Neutral Citation: 2002 ONFSCDRS 13

FSCO A01-000741

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ATUL DHIR

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Beth Allen

Heard:

November 27, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jill MacEachern for Mr. Dhir

Mark Sones for RBC General Insurance Company

Issues:

The Applicant, Mr. Atul Dhir, was injured in a motor vehicle accident on October 29, 2000. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ The issues in dispute in the main proceeding are whether the Applicant suffered a catastrophic injury, as well as quantum of and entitlement to income replacement benefits, housekeeping and attendant care benefits and a claim for a special award.

In this hearing, I am asked to decide whether RBC's request for neurological, neuropsychological and occupational therapy insurer's examinations is reasonably necessary as required by section 42 of the Schedule; and whether the Applicant is barred under section 50(b) of the Schedule from proceeding to arbitration because he has not made himself available for the requested assessments.

The parties were unable to resolve this dispute through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues in this hearing are:

1. Was the Insurer's request for examinations by a neurologist, a neuro-psychologist and an occupational therapist reasonably necessary as required by section 42 of the Schedule?

2. Is the Applicant precluded under subsection 50(b) of the Schedule from proceeding to arbitration because he did not make himself reasonably available for examination by RBC as required by section 42 of the Schedule?

Result:

1. The Insurer's request for examinations by a neurologist, a neuro-psychologist and an occupational therapist is not reasonably necessary as required by section 42 of the Schedule.

2. The Applicant is not precluded pursuant to subsection 50(b) of the Schedule from proceeding to arbitration.

EVIDENCE AND ANALYSIS

The parties filed documentary evidence and proceeded by way of an "Agreed Statement of Facts" and oral submissions. The Applicant filed a document entitled, "Applicant's Statement of Fact and Law for the Preliminary Issue." Before the commencement of the hearing, the parties discussed this statement and agreed to certain amendments, resulting in the amended document becoming part of the record as the parties' agreed statement of facts. At the commencement of the hearing, the parties dictated the deletion and addition amendments to me and I added them to FSCO's copy of the original document. The deletions are black-lined and the additions italicized and underlined in the amended document, which is attached to this decision as a Schedule.

Brief Background to the Case:

On October 29, 2000, the Applicant, 21 years old at the time, was a passenger in a vehicle that veered out of control and struck a hydro pole. He was transported to Credit Valley Hospital and then transferred to Sunnybrook Hospital, where he remained for one month until November 28, 2000.The Applicant sustained a severe brain injury, a fractured right eye socket, a laceration to the right side of his forehead and a broken nose. He suffers from substantial cognitive deficits.

RBC is currently paying various medical and rehabilitation benefits. As I understand it, RBC had been paying income replacement benefits under section 4 of the Schedule until, pursuant to subsection 42(8), it terminated these benefits when the Applicant refused to attend the Insurer's examinations in issue. The issues in dispute at the hearing on the merits are: duration and quantum of income replacement benefits; a determination of whether the Applicant sustained a catastrophic impairment; the quantum of attendant care benefits; and RBC's liability to pay a special award and expenses. The housekeeping issue noted in the report of the pre-hearing discussion had not been mediated by the time of this hearing.

The Applicant underwent a number of assessments before RBC's request for the neurological neuro-psychological and occupational therapy assessments that are the subject matter of this arbitration hearing. My sole responsibility in the preliminary issue hearing is to determine whether RBC's request is reasonable and necessary and whether the Applicant may proceed to arbitration. I set out below a brief overview of the Applicant's assessment history in order provide a context for RBC's current request for insurer's examinations. I draw from this review no conclusions on the catastrophic impairment issue or about the Applicant's entitlement to benefits. I leave these determinations to the arbitrator who finally hears the merits of the case.

Upon the Applicant's release from the hospital, at the request of Sunnybrook Hospital, Ms. Laura Raynor, R.N., R.R.P, of D. Gibson and Associates, Rehabilitation Consultants Inc. ("Gibson") conducted an attendant care needs assessment at RBC's request at the hospital and at his home on November 29, 2000. In a report dated December 4, 2000 and an Assessment of Attendant Care Needs form dated December 13, 2000, Ms. Raynor determined that the Applicant required care at a monthly cost of $850.

Ellen Pellett, an occupational therapist with S.E. Pellett & Associates ("Pellett"), did a further assessment of the Applicant's attendant care needs on December 4, 2000. In an assessment of Attendant Care Needs form dated December 4, 2000, Ms. Pellett recommended care at a monthly rate of $5,759.40.

RBC requested an insurer's examination with Dr. W. J. Mcllroy, a neurologist, which was conducted on March 5, 2001. He found the Applicant suffered a brain injury as a result of the accident.

In March 2001, the Applicant was assessed at a Medical Rehabilitation DAC ("Med Rehab DAC") by Dr. W. Fulton, a neuro-psychologist, who stated in his March 19, 2001 report that four-and-a-half months post-accident, the Applicant demonstrated significant and debilitating neurocognitive impairments consistent with a severe brain injury.

RBC disputes the Applicant's claim that he suffered a catastrophic impairment as a result of the accident and requested a Catastrophic Impairment DAC ("CAT DAC") which was conducted in May 2001 by Work Able Centres Inc ("Work Able"), and involved neurological, neuro-psychological, occupational therapy and psychiatric assessments. The CAT DAC neurologist, Dr. Hal Scher, found that the Applicant sustained a severe closed head injury as a result of the accident and the neurologist, Dr. Ralph Kern, found that the Applicant meets the criteria for catastrophic impairment pursuant to the Glasgow Coma Scale ("GCS")² criteria under the Schedule.

RBC disputed the monthly amount recommended by Pellett and requested an Attendant Care Designated Assessment Centre assessment ("an Attendant Care DAC") which was conducted at the Applicant’s home by West Park Healthcare Centre on May 28, 2001 by Ms. Marie Hardiment, a registered nurse, and Ms. Kathy Blaney, an occupational therapist. In its report, the Attendant Care DAC recommended care at a monthly rate of $4,873.09. It recommended in addition to the various types of attendant care identified in the report, that the Applicant also have supervision available 7 days per week, 24 hours per day.

Beth D'Angelo, a treating physiotherapist at the Neurologic Rehabilitation Institute of Ontario ("NRIO"), who sees the Applicant regularly, conducted an assessment on November 1, 2001. She agreed with the Attendant Care DAC's recommended monthly rate of $4,873.09 involving care for the Applicant 7 days per week, 24 hours per day for supervision or prompting. Ms. D'Angelo suggested a re-assessment of his status in six-months' time.

The Law and the Parties' Arguments.

RBC argues that it is entitled to request further insurer's assessments of the Applicant's attendant care needs which are reasonable and necessary to address the inadequacies in the methodology and findings of the Attendant Care DAC. It does not challenge the Applicant's need for these benefits, just the amount recommended. RBC has been paying attendant care benefits in accordance with the DAC recommendations, but requests the opportunity to conduct its own neurological, neuro-psychological and occupational therapist assessments in order to more meaningfully evaluate his level of attendant care needs.

In a notice to the Applicant dated July 31, 2001, RBC requested three insurer's examinations: with Dr. Selchen, a neurologist, on August 29, 2001; with Dr. Freedman, a neuro-psychologist, on September 11, 2001; and with Pamela Rush, an occupational therapist, on September 4 to 6, 2001. RBC argues that the July 31, 2001 notice complies with the procedural requirements of section 42 of the Schedule. This provision states in its relevant part:

42. (1) For the purpose of determining whether an insured person is entitled to a benefit, except a funeral or death benefit, an insurer may give the insured person notice requiring him or her 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.

(2) The notice shall state the benefit to which the examination relates.

(3) The insurer may require examinations as often as is reasonably necessary.

RBC argues that pursuant to subsection 50(b) of the Schedule, the Applicant is not entitled to proceed to mediation and therefore arbitration. This provision states:

50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,

(b) he or she made himself or herself reasonably available for any examination required by the insurer under section 42;

RBC argues that the Attendant Care DAC report did not question the Applicant's GCS readings and arrived at its conclusions assuming the accuracy of these readings. RBC submits that the Attendant Care DAC did not take into account that the Applicant's GSC reading of 3 at the accident scene, and reading of 6 when he arrived at Credit Valley Hospital, would have been affected by his consumption of alcohol before the accident. His GCS was recorded as 11 eight days after the accident. RBC submits that his GCS would have also been affected by the fact that during his initial assessment at Sunnybrook Hospital, he was pharmaceutically paralysed, which Sunnybrook notes in its November 28, 2000 Discharge Summary, made meaningful assessment difficult.

In his submissions, RBC’s counsel challenged other findings of the Attendant Care DAC, particularly with regard to its conclusions about the Applicant’s functional abilities at the time and his need for constant supervision and prompting and cuing to achieve his tasks. He argued that the DAC assessors relied principally on the Applicant 's and his mother's self-report in arriving at their conclusions. The DAC did not, as RBC's counsel argued it should have, seek up-to-date independent assessments from a neuro-psychologist, a neurologist and an occupational therapist. Instead, according to RBC, the most recent medical evidence it relied on was the March 15, 2001 clinical notes and records of Toronto Rehabilitation Institute.

In support of RBC's skepticism about the Applicant's need for 24-hour a day, 7 days a week supervision, counsel for RBC showed at the hearing a video taken over several days in July and September 2001 depicting the Applicant on his own, walking, crossing the street, sitting outside a building and embarking and disembarking a taxi.

The Applicant 's counsel pointed out that none of his assessments were done at the Applicant 's request, but were requested by the Insurer or third parties. The Applicant 's counsel argues that the Attendant Care DAC recommended a further assessment in six months or "at any time when the health care professionals working with him observe a significant change in his status." She pointed out that Beth D'Angelo, the Applicant 's treating physiologist who assessed the Applicant nearly six months after the Attendant Care DAC assessment, agreed with the recommendations of the DAC and observed no notable change in his condition at that time.

The Applicant submits for this reason, that RBC's request for the Applicant to attend further assessments to assess his attendant care needs is not reasonable or necessary.

In response to the video, the Applicant's counsel argues that the Applicant has a cognitive impairment caused by a brain injury that is not necessarily revealed through observing him walking around. She submits that he needs 24 hours, 7 days a week supervision because of his inability to make decisions and his lack of motivation to do tasks. The video, the Applicant's counsel argues, does not reveal the role that his mother might be playing in prompting him.

The Applicant argues that there have been numerous expert medical opinions – neurological and neuro-psychological and occupational therapist assessments – many of which RBC requested, which have assessed the Applicant’s impairment and his need for care. In this context, according to the Applicant, RBC does not reasonably need to conduct further examinations.

The Applicant’s counsel presented a further argument. She pointed out that RBC’s position at the hearing is that it seeks the further assessments to evaluate the amount of the attendant care benefit. She argues that RBC's July 31, 2001 notice is at odds with its position at the hearing. It provides the names, specialties and dates for the examinations and goes on to indicate that entitlement to income replacement benefits, medical/rehabilitation benefits, attendant care benefits, housekeeping benefits, case management and catastrophic impairment will be assessed. The Applicant’s counsel submits that for this reason the notice does not comply with the requirements of the Schedule because section 42 requires the insurer "to state the benefit to which the examination relates."

Given RBC’s position at the hearing, the Applicant argues that the notice is not clear as to the benefit for which RBC seeks the assessments. That is, it does not clearly inform the Applicant of which benefit could possibly be in jeopardy of being terminated if he decides not to attend the examinations. The Applicant's counsel further points out that some of the issues listed in the notice had not been mediated and some had been terminated, but the notice lumps all issues together for the purposes of the assessments.

The Applicant's previous counsel (a member of the same firm as the counsel of record for preliminary issue hearing) wrote to RBC asking for clarity on the purpose of the request for examinations and seeking an explanation for the reasonable necessity of these examinations in light of the series of other assessments of this type that had previously been conducted. The Applicant 's counsel did not receive a satisfactory response to his queries from RBC and consequently advised the Applicant that he was not required to attend the examinations.

REASONS FOR DECISION

After considering the evidence and the parties' submissions, I conclude that RBC's request for the Applicant to attend the neurological, neuro-psychological and occupational therapy examinations is not reasonable or necessary as required by section 42 of the Schedule and accordingly, I find that the Applicant is not precluded by subsection 50(b) from proceeding to arbitration.

I arrive at my decision for a number of reasons.

I accept the Applicant's position and find that RBC's July 31, 2001 notice to the Applicant of the assessment appointments does not comply with the procedural requirements of section 42 of the Schedule. I adopt the ruling in the Avdalimov case³ where the arbitrator found the insurer’s notice defective in a material respect because it did not set out the purpose for the examination or the benefit to which it related as required by subsection 42(2) of the Schedule. Avdalimov states, and I agree:

I find [the insurer] cannot reasonably rely on [the applicant's] failure to attend these examinations to bar [the applicant] from arbitration, stop payment of any benefit, or to absolve [the insurer] from payment of any benefit until he complies, because it is unknown as to what benefit or benefits the examination was intended to relate.

The arbitrator goes on to explain, and I find, that the purpose of the requirement that the insurer specify the benefit affected by the examination is to permit the insured person to know the affected benefit and to decide whether to attend the examination and pursue the insurer for the benefit or not attend and forego the benefit.

I find in the case before me that RBC’s notice had a similar material defect in that neither the purpose for the examinations nor the benefit to which the examination relates are clear. I therefore conclude that RBC cannot rely on the July 31, 2001 notice to prevent the Applicant from proceeding to arbitration.

Alternatively, in the event I am wrong about the defect in the notice, I also find RBC’s request for neurological, neuro-psychological and occupational therapist assessments to be unreasonable and unnecessary. The Scott⁴ arbitration decision sets out some basic considerations that provide useful guidance to a determination of whether a request for an insurer's examination is reasonable and necessary:

The right of an insurer to require that the Applicant attend a medical examination under section 23(2) [the parallel provision to section 42 in a predecessor Schedule] provides the insurance company with an effective opportunity to fairly assess the applicant's medical condition, on an independent basis. The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the injured person's right to privacy. For this reason, the insurer's right to an independent medical examination is qualified – it may only be "as often as it (the insurer) reasonably requires."

The exercise of the right to a medical examination under the No-Fault Benefits Schedule is inherently intrusive and an invasion of individual privacy.

Applying these principles to the Applicant's case, I find in the circumstances that his right to privacy outweighs RBC's right to further insurer's examinations.

I find that the Applicant has already undergone numerous examinations – neurological, neuro-psychological and occupational therapist assessments – to assess his attendant care and medical needs. About two months before the Attendant Care DAC, on March 5, 2001, the Applicant attended a neurological assessment at RBC's request. In the same month, he underwent a neuro-psychological Med Rehab DAC assessment by a neuro-psychologist at RBC's request. In May 2001, the same month as the Attendant Care DAC, also at RBC's request, the Applicant attended neurological, occupational therapy and psychiatric assessments as part of the CAT DAC. These assessments were relatively close in time to the proposed times for the insurer's assessments at issue.

I also took into account that in November 2001, about six months after the Attendant Care DAC, the Applicant's treating physiotherapist did not observe any notable changes in the Applicant's condition such as might give rise to a need for further assessment.

I also considered the reasonable necessity of RBC's requests for further examinations in the context of the fact that an Attendant Care DAC had recently assessed the Applicant's attendant care needs and returned conclusions unfavourable to RBC's position. Previous arbitration and appeal decisions have considered an insurer’s request for an examination under these circumstances. The M.D.⁵ appeal decision, which affirmed the arbitration decision, held that:

Insurers must respect the role of DACs. If the DAC does not support its position, the insurer has a choice. It can accept the conclusion and pay benefits, or apply for mediation. It cannot require the insured person to attend an insurer examination for the purpose of challenging the DAC's opinion. An insurer examination only becomes appropriate if it is reasonably required to determining the insured person's ongoing entitlement, or in response to a new claim.

It is not in dispute that RBC has requested the insurer’s examinations in question for the purpose of challenging the findings of the Attendant Care DAC. Applying the considerations raised in the M.D. case, the Applicant's claim for attendant care benefits is not a new claim and RBC disputes only the quantum of the benefit, not the Applicant's ongoing entitlement. I agree with M.D. that under these conditions an insurer’s examination is not appropriate.

In short, for the all reasons outlined, I find the neurological, neuro-psychological and occupational therapy examinations requested by RBC do not meet the section 42 requirement of being reasonable and necessary. Furthermore, the notice of the examinations does not meet the prescribed formal requirements. Accordingly, I find that the Applicant is not precluded under subsection 50(b) from proceeding to arbitration because he did not attend these examinations.

EXPENSES:

The parties made no submissions as to expenses. I leave the question of expenses for the hearing arbitrator.

January 15, 2002

Beth Allen

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 13

FSCO A01-000741

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ATUL DHIR

Applicant

and

RBC GENERAL 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.

1. The insurer's request for neurological, neuro-psychological and occupational therapy examinations is not reasonably necessary as required by section 42 of the Schedule.

2. The Applicant is not precluded under subsection 50(b) from proceeding to arbitration.

January 15, 2002

Beth Allen

Arbitrator

Date

SCHEDULE

AGREED STATEMENT OF FACTS

Background Facts

1. Atul Dhir ("Atul") was born on January 2, 1979 in Toronto, Ontario. At the time of the collision, Atul was living at home in Mississauga, with his parents, Ravinder Dhir and Chitra Dhir and his younger brother Amit Dhir.

2. On Sunday October 29, 2000, at approximately 2.00 a.m., Atul was a passenger in a 1999 Mazda owned and operated by Atul's girlfriend, Rajinder Singh (the "Singh vehicle"). The Singh vehicle was insured by the Respondent (to the Arbitration), RBC General Insurance Company ("RBC"). As Rajinder Singh and Atul were driving home from a Halloween party southbound on McLaughlin Road near the intersection of Avonwick Road, in Mississauga, the Singh vehicle veered out of control and collided with a pole on the east side of McLaughlin Road.

3. Atul was taken by ambulance to Credit Valley Hospital. The ambulance medics assessed Atul’s Glasgow Coma Scale ("GCS") three times from the time they attended at the scene until arrival at Credit Valley Hospital. On all three occasions, Atul’s GCS was 3. Atul was in a coma for 3 days following the collision. On November 6, 2000, Atul's GCS was recorded as 11.

4. Atul remained at Credit Valley Hospital for approximately 1 hour and was transferred by ambulance to Sunnybrook Hospital where he remained until November 28, 2000. Atul was subsequently transferred to the Toronto Rehabilitation Institute and was discharged on January 12, 2001.

5. As a result of the collision, Atul sustained a severe brain injury, fractured his right eye socket, sustained a laceration to the right side of his forehead and broke his nose. Atul continues to suffer from substantial cognitive deficits.

Accident Benefits

6. On December 6, 200[sic], following the collision, Atul applied for accident benefits from RBC, the insurer of the Singh vehicle and Lombard Insurance Company, the insurer of Atul's father's vehicle [TAB 5]. However, Atul was an excluded driver under his father's policy with Lombard. As such, there is a dispute between insurers as to which insurer is to pay accident benefits. Currently, RBC is paying benefits.

7. a) On November 29, 2000, Laura Raynor, R.N. RRP of D. Gary Gibson & Associates completed an assessment of attendant care needs [TAB 13] and calculated the amount of attendant care benefits to be $850.90 per month.

7 (b)On December 4, 2000, Ellen Pellett, Occupational Therapist with S.E. Pellett & Associates, completed a Form 1 for Assessment of Attendant Care Needs [TAB 6]. The effective date of the assessment was November 28, 2000, when Atul was discharged from Sunnybrook. Ellen Pellett calculates the monthly amount of the attendant care benefit to be $5,759.40.

8. RBC disputed the monthly amount of attendant care benefits. On May 28, 2001, Atul attended an Attendant Care DAC assessment by West Park Healthcare Centre and was assessed by Marie Hardiment, RN and Kathy Blaney, OT. Atul was assessed at his home in Mississauga. The Attendant Care DAC Report dated May 28, 2001 [TAB 21] states at p.3 that:

"in addition to specific attendant care time in various areas of this report, Mr. Dhir requires continuous supervision on a 24-hour per day basis, seven days per week."

A Form 1 was completed and the monthly amount of the attendant care benefit was determined to be $4,873.09 [TAB 7].

9. On November 1, 2001, Beth D’Angelo, Physiotherapist at NRIO completed a Certificate for Attendant Care as requested by RBC wherein she agreed that the expenses outlined i.e. whether prompting and supervision 24 hours a day, 7 days a week and the monthly amount of $4,873.09 for the attendant care benefit was reasonable and necessary for Atul's care [TAB 16].

Medical & Rehabilitation

10. Further to various treatment plans, expenses for medical and rehabilitation items have been submitted to RBC for payment. On January 19, 2001, RBC wrote to Atul advising that it would not pay for a therapeutic recreationist [TAB 8C].

11. On March 8, 9 and 22, 2001, Atul attended a Med/Rehab DAC at Mississauga Physical Rehabilitation Centre and was assessed by Dr. H. Platnick, physician and Dr. Fulton, neuropsychologist [TABS 33-35]. Dr. Fulton states in his report dated March 19, 2001 [TAB 36] that Atul was referred for a neuropsychological evaluation as part of a medical/rehabilitation DAC assessment and the purpose of the assessment was "to complete a comprehensive evaluation of Mr. Dhir’s present neurocognitive and emotional status, and make a determination from a neuropsychological perspective as to whether or not the Treatment Plan submitted January 30, 3001[sic] is reasonable and necessary."

12. At p. 14 of his report, Dr. Fulton, neuropsychologist, states:

" Current test results reflect significant and debilitating neurocognitive impairments with Mr. Dhir at 42 months post-injury. Consistent with expectation on the basis of a "severe" brain injury, Mr. Dhir has produced a test performance which is significantly below expectation on the basis of his reported educational background and occupational history. Significant losses are identified, and emerge in a pattern characteristic of those expected on the basis of right frontal injury...

Current testing completed at 42 months post-injury confirm "severe" neurocognitive impairments with Mr. Dhir. Consistent with diffuse cerebral edema, there is evidence of impairment in completing various tasks, including various language deficits (anomia, reduced verbal fluency, and marked impairments in auditory tracking), as well as quite profoundly impaired visual-perceptual functions (including visual memory, comprehension of part-to-whole relationships, figural fluency, visual accuracy). Further, perceptual-organization and perceptual-motor tasks were impaired relative to expectation on the basis of educational background and occupational history with Mr. Dhir. In addition, there is evidence of significantly slowed mental processes, and while some of this may be attributable to symptoms of pain and depression there is, at base, a pattern of impairments with Mr. Dhir which implies severe neurocognitive deficit secondary to brain injury. Deficits appear maximal for, but not limited to, right frontal regions of the brain. Left frontal regions also appear to be involved, with diminished verbal capacities (anomia, verbal fluency), as well as reduced spelling abilities (WRAT-1). These deficits occur within the context of relatively well preserved verbal expressive abilities (vocabulary), reading skills (Average range), and essentially normal verbal memory (Low Average).

Functionally, Mr. Dhir will not be able to adequately allocate attentional resources to different situational demands. He cannot quickly shift his focus of attention between competing stimuli, and has difficulty in completing tasks which require visual processing. Deficits become more pronounced as complexity increases. His level of neuropsychological impairment is, at the present time, considered to be "severe", and neurocognitive rehabilitation is indicated. Further, he is suffering from symptoms of depression and anxiety which also require ongoing intervention."

Catastrophic Impairment

13. Despite Atul's GCS of 3, on December 19, 2000, RBC wrote to Atul and advised that RBC disputed that Atul sustained a catastrophic impairment [TAB 46]. A Catastrophic Impairment Determination and Request for Assessment, dated December 19, 2000, was sent to Atul [TAB 10].

14. Atul attended a Catastrophic Impairment DAC at Work Able Centres Inc. Atul underwent an assessment by Dr. L. Mascarenhas on April 5, 2001. At that time, Dr. Mascarenhas identified that Atul would require further assessments to determine whether he met the Catastrophic Impairment criteria and recommended the following assessments [TAB 28].

a) neurology

b) neuropsychology

c) occupational therapy

d) psychiatry

15. On May 8, 2001, Atul was assessed by Dr. Hal Scher, neuropsychologist and Dr. Scher authored a report addressing whether the head injury sustained by Atul in the collision was of such severity that it crosses the catastrophic threshold [TAB 29]. At p. 10 of this report, Dr. Scher concludes:

"Overall, taking into account the objective medical history pertaining to head injury, Mr. Dhir's evolution of symptoms following the accident, as well as his current presentation and report, it is my opinion that a severe closed head injury was sustained in the subject MVA. Moreover, it appears likely that the GCS was in fact 9, or less, due to traumatic brain injury following the MVA. Thus, Mr. Dhir qualifies for the Catastrophic Impairment designation."

16. On May 11, 2001, Atul was assessed by Dr. Ralph Kern, neurologist who authored a report of the same date [TAB 30]. Dr. Kern opined that Atul met the GCS criteria for catastrophic impairment under the SABS. At p. 4, Dr. Kern states:

"Mr. Dhir is 22-year-old gentleman who was well prior to his accident. He sustained a severe closed head injury. He has residual behavioural and neurocognitive deficits in addition to minor motor and sensory deficits. The Glasgow Coma Scale at the scene was 3. I do not believe that the effect of alcohol was a major contributor to the depressed cognitive state at the time. Mr. Dhir has ongoing headaches, neurocognitive disturbances and psychiatric sequelae of the accident that are being treated appropriately with the comprehensive treatment program outlined in this report. A neuropsychological profile provided by Dr. Fulton was consistent with this view, and outlined a right frontal deficit and severe neurocognitive compromise, as a consequence of the reported accident. Those findings not withstanding, Mr. Dhir does meet the criteria for Catastrophic Impairment based on a GCS score of less than 9."

17. Dr. Fulton concludes at p. 18 that the services of a psychologist, occupational therapist and speech-language pathologist are reasonable and necessary to adequately treat Atul’s severe neurocognitive impairments.

18. On July 9, 2001, RBC wrote to Chitra Dhir, Atul's mother who is providing attendant care services to Atul, advising that it will be challenging the result of the Catastrophic Impairment DAC and would be seeking recovery of any monies paid out above the $3,000.00 monthly amount.

Insurer Examinations

19. On January 30, 2001, RBC wrote to Atul advising that it had scheduled an examination with Dr. McIlroy, neurologist to be held on March 5, 2001. Atul attended this examination and Dr. McIlroy authored a report dated March 5, 2001 [TAB 17].

20. The purpose of this examination was to provide RBC with an opinion as to a number of questions, including:

a) whether Atul suffered a physical brain injury

Dr. McIlroy states that Atul has suffered a brain injury;

b) whether the present disability is a direct result of the motor vehicle accident and is sufficiently severe to prevent him from performing the essential tasks of his employment

Dr. McIlroy states that the impairment is sufficiently severe to prevent Atul from performing the essential tasks of his employment.

21. On July 31, 2001, RBC wrote to Atul advising that a number of insurer examinations had been scheduled [TAB 53]. The details of these insurer examinations are as follows:

August 29, 2001:

Dr. Selchen, neurologist

September 11, 2001:

Dr. Freedman, neuropsychologist

September 4, 5, 6, 2001:

Pamela Rush, Occupational Therapist

This letter served as notice under s. 42 of the SABS. In describing to what these examinations relate, the letter states: "These examination [sic] has been scheduled pursuant to section 42 of the Statutory Accident Benefits Schedule for the purpose of assisting with the assessment of your ongoing entitlement to Income Replacement Benefits, Medical/Rehabilitation Benefits, Attendant Care Benefits, housekeeping, case management and a determination as to whether your impairment is Catastrophic [emphasis in original]. This letter does not state which examination relates to which of the listed benefits.

22. On August 22, 2001, John McLeish, solicitor for Atul, wrote to RBC [TAB 54] stating that the s. 42 notice was very general with respect to the purpose of the insurer examinations. Mr. McLeish requested RBC explain why each of the requested examinations was reasonable and necessary otherwise Mr. Dhir would not be attending the examinations.

23. On August 22, 2001, Beverly Hand of RBC wrote to John McLeish [TAB 57] providing details as to what benefits the examinations relate. Ms. Hand states that the examinations by Dr. Selchen, neurologist and Dr. Freedman, neuropsychologist, relate to the determination of catastrophic impairment. The examination by Pamela Rush, occupational therapist, relates to attendant care benefits.

24. Atul did not attend any of these 3 insurer examinations as RBC's notice of the examinations did not meet the requirements of s. 42 of the SABS and because the examinations were not reasonable.

25. On August 29, 2001, RBC wrote to Atul [TAB 58] advising that because he did not attend the insurer examinations, his benefits were terminated as of August 29, 2001. This letter is not clear which benefits were being terminated.

Summary of Examinations of Atul

26. The following is a summary of the various examinations that Atul has undergone since his discharge in November 2000:

Date

Specialty

Type of Assessment

Name of Assessor

November 29, 2000

Registered Nurse

Insurer Assessment

Laura Raynor

December 4, 2000

Occupational Therapy

Treating Assessment

Ellen Pellett

March 5, 2001

Neurology

Insurer Assessment

Dr. W. J. McIlroy

March 9 & 14, 2001

Neuropsychology

DAC Assessment

Dr. W. A. Fulton

March 22, 2001

Family Physician

DAC Assessment

Dr. H. Platnick

April 5, 2001

General Practitioner

DAC Assessment

Dr. Mascarenhas

May 8, 2001

Neuropsychology

DAC Assessment

Dr. H. Scher

May 11, 2001

Neurology

DAC Assessment

Dr. R. Kern

May 28, 2001

Occupational Therapy

DAC Assessment

Kathy Blaney

Examinations Requested by Atul Dhir

27. Atul has not attended any examinations at the request of his representatives other than treating professionals.

Arbitration

28. The following benefits have been mediated and will be at issue at the arbitration scheduled for February 2002:

a) Attendant Care benefits

b) Housekeeping benefits (Not yet mediated, but will be joined to main hearing)

c) Catastrophic Impairment designation

29. Although Atul’s income replacement benefits have also been terminated, RBC disputes that these benefits can be arbitrated as Atul did not attend the insurer assessment outlined above.

STATEMENT OF ISSUES

30. The issue for the preliminary hearing is whether Atul is precluded from proceeding to arbitration because he failed to attend an insurer's examination pursuant to s. 42 of the SABS.

31. The insurer's right to an examination is restricted to the authority granted under s. 42 of the SABS. Section 42 states.

42 (1) For the purpose of determining whether an insured person is entitled to a benefits[sic], except a funeral or death benefit, an insurer may give the insured person notice requiring him or her 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.

(2) The notice shall state the benefit to which the examination relates.

(3) The insurer may require examinations as often as is reasonably necessary.

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2The Commissioner's Guideline entitled, "Brain Injury Impairments", published by the Financial Services Commission of Ontario, and other Guidelines pertaining to CAT DAC assessments, employ the American Medical Association (AMA) Guidelines and the Glasgow Coma Scale in setting out criteria for CAT DAC assessments of catastrophic impairments. The Applicant's counsel submitted that according to the AMA, a person with a GCS reading of 9, or below, is considered catastrophic.
3. 3Avdalimov and CGU Company of Canada (FSCO A00-000433, May 25, 2001).
4. 4Scott and Toronto Transit Commission (OIC A-001116, September 4, 1992).
5. 5M.D. and Halifax Insurance Company of Canada (FSCO A00-00049, January 4, 2001), upheld on appeal by appeal (FSCO P00-00049, May 16, 2001). See also Sellathamby and Allstate Insurance Company of Canada (FSCO A01-000313, September 14, 2001) that considered the M.D and Halifax appeal decision.