Neutral Citation: 2000 ONFSCDRS 127

FSCO A99-000640

Between:

David Gutzke Applicant

and

Dufferin Mutual Insurance Company Insurer

Decision on a Preliminary Issue

Before: Shari Novick

Heard: By telephone conference call on May 30, 2000.

Appearances: Robert W. Garcia for Mr. Gutzke Eric K. Grossman for Dufferin Mutual Insurance Company

Issues:

The Applicant, David Gutzke, was injured in a motor vehicle accident on February 2, 1996. He applied for and received statutory accident benefits from Dufferin Mutual Insurance Company ("Dufferin"), payable under the Schedule.¹ Dufferin terminated the weekly income replacement benefits it had been paying on April 21, 1997, and Mr. Gutzke returned to work shortly afterwards. Nevertheless, he claimed that he was entitled to ongoing benefits as he remained substantially unable to perform the essential tasks of his job as a masonry apprentice. The parties were unable to resolve their disputes through mediation, and Mr. Gutzke applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At a pre-hearing discussion in January 2000, the Applicant advised that he had recently been laid off from work as a result of his injuries. He had previously experienced layoffs during the winter months since returning to work, but these had resulted from the seasonal nature of construction work.

In March of 2000, the Insurer advised Mr. Gutzke that his attendance was required at an Insurer Examination ("IE") with Dr. David Goldstein on April 11, 2000. Counsel for the Applicant advised that Mr. Gutzke would not be attending. The Insurer subsequently requested that the arbitration hearing scheduled to commence on June 12, 2000 be stayed.

The preliminary issue to be determined is:

Is the Insurer's request that Mr. Gutzke attend an Insurer's Examination with Dr. Goldstein reasonable?
If so, what are the consequences of Mr. Gutzke's failure to attend the assessment that was scheduled for April 11, 2000?

Result:

The Insurer's request that Mr. Gutzke attend an Insurer's Examination with Dr. Goldstein is reasonable.
The arbitration scheduled to commence on June 12, 2000 is adjourned, pending Mr. Gutzke's attendance at the requested Insurer's Examination.

After hearing the parties' submissions and reviewing the medical briefs filed, I considered the matter and determined that the Insurer's request for an IE was reasonable. The parties were subsequently advised of my decision by telephone and that written reasons would follow. These are those reasons.

Evidence and Analysis:

Background

Mr. Gutzke suffered soft tissue injuries in the accident referred to above. He was paid weekly income replacement benefits from February 9, 1996 until April 27, 1997. These benefits were terminated after he attended a Designated Assessment Centre ("DAC"), at which it was found that he was no longer substantially disabled from performing the essential tasks of his employment. Mr. Gutzke disputes these findings, and asserts that he continues to be entitled to weekly benefits. He also seeks certain rehabilitation benefits, as recommended by Rehabilitation Management Inc.

Mr. Gutzke returned to full duties as a masonry apprentice in April 1997. He worked approximately half of the time between then and January 2000, as he was laid off when the volume of work decreased over the winter months. The parties agree that Mr. Gutzke took an increasing amount of pain medication throughout the period that he worked.

The Insurer arranged for Mr. Gutzke to attend an IE with an orthopaedic specialist as well as a Functional Capacity Evaluation in September 1996. It subsequently arranged for Mr. Gutzke to attend a psychiatric IE with Dr. Margulies in December 1999. Since returning to work, Mr. Gutzke has consulted his family doctor on a regular basis, and has received treatment from various physiotherapists and psychologists. His family doctor also arranged assessments by a pain specialist in January 1998, a rheumatologist in August of 1998, and by Dr. Robert Teasell, a specialist in physical medicine and rehabilitation, in early 1997 and again in the fall of 1999. Any reports received from Mr. Gutzke's treating practitioners and the above assessors have been provided to the Insurer.

Dr. Teasell provided the opinion in November 1999 that Mr. Gutzke was substantially unable to perform the essential tasks of his job as a brick mason on a consistent basis "without suffering significant pain".

Insurer's request for an IE with Dr. Goldstein

As mentioned above, Mr. Gutzke advised at a pre-hearing discussion in January 2000 that he had recently been laid off from work as a result of his disability. The Insurer stated that this was the first time that it had been advised that Mr. Gutzke was not able to work, and considered that to be a significant change in circumstances justifying another Insurer's Examination. A letter dated March 21, 2000 from Mr. Grossman's office to Mr. Garcia, Mr. Gutzke's counsel, advised that an appointment with Dr. David Goldstein had been arranged for April 11. The letter did not specify what type of doctor Dr. Goldstein is, nor the purpose for the assessment.

On April 4, 2000, Mr. Garcia responded that as no reason had been provided for the examination by Dr. Goldstein, Mr. Gutzke would not be attending the appointment. It appears that Mr. Grossman then clarified that the purpose for Mr. Gutzke's attending the appointment was to permit Dr. Goldstein to perform an IE. A series of discussions among counsel ensued about this and other matters pertaining to the hearing.

A few weeks later the Insurer wrote the Commission and asked that Mr. Gutzke's application be stayed until he attended the examination. Discussions were held with another arbitrator, and some case law was exchanged among the parties. On May 16, 2000, Mr. Grossman advised that unless Mr. Gutzke was prepared to make himself available for an IE with Dr. Goldstein by May 18, he would be seeking an arbitrator's order in this regard. Mr. Garcia subsequently advised that his client would not be attending.

General Principles and Findings

Section 65 of the Schedule provides that an insurer may require an insured person to be examined by a health care provider "as often as reasonably necessary". The insurer is required to provide reasonable notice of the examination to the insured, and to make reasonable efforts to schedule it at a time that is convenient for the insured. Notice of the examination must also specify the expense to which the examination relates².

It is now well-accepted that an insured person may be required to attend an IE after the payment of weekly benefits has ceased³. It has been stated that the purpose of section 65 is to permit insurers to assess or adjust claims, rather than to provide an insurer with the opportunity to bolster its case for an upcoming hearing⁴. The reasonableness of an insurer's request must be determined within the context of the facts and circumstances of each case.

The Insurer asserts that over three years have passed since the DAC assessors determined that Mr. Gutzke was physically capable of returning to work, and that no further medical opinions regarding his physical abilities have been sought from any doctors of their choosing since that time. Counsel stated that he had not felt the need to arrange any such appointments prior to the hearing, until being advised in January 2000 that Mr. Gutzke was no longer able to work. He contended that that constituted a significant enough change in circumstances to merit an IE with a doctor specialising in physical medicine, and that the appointment was set up with Dr. Goldstein as soon as he advised his client of the change in circumstances and received instructions to do so. Mr. Grossman noted Dr. Teasell's opinion in November 1999 to the effect that Mr. Gutzke was substantially unable to perform the tasks of his employment, but stated that he had not felt that opinion would carry much weight at a hearing as long as Mr. Gutzke continued to work on a full-time basis.

Counsel pointed out that the appointment with Dr. Goldstein had been scheduled to take place a full two months prior to the scheduled commencement of the hearing.

The Applicant argued that the timing of the Insurer's request was prejudicial, as it would not likely permit his treating physicians to respond to the report generated in advance of the hearing date. He stressed that the Insurer has been provided with reports of the various assessments Mr.Gutzke has undergone, as well as regular progress reports from his treating practitioners. He noted that the recommendations made by Dr. Margulies, the psychiatrist who performed an IE in December 1999, were not followed by the Insurer and argued that its intention in arranging a further IE was not to assess the Applicant's condition, but rather to obtain further medical documentation to bolster its position at the arbitration hearing.

I find that the Insurer's request that Mr. Gutzke attend Dr. Goldstein's office for an IE was reasonably necessary in the circumstances. While the Applicant had been providing regular reports to the Insurer regarding his condition, his layoff from work in January 2000 as a result of his disability represented a significant change in his status. Although he had experienced other layoffs during the winter months since returning to work after the accident, these had resulted from the seasonal nature of the work and not from any physical limitations he had. When counsel for the Insurer requested medical confirmation that Mr. Gutzke was no longer able to work, Applicant's counsel responded that he would not be able to obtain a medical certificate from the family doctor as she was away on an extended leave, but that she would be called to testify at the arbitration hearing. I find that in these circumstances, the Insurer's request that Mr. Gutzke be examined by a specialist in physical medicine was reasonable.

It is unfortunate that the Insurer's request did not immediately follow the pre-hearing discussion, and that when written notice of the examination was provided, it did not specify which expense it related to, as required by subsection 65(4) of the Schedule. I also appreciate that it took six weeks for the report from the earlier IE with Dr. Margulies to be prepared, and that the Applicant expected a similar delay from Dr. Goldstein. These concerns could likely have been resolved if counsel had communicated with each other earlier, and had not adopted an adversarial approach to the issue, as they did. The Commission might also have intervened in a more effective way, somewhat earlier in the process.

In any event, the Schedule clearly provides the Insurer with the right to schedule an IE as often as is reasonably necessary, and as I have found above, the circumstance of this case dictate that the hearing be adjourned to permit another appointment to be arranged for Mr. Gutzke to attend at Dr. Goldstein's office for the purpose of an assessment of his physical abilities.

The hearing has been rescheduled and will now commence on October 2, 2000, assuming that Mr. Gutzke attends the IE scheduled.

Expenses:

I leave the matter of the expenses of this preliminary motion to the discretion of the hearing arbitrator, to be determined after the hearing is completed.

July 10, 2000

Shari L. Novick Arbitrator

Arbitration Order