Neutral Citation: 2000 ONFSCDRS 92
FSCO A99-000202
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARIA MARTON-LAMBERTI
Applicant
and
GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Tanja Wacyk
Heard:
By telephone conference call on May 5, 2000.
Appearances:
John R. McCarthy for Ms. Marton-Lamberti
Joseph M. Grossman for General Accident Assurance Co. of Canada
Issues:
The Applicant, Maria Marton-Lamberti, was injured in a motor vehicle accident on November 25, 1993. She applied for and received statutory accident benefits from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.1General Accident paid her weekly income benefits pursuant to section 12 of the Schedule, at the rate of $480 per week from December 2, 1993 to November 23, 1996. The parties disagree regarding Ms. Marton-Lamberti's entitlement to weekly income replacement benefits beyond the three year mark, i.e. from November 24, 1996 and ongoing. Mediation was not successful, and Ms. Marton-Lamberti applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
General Accident also seeks a repayment of benefits paid to Ms. Marton-Lamberti pursuant to subsections 15 and 27(1) of the Schedule, on the basis that she received unreported income during the period she was in receipt of benefits.
This matter is set to be heard at arbitration in August, 2000.
The Insurer now brings a motion on a preliminary issue, pursuant to section 65 of the Dispute Resolution Practice Code.
The preliminary issue is:
- Is it reasonable for General Accident to require that, pursuant to subsection 23(2) of the Schedule, Ms. Marton-Lamberti attend at Riverfront Medical Evaluations, for examinations by the following:
Dr. George Darby, psychiatrist,
Dr. Judith Shapiro, psychologist - for a psycho-vocational assessment, and
Dr. Max Kleinman, physiatrist?
Result:
- It is reasonable for General Accident to require that Ms. Marton-Lamberti attend at Riverfront Medical Evaluations for the following examinations, provided they are scheduled either on the same day or on two consecutive days, if Ms. Marton-Lamberti so chooses:
Dr. Judith Shapiro, psychologist - for a psycho-vocational assessment and,
Dr. Max Kleinman, physiatrist.
- It is not reasonable for General Accident to require that Ms. Marton-Lamberti attend at Riverfront Medical Evaluations for an evaluation by Dr. George Darby, psychiatrist.
It should be noted that General Accident also asked for an order against the Applicant's accountant for the production of certain documents. However, the Insurer subsequently withdrew its request as the accountant had not been given notice of the Insurer's motion.
EVIDENCE AND ANALYSIS:
General Accident requires Ms. Marton-Lamberti to attend a multidisciplinary assessment, performed by a psychiatrist, a psychologist, and a physiatrist. The examinations would be performed at Riverfront Medical Evaluations, located in Toronto, and would take place on three separate dates. Ms. Marton-Lamberti lives in Wasaga Beach. It is her position that the examinations are not reasonably required.
The right of insurers to require insured persons to undergo medical examinations is set out in subsection 23(2) of the Schedule, which states as follows:
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 adviser or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.
The onus rests with General Accident to demonstrate that the examinations which it wishes Ms. Marton-Lamberti to attend are reasonably required.
General Accident has required the Applicant to attend a number of examinations by experts of its own choosing, dating back to 1994. The Insurer's last examinations took place in February, 1998. They included an examination by a physiatrist and a functional capacity evaluation.
Subsequent to the Insurer's examinations, referred to above, the Applicant has undergone the following five medical assessments:
- Dr. A. M. Kushner, June 4, 1998 - Family Physician
Dr. Kushner indicated that Ms. Marton-Lamberti's psychological state remained the main disabling component of her accident-related injuries, but that her physical condition also contributed to her difficulties. A structured driving desensitization training program and psychologically-based treatment and behavioural therapy was recommended, as was an appropriate physical fitness program - to enable her to "initially re enter (sic) the work force in a modified capacity".
- Dr. J. McCall, Orthopaedic Surgery - September 2, 1998
Dr. McCall stated that while Ms. Marton-Lamberti did have some physical disabilities in the area of her low back, her right knee and her neck, she needed to get on with her life "and that the answer to all of this likely lies in the psychological realm." He went on to state that it was not clear to him that she had ever obtained appropriate psychological counselling, and that his main recommendation is that she have an in-depth psychological assessment and treatment of a counselling and psychological nature. Dr. McCall also indicated that in his view, it is unlikely that Ms. Marton-Lamberti is going to return to any work environment.
- Dr. K. R. Wilkins, Physiatrist - June 3, 1999
Dr. Wilkins diagnosed Ms. Marton-Lamberti as having fibromyalgia but also indicated that she agreed with Dr. McCall that "the question is not what is causing her ongoing pain but why does she remain so disabled at this present time." Dr. Wilkins observed that Ms. Marton-Lamberti has many barriers to her returning to work, i.e. the length of time she has been off work, her poor English skills and her limited education, and opined that her prognosis of returning to any sort of useful work at this time was "quite poor."
- Dr. M. Charlton, Chiropractor - November 25, 1999
Dr. Charlton indicated that Ms. Marton-Lamberti "is experiencing extensive disability due to her injuries" and that it is "unlikely that she could be gainfully employed in her current condition."
- Dr. V. Kekosz, Physiatrist - December 1999
Dr. Kekosz found that, as a result of the accident, Ms. Marton-Lamberti was experiencing a soft-tissue pain syndrome in keeping with Fibromyalgia. She also found that Ms. Marton-Lamberti was in need of ongoing psychological counselling for pain and stress management, a driving desensitization program, and a general fitness program. She found Ms. Marton-Lamberti's prognosis for returning to any form of work to be "extremely guarded."
It was General Accident's position that it was reasonable to require Ms. Marton-Lamberti to attend at the examinations requested as its prior examinations had taken place some time ago, and it was now in receipt of five new medical reports from the Applicant.
It was also General Accident's uncontroverted submission that its prior examinations had only addressed the issue of Ms. Marton-Lamberti's entitlement to weekly income benefits pursuant to subsection 12(1). That subsection provides that to qualify for benefits for the first three years following an accident, the injured person must, as a result of the accident, be substantially unable to perform the essential tasks of her occupation or employment. (emphasis added)
However, the test with regard to the issue in dispute between the parties is set out in paragraph12(5)(b). Pursuant to that subsection, in order to claim entitlement to weekly income benefits for any period in excess of 156 weeks, Ms. Marton-Lamberti must demonstrate that her injuries continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training, or experience from November 24, 1996 onward. (emphasis added)
General Accident also stated that it only became aware of the Applicant's new medical assessments from Drs. Kushner, McCall and Wilkins at the pre-hearing on July 19, 1999 - and did not receive them until October, 1999. Prior to that, the Insurer's understanding was that there was no further medical evidence to be considered.
General Accident also indicated that the matter had been delayed by a dispute regarding timeliness - which was determined by Arbitrator Seife through a letter-decision dated October 13, 1999.
Ms. Marton-Lamberti relied on the decisions of Arbitrator Allen in Swanson and Wellington Insurance Company (May 26, 1998, FSCO A98-000067) and Arbitrator Blackman in Martinho and York Fire and Casualty Insurance Company (April 12, 1999, FSCO A98-000878), to argue that it was not reasonable to require Ms. Marton-Lamberti to attend the examinations requested by General Accident.
More specifically, the Applicant relied on Arbitrator Allen's finding that insurers' examinations are mandated under the statutory scheme for the purpose of providing the insurer an opportunity to adjust an applicant's claim - not for the purpose of bolstering the insurer's case at arbitration. This finding was expressly endorsed by Arbitrator Blackman at page 7 of his decision.
Ms. Marton-Lamberti maintained that the time for the claim to be adjusted was November 24, 1996 - the three year mark, or at least when the Insurer became aware of the claim for benefits for that period - and that by requesting the examinations this late in time, the Insurer was simply trying to bolster its evidence on the eve of arbitration.
The Applicant also maintained that the Insurer could not ask for a psycho-vocational assessment from Dr. Shapiro as she is a psychologist and is not the proper practitioner to administer the accompanying tests. The Applicant also questioned whether such an examination could properly be ordered under subsection 23(2). However, General Accident pointed out that subsection refers to a "psychological advisor" - and argued that Dr. Shapiro came within this category. General Accident also indicated that the three examiners at Riverfront Medical Evaluations would work together to assess Ms. Marton-Lamberti and determine if there is anything she can do - and that Dr. Shapiro's examination would constitute a component of that determination.
Ms. Marton-Lamberti also suggested that, in any event, such an assessment could be done on the basis of a paper review, without subjecting her to another examination. She further maintained that it was "too intrusive" to require her to travel from her home in Wasaga Beach to Toronto on three separate dates - to attend three separate examinations.
In making my determination, I adopt, as did Arbitrator Blackman at pps. 4-5 of his decision in Martinho, the following general principles concerning insurers' medical examinations as set out in the decision of Arbitrator Naylor in Scott and Toronto Transit Commission (OIC A-001116, September 4, 1992), wherein she stated that:
The right of an insurer to require that the Applicant attend a medical examination ... provides the insurance company with an effective opportunity to fairly assess the applicant's medical condition, on an independent basis.
The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the injured person's right to privacy. For this reason, the insurer's right to an independent medical examination is qualified - it may only be "as often as it (the insurer) reasonably requires."
The exercise of the right to a medical examination under the No-Fault Benefits Schedule is inherently intrusive and an invasion of individual privacy. However, it is legislatively mandated. Neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. "Reasonableness" is an objective standard. Some latitude must be left for a range of circumstances, which fall within its parameters. It is not for an arbitrator to "second-guess" the actions or motives of the company in requiring a medical examination.
The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed. The regulations do not preclude an insurance company from requiring more than one examination - they expressly authorize an examination as often as reasonably required. Nor, in my view, does the provision preclude, in appropriate cases, examinations by more than one specialist or a multi-disciplinary assessment. The scope of the regulation is broad and flexible, in order to reflect the reality of the requirements of modern interactive medical practice, and to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition.
The issue is whether, in the circumstances of the case, the examination is reasonably required to effectively assess the nature and extent of the applicant's injuries. In making this determination, all the circumstances must be weighed.
Applying the above principles, I make the following determinations.
While the Applicant argued that it was clear the purpose of the requested examinations was simply to provide the Insurer with an opportunity to bolster its case for litigation, I do not find this to be the case.
The Insurer has not required that the Applicant be examined for more than two years. Nor has it had the Applicant examined with regard to the particular issue on which the dispute is based i.e. whether Ms. Marton-Lamberti's injuries continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training, or experience.
Until April, 1999, the Insurer was unaware of any new medical examinations which the Applicant had undergone, and did not receive copies of those assessments until October, 1999. Those assessments, as well as the two subsequently performed by Dr. Charlton and Dr. Kekosz, indicated that the Applicant is unlikely to be able to return to work as a result of her physical and psychological difficulties.
In my view, it is reasonable for the Insurer to now have an effective opportunity to evaluate the Applicant's physical and psychological condition by requiring the Applicant to be examined by its own experts.
I am also of the view that an assessment performed by both a psychologist and physiatrist is reasonable in the circumstances, as the medical reports obtained by Ms. Marton-Lamberti suggest that her disability contains both physical and psychological components.
I am also satisfied that an examination by a psychologist can be required pursuant to subsection 23(2), as it is clearly contemplated by the reference to a "psychological advisor". In my view, this includes the psycho-vocational assessment to be conducted by Dr. Shapiro. I find that this assessment will assist the physiatrist in evaluating Ms. Marton-Lamberti's case as it will contain two components. The psychologist will not only be able to evaluate the Applicant's psychological condition, but will also consider its role in any ongoing disability experienced by Ms. Marton-Lamberti.
A psycho-vocational assessment is relevant to the Applicant's claim for ongoing weekly income benefits pursuant to Part IV of the Schedule, and in my view, would be significantly compromised if it were to take place without Ms. Marton-Lamberti in attendance. Consequently, I find that it is reasonable for General Accident to require that she attend for that component of the assessment. However, the potential inconvenience to Ms. Marton-Lamberti caused by requiring that she travel from Wasaga Beach to Toronto on two separate occasions can be remedied by giving Ms. Marton-Lamberti the option of seeing the two examiners either on the same day, or on two consecutive days.
Finally, in the absence of any evidence or submissions as to why it is reasonable for the Insurer to require Ms. Marton-Lamberti to see a psychiatrist as well as a psychologist, I find the insurer has failed to satisfy me this is the case.
May 19, 2000
Tanja Wacyk
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 92
FSCO A99-000202
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARIA MARTON-LAMBERTI
Applicant
and
GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, I find that:
- It is reasonable for General Accident to require that Ms. Marton-Lamberti attend at Riverfront Medical Evaluations for the following examinations, provided they are scheduled either on the same day or on two consecutive days, if Ms. Marton-Lamberti so chooses:
Dr. Judith Shapiro, psychologist - for a psycho-vocational assessment and,
Dr. Max Kleinman, physiatrist.
- It is not reasonable for General Accident to require that Ms. Marton-Lamberti attend at Riverfront Medical Evaluations for an evaluation by Dr. George Darby, psychiatrist.
May 19, 2000
Tanja Wacyk
Arbitrator
Date