Neutral Citation: 2001 ONFSCDRS 182

FSCO A00-000977

BETWEEN:

ZOI VIDINOPULOS

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Eban Bayefsky

Heard: By telephone conference call on November 27, 2001.

Appearances:

David S. Wilson for Mrs. Vidinopulos

Michael Nicolis for Liberty Mutual Insurance Company

Issues:

The Applicant, Zoi Vidinopulos, was injured in a motor vehicle accident on May 23, 1996. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly disability benefits on April 28, 1998. The parties were unable to resolve their disputes through mediation, and Mrs. Vidinopulos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues are:

Is an insurer's examination of Mrs. Vidinopulos by Dr. J. W. Digby, a rheumatologist, reasonably necessary, within the meaning of section 65(1) of the Schedule?
Assuming the answer to the first issue is "yes," is the Insurer entitled to an order precluding the Applicant from proceeding to arbitration if she does not make herself reasonably available for an examination with Dr. Digby, currently scheduled for Tuesday, December 11, 2001?

Result:

An insurer's examination of Mrs. Vidinopulos by Dr. Digby is reasonably necessary.
It is premature to address the consequences of Mrs. Vidinopulos' failure to attend the examination with Dr. Digby. The Insurer is free to raise this issue should Mrs. Vidinopulos not make herself reasonably available for the December 11, 2001 appointment.

EVIDENCE AND ANALYSIS:

Background

The Applicant was injured in a motor vehicle accident on May 23, 1996. She sustained soft-tissue injuries to her cervical and lumbar spine. She maintains that she also suffered disc herniations as a result of the accident. The Insurer paid her other disability benefits until April 28, 1998. The Insurer terminated the Applicant's benefits on the basis of its own multi-disciplinary medical assessment. The Applicant claims other disability benefits from April 29, 1998 and ongoing, as well as benefits for chiropractic treatment and related transportation.

At the Insurer's request, the Applicant has undergone the following assessments:

by Dr. J. Stewart, an orthopaedic surgeon, on November 29, 1996
a medical and rehabilitation DAC in February 1997, consisting of an assessment by Dr. G. Lloyd, an orthopaedic surgeon, Dr. R. Yufe, a neurologist, and a chiropractor and a physiotherapist
a disability DAC in February 1997, consisting of an assessment by Dr. Lloyd and an in-home assessment
a multi-disciplinary insurer medical examination, consisting of assessments by Dr. L. Tuff, a psychologist, and Dr. D. Bird, a neuroscience and behavioural science consultant, in January 1998, and by Dr. J. Mayer, a neurosurgeon, and Dr. M. Mathieson, a chiropractor, in February 1998.

In July 1996, the Applicant's family physician, Dr. D. Mihailidis, referred the Applicant to Dr. C. Sokoluk, a rheumatologist. Dr. Sokoluk has been treating the Applicant since that time. In April 1998, Dr. Sokoluk referred the Applicant to Dr. W. Kraemer, an orthopaedic surgeon, to address the Applicant's ongoing lumbar spine pain and the potential for back surgery. In May 1998, Dr. Sokoluk prepared a report on the nature and degree of the Applicant's disability, noting in particular, that the Applicant's lumbar pain was "on the basis of disc herniations and soft tissue strain." The Applicant points out that the Insurer did not reinstate benefits as a result of this report, nor did it seek its own rheumatological assessment. In the summer of 2001, both Dr. Sokoluk and Dr. Kraemer provided medical-legal opinions on the nature and degree of the Applicant's disability, essentially concluding that the Applicant had, as a result of the accident, been rendered substantially disabled from virtually all of her pre-accident activities.

The Insurer terminated the Applicant's benefits in April 1998 on the basis of the January and February assessments. The Insurer states that the Applicant has not undergone an IME since it terminated benefits. In September and October 2001, the Insurer requested that the Applicant attend further IMEs with a psychologist, an orthopaedic surgeon and a rheumatologist, as well as an FCE by a kinesiologist. The Applicant has agreed to attend an examination by an orthopaedic surgeon, a kinesiologist and an occupational therapist. The Applicant has apparently now attended an IME with the orthopaedic surgeon. The Applicant has objected to being examined by Dr. Digby, a rheumatologist. The Applicant has also objected to seeing a psychologist, but that is not in dispute in this motion.

The Insurer submits that, if it is not permitted to obtain a medical opinion from a qualified rheumatologist, such as Dr. Digby, it would be denied the opportunity to assess the Applicant's ongoing medical condition, independent of the Applicant's own experts, as well as the opportunity to have a fair and informed hearing on the issue of the Applicant's entitlement to ongoing disability benefits.

The Insurer cited the case of Hernandez and Zurich Insurance Company (FSCO A96-001123, June 19, 2001), in part, for the proposition that an insurer is entitled to assess an applicant if the applicant is seeking ongoing benefits, if there is little current information on the applicant's medical status and if the evidence would be important to a full and informed adjudication of the applicant's entitlement to benefits.

The Insurer submitted that it terminated benefits on the basis of its own assessments in early 1998 and that it is irrelevant that it did not request a rheumatological examination as a result of Dr. Sokoluk's May 1998 report. The Insurer states that it is reasonable and necessary for it to have the Applicant assessed by Dr. Digby since it has not had the Applicant assessed for almost four years, since the Applicant has just provided the Insurer with the recent reports of Drs. Kraemer and Sokoluk, and because a rheumatological examination would be directly relevant to the issues in this case, namely, the nature and degree of the Applicant's injuries and disability. The Insurer notes that the Applicant has received ongoing rheumatological treatment from Dr. Sokoluk and seeks ongoing benefits. The Insurer also stresses that Dr. Digby, like Dr. Sokoluk, can provide important current information on the rheumatological, as opposed to the orthopaedic, aspects of the Applicant's claim.

The Applicant cited the case of Lico v. Griffiths, an unreported decision endorsed on September 3, 1998 by Festeryga, J. in Ontario Court (General Division), Action 3206/93, in Hamilton. In that case, Festeryga, J. denied the defendant's motion for a second defence medical by Dr. H. Berry, a neuropsychiatrist, on the basis that the plaintiff had already undergone a defence medical by Dr. F. Langer, an orthopaedic surgeon, and there was "nothing...from Dr. Langer to the effect that he did not feel competent to express an opinion on the abnormality of the plaintiff or that there ought to be a further examination by a specialist with Dr. Berry's qualifications."

While the Applicant acknowledged that she had soft-tissue problems and that she has been treated for years by a rheumatologist, she maintains that she suffered disc herniations as a result of the accident and that her case essentially involves an orthopaedic injury. The Applicant submitted that none of the assessors in this case indicated that the Applicant should undergo a rheumatological examination or that an orthopaedic surgeon was unable to address the issues in this case. The Applicant said that it was not enough that her family doctor referred her to a rheumatologist and that it was irrelevant that the rheumatologist subsequently referred her to an orthopaedic surgeon. She submitted that rheumatologists will occasionally treat patients in her situation because they can address soft-tissue injuries. The Applicant argued that the Insurer did not request a rheumatological examination in 1996 or 1998 and that they are only doing so now to buttress their case for the arbitration. The Applicant maintained that her condition has not changed significantly since 1998, except perhaps for a decrease in her functioning, related to her medical condition.

The Applicant cited the case of Martinho and York Fire & Casualty Insurance Company (FSCO A98-000878, April 12, 1999) for the proposition that an insurer must provide evidence that its request for an assessment is reasonably necessary, particularly when two similar examinations are sought, and in light of the inherently intrusive nature of medical testing. While the Applicant stated that the Insurer is clearly entitled to re-assess her condition, she maintained that there is no need for two physical examinations in this case, one by an orthopaedic surgeon and one by a rheumatologist.

Findings

I find that the Insurer's request to have the Applicant examined by Dr. Digby is reasonably necessary.

I do not agree with the Applicant's submission that her injuries are essentially orthopaedic in nature. Based on the medical reports filed in this motion, I find that the Applicant suffers from a soft-tissue condition, as well as disc herniations. I, therefore, find that the Applicant suffers from both rheumatological and orthopaedic conditions. The Applicant has been treated extensively by a rheumatologist and has been assessed by a number of orthopaedic surgeons. Dr. Sokoluk, a rheumatologist, felt that the Applicant should be seen by Dr. Kraemer, an orthopaedic surgeon. I find that rheumatologists and orthopaedic surgeons bring different perspectives and expertise to this case and that this has been important to the proper assessment of the Applicant's condition.

The Applicant acknowledged that Dr. Sokoluk could speak to the effects of the accident on her physical abilities. In 1998, Dr. Sokoluk reported that the Applicant's "neck and lumbar spine region pain [were] directly attributable to the motor vehicle accident" and that, in light of the fact that she was not receiving insurance benefits, it appeared "reasonable to consider reopening this patient's case." The Applicant acknowledges that her functioning may have decreased since 1998, relative to her particular medical condition. In 2001, Dr. Sokoluk reviewed the Applicant's "rheumatological history and...her current musculoskeletal health status" and reported that, "as a result of the accident [the Applicant] is left with a disabling degree of pain from her lumbar spine on the basis of disc herniations and soft tissue strain" and that "it is no longer possible for her to fulfill her activities of daily living or participate in any way in recreational activities." Dr. Sokoluk reported a significant deterioration in the Applicant's functional ability since the accident. Dr. Sokoluk concluded that "she will always have severe lumbar spine region pain that prevents her from living a normal lifestyle." While the Applicant suggested that this case was essentially about her orthopaedic injuries, I find that she has relied heavily on Dr. Sokoluk's rheumatological input, that his comments are directly relevant to the issues in this case (particularly in light of her claim for ongoing benefits) and that his opinion will play a significant role at the arbitration.

The Applicant has acknowledged that the Insurer is entitled to re-assess her condition and has agreed to undergo a number of examinations. In light of the dual nature of her physical problems and the different expertise rheumatologists and orthopaedic surgeons bring to this case, and in light of Dr. Sokoluk's significant new report on the nature and degree of the Applicant's injuries (in which he summarizes the Applicant's rheumatological history and current musculoskeletal status), I find that it is reasonably necessary for the Insurer to have the Applicant assessed by a rheumatologist, as well as by an orthopaedic surgeon.

I do not find the case of Lico v. Griffiths helpful. While Festeryga, J. relied on the fact that Dr. Langer had not said he was incompetent to provide an opinion on the case or that a further assessment was necessary, Festeryga, J. did not say that this was essential to determining any request for two related medical assessments. In my view, this is only one of a variety of factors to be considered. An insurer's request must be determined in light of the nature of the Applicant's injuries, the history of any treatment and/or assessments, and the relevance of the proposed examination to the issues in dispute in the arbitration. In this case, while none of the assessors explicitly stated that a rheumatological examination was necessary, the Applicant's family doctor referred her to a rheumatologist, she was treated for years by the rheumatologist, he provided a significant review and current assessment of her condition, and rheumatological evidence will play a significant role at the arbitration (in addition to any orthopaedic evidence). In this context, I find the Insurer's request for a rheumatological assessment reasonably necessary, despite the absence of the type of evidence to which Festeryga, J. referred.

I do not find it relevant that the Insurer did not request a rheumatological assessment in 1996 or 1998. The Insurer did not dispute the Applicant's entitlement to benefits in 1996 when she began to see Dr. Sokoluk and the Insurer terminated benefits in April 1998 on the basis of its own assessments, to which Dr. Sokoluk's May 1998 report was simply a response. There is no limitation period on the Insurer requesting updated medical assessments and the mere fact that it did not request one in 1996 or 1998 does not bar it now. As stated above, in light of the nature and development of the Applicant's condition, her claim for ongoing benefits, the history of the medical attention and the relevance of rheumatological evidence to the proceeding (particularly in light of Dr. Sokoluk's recent report), I find that the Insurer is entitled to have the Applicant seen by Dr. Digby, despite the fact that it did not request a rheumatological examination earlier in the claim.

I am not satisfied that the Insurer is requesting an examination with Dr. Digby simply to buttress its case. The Insurer has not had the Applicant assessed by a rheumatologist and has not assessed the Applicant at all in almost four years. The Applicant acknowledges that the Insurer is entitled to a current assessment of her condition and has agreed to undergo various other examinations. Given the time that has elapsed since the last Insurer's examination, the length of Dr. Sokoluk's treatment and his recent report, as well as the importance of rheumatological evidence to the arbitration, I find that the Insurer has reasonably requested a further assessment of the Applicant's medical status and that it would be artificial to have this done by various practitioners, but not by a rheumatologist.

I agree that the decision to grant an insurer's request for a medical assessment must be done carefully, given the inherently intrusive nature of such examinations. However, in all of the circumstances of this case, particularly the Applicant's own reliance on rheumatological evidence, I find that there is ample support for the conclusion that an assessment by Dr. Digby is reasonably necessary. I find that the Insurer is entitled to this assessment and that it will further the goal of a full and informed adjudication of the issues in this case.

Remedy

The Insurer sought an order precluding the Applicant from proceeding to arbitration if she did not make herself reasonably available for an examination with Dr. Digby. The Insurer has scheduled the appointment for Tuesday, December 11, 2001. At this point, there is no indication that the Applicant intends to disregard a finding that an assessment by Dr. Digby is reasonably necessary. I find it premature to address the consequences of her failure to attend the examination. The Insurer is free to raise this issue should the Applicant not make herself reasonably available for the appointment.

EXPENSES:

The parties indicated that they would address the issue of expenses following my order on the Insurer's request. If required, the parties may now make submissions on the issue of expenses of the motion.

December 5, 2001

Eban Bayefsky Arbitrator

Date