FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2001 ONFSCDRS 186

FSCO A01-001267

BETWEEN:

BRIAN SMITH

Applicant

and

PROGRESSIVE CASUALTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION ON A MOTION

Before:

David Muir

Heard:

November 28, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tammy Ring for Mr. Smith

Pamela A. Brownlee for Progressive Casualty Insurance Co. of Canada

Issues:

The Applicant, Brian Smith, was injured in a motor vehicle accident on December 11, 1995. He applied for and received statutory accident benefits from Progressive Casualty Insurance Company of Canada ("Progressive"), payable under the Schedule.¹

This is a motion brought by Progressive for an order that Mr. Smith is not entitled to access the dispute resolution mechanisms in sections 279 to 283 of the Insurance Act, because Mr. Smith has failed to make himself reasonably available for an examination under section 65 of the Schedule.

Mr. Smith claims that he is entitled to proceed to mediation of his attendant care claims because the requested assessment is not reasonably required.

The issue arises in the following circumstances. Progressive wrote to counsel for Mr. Smith on July 26, 2001 advising that it was in the process of arranging an attendant care needs/Form One assessment for him by Marla Rosenfeld, occupational therapist at The Positive Approach-Rehabilitation Specialists. The letter further advised, with reference to the provisions of the 1996 Schedule and not the applicable 1994 Schedule, that if Mr. Smith failed to comply with the request, Progressive would terminate payment of the benefit until he complied. Furthermore, Progressive pointed out the provisions of the 1996 Schedule, that if applicable to the circumstances, would prevent Mr. Smith from proceeding to commence mediation on the attendant care issues.

In a second letter dated August 27, 2001, Progressive noted that Mr. Smith had advised through his counsel that he would not attend the Form One assessment, but requested that the matter proceed to a Designated Assessment Centre (DAC). Progressive advised, with reference to the appropriate provisions of the applicable 1994 Schedule, that until Mr. Smith has undergone the requested assessment, it would not make any further payments for attendant care. Progressive further advised that Mr. Smith was not entitled to apply for mediation of the dispute respecting attendant care until he submitted to the examination pursuant to the provisions of section 71.1 of the Schedule.

Mr. Smith applied for mediation of several disputes between the parties. Mediation failed in respect of several issues, including Mr. Smith's claim for attendant care benefits as well as his entitlement to refer the attendant care dispute to mediation.

This motion was brought on an expedited basis and was argued on very narrow grounds. For example, Mr. Smith did not take issue with the nature of the proposed assessment as such which is an issue that might have arisen.

Mr. Smith submits that the only proper mechanism for challenging the conclusions of an attendant care DAC is a further DAC. Mr. Smith also claims that the assessment is not reasonably required because there is extensive medical documentation to establish the extent of his need for attendant care and no evidence of changed circumstances since the last such DAC assessment in March 2000. Mr. Smith also objects to the requested assessment because of what he submits would be the significant negative impact such an assessment would have on him and his rehabilitation. The Applicant submits that the consequences of the requested assessment, combined with the intrusion on his right to privacy, outweigh Progressive's right to have a partisan assessment, such as to make the request for an IME unreasonable in the circumstances.

Progressive submits that it is entitled to request assessments to be performed by experts of its own choosing so long as they are reasonably required. It submits that there is evidence of a change in Mr. Smith's condition since the last DAC assessment that suggest that an assessment at this time is reasonably required. Progressive also claims that the March 2000 DAC assessment itself contemplated the possibility of a re-assessment after a period of time. But even if there is no change in Mr. Smith's condition, submits Progressive, an Insurer is entitled to conduct, from time to time, its own assessment of an insured person in claim of benefits. To conclude otherwise, submits Progressive, would render section 65 of the Schedule meaningless.

Progressive has continued to make payments for attendant care without prejudice to its position that until Mr. Smith complies with the provisions of section 65 of the Schedule, it is entitled to not make further payments in respect of this benefit.

A number of reports of medical assessors and rehabilitation specialists, including DAC assessors and treating physicians, were filed for the hearing of this motion. A surveillance report was filed. There was no evidence of the nature of the precise nature of the assessments being proposed. No vive voce evidence was heard..

The relevant provisions of the Schedule are set out here for convenience:

65. (1) An insurer may, for the purposes of any of Parts II to VIII, X and XIII and as often as reasonably necessary, give an insured person notice requiring the person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(5) If the insured person fails or refuses to make himself or herself reasonably available for an examination under subsection (1), the insurer is not required to pay the benefits under section 16 or Part VII, VIII, X or XIII, as specified in the notice under subsection (1), until the person submits to the examination.

71.1 No insured person shall commence a mediation proceeding under section 280 of the Insurance Act unless he or she,

(a) has complied with section 59;

(b) when required, has submitted to and provided the information required for an assessment under section 23, 25, 39, 45, 50 or 64, as the case may be; and

(c) has made himself or herself reasonably available for an examination under section 65. O. Reg. 781/94, s. 21.

ANALYSIS:

In order to succeed in this motion, Progressive must establish that the requested assessment is reasonably required in order to assess a claim for benefits. If the proposed assessment is found to be reasonably required, Mr. Smith may avoid the consequence of his declining to attend, by showing that he made himself reasonably available for the assessment. However, in the particular circumstances of this case, that amounts to establishing that it was reasonable to refuse to attend the requested assessment because it was not reasonably required. This circumstance was reflected in how the parties argued the motion.

If the insured person is not able to show that it was reasonable to refuse to attend an assessment that was reasonably required under section 65, then a stay of the arbitration in respect of the issue in dispute is an appropriate remedy pursuant to section 71.1 of the Schedule.

The following narrative is based on the material filed at the hearing. It is set out here to assist in understanding the background to the issue between the parties. Other than where it is explicitly noted, I make no particular findings in respect of Mr. Smith's injuries or his need for attendant care.

Mr. Smith was involved in a automobile/pedestrian collision while crossing a street on December 11, 1995. He was seriously injured in the accident. He initially lost consciousness, with an initial Glasgow Coma scale of 6 out of 15. After medical stabilization at Belleville General Hospital, he was transferred to Kingston General Hospital, where his Glasgow Coma scale had fallen to 3. A CT scan taken at the Belleville General revealed that Mr. Smith had sustained a right cerebellar and left occipital horn haemorrhage and intercranial haemorrhages consistent with diffuse axional injury.

The injuries sustained in the accident have left Mr. Smith with a multitude of difficulties. These are summarised in a report of Dr. Mark Bayley, physiatrist, dated April 4, 2000:

Based on my review of Mr. Smith, he has evidence of the following diagnoses:

1. Severe traumatic brain injury. Mr. Smith has evidence of having developed a clinical picture compatible with traumatic brain injury, particularly involving the frontal lobe. The frontal lobe is involved in development of goal-directed behaviour, problem-solving, insight and awareness into one's problems, as well as the ability to initiate and plan activities and understand others. It also is involved in flexible thinking processes, and indeed, Mr. Smith has continued to show evidence throughout his situation of impaired behaviour, decreased insight, difficulties with problem-solving and socially appropriate behaviour. Unfortunately, the brain injury literature suggests that the most common handicap that brain injured patients face is this involvement of the frontal lobe and social handicap.

Brain injury also causes diffuse axonal injury, which is injury to the long arms of the nerves, which results in slowed mental processing as well as also causes disruption of the connections between the motor cortex and the brain stem and therefore results in the left hemiparesis that he demonstrated also. Also, he has difficulties with incoordination, which is due to the connections between the cerebellum and the brain stem. The diffuse axonal injury also causes difficulties with attention and concentration, which he has difficulty with.

2. Fracture of the pelvis. Mr. Smith does have evidence of multiple fractures of his pelvis which appear to have healed in abnormal alignment, and do occasionally cause him some pain with prolonged walking.

Mr. Smith has been receiving benefits for attendant care since shortly after the accident. Mr. Smith's attendant care needs were assessed by Northern Rehabilitation in September 1996. On the basis of the material before me, I find that this is the only assessment of Mr. Smith's attendant care needs made by an assessor of Progressive's choosing. Northern Rehabilitation determined that Mr. Smith required 24- hour care, seven day a week . This recommendation appears to have been based primarily upon information provided by a neuropsychiatrist, Dr. Beckett. Northern Rehabilitation did not actually interview or examine Mr. Smith.

Mr. Smith's attendant care needs were next assessed by an attendant care DAC at the request of Progressive in November 1997. Portions of the 1997 attendant care DAC assessment were filed for review. This assessment concluded that Mr. Smith required virtually around-the-clock supervision as a consequence of his impairments outlined above. From the total number of minutes in a week, the assessors deducted time spent in a supervised environment at school, or when supervised by other persons, including a child youth worker, his tutor, physiotherapist and treating physicians.

Mr. Smith's attendant care needs were reviewed in a subsequent DAC assessment conducted by West Park Hospital in March 2000. It is not clear from the material why this DAC assessment was undertaken, however the Schedule allows either party to refer an attendant care issue to a DAC.² A DAC assessment is binding on the parties until any dispute relating to the amount to be paid by the insurer is determined in accordance with the dispute resolution provisions of sections 279 to 283 of the Insurance Act.³

The March 2000 DAC concluded that Mr. Smith's attendant care needs were largely unchanged from1997. The changes that were determined to be appropriate were based on a report of Dr. M. Voorneveld, a psychologist, who conducted an assessment as part of a MED-REHAB DAC in June 2000. Dr. Voorneveld concluded that there had been very little improvement in Mr. Smith neurocognitive functioning since a prior assessment in 1997. Dr. Voorneveld felt that Mr. Smith had plateaued in his rehabilitation and little improvement in his social skills and development could be expected, although some progress in his academic abilities was possible. Mr. Smith still required, in Dr. Voorneveld's opinion, a significant degree of supervision, but felt that he no longer required a child youth worker and recommended instead a social skills attendant familiar with the behavioural problems of individuals suffering the kinds of injuries sustained by Mr. Smith. This level of intervention was recommended for one year at least, to be followed by a "basic attendant" who had been trained by the social skills attendant in dealing with Mr. Smith. Dr. Voorneveld felt that a male attendant would be most appropriate. Dr. Voorneveld was particularly concerned with Mr. Smith's safety should he say something inappropriate to someone or that someone he encountered while unsupervised might take advantage of him.

Mr. Smith's progress since March 2000, has been documented in a series of reports from a case manager appointed to supervise his treatment and rehabilitation.

Several of these reports were filed and document Mr. Smith's ongoing difficulties, particularly his interpersonal and social skills which, in some respects, may be deteriorating.

The surveillance report indicates that over a 10-day period in July 2000, Mr. Smith ventured out of his home unsupervised and attended at a variety store and a coffee shop on numerous occasions. The surveillance report indicates that most of the trips were of short duration. The two stores were both within 5 to 10 minutes walk from his home and typically Mr. Smith would enter one or the other or both locations and then leave again within a few minutes. On a couple of occasions, he was observed interacting with individuals both inside the locations and on the street. On one day, Mr. Smith appears to have been observed in the coffee shop for almost three hours and then again for a little over two hours. When in the coffee shop for more than a few moments, Mr. Smith was observed reading books that the individuals conducting the surveillance considered complex. Mr. Smith's mother, through counsel's submission, claimed that her son knows the staff at the coffee shop; that she had made them aware of his circumstances and asked them to look out for him.

Mr. Smith filed a letter from Ellen Lipkus, his current case manager. In the letter dated November 26, 2001, Ms. Lipkus offered her opinion that his attendant care needs have not changed since the DAC assessment of March 2000.

Mr. Smith filed a letter written by his treating psychologist, Dr. A. Cancelliere, who recommended that assessments of Mr. Smith be kept to a minimum. Dr. Cancelliere reported that in the past Mr. Smith "was consistent in becoming more behaviourally difficult and emotionally labile in anticipation of, during and for a period after assessments."

I was advised that Mr. Smith was scheduled to attend a REC-DAC assessment over two weeks in December. I was not provided with any details of this assessment other than that it would occur over a two-week period and was demanding. It was submitted that this was causing considerable disruption to Mr. Smith's exam schedule, creating additional stress to for Mr. Smith and his family.

ANALYSIS:

I find, for the reasons set out below, that the assessment proposed by Progressive to assess the extent of his attendant care needs is reasonably required in all of the circumstances, and that Mr. Smith has not made himself reasonably available to be examined.

Much of the argument before me related to whether or not there had been a change in Mr. Smith's circumstances such as would invite a reconsideration of the March 2000 DAC assessment. If that were the only issue to be considered, based upon the material filed, it would be difficult to come to such a conclusion.

I find that while evidence of a change in Mr. Smith's circumstances would be an important factor to consider, proof of a change would set the bar too high. In the circumstances of this case I find that amongst the factors to be considered is whether there is evidence to suggest that there may have been a change in Mr. Smith's circumstances that bears investigating.

Whether or not an insurer's request that an insured person attend an examination is reasonable requires a consideration of all of the surrounding circumstances and requires a balancing of an insurer's right to arrange for assessments by persons whom it has chosen, against the right of the insured person to not be subject to unreasonable requests. Amongst the other factors which arbitrators have considered, include the number and frequency of assessments that have been conducted in respect of the benefit claimed; the number of other assessments that may cast light on the circumstances of the insured person; the risk of harm to an applicant in participating in the assessment; the specialities of the assessors etc.

I find that assessment proposed by Progressive is reasonably required. I make this finding on the basis of the following factors :

• Progressive has not had an assessment by an expert of its choosing since September 1996.

• The passage of time since the March 2000 DAC assessment.

• Related to this is Mr. Smith's age. He is a young man having j ust turned 22. The last attendant care DAC was conducted when he was 19. That assessment noted some changes in his needs merely as a result of his growing older and his changing life circumstances.

• The timing of the requested assessment in relation to other assessments that have been undertaken or required. Although disruptive and stressful for Mr. Smith and his family, the scheduling of the REC-DAC is insufficient in itself to support a finding that the request for an insurer's examination is unreasonable.

• There is no evidence of harm to Mr. Smith in attending the proposed assessment. In this regard I have considered the views of Dr. Cancelliere. Without minimising the difficulties Mr. Smith and his family are facing, I note that Dr. Cancelliere does not say that the proposed assessment will be harmful to Mr. Smith but recommends that assessments be kept to a minimum because of a pattern of behavioural changes associated with such assessments in the past.

In reaching this decision I have considered the central submission of Mr. Smith that the only proper procedure to revisit the results of the March 2000 attendant care DAC is a further DAC. I do not agree. Progressive has at least two options open to it if it now seeks to question the status quo as established by that DAC assessment. It can, as suggested by Mr. Smith, proceed to another DAC as more than 12 months have elapsed since the last DAC assessment, or it can challenge the DAC assessment through the dispute resolution mechanisms under the Insurance Act, sections 279 to 283,⁴ In the meantime, the determinations of the DAC of March 2000 are binding on Progressive and Mr. Smith.

Whether or not Progressive is entitled to an assessment of Mr. Smith's needs for other purposes authorised by the Schedule is a separate question from how a party seeks to review an attendant care DAC assessment under the Schedule. There is nothing in the Schedule that precludes an insurer from seeking assessment by persons of its own choosing so long as the assessment is reasonably required.

As I have already indicated in the circumstances of this case, the questions whether the assessment is reasonably required and whether Mr. Smith has made himself reasonably available are inextricably linked. Accordingly, I find that Mr. Smith has not complied with section 65 of the Schedule and a stay of the arbitration in respect of the attendant care benefits is the appropriate remedy.

Despite the fact that I have concluded that Progressive is entitled to its assessment, I urge the parties to take Dr. Cancielleri's views into account in scheduling the Insurer's examination.

The issue of expenses was not raised before me. I leave it to the parties to resolve that issue. If they cannot, the question may be dealt with by the hearing arbitrator.

December 13, 2001

David Muir Arbitrator

Date

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2001 ONFSCDRS 186

FSCO A01-001267

BETWEEN:

BRIAN SMITH

Applicant

and

PROGRESSIVE CASUALTY INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The arbitration of Mr. Smith in respect of attendant care benefits is stayed pursuant to section 71.1 of the Schedule until he makes himself reasonably available for an assessment of his attendant care needs by Marla Rosenfeld, occupational therapist, at the Positive Approach - Rehabilitation Specialists.

December 13, 2001

David Muir Arbitrator

Date

Footnotes

1. 1The 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.
2. 2Sections 50(1), 50(2) of the Schedule
3. 3Section 50(12) of the Schedule
4. 4See sections 50(2), 50(3) and 50(12) of the Schedule.