Daljeet Jauhal v. Canada Life Casualty Insurance Company, 2000 ONFSCDRS 23

Neutral Citation: 2000 ONFSCDRS 23

FSCO A99-000155

BETWEEN:

DALJEET JAUHAL

Applicant

and

CANADA LIFE CASUALTY INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Susan Sapin

Heard: January 14, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

Heidi Brown for Ms. Jauhal

Marc D. Isaacs for Canada Life Casualty Insurance Company

Issues:

The Applicant, Daljeet Jauhal, was injured in a motor vehicle accident on November 11, 1993. She applied for arbitration under the Schedule,¹ claiming entitlement to ongoing weekly income benefits from November 12, 1996. Canada Life Casualty Insurance Company ("Canada Life") disputes that Ms. Jauhal is entitled to further weekly income benefits.

On December 6, 1999, Canada Life requested that Ms. Jauhal attend an Insurer's Medical Examination (IME) by a physiatrist, Dr. S. Liao, on Thursday, December 23, 1999. Ms. Jauhal refused. Canada Life seeks a stay of the arbitration scheduled to commence on February 14, 2000.

The preliminary issue is:

Is the Insurer entitled to an adjournment of the arbitration hearing because the Applicant failed to attend an IME on December 23, 1999?

Result:

The hearing is not adjourned as the Insurer's request for an IME was not reasonable.

Reasons:

Section 23(2) of the Schedule gives an Insurer the right to require, upon reasonable notice, a medical examination of the insured "as often as it reasonably requires." This section has been the subject of numerous arbitrations.²

I agree with Arbitrator VanderBent's summary of the principles set out in these cases in his Bogic³ decision and I need not repeat them here.

I find several aspects of the Insurer's request to be reasonable. Firstly, this is an ongoing claim for benefits, and the Insurer has not had an IME since the examination conducted by Dr. Liao in January 1996, eleven months prior to termination.

Secondly, the Insurer gave Ms. Jauhal more than two weeks notice of the examination scheduled for Thursday, December 23, 1999.

Thirdly, in this arbitration, Ms. Jauhal's claim is for weekly income benefits after 156 weeks of disability, which involves a different test of disability than applied in the first three years after the accident.

Fourthly, Ms. Jauhal alleges that her disability stems from both psychological and physical sequelae of the accident. She has, therefore, placed her psychological and physical condition in issue in the arbitration. Medical reports obtained by the Applicant's rehabilitation case manager and provided to the Insurer reveal that her physical condition is unclear. On April 21, 1998, Ms. Jauhal's psychotherapist, Dr. Safar Daei, recommended a complete physical check-up to investigate whether there were physical reasons behind her fatigue and low level of motivation, and to determine her ability to resume her "pre-morbid employment." In November 1998, Ms. Jauhal's psychological status in relation to her ability to work was evaluated by Herrold & Vernon. That assessor noted that, "Based on a review of the file information available, the extent to which Ms. Jauhal remains physically incapable of returning to her previous occupation is unclear." It is not unreasonable for the Insurer to seek an updated medical opinion about the Applicant's physical condition in the face of such uncertainty about how it affects her ability to return to work.

Finally, this is an ongoing claim for benefits, and has been so since November 1996. The Insurer's right to require medical examinations under section 23 of the Schedule is also an ongoing one, limited only by reasonability.

Having said this, however, I find that, in the overall circumstances of this case, the Insurer's request for an IME is unreasonable for several reasons. One of these is the proximity to the hearing date. As stated in the leading case on this point, Belair and F.S. (supra):

Determining the appropriateness of a request for an examination requires a balancing of the interests of the parties, in the context of the particular facts. The timing of a request is a factor in considering its reasonableness; it becomes very important where it would delay the process. The closer a request is made to a hearing, the closer the scrutiny of its reasonableness, to ensure that there is no avoidable delay or that the insured's preparation for the hearing is not prejudiced.

I find that it was unreasonable and prejudicial to the Applicant to require her to submit to an IME on the eve of the Christmas holiday season, when she had no control over when the IME report would be produced and without any assurances that there would be sufficient time for her to have it reviewed by her own physiatrist in time for the hearing.

In addition, I find it was neither reasonable nor necessary for the Insurer to wait until literally the last possible moment to request an IME. The medical reports available indicate that the nature of the claim since the termination of benefits in November 1996 has not changed. The Insurer has had ample opportunity to have Ms. Jauhal assessed by medical specialists of its own choosing since that time and has provided no explanation for why it did not do so. Although the dispute was mediated relatively late, in December 1998, the Insurer did not notify the Applicant either at mediation or at the pre-hearing on July 27, 1999 that it would require an IME.

I note also that there have been numerous assessments of the Applicant since the accident, and that they have been provided to the Insurer. These include assessments by a psychiatrist, a neurologist, a neuropsychologist and a physiatrist, as well as a functional abilities evaluation conducted by a physiotherapist, occupational therapist and medical consultant. The Applicant also produced the clinical notes and records of the family doctor on July 26, 1999 and those of the treating physiatrist, who last saw her in 1997, on September 23, 1999. The 1998 assessments noted above have been available to the Insurer for some time. I find that the Applicant has provided ongoing disclosure and that the Insurer had ample information and opportunity to properly evaluate the Applicant's post-156 week claim well before December 1999.

It is now four years since the termination of benefits and seven years since the accident.

As stated in Belair and F.S. (supra), "In the arbitration process, the insurer's right to require an examination is subject to the general discretion of the tribunal to control its own processes in the context of the overall objectives of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute."

The overall objectives of the arbitration system also include the speedy and informal resolution of disputes, as an alternative to the court system.

Given the numerous assessments available, I find there has been adequate disclosure by the Applicant and I am not persuaded that the lack of a recent Insurer's IME precludes a fair, informed hearing of the issues remaining in dispute, or that it justifies a delay in this seven year old case.

As I find on the whole that the Insurer's request for an IME was not reasonable, the Applicant's refusal to attend does not entitle the Insurer to an adjournment of the proceedings. It is in the best interests of the parties that this case proceed to hearing without delay.

EXPENSES:

I leave the issue of expenses incurred in this preliminary issue hearing to the hearing arbitrator.

January 31, 2000

Susan Sapin Arbitrator

Date