Timothy W. Sutherland v. Royal & SunAlliance Insurance Company of Canada, 2002 ONFSCDRS 136

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2002 ONFSCDRS 136 FSCO A00-001250

BETWEEN:

TIMOTHY W. SUTHERLAND Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

MOTION DECISION

Before: Judith Killoran

Heard: By telephone conference call on August 26, 2002.

Appearances: Ian S. Wright for Mr. Sutherland Joan Takahashi for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Timothy W. Sutherland, is an 11-year-old boy. His mother was killed in a motor vehicle accident on November 16, 1999. He was not involved in the accident. His father, Sidney K. Sutherland, applied on Timothy's behalf for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sutherland applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At a resumption of pre-hearing on August 1, 2002, Royal asked for a motion hearing to determine two issues:

1. Is it reasonable and necessary for Timothy Sutherland to attend an insurer's medical examination by Dr. Lynne Beal, a psychologist?

2. Is Royal entitled to an order requiring Dr. Leslie Balmer, a psychologist, to produce her clinical notes and records in relation to Timothy Sutherland?

On August 22, 2002, Mr. Sutherland gave notice that he would be seeking an order at the motion hearing for payment of Dr. Balmer's report in the amount of $1,685 pursuant to section 24 of the Schedule.

Result:

1. Mr. Sutherland has agreed allow his son to attend an insurer's examination conducted by Dr. Beal. Royal has agreed to terms for payment of attendance expenses.

2. Dr. Balmer has produced her clinical notes and records to both parties. She has also produced her clinical notes and records and raw data to Dr. Beal.

3. Mr. Sutherland will submit the invoice of $1,685 to Royal for payment of Dr. Beal's report.

EVIDENCE AND ANALYSIS:

Insurer Medical Examination:

On August 1, 2002, an adjournment was granted of the motion about the reasonableness and necessity of Timothy Sutherland's attendance at an insurer medical examination with Dr. Lynne Beal, a psychologist. At that time, Mr. Sutherland's counsel, Ian Wright, indicated that he had provided details of Dr. Beal's proposed testing to Ann Newby, a counsellor treating Timothy Sutherland. However, he had no opportunity to speak with Ms. Newby about the impact an assessment might have on Timothy. The arbitrator considered it important to have Ms. Newby's opinion on the question. I agree.

On August 22, 2002, counsel for Mr. Sutherland informed Royal that there were no longer any objections to the insurer examination. However, he stipulated certain terms for payment of attendance expenses which would be incurred by Mr. Sutherland and Timothy. These terms were discussed at the hearing and agreed to by the parties. Prior to the insurer examination, Royal agreed to forward to Mr. Sutherland a cheque in the amount of $782 to cover expenses of travel, accommodation and meals. As soon as possible after the insurer examination, Mr. Sutherland agreed that he would forward, through his counsel, all receipts relating to these expenses.

Dr. Balmer's clinical notes and records, including raw data:

At the hearing, Mr. Sutherland's counsel confirmed that he had issued a summons to Dr. Balmer returnable August 19, 2002 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. A copy of a notice of hearing was attached to the summons requiring the attendance of Dr. Balmer. It was agreed at the resumption of pre-hearing on August 1, that compliance with the summons would be achieved by delivery of Dr. Balmer's file to Mr. Wright's office any time on or before August 19, 2002 at 10:00 a.m. As requested by the arbitrator, Mr. Wright communicated this agreement to Dr. Balmer. Dr. Balmer agreed to forward the clinical notes and records to Mr. Wright. However, as of the date of the motion hearing on August 26, nothing had been received.

Royal asked that an order be issued for production of Dr. Balmer's clinical notes and records, including the raw data. I declined to do so. Rather, I asked that Mr. Wright contact Dr. Balmer's office and follow-up on delivery of the records. In my view, as Dr. Balmer had undertaken to produce the records, she was entitled to the professional courtesy of a further follow-up. It appeared that the records may not have been delivered more due to an administrative oversight than resistance on the part of Dr. Balmer.

Mr. Wright was asked to follow up and report back to me. He faxed a report dated August 27, 2002, documenting his request that Dr. Balmer's office send another copy of the clinical notes, including raw data to Dr. Beal's office, as it did not appear that the original letter and enclosures had been sent. Following this conversation, Mr. Wright received the clinical notes and records from Dr. Balmer which had been provided to Royal under a separate cover.

Later in the afternoon of August 26, Mr. Wright was advised by voice mail that although the covering letters from Dr. Balmer's office were dated August 20 and 21, the material was not mailed until the 22nd or 23rd of August. Dr. Balmer's office advised that if Dr. Beal's office had not received the materials by Wednesday, August 28, Dr. Beal should contact Dr. Balmer's office and the material would be sent again. In light of Mr. Wright's receipt of the clinical notes and records from Dr. Balmer's office, it is to be anticipated that the materials are enroute to Dr. Beal. Mr. Wright has undertaken to write Dr. Beal and authorize her to send all of Dr. Balmer's clinical notes and records and raw data to Royal's counsel.

Payment of Dr. Balmer's Report:

Royal submitted that it had not been forwarded an invoice of Dr. Balmer's report as a section 24 expense. Therefore, it was premature to seek an order for payment of the report. I agree. It is necessary to follow the steps required under the dispute resolution system. Mr. Wright confirmed that he would forward to Royal the invoice for payment.

Productions:

I dealt with a revised list of productions which Royal alleged remained outstanding as of August 1, 2002. The list contained 15 items. All of the items were resolved to the satisfaction of the parties. More specifically:

1. Mr. Wright undertook to write Dr. Ronald Carson again to obtain his clinical notes and records, as a follow-up to his letter of December 11, 2001. Royal advised that it may seek a third party order for production, if Dr. Carson does not cooperate.

2. The clinical notes and records of Dr. T.W. Nancekievill from January 2000 to January 2001 have been sent. Mr. Wright undertook to send updated records from January 11, 2000.

3. Mr. Wright undertook to obtain and provide to Royal the clinical notes and records of Dr. C. Hoch.

4. Mr. Wright confirmed that Timothy Sutherland was not seen by any other occupational therapist other than one from the Board of Education. He undertook to obtain from Mr. T. Parsons, the principal of Timothy's school, the name and phone number of that occupational therapist. Mr. Wright also undertook to ask Mr. Parsons for any handwritten notes from the school team meetings relating to Timothy and to obtain all other school records.

5. Mr. Wright confirmed that he has provided all the names, addresses and telephone numbers of those who have provided services, treatments or assessments to Timothy Sutherland. He undertook to inform Royal should Timothy have contact with any other health care providers.

6. Mr. Wright undertook to provide particulars of the claim for a special award; more specifically, the medical and rehabilitation benefits and section 24 examinations, which are referred in his letter of December 13, 2001.

7. Mr. Wright undertook to provide to Royal the file notes, test protocols and curriculum vitae of Ms. Ann Newby.

EXPENSES:

The issue of expenses is left to the discretion of the hearing arbitrator.

August 30, 2002

Judith Killoran Arbitrator

Date

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, 303/98, 114/00 and 482/01.