Maria Solano-Guevara and Mardoqueo Solano-Guevara v. State Farm Mutual Automobile Insurance Company, 2000 ONFSCDRS 207

Financial Services Commission of Ontario

Neutral Citation: 2000 ONFSCDRS 207

FSCO A99-001146

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA SOLANO-GUEVARA MARDOQUEO SOLANO-GUEVARA

Applicants

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Shari Novick

Heard:

By telephone conference call on October 30, 2000.

Appearances:

Reno M. Berlingieri for Mr. and Mrs. Solano-Guevara

Christopher J. Schnarr for State Farm Mutual Automobile Insurance Company

Issues:

The Applicants, Maria Solano-Guevara and Mardoqueo Solano-Guevara, were injured in a motor vehicle accident on June 9, 1997. They both applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated the weekly income replacement benefits it had been paying Mrs. Solano-Guevara on December 10, 1997. Mr. Solano-Guevara had applied for non-earner benefits under section 12 of the Schedule, but none have been paid. The Applicants applied for arbitration in late November 1999.

The preliminary issue is:

1. Is State Farm's request that Mr. and Mrs. Solano-Guevara attend the scheduled Insurer Examinations with Dr. Ford on November 7, 2000 reasonable, pursuant to subsection 42(3) of the Schedule?

Result:

1. The examinations scheduled for November 7, 2000 with Dr. Ford are reasonable.

This ruling was communicated to the parties after hearing their submissions on this issue. I advised counsel at that time that I would issue a written decision with supporting reasons. These are those reasons.

EVIDENCE AND ANALYSIS:

Background

The pre-hearing discussion in this matter was held on March 15, 2000. At that time, the parties agreed that the hearing of these two applications would take place on December 11 through 14, 2000. On May 15, 2000 the Insurer provided notice to counsel for the Applicants that it required both Mr. and Mrs. Solano-Guevara to attend an Insurer's Examination ("IE") with Dr. Michael Ford, an orthopaedic specialist, on August 30, 2000. The notice provided indicated the type of benefits to which the examinations related, and enclosed Dr. Ford's curriculum vitae.

On June 16, 2000 counsel for the Applicants advised that his clients would not be attending the examinations. He indicated his belief that the Insurer was merely asking for another IE in order to bolster its position for the hearing, and advised that he was opposed to any further examinations of this type. In the interim, counsel forwarded a detailed report from Mrs. Solano-Guevara's family physician to the Insurer, as well as a brief report from Mr. Solano-Guevara’s family doctor.

On July 11, 2000 counsel for the Insurer wrote the pre-hearing arbitrator requesting that the pre-hearing discussion be resumed in order to resolve this issue. I understand that a date was set for the resumption, but that the parties were subsequently advised that the time that had been agreed to was no longer available. The Insurer cancelled the August 30, 2000 appointments with Dr. Ford, and rescheduled them for November 7, 2000.

Evidence

Counsel for the Insurer filed a brief in support of this motion, including the correspondence passing between the parties relating to this issue, as well as the two medical reports from the family doctors. The brief also contains submissions on behalf of the Insurer, which indicate the IEs that both Applicants have had to date. None of the facts set out in the brief were disputed by the Applicants.

The accident took place in June 1997. Three months later, State Farm arranged two Insurer's Examinations for Mrs. Solano-Guevara. She was assessed by Dr. Kirpatrick, a psychiatrist, on September 3, 1997. The following week, on September 11, 1997, she was assessed by Dr. Grossman, who focussed on her level of physical disability. Following these assessments, State Farm notified Mrs. Solano-Guevara of its intention to terminate her income replacement benefits. She requested a disability assessment by a Designated Assessment Centre ("DAC"), which took place in October 1997. The DAC assessors concluded that she was no longer substantially unable to perform the essential tasks of her pre-accident employment, and her income replacement benefits were terminated on December 10, 1997.

The only medical report provided to the Insurer supporting Mrs. Solano-Guevara's claim for further benefits is that of Dr. Walker, her family physician. This report is dated April 4, 2000 and was forwarded to the Insurer in mid-May 2000. It outlines the referrals that Dr. Walker made for Mrs. Solano-Guevara since late 1997 to a physiatrist, a rheumatologist and an anaesthetist as well as different treatments and medication that have been prescribed. Dr. Walker also opines that she remains unable to work as a result of the motor vehicle accident.

Mr. Solano-Guevara was also assessed by Dr. Kirpatrick and Dr. Grossman at State Farm's request during the Fall of 1997. They concluded that he was not disabled as a result of the accident. No contrary medical opinions were provided until July 2000 when his counsel forwarded a report from his family physician, Dr. Irazuzta, dated May 18, 2000, which supports his claim for benefits.

As part of the production process agreed to at the pre-hearing discussion, the Insurer has received various clinical notes and records from the Applicants' treating practitioners which were not available at the time the IEs were conducted in the Fall of 1997.

Analysis

Section 42 of the Schedule sets out various rights and obligations of insurers and insured persons with regard to Insurer Examinations. Subsection 42(3) provides that an insurer may require examinations "as often as is reasonably necessary". In determining the reasonableness of insurers' requests, arbitrators have looked at the timing of the request, whether there is a clear nexus between the choice of specialist and the injuries claimed, the types and dates of any prior IEs that the applicant has attended, as well as the existence of other medical opinions in the file. However, each case turns on its unique facts.

I find that the Insurer's request in this case that both Mr. and Mrs. Solano-Guevara attend assessments with Dr. Ford is reasonable. Each Applicant was last assessed by a medical expert of the Insurer's choosing during the Fall of 1997, approximately three years ago. New information, in the form of medical-legal reports from both family physicians and clinical notes and records of treating practitioners has recently been provided which may be at odds with the opinions received by the Insurer in 1997. I find it reasonable that State Farm be permitted to take steps to gain more information about the Applicants' medical conditions, in light of the new information provided.

As well, the prior assessments were conducted within the first six months of the accident, allowing for the possibility that the symptoms complained of have now reached a different stage.

While this matter is scheduled for hearing in approximately four weeks time, I note that the initial request from the Insurer was made in May 2000, some seven months prior to the scheduled start of the hearing. Unfortunately, it was not possible to address this matter until now, but I am persuaded that the request was made in a timely manner and is not a last minute attempt by the Insurer to merely bolster its case just prior to the hearing, as alleged by the Applicants.

After hearing my oral ruling on this issue, counsel for the Applicants requested that the hearing be adjourned. He submitted that in light of the five-week time frame between the assessments with Dr. Ford and the commencement of the hearing, he would be unable to respond to the reports generated within the time frame permitted by the Dispute Resolution Practice Code. I advised that it was premature at this point to request that the matter be adjourned, and that counsel may renew his request for an adjournment after Dr. Ford's reports are issued if he so chooses.

The parties agreed that the pre-hearing discussion would be resumed for the purpose of discussing a settlement of both claims on November 28, 2000 at 4:00 p.m.

EXPENSES:

Counsel for the Insurer requested that the Applicants pay State Farm its costs of this motion, to be fixed at $500. I advised that the matter of expenses would be deferred to the hearing arbitrator, after the hearing on the merits is completed.

November 16, 2000

Shari L. Novick Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.