Neutral Citation: 2001 ONFSCDRS 80

FSCO A00-001093

BETWEEN:

AGNES FERNIHOUGH

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David J. Evans

Heard:

March 21, 2001, in Hamilton, Ontario.

Appearances:

Chris Argiropoulos for Ms. Fernihough

Joanne Blacklock for Guarantee Company of North America

The Applicant, Agnes Fernihough, was injured in a motor vehicle accident on September 28, 1998. She applied for and received statutory accident benefits such as attendant care, meal and transportation expenses and homemaking assistance from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee terminated her benefits in 1999 and arranged for Ms. Fernihough to attend insurer examinations. She did not attend, and Guarantee therefore maintains that Ms. Fernihough cannot arbitrate her claims. The parties were unable to resolve their disputes through mediation, and Ms. Fernihough 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 issue is:

Is Ms. Fernihough precluded from continuing this arbitration for failing to make herself reasonably available for insurer examinations on December 1 and 2, 1999?

Ms. Fernihough may proceed with this arbitration.

It should be noted that Ms. Fernihough, who is now 85 years old, did not attend or give evidence at this hearing. The parties relied upon written documentation and submissions.

Guarantee argues that Ms. Fernihough is precluded from commencing this arbitration proceeding pursuant to sections 42 and 50 of the Schedule. Section 42 ("Insurer Examinations") provided Guarantee's right to give notice requiring Ms. Fernihough to attend before a physiatrist and psychologist for the purpose of determining whether she was entitled to benefits. Since Ms. Fernihough did not attend, Guarantee argues that section 50(b) therefore applies. This section provides that Ms. Fernihough "shall not commence a mediation proceeding"— nor, by extension, an arbitration proceeding — unless she made herself "reasonably available for any examination required by the insurer under section 42."

History of Dispute:

Guarantee, through its adjuster, Ms. Lorri Frederick, gave notice on November 17, 1999 that it required Ms. Fernihough to attend for physiatrical and psychological insurer examinations (IEs) on December 1 and 2, 1999. Ms. Frederick sent the notice to Mr. James Scarfone, Ms. Fernihough's solicitor.

Mr. Scarfone replied by fax on November 23, 1999[E1T4]:

[Ms. Fernihough] is currently under active care of a neurologist because of difficulties walking. It would be inappropriate to proceed with any kind of a physical examination until such time as she was cleared by her neurologist. She will be seeing Dr. Reddy, a neurologist, on November 25, 1999.

Once this assessment is complete and we have a brief report from the doctor in regard to her current condition, we can advise you as to whether a medical examination is appropriate.

Ms. Frederick replied by fax on November 26, 1999 that she was "not currently in a position to postpone the appointments" at that time as Guarantee required the medical information and there was no medical contraindication to the examinations.

Mr. Scarfone replied on November 29, 1999 that his client would not be attending the examinations. He wrote that "given the advanced age of my client and her deteriorating circumstances" it was not unreasonable to postpone the examinations. However, this letter was received by Guarantee after the dates for the examinations.

Ms. Fernihough did not attend the examinations.

On December 9, 1999, Mr. Scarfone wrote to Guarantee that Ms. Fernihough was hospitalized and that he was "attempting to determine exactly what her current ailment is." Ms. Frederick replied on December 22, 1999 with her best wishes for Ms. Fernihough and a request that Mr. Scarfone contact her office once he had determined her current ailment to provide an updated status report. Having heard no response from Mr. Scarfone, she wrote again on March 13, 2000, indicating that, as she understood Ms. Fernihough was hospitalized after the dates arranged for the IEs, she was seeking reimbursement of the no-show fee as well as a reply to her earlier letter.

Mr. Scarfone replied on April 11, 2000 that he could update Ms. Fernihough's status once he received the hospital records but denied responsibility for the cancellation fees.

Guarantee did not receive important medical information possibly substantiating Ms. Fernihough's explanation for her non-attendance until after the dates of the examinations.

It was only at the mediation in July 2000 that Guarantee received the neurologist's report of November 23, 1999, which noted that Ms. Fernihough had "worsened in terms of her walking" and was "barely able to take a few steps even with the help of her walker" and that lumbar decompressive surgery was considered.

It was only the day before this hearing that Guarantee received another report from the neurologist, an updated report from the family physician, and the December 1999 hospital records.² The medical reports confirm that in November and December 1999, Ms. Fernihough suffered increased difficulty walking due to low back pain, weakness of her legs due to severe lumbar spinal stenosis, and a worsened neurologic function. She was admitted to the Hamilton Health Science Corporation (HHSC), General Campus, on December 5, 1999. The HHSC records contain the consultation report of Dr. C.J. Patterson, who indicated that on her admission to the HHSC, Ms. Fernihough was "in a confused state. She had become increasingly confused over the week or two prior to admission." He diagnosed hyponatremia — too low a concentration of sodium in her blood serum — possibly due to the medication she had been taking for some weeks, but noted that after admission "her confusion improved as the serum sodium returned towards normal." She underwent a laminectomy of the fifth lumbar vertebra, was transferred to the geriatric rehabilitation unit on January 5, 2000, and was discharged on January 20, 2000.

Conclusion:

These facts are distinguishable from the Lopez case,³ where Arbitrator Seife found that the Insurer received no request to cancel or reschedule the IE appointment and that the insured offered no reasonable explanation for missing it. I find that Ms. Fernihough's counsel clearly asked for a postponement and was prepared to reschedule the examination. I also find that Ms. Fernihough did have reasonable explanations for missing the examinations. I find that Ms. Fernihough could not have been reasonably available for a psychological examination when she was in a confused state or a state of worsened neurologic function. I find that she could not have been reasonably available for a phsyiatrical examination when she was days away from back surgery and six weeks of hospitalization.

Ms. Fernihough's counsel was extremely dilatory in providing the supporting medical documentation, but I find that his subsequent actions do not affect the legitimacy of Ms. Fernihough's reasons for not attending the examinations.

Guarantee submitted that Ms. Fernihough had the duty to reschedule the examinations. I find that, following her release from hospital, Ms. Fernihough's only duty was to respond appropriately to a further reasonable IE notice.

Guarantee submitted that at this late date no useful IEs can now be scheduled, as Ms. Fernihough is now outside the benefit period. While that may be true, I know of nothing that would have prevented Guarantee from simply serving another IE notice well within the benefit period.

I wish to emphasize that I have only determined that Ms. Fernihough may continue with her arbitration proceeding. Guarantee has also raised in its Response to an Application for Arbitration the issue that Ms. Fernihough failed to provide relevant documentation and is therefore not entitled to benefits. That matter was not before me and is best left to the hearing arbitrator to decide.

EXPENSES:

The parties asked me to reserve on the expenses until after the main issue. I leave it to the parties to take whatever steps they feel necessary under the Practice Code.

May 29, 2001

David J. Evans Arbitrator

Date