Neutral Citation: 2000 ONFSCDRS 120

FSCO A00-000079

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA BARREIRA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

John Wilson

Heard:

By written submissions, commencing May 12, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were completed by May 31, 2000.

Appearances:

Cynthia Mackenzie for Mrs. Barreira

Tricia McAvoy for Allstate Insurance Company of Canada

Issues:

The Applicant, Maria Barreira, was injured in a motor vehicle accident on October 26, 1991. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.[1] Her entitlement to benefits was confirmed by arbitration decision on July 11, 1997. The parties disagreed about the amount of and entitlement to ongoing benefits and were unable to resolve their disputes through mediation. Mrs. Barreira applied again 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. Barreira precluded from proceeding to arbitration by reason of her failure to attend a psycho-vocational assessment at the request of the Insurer?

Result:

Mrs. Barreira is not precluded from proceeding to arbitration.

EVIDENCE AND ANALYSIS:

On July 11, 1997, David Evans, arbitrator, issued a decision on Mrs. Barreira's original application for arbitration. In his decision, Arbitrator Evans made several findings concerning Mrs. Barreira's disability and entitlement to weekly income benefits. He concluded:

I find that Mrs. Barreira remains entitled to weekly income benefits on the basis that she is not physically capable of performing a suitable job nor, given her education, training and experience, is she suited to perform any job of which she is physically able.

The current arbitration arises from Allstate's termination of benefits to Mrs. Barreira on September 11, 1999 and concerns both her ongoing entitlement to benefits, and the appropriate amount of her weekly income benefit.

Allstate, as part of the second arbitration, requested that Mrs. Barreira submit to three examinations pursuant to subsection 23(2) of the Schedule. These would consist of examinations by Dr. Lacerte and Dr. Mount, and another by Ability Management Consultants Inc., which would provide an assessment of Mrs. Barreira's "...aptitudes interests and abilities in relation to the world of work."

Mrs. Barreira, through her counsel, advised Allstate, that she would not be attending the Ability Management Assessment since it was not in the category of assessments permitted by subsection 23(2) of the Schedule. She did, however, agree to attend the assessments by Dr. Lacerte and Dr. Mount, which she has since attended. These, purely medical assessments, are not in dispute. At common law, no one, including insurers had a right to compel an insured to make him or herself available for examination simply because a claim was being advanced. (See Redly v. City of London et al. (1891), 14 PR (Ont.) 171). Parties to civil actions may now move under section 105 of the Courts of Justice Act to obtain an order for a compulsory medical examination where the plaintiff's health is at issue in the matter. In all such cases, the examination must be by a "health practitioner," which includes a registered psychologist.

Subsection 258.3 (d) of the Insurance Act also provides for insurer's examinations, whether or not an application has been made under section 105. Indeed, it specifically makes compliance with requests for insurer's medical examinations a pre-condition to the commencement of an action. However, its application is restricted to claims arising after s.29 of Insurance Rate Stability Act 1996 came into force. Consequently it does not apply to this matter.

It is perhaps significant that this provision restricts examinations to those conducted by members of the regulated health professions, and provides that examinations shall not be unnecessarily repetitious and shall not involve a procedure that is unreasonable or dangerous.

Since Mrs. Barreira's motor vehicle accident took place on October 26, 1991, the relevant statutory provision authorizing insurer's medical examinations is the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993.

Subsection 23(2) of the Schedule 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 person in accordance with the law relating to autopsies.

The provision in the Schedule substantially expands the right of an insurer to require an insured to submit to examinations. Indeed, the only restriction on examinations is the use of the modifier "reasonably" in conjunction with "requires", and the necessity that the examination be carried out by a medical practitioner (including a psychologist).

Since the creation of the first no-fault regime, arbitrators have examined the effect of subsection 23(2). In Glynn and General Accident Assurance Co. of Canada (OIC A96-000004, November 25, 1996), Arbitrator Makepeace summarized the requirements for insurer's medical examinations.

I find that the Insurer's right to require the Applicant to attend an Insurer Medical Examination is subject to the following requirements under sections 23(2) and 25:

(i) The examination must be required in respect of a claim for weekly benefits.

(ii) The Insurer may require an IME "as often as it reasonably requires."

(iii) The Insurer must give the Applicant "reasonable notice" that it requires the examination.

(iv) The examination must be performed by a "qualified medical practitioner, psychological advisor or chiropractor."

The two principal concerns raised by Mrs. Barreira in this matter are that the proposed examination involving Ability Management Inc. may not be an examination by a qualified medical practitioner and that the examination is not reasonably required.

In an apparent attempt to address Mrs. Barreira's objections to the vocational assessment, the representative of Ability Management, Mr. Marc Menard, wrote on March 3, 1998, changing the description of the assessment to a "Psycho-vocational Assessment," and adding a further day to the three-day assessment. He also gave the name of a psychologist who would be involved in the examination process.

Was the proposed assessment an examination by a qualified medical practitioner?

The original letter dated February 9, 1998 from Mr. Menard of Ability Management to Mrs. Barreira's counsel, outlining the details of the proposed examination establishes that the purpose of the test is to "...identify vocational goals while taking into consideration any obstacles to employment your client may be facing." It was to be conducted by a person describing himself as a "Vocational Evaluator/Counsellor."

I find that the assessment as originally described in the letter of February 9, 1998 does not constitute an examination by a qualified medical practitioner or psychologist as outlined in subsection 23(2) of the Schedule.

Faced with Mrs. Barreira's objections to the vocational evaluation, Allstate revised their proposed assessment. By letter dated March 3, 1998 the assessment was now referred to as a "psycho-vocational assessment." A further day was tacked onto the three-day assessment, and a registered psychologist was engaged to perform a day of psychological testing. The balance of the three days, however, appear to comprised of the vocational assessment originally proposed.

It is the position of Allstate that the presence of a registered psychologist during the evaluation makes this assessment "an examination of the insured person by a qualified medical practitioner..." as outlined by subsection 23(2) of the Schedule. I accept that a certified psychologist is one of the health practitioners permitted to perform an examination pursuant to subsection 23(2).

Senior Arbitrator Naylor stated in Tandazo and Allstate Insurance Co. of Canada (OIC A-003532, January 25, 1994):

I accept that s. 23(2) authorizes, in exceptional cases, an assessment by an undesignated health professional where it is necessary to assist a doctor in the evaluation of an applicant's condition.

Mr. Menard's description of the "psycho-vocational assessment" in his letter makes it apparent that he is proposing something quite different from an undesignated health professional assisting a qualified medical practitioner. Rather, the opposite seems to be the case. If one measures the time allotted to each element of the evaluation, the psychologist seems to be assisting the vocational assessor, whose expertise seems to be critical to the majority of the subject matter of the test.

The question remains, however, whether the mere involvement of a health professional in an examination necessarily makes that examination "an examination of the insured person by a qualified medical practitioner."

A reading of the subsection suggests that it is meant to permit the assessment of medical conditions by practitioners holding the appropriate qualifications. Each listed group is a member of a registered health profession, and it could be assumed that the examination is to be confined to the area of each practitioner's expertise.

In ordinary English "examination" or "examine" may have several meanings, not all of which necessarily make sense in the context of compulsory examinations by a medical practitioner. The Concise Oxford dictionary defines "examine" as:

1 enquire into the nature or condition etc. of. 2 look closely or analytically at. 3 test the proficiency of, esp. by examination. 4 to check the health of (a patient) by inspection or experiment. 5 Law formally question (the accused or a witness) in court.

The wording in the subsection clearly links the word "examination" to the phrase "qualified medical practitioner." I find that "examination", in juxtaposition to these words implies an intention to restrict the meaning of the word "examination" to its medical sense.

I find, as well, that the word "examination" used in the context of subsection 23(2) means a consultation by a medical practitioner to "...check the health of a patient by inspection or experiment," since a qualified medical practitioner would not be necessary if the examiner was only testing proficiency in some skill-set, or otherwise questioning an applicant on matters outside of the medical sphere.

To find otherwise, could lead to the absurdity of an insurer being able to order all manner of tests and assessments, not authorized by statute, simply by having a medical practitioner participate in the assessment.

This interpretation is consistent with the decision of Senior Arbitrator Naylor in Tandazo and Allstate in which she dealt with the participation of non-medical practitioners in an insurer's examination.

...in all cases, the assessment must be at the request of a health practitioner designated under section 23(2) and must be for the purpose of substantially assisting that person in his or her examination. The section is explicit as to who is to conduct the examination.

I find that to meet the definition of an examination by a qualified medical practitioner, the dominant purpose of the examination must be related to an examination of the health of the applicant by a qualified medical practitioner.

In his letter, dated March 3, 1998, Marc Menard outlined the schedule for the tests by Ability Management. Out of 17 topics listed over the four-day evaluation period, at most two can be considered as potentially "examining the health" of Mrs. Barreira. I find that the predominant character of the proposed test, even after the revisions, remains unrelated to Mrs. Barreira's health. Rather, it remains a vocational evaluation, albeit with the participation of a psychologist.

I find that the psycho-vocational assessment as outlined in Mr. Menard's letter of March 3, 1998, is not an examination envisaged by subsection 23(2) of the Schedule.

Was the examination "reasonably required" by the Insurer?

In the event that I have erred, I will examine the other objections raised by Mrs. Barreira. Justice Farley's decision in Manolakos v. Royal Insurance ( [1998] O.J. No. 2157) dealt with an insurer's request for assessments of an insured. He stated:

In my view the onus is on the insurance company in such circumstances to demonstrate its request for such as reasonable in the circumstances (although this would be "automatic" where there has never been an examination).

Allstate submits that the request for a vocational assessment was "reasonable." It points to the fact that some two years have now elapsed since Mrs. Barreira underwent a medical assessment. As well it asserts that Mrs. Barreira's diagnosis of fibromyalgia in itself "... makes a vocational evaluation aimed at determining whether alternative employment exists entirely reasonable."

Justice Farley in Manolakas (supra) dealt with the issue of the passage of time as justification for further medical examinations and found that: "It would not seem to me that the fact that the case was approaching the 24-month anniversary of the accident was sufficient for Royal to discharge its onus of demonstrating that its request for the four assessments was reasonable in the circumstances." Likewise, Allstate has failed to demonstrate that the passage of time has necessitated further examinations beyond those already held by Drs. Lacerte and Mount.

The diagnosis of fibromyalgia is not a new matter being raised in this arbitration. Indeed, Arbitrator Evans found that Mrs. Barreira "... remains entitled to weekly income benefits on the basis that she is not physically capable of performing a suitable job nor, given her education, training and experience, is she suited to perform any job of which she is physically capable."

Arbitrator Evans based this finding on the evidence presented at the arbitration hearing, including the diagnosis of fibromyalgia.

Allstate submitted Dr. Michel Lacerte's report, dated August 12, 1998, as part of its submissions, presumably to buttress the need to re-examine Mrs. Barreira's diagnosis of fibromyalgia. Dr. Lacerte concludes in his opinion that "... Ms. Barreira could have returned to her normal occupation within two weeks from the accident without exposing herself or others to any serious health and safety risk."

Arbitrator Evans has already ruled that Mrs. Barreira suffered from an ongoing disability arising from the accident. This issue has been decided, and may not be re-visited by Allstate through Dr. Lacerte or any other means. Clearly Dr. Lacerte has mis-directed himself in re-examining the issue of her original disability and I find that his conclusions lend little credibility to Allstate's submissions.

Dr. John Mount, a psychiatrist who examined Mrs. Barreira in 1998 at the request of the Insurer, also wrote a report on Mrs. Barreira's condition dated April 8, 1998 which was filed as part of Allstate's submissions. Dr. Mount concluded:

In response to the referral letter question about whether Mrs. Barreira was emotionally capable of participating in a structured work return in any capacity, the reviewer would point out that at the present time she is compromised by her pain symptoms, mood symptoms, sleep disorder, and lack of energy. While she was able to endure a two and a half hour interview, it would be surprising that she would not be exhausted following it, and to predict that she would be able to undertake a work simulation programme would be unlikely. Given that she is now six and a half years post-accident, her situation has (if anything) worsened, and with the significant reinforcement of this disabled state, it is unlikely that any effort at a return to work would be successful.

It is hard to imagine a clearer and more concise summary of Mrs. Barreira's condition at the time that Allstate wished to have her submit to a further four-day psycho-vocational assessment.

Arbitrator VanderBent in Bogic and Axa Insurance (Canada), (FSCO A96-001192, April 30, 1999) commented:

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. 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. 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. (emphasis added)

Dr. Mount concluded that Mrs. Barreira's disability remained unchanged in nature, and that she remained unemployable. He further stated that she would have difficulty with a long examination. Essentially, Dr. Mount addressed all of Arbitrator's VanderBent's criteria and found them wanting.

Allstate relies on a cryptic comment in Dr. Mount's report that he "did not know of any specific vocational plans" to justify the reasonableness of its request for a vocational assessment. It would be charitable to suggest that Allstate is grasping at straws, if it is arguing that this statement is a request by a medical practitioner for a further assessment.

Although there is an obligation on applicants to make themselves available for reasonable insurer's medical examinations, the evidence is that Mrs. Barreira has already undergone some 14 assessments. In addition, there has already been an arbitration which made certain findings concerning Mrs. Barreira's disability following the accident. These should serve to narrow somewhat the field of inquiry in this matter, and would suggest a need for less extensive investigation than when causation is at issue.

In the light of the considerable medical evidence available to Allstate, it would appear that the request for a further vocational assessment, could be characterized, in the words of Arbitrator VanderBent in Bogic, (supra); "...its only apparent purpose is to acquire medical evidence to bolster the insurer's case at a hearing."

At some point, in the absence of new issues being raised, the assessment process must stop, before it becomes harassment of the applicant.

I find that, given the lack of change in the nature of Mrs. Barreira's disability, and the availability of the relatively recent reports of Drs. Mount and Lacerte, it is not reasonable for Allstate to require Mrs. Barreira to attend a further psycho-vocational examination.

Did Mrs. Barreira have a reasonable excuse for not participating in the assessment?

Arbitrators have found that a failure to attend an insurer's examination does not necessarily preclude an applicant from proceeding to arbitration, if the person had a reasonable excuse for non-attendance.

In Harper and Liberty Mutual Insurance Company (Appeal P98-00003, August 14, 1998), Director's Delegate Draper found that an insurer had to pay attention to medical opinions that an applicant was under too much stress to participate in investigative procedures, and that such an opinion provided a reasonable excuse for non-attendance at an assessment.

In Mrs. Barreira's case, Dr. Mount was not the only physician to communicate an opinion that Mrs. Barreira would be adversely affected by the requests for further insurer's examinations. Dr. H. Merskey, a Professor emeritus of Psychiatry at Western, wrote to Allstate on June 10, 1999:

Your approach sets up the patient with certain active interventions including "a work trial program" without confirmation that she is fit to go through those procedures or that they will be beneficial to her.

It is not my responsibility to determine whether you are entitled to seek such an assessment. I certainly feel able to state that your method of doing so is harmful in your relationship with the patient and with her treating physicians, and has a manner of harassment.

In the light of Dr. Mount's comments on Mrs. Barreira's endurance, and the exceptional length of the assessment proposed by the Insurer, it is not surprising that Mrs. Barreira was unwilling to attend the proposed assessment.

I accept Dr. Mount's assessment of Mrs. Barreira's condition and find that she would be adversely affected by any requirement to attend a psycho-vocational assessment.

I find that, even if the psycho-vocational assessment proposed is held to be a valid assessment pursuant to subsection 23(2), Mrs. Barreira has provided adequate medical reasons for her non-attendance.

Conclusion

Allstate had the onus of proving that its proposed examination met the criteria of section 23(2) of the Schedule, and that it was reasonable for it to ask for the examination. I have found that it has not satisfied the burden of proof on either issue. Consequently, Mrs. Barreira's non-attendance at the psycho-vocational assessment should not be a bar to her proceeding to arbitration.

EXPENSES:

I exercise my discretion to award Mrs. Barreira her expenses incurred in this preliminary issue hearing.

June 30, 2000

John Wilson

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 120

FSCO A00-000079

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA BARREIRA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mrs. Barreira is not barred from proceeding to arbitration by reason of her failure to attend a psycho-vocational assessment.

June 30, 2000

John Wilson

Arbitrator

Date

1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.