Mrs. Maleshevich's hypothroid condition may historically have had. This report was served on Guardian on September 17, 1999. Dr. Tunks also makes other comments about her present state, on page 27. Dr. Sweeney comments on the irrelevance of hypothyroidism in the interpretation of Mrs. Maleshevich's test results, at page 12 of his report of September 14, 1999 which was served on the Insurer on September 17, 1999.

Guardian arranged an appointment with an endocrinologist for early February 2000. Mrs. Maleshevich has deposed that she is not familiar with this type of specialist and fears invasive procedures will be involved. She feels this examination would be an unwarranted invasion of her privacy.

In view of Dr. Tunks' comments, I find Guardian should be entitled to an opinion from an endocrinologist on the issue of Mrs. Maleshevich's hypothyroidism. Guardian first indicated it wished further examinations shortly after the collapse of the settlement in mid-October 1999. Although it should have been more particular in its correspondence to Mrs. Maleshevich about what examinations it wished to undertake, I find its request is reasonable, provided the examination can be undertaken promptly and a report produced punctually.

Guardian first notified Mrs. Maleshevich of the proposed examination date in its application documents, served on December 24, 1999. Mrs. Maleshevich has deposed she will not be available for a February 7, 2000 appointment, if her undisclosed, out-of-town treatment plans remain the same. Mrs. Maleshevich was not more forthcoming about what treatment she is pursuing, nor when any arrangements for this treatment were made. I find her bald statement curious, in an otherwise fulsome affidavit of some 11 pages, and her choice of treatment dates suspicious. In my view Guardian's request is reasonable.

On receipt of this decision Mrs. Maleshevich should immediately advise Guardian if she will attend the February 7, 2000 appointment as scheduled. Otherwise, she and Guardian may consult Dr. Meyerson as to whether that appointment can be rescheduled. In my view, if the appointment is held by February 21, 2000 and Dr. Meyerson's report is delivered by March 6, 2000, the scheduling of the arbitration beginning April 10, 2000 should not be in jeopardy. The Applicant deposes that she has been advised by her doctors as long as she takes her thyroid medication, she "will not experience any problems from the condition." If hypothyroidism is a non-issue in this arbitration, then in my view, Mrs. Maleshevich will not need to request a delay in the hearing to seek a further endocrinologist's opinion.

Mrs. Maleshevich has attended on numerous medical specialists in the past nine years, including physiatrists, neurologists and neurosurgeons, internists, rheumatologists, and orthopaedic surgeons. Mrs. Maleshevich says she is unfamiliar with the specialty of endocrinology. She has deposed that she expects the procedures to be invasive. In my view this reluctance to be examined by an endocrinologist appears unfounded. Before she attends on Dr. Meyerson, Mrs. Maleshevich's family doctor can provide her information on this medical specialty and the types of tests the endocrinologist may require.

Work Capacity Evaluation and Functional Abilities Evaluation:

Mrs. Maleshevich deposes that she has not worked since the accident of July 11, 1990. Her second accident was March 10, 1993. She received weekly income benefits until April 1995. She has deposed that her weekly income benefits were paid as a result of the first accident. I do not know the details of the accidents except as briefly summarized in the histories of various medical reports. It is important to understand that Mrs. Maleshevich's first two accidents occurred while the Schedule was the regulation governing statutory accident benefits. Any accident benefits to which she in entitled as a result of her 1995 accident fall under the 1995 Schedule, while any to which she is entitled as a result of her 1997 accident fall both under a third Schedule and are claims against another Insurer, who is not a party to this arbitration. This scenario complicates the issue of insurer's examinations as well as other aspects of Mrs. Maleshevich's case. It impacts on the parties' respective rights and obligations toward each other. The nature of this preliminary issue decision does not permit an exhaustive treatment of the myriad complexities in cases of multiple accidents and multiple accident benefit schemes.

In her affidavit, Mrs. Maleshevich deposes that she attended for a functional abilities evaluation conducted by a kinesiologist on May 26, 1994, without knowing that Guardian could only require her to attend for an examination by a qualified medical practitioner, psychological advisor, or chiropractor.⁴ She has not participated in another such an evaluation in preparation for the arbitration. In September 1999 she served a 21-page report from Dr. Scott Garner, a physical medicine and rehabilitation specialist regarding his examination of Mrs. Maleshevich on one occasion only in 1997. She also served a copy of a medical rehabilitation DAC report by Dr. Kenneth A. Bowler and Laura DiSilvestro, P.T. dated January 20, 1998, arising from an examination held with respect to treatment following the 1995 accident. Finally, she served a 3-page summary report from her family doctor since December 1995, Dr. N. Cuberovic, dated September 20, 1999.

The Insurer says it has not had an insurer's examination with respect to the physical aspects of Mrs. Maleshevich's complaints since June 1994. It says it should be able to have one, because of the service of Dr. Garner's report and because of Mrs. Maleshevich's involvement in a fourth motor vehicle accident in July 1997. These submissions are not persuasive, in view of the lapse in time between 1997 and November 1999. No further submissions delineate the rationale behind the need for a functional abilities evaluation; for example, there is no evidence from Dr. Richman with respect to the need for such an evaluation to assist him in evaluating Mrs. Maleshevich's condition.⁵ It is not clear to me from the Insurer's submissions whether it indeed perceived that Dr. Garner's report purportedly relates to Mrs. Maleshevich's condition in 1997, although the report itself only dates from September 1999. Dr. Garner's report does not disclose whether he examined Mrs. Maleshevich before or after the July 23, 1997 accident. He does not refer to that accident in his report. However, he reviewed reports of others dated as late as December 15, 1997.

Dr. Arthur Ameis, a physical medicine and rehabilitation specialist, examined Mrs. Maleshevich in June 1994 at the Insurer's request. He is not available on a timely basis to update his report by a further examination of Mrs. Maleshevich.

I am mindful of and agree with the comments of judges and arbitrators to the effect that an insurer should not request the adjournment of a proceeding to "rework its medical investigations."⁶ I am not convinced that is Guardian's objective in this instance. Dr. Richman's examination is scheduled for February 21, 2000. The hearing does not begin until April 10, 2000. Despite Mrs. Maleshevich's deposition that she believes the Insurer's intent is to harass her, I find no evidence of that in the material before me. It is true that Guardian made no move to schedule these examinations, say in early 1999, when the hearing was rescheduled for October 1999. However, I find it reasonable that when a settlement collapses and an arbitration hearing is rescheduled for a date five to six months in the future, that a reasonable Insurer might request an insured person to re-attend for a further assessment of her physical condition, five and a half years after it last had her assessed.

My reading of the Schedule is that such an examination is to be permitted in respect of claims under Part IV "as often as it reasonably requires," on "reasonable notice," and provided it will not unduly delay the arbitration process. In my view, given the copious material in the Applicant's medical briefs, Dr. Richman's report should provoke no more than brief, updated written comments from any specialist who has treated her or has already examined her at her counsel's request.

In short, in my view it would be reasonable for Mrs. Maleshevich to attend on Dr. Jack Richman, M.D. on February 21, 2000, or at an earlier date, if it can be arranged, for his personal physical examination of Mrs. Maleshevich and assessment of her disability. That report should be provided to Mrs. Maleshevich no later than March 3, 2000.

I was provided with no detail concerning the proposed functional abilities evaluation. I do not know if the persons involved in that evaluation are members of a health profession, as required by section 65 of the 1995 Schedule. Neither is it clear to me why the fact Mrs. Maleshevich had an accident in 1997 is relevant to this question. The right to such an examination, by appropriately qualified health professionals, derives from the 1995 Schedule and Mrs. Maleshevich's claims arising from the February 14, 1995 accident. On the basis of the minimal evidence before me, I find that requiring Mrs. Maleshevich to attend a functional abilities evaluation at this point, five years after that accident, is not reasonably necessary. This request, in my view, appears to fall more in the category of an attempt by Guardian to "rework its medical investigations"⁷ at a late date.

Vocational Assessment:

The earliest Schedule did not provide for compulsory examinations for "vocational assessment." Clearly, then, in relation to the issues in dispute arising from the first two accidents, only voluntary attendance at such an assessment could be sought. However, this issue is complicated by Mrs. Maleshevich's pursuit of section 7 income replacement benefits arising from the accident of February 1995 and, in the alternative, section 19 "Other Disability Benefits." Section 65 of the 1995 Schedule permits an examination by "a person with expertise in vocational rehabilitation." Mrs. Maleshevich was a real estate agent at the time of the 1990 accident. From the material provided on this motion, it is unclear just what aspects of Mrs. Maleshevich's "vocational assessment" would be addressed on March 13, 2000 by Adams-Webber Pett Inc. The material I received consisted of curricula vitae and three pages of promotional material from that company outlining the plethora of vocational evaluation services it offers. Nothing personalized to Mrs. Maleshevich's situation is before me. Paragraph 25 of the Insurer's application suggests that this report is required because of the fourth accident in 1997 and Dr. Garner's report.

With respect to this examination, it is my view that the request comes in too vague a manner and far too late. In my judgment, it is not reasonable to ask Mrs. Maleshevich to attend for such an assessment less than four weeks before the arbitration hearing is to begin. This decision does not foreclose Guardian from providing evidence relating to vocational issues at the hearing. If the Insurer obtains an expert opinion in this area for the hearing, based on the material in its file or in its control, and serves it within the Code's time limits, and follows the other rules regarding witnesses, the hearing arbitrator may accept that evidence on whatever issue she or he deems it to be relevant.

Psychological evaluation:

The Insurer requests a psychological evaluation of Mrs. Maleshevich by Dr. Hemendra Shah. Dr. Sergio Bacal last conducted a psychological evaluation of Mrs. Maleshevich at the request of the Insurer in June 1994. The appointment is presently set for February 28, 2000. I find it reasonable that when a settlement collapses and an arbitration hearing is rescheduled for a date five to six months in the future, that an Insurer might reasonably request an insured person to re-attend for a further assessment of her psychological condition, five and a half years after its last assessment.

An insurer's examination is permitted under the Schedule for claims under Part IV "as often as it reasonably requires," on "reasonable notice," and provided it will not unduly delay the arbitration process. Given the copious material in the Applicant's medical briefs, concerning her mental state and ongoing treatment, Guardian should be entitled to an opportunity to re-assess Mrs. Maleshevich. Such an evaluation is a reasonable request, provided the report can be prepared promptly and delivered to Mrs. Maleshevich by March 10, 2000.

EXPENSES:

Subsection 282(11) of the Insurance Act, R.S.O. 1999, c. I.8 (as amended), provides arbitrators with the authority to award all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations.

Subsection 282(11.1) allows for interim awards of expenses. Guardian requests its expenses of this preliminary hearing. I reserve the issue of expenses of this preliminary issue to the hearing arbitrator.

January 21, 2000

K. Julaine Palmer Arbitrator

Date

ARBITRATION ORDER

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

1. Guardian's request for an examination by Dr. Jeffrey Meyerson, endocrinologist, on February 7, 2000 is reasonable. That report should be delivered by March 6, 2000.

2. It would be reasonable for Mrs. Maleshevich to attend on Dr. Jack Richman, M.D. on February 21, 2000, or at an earlier date, if it can be arranged, for his personal examination and assessment of her disability. That report should be provided to Mrs. Maleshevich no later than March 3, 2000. It is not reasonable to require Mrs. Maleshevich to participate in a functional abilities evaluation.

3. Guardian's request for Mrs. Maleshevich to attend for a vocational assessment on March 13, 2000 is not reasonable.

4. Guardian's request for a psychological evaluation of Mrs. Maleshevich by Dr. Hemendra Shah is reasonable. That report should be delivered by March 10, 2000.

January 21, 2000

K. Julaine Palmer Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672. On January 1, 1994, the Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996 came into force (Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96). O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
2. 2In his report of September 9, 1999, Dr. Scott H. Garner, a specialist in physical medicine and rehabilitation related that Mrs. Maleshevich continued to be followed "by the St. Joseph's Community Centre in East Hamilton," the centre from which Dr. Ennis operates. Dr. Ennis' treatment of Mrs. Maleshevich is also briefly referred to on p. 5 of Dr. Tunks' report of August 23, 1999.
3. 3F.S. and Belair Insurance Company, (FSCO P96-00039A, June 11, 1996)
4. 4See subsection 23(2) of the Schedule.
5. 5See for example the comments in Tandazo and Allstate Insurance Company of Canada, (OIC A-003532, January 25, 1994) by Sr. Arb. Susan Naylor.
6. 6Justice J.C. Kennedy in Lucenti v. Progressive Casualty Insurance Company of Canada, Ontario Superior Court of Justice endorsement, October 19, 1999.
7. 7Justice J.C. Kennedy in Lucenti v. Progressive Casualty Insurance Company of Canada, Ontario Superior Court of Justice endorsement, October 19, 1999.