Neutral Citation: 2001 ONFSCDRS 166
FSCO A96-001123
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOSE HERNANDEZ
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION ON A MOTION FOR INTERIM EXPENSES
Before:
David J. Evans
Heard:
By telephone conference call on October 15, 2001.
Appearances:
William A. Garay for Mr. Hernandez
Kenneth Wright for Zurich Insurance Company
Issues:
This matter is essentially a continuation of an earlier preliminary issue hearing at which I ordered the hearing stayed until Mr. Hernandez attended before Dr. Maureen Baxter.1 As set out in that decision, Mr. Hernandez was injured in a motor vehicle accident on November 5, 1994. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule2 that were subsequently terminated. The matter proceeded to a hearing, an appeal, a judicial review, and now is proceeding to a re-hearing at the Financial Services Commission of Ontario pursuant to the Insurance Act, R.S.O. 1990, c.I.8, as amended. At that initial preliminary issue hearing, Mr. Hernandez also requested interim expenses, but I made no ruling at that time. Mr. Hernandez now brings this motion for interim expenses. After the motion was set down, a dispute arose as to whether Zurich could require Mr. Hernandez to attend for an insurer's examination (IE) with Dr. Michel Petit, physiatrist.
The preliminary issue is:
Is Mr. Hernandez entitled to interim expenses pursuant to section 282(11.1) of the Insurance Act?
Is Zurich entitled to require Mr. Hernandez to attend before Dr. Michel Petit, physiatrist?
Result:
Mr. Hernandez is not entitled to interim expenses.
Zurich is entitled to require Mr. Hernandez to attend before Dr. Michel Petit, physiatrist.
EVIDENCE AND ANALYSIS:
Interim Expenses:
In my original decision, I ruled as follows:
Mr. Hernandez sought, as a pre-condition of any order adjourning the hearing for his failure to attend at insurer examinations, an order requiring Zurich to pay for further examinations and reports. . . . However, the issue at this point is simply whether or not Mr. Hernandez' hearing is adjourned pending his attendance at a further insurer's examination. It is adjourned, so any right he has to interim expenses is currently moot. In any event, the submissions I have would hardly be sufficient to make such an order. I suggest that both parties make proper submissions and provide evidence on a motion for interim expenses should the adjournment of the hearing be lifted. . .As to the relevant criteria for granting interim expenses to the applicant, the parties may wish to consider cases such as Adu-Agyei and Zurich Insurance Company.3 [Emphasis added]
However, Mr. Hernandez provided no evidence on this motion. Instead, there were submissions from his counsel, Mr. Garay, as set out in his letter of August 24, 2001, to the effect that Mr. Hernandez continues to be relying upon social services," is not in a position to fund" assessments and attendance at the hearing by various experts, and therefore requests "'funding' at the 'maximum' rates permitted for each medical practitioner pursuant to the applicable regulations."
The amount in dispute at present is not large, as Mr. Hernandez has only obtained one additional report, for which the maximum payable under the applicable regulation is $800, and as well has paid $33 for records. Mr. Garay advised that further reports are coming. However, I find that any prospective claims are moot.
Zurich for its part resisted this claim not only on the basis of mootness for the prospective reports but also on the basis of lack of evidence of the inability to pay.
I find the evidence insufficient to support Mr. Hernandez' claim for interim expenses. As noted above, there was in fact no evidence, although I specifically suggested evidence be provided in the earlier motion. By way of contrast, I was provided with affidavit evidence in the Clipperton4motion for interim expenses, which indicated that Mr. Clipperton was on social assistance. I found Mr. Clipperton's situation to be on all fours with that in the Adu-Agyei case, and I found that he was entitled to $8,503.20 in interim expenses.
I find the situation different in this case, particularly with respect to the criterion repeated in Adu-Agyei that the applicant be unable to carry the expenses of the arbitration. Mr. Hernandez has already received approximately $23,000 in expenses for the earlier proceedings, including approximately $11,000 in disbursements.5 More importantly, I was advised that he netted approximately $40,000 from the settlement in the related tort action. There was no evidence on what happened to the settlement funds, other than Mr. Garay's assertion that Mr. Hernandez spent it or gave it to his family.
However, I find that the burden is still on Mr. Hernandez to prove his inability to pay. Considering the lack of particulars to explain why Mr. Hernandez is now receiving social assistance after receiving a considerable settlement, I find that Mr. Hernandez has not met this burden. The claim for interim expenses is denied.
Attendance before Dr. Michel Petit:
I find that Mr. Hernandez' resistance to attending before Dr. Petit is without foundation and that this portion of the motion was entirely unnecessary.
At the first motion, Zurich sought Mr. Hernandez's attendance before a psychiatrist and also before Dr. Lynn MacGregor, physiatrist, who conducted the disability DAC. I noted:
The DAC General Guideline #4, Ensuring Neutrality of the Designated Assessment Centre System (March 1999) states with respect to Post-DAC examinations that once a DAC assessment is completed, the DAC assessor(s) are not permitted to...conduct a medical-legal assessment for either claimant or insurer." Accordingly, I find that Zurich is not entitled to an order adjourning the hearing because of Mr. Hernandez' failure to attend. . .before Dr. MacGregor. . . That said, I can understand why Zurich would seek psychiatric and physiatric examinations. As I understand it, Zurich has not had such insurer examinations, whereas Mr. Hernandez called both a psychiatrist and a physiatrist at the hearing and apparently intends to recall them at the re-hearing. If Zurich proposes reasonable dates and times for examinations before a psychiatrist and a physiatrist, and Mr. Hernandez refuses to attend, I would certainly be prepared to revisit the issue.
Zurich then set up an insurer's examination with Dr. Michel Petit. In his letter of October 5, 2001 objecting to this examination, Mr. Garay wrote:
In his Decision dated June 19, 2001 Arbitrator Evans at page 6 states in paragraph 3 that, as he understood it, Zurich did not have the benefit of an insurer examination by a physiatrist and did not call a physiatrist at the Arbitration hearing. This, of course, is not correct since Zurich did have Mr. Hernandez examined by Dr. Lynn MacGregor, a physiatrist. Indeed, Mr. MacGregor provided medical-legal reports and attended at the Arbitration hearing and gave viva voce evidence. . .[I]f you wish to have a "re-examination" of Mr. Hernandez by a physiatrist then this should be done by Dr. Lynn MacGregor.
Mr. Garay forgot that Dr. MacGregor was the DAC doctor and not an IE doctor. He also misunderstood my ruling, as I simply held that Zurich had not had a physiatrist's IE; nowhere did I state that Dr. MacGregor had not been called by Zurich to testify.
In any event, I have already ruled that the IE could not be held before Dr. MacGregor. This would appear to be res judicata. Mr. Garay's objection to the examination by Dr. Petit was therefore without any basis.
At the motion, once the facts were pointed out to him, Mr. Garay agreed to send Mr. Hernandez to Dr. Petit. For further clarity, I declare that Zurich is entitled to have Mr. Hernandez attend before Dr. Michel Petit, physiatrist.
EXPENSES:
I note that Zurich had asked for its costs thrown away in preparing for the issue of the attendance before Dr. Petit. However, I believe that submissions regarding those expenses would be better dealt with globally by the hearing arbitrator. Zurich may point out to the hearing arbitrator my finding above that the portion of the motion dealing with the issue of Dr. Petit was entirely unnecessary.
I leave the matter of expenses incurred in this preliminary issue hearing to the hearing arbitrator.
November 19, 2001
David J. Evans
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 166
FSCO A96-001123
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOSE HERNANDEZ
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Hernandez is not entitled to interim expenses.
Zurich is entitled to require Mr. Hernandez to attend before Dr. Michel Petit, physiatrist.
November 19, 2001
David J. Evans
Arbitrator
Date
Footnotes
- Hernandez and Zurich Insurance Company, (FSCO A96-001123, June 19, 2001)
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
- (FSCO A97-001546, June 16, 2000)
- Clipperton and Zurich Insurance Company, (FSCO A97-001771, August 22, 2000), Decision on a Motion for Interim Expenses.
- Hernandez and Zurich Insurance Company (FSCO A96-001123, August 28, 1998), expense decision of Arbitrator J. Miller