Neutral Citation: 2000 ONFSCDRS 20

FSCO A98-000295

BETWEEN:

DOON JAGGERNAUTH

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Shari Novick

Heard:

December 13, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Robert Stewart for Mr. Jaggernauth

Todd J. McCarthy for Allstate Insurance Company of Canada

The Applicant, Doon Jaggernauth, was injured in a motor vehicle accident on January 10, 1995. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate paid weekly income replacement benefits of $185 until June 18, 1995. Mr. Jaggernauth claims that he is entitled to income replacement benefits beyond that date, and that the quantum of benefits paid was incorrect. The parties were unable to resolve their disputes through mediation, and Mr. Jaggernauth applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

As a preliminary matter, the Insurer contends that Mr. Jaggernauth is not entitled to proceed to arbitration because he did not cooperate with a disability DAC assessment scheduled on June 7, 1995.

The preliminary issue to be determined is:

Did Mr. Jaggernauth fail to provide information that was reasonably necessary to conduct the disability DAC assessment on June 7, 1995 and/or fail to submit to examinations requested, as required by section 64(9) of the Schedule?
If so, what are the consequences of his failure to comply?

Mr. Jaggernauth complied with his obligations under section 64(9) of the Schedule with respect to the disability DAC assessment on June 7, 1995.

Background

Doon Jaggernauth sustained various injuries in the motor vehicle accident, including soft tissue injuries and musculo-ligamentous strains to his neck, back and shoulders, and a fractured left jaw. He also experienced pain in his left knee, both elbows and legs in the aftermath of the accident. He sustained either a concussion or minor skull fracture, which has caused memory lapses and problems with concentration. He has also experienced hearing problems and ear pain since the accident.

Mr. Jaggernauth was 48 years old at the time of the accident, and operated a transportation business called Trillium International Shipping.

Allstate paid income replacement benefits to Mr. Jaggernauth at the rate of $185 per week until June 18, 1995. The Insurer terminated benefits on the grounds that the Applicant was able to return to work. The Applicant disputed Allstate's decision to terminate his benefits. A musculoskeletal disability DAC assessment was arranged for June 7, 1995 at a facility operated by Great Lakes Occupational Consultants Ltd. ("the Great Lakes clinic") in Burlington, where Mr. Jaggernauth was scheduled to see Dr. Michael Howell. It is the Applicant's attendance at this assessment that forms the basis of the Insurer's motion in this matter.

Evidence regarding the Applicant's attendance at the disability DAC

The Insurer filed a letter from Ms. S. Ruth Howell, the administrator of the Great Lakes clinic, in support of its position that Mr. Jaggernauth failed to cooperate with the DAC assessment scheduled on June 7, 1995. The letter is addressed to Wanda Rumsam, an adjuster with Allstate, and is dated April 22, 1996.

Ms. Howell's letter advises that the Applicant appeared for the scheduled assessment on June 7, 1995 and filled out a "patient work book" from 8:30 to 9:30 a.m. It states that Mr. Jaggernauth was then asked to sign the consent form in the work book, but refused to do so. The letter goes on to state that Dr. Howell then became involved, and explained to Mr. Jaggernauth that the assessment could not continue without a signed consent from him. The letter states that the Applicant was also unwilling to provide any medical records from physicians that he had consulted, that Dr. Howell had indicated that he "could not find him disabled for ADL or his regular job, based on the information provided and his uncooperativeness" and that the DAC examination was discontinued.

I was advised that Dr. Michael Howell died some time in late 1995. Ruth Howell was not produced as a witness at the hearing and no further records from the clinic were filed.

Mr. Jaggernauth's testimony regarding his attendance at the Great Lakes clinic on June 7, 1995 differs substantially from what is set out in Ms. Howell's letter. He recalled receiving a telephone call from someone at Allstate advising that arrangements had been made for him to be assessed at the clinic. He testified that these arrangments "were made in a hurry", and that he did not receive any written notice of the appointment in the mail nor a request to bring any documents or reports with him.

Mr. Jaggernauth recalled being given several forms to complete upon arriving at the scheduled appointment, and testified that it took him approximately two hours to do so. He could not recall if he had completed all of the forms, but remembered that he had returned them to the woman who had provided them. Mr. Jaggernauth testified that he then waited approximately 20 to 30 minutes to see Dr. Howell. He testified that he spent approximately one-half hour with Dr. Howell. The Applicant recalled that Dr. Howell asked him several questions, and that he answered them all to the best of his ability. He stated that he cooperated in every way possible. He also stated that Dr. Howell did not conduct any physical examination during their meeting.

When asked whether Dr. Howell had asked him to sign any papers, Mr. Jaggernauth initially responded that he could not recall, explaining that his mental abilities were "not that good" at that time. He later testified that Dr. Howell had written something on a paper during their discussion and that he had signed it, recalling that the document related to other medical information that was required. He recalled being asked by Dr. Howell whether he had brought any medical reports from other doctors, and explaining that he had not brought anything to the assessment because he had provided authorizations to Allstate to obtain these reports and presumed that Dr. Howell would have been provided with copies.

Mr. Jaggernauth testified that he was told that his assessment would be rescheduled once these medical reports were received. He stated that he was left with the impression that Allstate would gather the reports, as he did not have a lawyer or agent representing him at the time and was relying on Allstate to "guide him through the process". Mr. Jaggernauth testified that he was never contacted further by Dr. Howell or anyone else from the clinic, and was not asked by the Insurer to reattend for another assessment.

Given the contradictory evidence regarding whether or not Mr. Jaggernauth refused to sign a consent form permitting the assessment to take place, I must weigh the statements contained in the letter filed by the Insurer against the oral evidence of Mr. Jaggernauth. While Mr. Jaggernauth had some problems recalling certain aspects of the assessment, I prefer his sworn testimony, tested but not shaken on cross-examination, over a letter written ten months after the scheduled appointment by the administrator of the clinic. While Dr. Howell is no longer alive and is accordingly unavailable to testify, I was not advised of any reason why Ms. Howell was unable to testify about this matter, nor why no further records from the clinic were filed.

The administrator's letter also states that Mr. Jaggernauth was "unwilling to provide any medical records from the physicians that he had seen to support his disability". Mr. Jaggernauth disputed this and testified that he had previously signed authorizations permitting Allstate to obtain the relevant information, and presumed that they would have forwarded the reports to Dr. Howell. No authorizations were filed into evidence, although a letter from Mr. Jaggernauth to Allstate dated April 24, 1996 indicates that an authorization to "disclose Health information" is enclosed. While this letter was sent some ten months after the assessment in question, I note that Mr. Jaggernauth questions in the letter why medical reports are being requested again, wonders why they have gone missing, and requests a written response to these queries. On the evidence before me, I find that the Applicant did not refuse to sign authorizations to permit the Insurer to obtain the medical information required.

Evidence relating to the Applicant's credibility

Counsel for the Insurer referred to various documents during the course of his cross-examination of the Applicant, in an attempt to impeach his credibility and demonstrate that he had been generally uncooperative in his dealings with Allstate. Counsel filed letters suggesting that Mr. Jaggernauth had failed to provide numerous documents required to calculate his income from self-employment to the accountant retained by Allstate. Mr. Jaggernauth testified that he had not seen fit to respond to these letters because he believed that the relevant accounting information had already been provided to Allstate. He produced a handwritten note consisting of a list of three items, which he explained had been identified by the Insurer's accountant as being the only material outstanding, after a meeting they had had during March of 1995. Finally, the Applicant produced a copy of a letter that his accountant had sent to the OIC (now FSCO) in January of 1997, advising that he had provided all information requested by Allstate's accountants during 1996.

Counsel for the Insurer also referred to psychological tests administered to the Applicant to assess his cognitive functioning by Dr. Stephen Swallow, in the summer of 1997. He pointed out that there was a time lag of approximately six months between the completion of these tests and the beginning of the treatment recommended by Dr. Swallow, and blamed this delay on Mr. Jaggernauth's uncooperative attitude. A review of the relevant documentation reveals that a follow-up inquiry by the Insurer of Dr. Swallow accounted for some of that time. The Applicant testified that in addition to attempting to perform certain tasks related to his business during the fall of 1997, he had also participated in a med/rehab DAC and a work site evaluation. Mr. Jaggernauth did concede that he had been reluctant to engage in the treatment recommended by Dr. Swallow, stating that no one had ever explained the purpose and type of treatment recommended, and that he accordingly had not been convinced that he should devote time that he could otherwise spend operating his business to attend the scheduled appointments.

In my view, the examples outlined above do not support the Insurer's assertion that Mr. Jaggernauth has consistently been uncooperative with Allstate and others involved in the process. My review of the documentation filed reveals a regular flow of information from Mr. Jaggernauth to the Insurer, albeit in the context of a flawed relationship. In any event, I have already stated my preference for the Applicant's oral evidence over the letter from Ms. Howell filed by the Insurer, and would only add that neither of the examples outlined above cause me to reconsider my finding in this regard.

Analysis:

Section 64 of the Schedule outlines the procedure to be followed in arranging and conducting assessments of insureds at a designated assessment centre or "DAC". The Insurer bases its arguments in this motion on section 64(9) of the Schedule, which reads as follows:

64.(9) For the purposes of the assessment,

(a) the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary; and

(b) the insured person shall submit to such reasonable, physical, psychological and mental examinations as are requested by the person or persons who conduct the assessment.

Part (a) of the above provision imposes a joint obligation on the insured and the insurer to provide any necessary information, including medical records or reports, to the assessors prior to an assessment being conducted. It appears that in this case, neither party fulfilled its obligation in this regard. In my view, a consideration of the circumstances surrounding the DAC assessment on June 7, 1995 leads to the conclusion that the Insurer should have shouldered more of the burden of gathering the necessary medical information than the Applicant. Mr. Jaggernauth's evidence that the appointment was set up quickly and that he did not receive any written notice or request that he bring medical records or reports with him was uncontradicted. It was clear that he expected that Allstate would provide this information to Dr. Howell, as he had previously signed authorizations permitting them to gain access to the relevant medical reports and records. I find his expectations in this regard to be reasonable. Further, Mr. Jaggernauth was not represented by either counsel or an agent at the time, and the Insurer knew by that point in time that he was suffering from memory losses and poor concentration as a result of a head injury he had suffered in the accident.

Part (b) of section 64(9) of the Schedule requires an insured person to submit to reasonable examinations as requested by the person conducting the assessment. Mr. Jaggernauth testified that he cooperated with Dr. Howell in every way possible, and answered any questions put to him. His evidence that Dr. Howell did not conduct a physical examination on June 7, 1995 is uncontradicted. It is common ground that the problem with the DAC assessment in June 1995 stemmed from a lack of medical information, as opposed to Mr. Jaggernauth's refusal to submit to the examinations requested. Consequently, this aspect of the provision is inapplicable.

The Insurer relied on the arbitration and appeal decisions in Lopez and Allstate Insurance Company of Canada (FSCO A98-000161, November 6, 1998 and P98-00058, April 30, 1999, respectively), in which the applicant was barred from proceeding with her claim for income replacement benefits as a result of her failure to attend a scheduled disabilty assessment. I find the facts of this case to be completely distinguishable from those in Lopez. Ms. Lopez failed to attend a disability DAC assessment that was scheduled pursuant to a procedural agreement reached by the parties at mediation. A few weeks prior to the appointment, her counsel requested that the insurer cancel the musculoskeletal assessment that had been arranged and reschedule an assessment with a DAC facility qualified to assess both musculoskeletal and neurological impairments. The arbitrator found that at the time the appointment was arranged there was no suggestion of a neurological problem, and that the medical information indicated a musculoskeletal basis for Ms. Lopez' injuries. He consequently determined that Ms. Lopez had unreasonably failed to attend the DAC assessment and could not proceed to arbitration on her claim for income replacement benefits. The arbitrator's decision was upheld on appeal. In this case, there was no refusal to attend the scheduled assessment. The Insurer's allegations focus on Mr. Jaggernauth's failure to cooperate with the DAC assessment once he arrived at the scheduled appointment. The only obligations imposed on an insured with respect to attendance at a DAC assessment are found in section 64(9) of the Schedule, outlined above. As I have already indicated, I do not find that the evidence before me supports the Insurer's allegations that Mr. Jaggernauth has failed to comply with his obligations under this provision.

Accordingly, the Insurer's motion is denied. This matter will now proceed to hearing on February 21, 22 and 23, 2000.

EXPENSES:

I exercise my discretion to award Mr. Jaggernauth his expenses incurred in this preliminary issue hearing.

January 27, 2000

Shari L. Novick Arbitrator

Date