Neutral Citation: 2001 ONFSCDRS 33

FSCO A00-000225

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TRACY HOWARD

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David J. Evans

Heard:

By written submissions received January 22, January 30, and February 7, 2001.

Counsel:

John Johnson for Ms. Howard

Alexander Voudouris for Guardian Insurance Company of Canada

Issues:

The Applicant, Tracy Howard, was injured in a motor vehicle accident on April 3, 1996. She applied for and received statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), payable under the Schedule.¹ Guardian terminated weekly income replacement benefits after Ms. Howard returned to her pre-accident employment approximately four months after the accident.

Ms. Howard alleges that starting on April 5, 1999 she reduced her work week. She therefore sought, among other things, re-entitlement to income replacement benefits ("IRBs"). In light of these claims, which also included medical and rehabilitation benefits, Guardian scheduled a set of insurer examinations pursuant to section 65 of the Schedule with an orthopaedic surgeon and a psychologist in July 1999, as discussed below. The parties were unable to resolve their disputes through mediation. The mediator issued the Report of Mediator on November 23, 1999. The Commission received Ms. Howard's Application for Arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended, on February 18, 2000.

Ms. Howard attended at a hospital on March 2, 2000, and there was some suggestion that she should stop working. Counsel for Guardian was advised of this hospitalization in May 2000.

The parties participated in a pre-hearing before me by teleconference on August 21, 2000. I scheduled the hearing for four days starting on February 26, 2001. In October 2000, Guardian scheduled three insurer examinations to take place in December 2000. Ms. Howard refused to attend any of them. I resumed the pre-hearing by teleconference on December 21, 2000, at which time Guardian brought a preliminary issue motion to stay the hearing until Ms. Howard attends the insurer examinations. The parties then agreed to reschedule the hearing for the week of June 11, 2001.

The preliminary issue reads as follows:

Should Ms. Howard's application for arbitration be stayed pending her attendance at the insurer examinations requested by Guardian?

Result:

The hearing is adjourned pending Ms. Howard's attendance at examinations by Dr. Fred Langer, Dr. Maureen Shandling, and Dr. Keith Nicholson, unless the parties agree otherwise.

EVIDENCE AND ANALYSIS:

Section 65(1) of the Schedule provides an insurer the right to require an insurer's examination; that is, an insurer may "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. Section 71.1 then denies an applicant access to mediation in certain circumstances relating to the examination: that is, an insured person shall not commence a mediation proceeding unless he or she "has made himself or herself reasonably available for an examination under section 65."

This hearing proceeded by way of written submissions. It does not appear that the parties dispute the following: that the request for the insurer's examinations was made under section 65(1) of the Schedule; that the proposed medical examiners are qualified to perform the insurer examinations; that Ms. Howard had reasonable notice of the appointments.² The only issue then is the reasonableness of the request, including its timeliness.

Regarding the timeliness of a request, case law has established that insurers can request insurer examinations after mediation despite the wording of section 71.1 and that, if those requests are reasonable, the hearing may be stayed or adjourned until the applicant attends. In F.S. and Belair Insurance Company,³ Director's Delegate Naylor considered sections equivalent to sections 65(1) and 71.1 under the previous Schedule.⁴ She held that the right to an examination under section 23(2) (the equivalent of section 65(1) has meaning independent of the denial of access to mediation if the applicant fails to attend a reasonable insurer's examination under section 25 (the equivalent of section 71.1):

[S]ection 23(2) is not limited to requests made before the termination of benefits or the commencement of mediation. Otherwise, an insurer might not have a fair or effective opportunity to evaluate the claim. . . The fact that the primary purpose of section 23(2) is to assist in the insurer's assessment of the claim does not mean that it cannot be applied to serve the ends of fairness. . . 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 objectives are generally served by permitting insurers to arrange timely medical examinations, in appropriate cases.

Director's Delegate Naylor then adjourned the arbitration until the applicant attended the examination. However, Ms. Howard alleges that, for a number of reasons considered below, Guardian is not entitled to an adjournment for the examinations it seeks.

Ms. Howard alleges that Guardian scheduled the examinations too late in the process, namely in contemplation of litigation (in this case, after mediation and after the pre-hearing).

The timing of the insurer's request was at issue in Swanson and Wellington Insurance Company.⁵The applicant did not attend an insurer's examination scheduled 18 months after the accident and 4 months after mediation. At the pre-hearing, Arbitrator Allen refused the insurer's request for an order requiring the applicant to attend the examination. She held that as it appeared that Wellington only sought to request a medical examination after contemplation of arbitration, the purpose for the medical examination in question appeared to have been "not to adjust Mrs. Swanson's claim but rather to acquire medical evidence for Wellington to bolster its case for the hearing." In her view, this is not the purpose of section 65. Several other decisions have adopted this view.⁶ On the other hand, other arbitrators have held that the motivation for a request is not particularly relevant as the question of "reasonableness" as an objective and not a subjective standard and that some latitude must be left for a range of circumstances.⁷ Director's Delegate Naylor specifically stated in Belair that an additional purpose of the section is to serve the ends of fairness. I take this to mean fairness to the insurer in the arbitration process. It follows that an insurer can require an insurer's examination even if the purpose is not simply to adjust the applicant's claim. In any event, Director's Delegate Naylor specifically held that an insurer is not limited to requests for insurer examinations made before the termination of benefits or the commencement of mediation. Similarly, I find the fact that the request for an insurer's examination followed the pre-hearing does not necessarily preclude Guardian from requiring its examinations.⁸

Another reason related to the timing of the request is Ms. Howard's allegation that the request constituted trial brinkmanship. Ms. Howard relied on Levey and Traders General Insurance Company,⁹ where the insurer scheduled an examination two weeks prior to the hearing. However, in Kasperowicz,¹⁰ as in this case, the examinations were scheduled two months prior to the hearing. Arbitrator Manji did not find that the examinations at that point would unduly prejudice the applicant's ability to proceed with the hearing. Similarly, I do not find that Guardian was engaging in trial brinkmanship when it scheduled the examinations, as they could have been held without delaying the hearing and in time for Ms. Howard to respond.

As noted above, section 65 is not limited to requests made before the commencement of mediation. In Belair, Director's Delegate Naylor added that this is especially true in a case that "involves ongoing benefits where the basis of the claim substantially changed after mediation was commenced." This relates to another reason Ms. Howard refuses to attend the examinations:

she submits that there has been no compelling change in her situation to justify the additional examinations. In particular, she submits that her work schedule adjustments in April 1999 occurred prior to Guardian's last set of insurer examinations, those being orthopaedic and psychological consultations conducted in July 1999, and prior to mediation. However, on May 15, 2000, after the filing of the Application for Arbitration, counsel for Ms. Howard wrote to counsel for Guardian as follows:

Please find enclosed a copy of the records of the Toronto Hospital regarding Ms. Howard's attendance there on March 2, 2000. . . We understand that around the time of this most recent hospitalization, Ms. Howard was ordered to cease work entirely and did so. We are in the process of clarifying this situation and will advise you as soon as we have updated information.¹¹

Ms. Howard submits that she was hospitalized briefly but returned to work afterwards. Guardian submits that it was not provided with the duration of her absence from work, the hours and duties she carried out upon her return to work, whether those have changed, or whether she is still working. I find that the timing of Ms. Howard's hospitalization tends to support the reasonableness of Guardian's request as it indicates that there has been a change in Ms. Howard's circumstances since mediation and since the filing of the Application for Arbitration.

Furthermore, it appears that there is a novel aspect to the basis for her claim, at least since the time of the July 1999 insurer examinations. In Schedule "A" of her Application for Arbitration, she claims that she is entitled to benefits not only because of her reduced work week but also because she "has not advanced in her career the way she might have had this collision not occurred" as she "has not been able to accept promotions or other opportunities for advancement." I have reviewed the orthopaedic report of Dr. Hugh Cameron of July 16, 1999 and, in particular, the psychological report of Dr. Neil Weinberg of July 21, 1999, and this aspect of the claim does not appear to have been presented to them.

Ms. Howard alleges that, as no request for an insurer's examination was made in May 2000, when Guardian learned of her hospitalization, then Guardian should not be able to request one now. However, regarding this delay in requesting the examinations, I find that, as in Belair, the delay was not serious enough to render the request unreasonable for, as already noted above, the examinations could have been held without delaying the hearing.

Ms. Howard also alleges that Guardian has had more than ample opportunities to assess her. However, most of the assessments, including various DAC assessments, occurred shortly after her accident. Furthermore, of those early examinations, it appears that only one could properly be called an insurer's examination scheduled pursuant to section 65, and that is the neurocognitive examination conducted on November 3, 1997. Only Dr. Cameron and Dr. Weinberg have assessed Ms. Howard pursuant to section 65 since the change in her work activities in April 1999, the period I consider most relevant for the purposes of the hearing.

Guardian submitted that it needs current assessments of Ms. Howard because of the types of injuries on which she bases her claim. Appendix "A" lists 13 injuries and symptoms, most of which she claims are ongoing, including: a closed head injury manifested by cognitive impairment, emotional lability, and irritability; headaches sometimes accompanied by nausea or eye blurring; neck, elbow, back, sacroiliac joint, hip, knee, and ankle pain; sleep disturbance and depression arising from the pain.

Turning first to the cognitive aspects, Dr. Weinberg suggested, after noting "discrepant information in her file" regarding Ms. Howard's brain injury status, that the following occur:

For a more informed professional opinion, regarding her current cognitive functioning and future cognitive capacities, I would return to a neuropsychological screening incorporating cognitive testing. Moreover, I feel that comments relating to post-concussive symptomatology, organicity and cognitive prognosis, would be best addressed by those health professionals with specific expertise in this area.

Guardian had scheduled three insurer examinations, namely with Dr. Fred Langer, orthopaedic surgeon, Dr. Maureen Shandling, neurologist, and Dr. Keith Nicholson, neuropsychologist. I find the latter two examinations appropriate in light of Dr. Weinberg's suggestion and in light of the new aspect to Ms. Howard's claim.

Turning to the physical aspects, the new aspect to Ms. Howard's claim discussed above also suggests another physical exam by an orthopaedic surgeon is appropriate. However, Ms. Howard submits that Guardian's own assessors suggest that no further examinations are needed, as at the end of his report Dr. Cameron wrote: "There are no further tests or investigations necessary." I find that from the context of the letter, he was suggesting that Ms. Howard needed no further medical or rehabilitation tests for her medical and rehabilitation claims, as the previous paragraph begins: "The treatment to date has been vastly excessive. There is no indication for prolonged passive treatments." Counsel for Guardian also clarified in his letter of November 23, 2000 to counsel for Ms. Howard that the proposed assessments relate to income replacement benefits and loss of earning capacity benefits as well as relating to medical and rehabilitation benefits. Furthermore, Ms. Howard has herself sought further physical examinations after the insurer examinations, namely by Dr. Peter Parker, physiatrist, in August 1999, and by Dr. Barry Shapiro, chiropractor, in August 2000. Although insurer's and applicant's examinations should not necessarily alternate in an endless tit for tat, I find, in light of the foregoing, that a further insurer's orthopaedic examination is also appropriate.

I find that Guardian has met the burden of showing that its requests for insurer examinations were reasonable, if the burden rests upon it to do so.¹² Accordingly, the hearing is adjourned pending Ms. Howard's attendance at examinations by Dr. Fred Langer, Dr. Maureen Shandling, and Dr. Keith Nicholson, unless the parties agree otherwise.

EXPENSES:

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

March 7, 2001

David J. Evans Arbitrator

Date