Neutral Citation: 2002 ONFSCDRS 166

FSCO A01-001296

BETWEEN:

JOSEPH BENN

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Susan Sapin

Heard:

By telephone conference call on June 25, 2002. Written submissions were received on July 9, 2002.

Appearances:

Jerry F. O'Brien for Mr. Benn

Boyd Critoph for Certas Direct Insurance Company

The Applicant, Joseph Benn, was injured in a motor vehicle accident on April 18, 1999. He applied for statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.¹ Certas disputes that Mr. Benn suffered an impairment within the meaning of section 2 of the Schedule, and refused to pay a weekly non-earner benefit and certain rehabilitation and assessment expenses. The parties were unable to resolve their disputes through mediation, and Mr. Benn applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing was scheduled to begin on June 25, 2002.

At the preliminary issue hearing before me, counsel for Mr. Benn advised that the claim for weekly non-earner benefits under section 12 of the Schedule was permanently withdrawn.

On March 19, 2002, little less than six weeks before the start of the hearing, Certas requested that Mr. Benn attend Insurer Examinations (IEs) with a psychiatrist and a neurologist, on Wednesday May 15, 2002. On May 7, 2002, counsel for Mr. Benn wrote Certas to advise that Mr. Benn would not attend the assessments. Certas asks that the arbitration be stayed until such time as Mr. Benn attends the IEs.

The issue in dispute in the preliminary issue hearing before me is:

Is it reasonably necessary for the Insurer to conduct psychiatric and neurological assessments of Mr. Benn pursuant to section 42 of the Schedule?
If so, what is the consequence of Mr. Benn's failure to attend?

The proposed psychiatric and neurological assessments are reasonably necessary for the purposes of section 42 of the Schedule.
Under section 50(b) of the Schedule, Mr. Benn is precluded from proceeding to arbitration until such time as he makes himself reasonably available for an IE, as required by section 42(5)(b) of the Schedule.

Background:

Mr. Benn was 19 years old when he suffered a possible brain injury, a broken clavicle and injuries to his ear and eyes (glass fragments), back, neck and right arm when the vehicle in which he was a back-seat passenger ran off the road into a ditch and rolled over.

Certas disputes that Mr. Benn's level of impairment and function after the accident was any different than before. From early childhood Mr. Benn suffered from behavioural and emotional difficulties and multiple learning disabilities indicating longstanding neuropsychological deficiencies. His home life was chaotic. He lived at various times in 10 different foster homes as a ward of the Children's Aid Society (CAS), and attended 8 different schools. A month prior to the accident, he had moved into his own apartment for the first time, supported by the CAS and the Community Living Programme, and had started his first job in a veterinary clinic as part of a co-op programme. Within a month of the accident Mr. Benn returned to live with his mother and dropped out of the co-op programme.

Over the course of a year beginning in February 2000, Mr. Benn obtained a work placement as a mail clerk with Human Resources Development Canada (HRDC) and moved into a new apartment, with the intensive support and involvement of a Support Worker from Bartimaeus Inc., an organisation which provides intensive rehabilitation services to assist individuals with acquired brain injuries to resume their pre-accident lives and function independently. These rehabilitation services are the subject of the dispute between the parties.

Certas paid Bartimaeus' account for assessments and services provided in the first two months, but refused to pay for the remainder of the $20,880.24 incurred between April 2000 and February 2001 because it believed these measures were based on an inaccurate neuropsychological assessment of the Applicant conducted on July 10, 1999 by Dr. John Strang, a specialist in developmental and clinical neuropsychology.

Dr. Strang concluded that Mr. Benn suffered a mild closed - head and traumatic brain injury (TBI) in the accident which exacerbated his pre-existing vulnerable condition. Dr. Strang recommended, in part, psychological and life planning skills to promote improved independence and self-sufficiency and case management coordination assistance to prepare him for entry into the workforce in a job in keeping with his abilities.

Certas disputes Dr. Strang's conclusion, as well as his treatment recommendations, on the grounds that his opinion was based on incomplete pre-accident information and false assumptions about the level at which Mr. Benn functioned prior to the accident. Certas wishes to have Mr. Benn assessed by its own neurologist and psychiatrist.

Mr. Benn argues that Certas' request for these IEs is not reasonable because they invade Mr. Benn's privacy, are prejudicial, and are a last-minute tactic of the Insurer to shore up its defence on the eve of arbitration. He points out that Certas was aware of Dr. Strang's 1999 report and Bartimaeus' services by May of 2000, and it had ample opportunity to, and ought to have, requested IEs at the time if it disagreed with Dr. Strang's opinion. I understood counsel for Mr. Benn to suggest that Certas did not actually disagree with the report at the time, and that its request for IEs at this time is an attempt to obtain medical evidence to "refute its own conduct at the time in question," which is improper.

Certas submitted that its request is reasonable, because it was unable to obtain IEs prior to March 2002 due to Mr. Benn's refusal, despite repeated requests, to produce relevant pre-accident medical and school records that would have permitted an objective evaluation of Mr. Benn's pre-and post-accident psychiatric and neurological functioning, the key issue underlying the dispute. Certas stated that it did not receive this information until after the pre-hearing held on February 26, 2002. It argued that the lack of pertinent pre-accident records hampered, and continues to hamper, its adjusting of the file, and that it prejudiced its ability to determine entitlement to benefits in a timely manner as well as its ability to properly prepare for the arbitration hearing.

In addition, Certas argued that it was not provided with a Treatment Plan until May 31, 2001, three months after Bartimaeus terminated its year-long services. This prevented Certas from obtaining a timely and unbiased assessment about whether the rehabilitation measures were reasonable or necessary from a Designated Assessment Centre (Med Rehab DAC) under section 42 of the Schedule. Certas argued that its IEs are also reasonably necessary because it disputes the conclusions of the Med Rehab DAC that was eventually conducted in October, 2001, which it maintained was also not provided with relevant pre-accident records.

The law:

Section 42 of the Schedule permits an insurer, on reasonable notice, to require an insured person to be examined "as often as is reasonably necessary" in order to determine if he or she is entitled to a benefit. This requirement has been the subject of numerous arbitration and appeal decisions, which strive to balance the insured person's right to privacy and the insurer's right and obligation to fairly and effectively assess a claim for benefits.² 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, which include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute.³Timing of the request is a factor to be considered in determining reasonableness. Arbitrators are unanimous in the opinion that trial brinkmanship is not a feature of the arbitration process.⁴ The closer a request is made to a hearing, therefore, the closer will be the scrutiny of its reasonableness, to ensure that there is no avoidable delay or that the insured's preparation for the hearing is not prejudiced.

Having conducted a very close scrutiny of the full texts of the extensive correspondence between the parties, as well as other documents provided and the detailed oral and written submissions, I find Certas' request for the IEs to be reasonable and necessary, for the reasons set out below.

Findings and reasons:

Dr. Strang's neuropsychological assessment was based on incomplete information

In his report, Dr. Strang concluded that it was "most probable" that Mr. Benn sustained a mild closed head injury in the accident, but that it was "difficult to state with certainty" that he suffered anything more than an exacerbation of "underlying, long-standing neuropsychological difficulties." He felt that the accident disrupted Mr. Benn's pattern of thinking and likely caused him "to go further off course," and that he would need coordinated external guidance and psychological intervention to resolve accident-related issues before he could go on and make best use of his capabilities in further education and eventual employment. He noted that such intervention had been helpful to him in the past. Dr. Strang assessed Mr. Benn three months after the accident, which he stated was about the time most substantial recovery from a TBI would normally be expected.

Dr. Strang based his opinions on comprehensive neuropsychological testing, interviews with Mr. Benn and his mother, whose reliability Certas questions, and the information available at the time. These included academic transcripts, but not the Ontario School Record from his most recent school, and it did not include ambulance or hospital emergency records, pre-accident medical records, or reports of assessments conducted by the schools or by social workers and others with the Children's Aid Society (CAS) or Social Services (Ontario Disabilities File). Dr. Strang stated in his report that the raw data from the psychological assessment by the Children's Psychiatric Research Unit (CPRI) in London, when Mr. Benn was 10 years old, could be useful for comparison with his post-accident neuropsychological test results.

At the time, Certas disagreed that a neuropsychological assessment was reasonable or necessary, as it explained in a letter dated July 6, 1999, a few days before the assessment took place:

"Mr. Benn was developmentally delayed prior to the accident and was attending a co-op placement. He did return to independent living and resume his normal living activities. Based upon studies done in the past, 75% of people who are developmentally delayed will not show conclusive results in the outcome of a neuropsychological evaluation to indicate a further brain injury."

The letter went on to request all academic records to date, hospital and ambulance records, all medical reports and assessments, an OHIP summary and Children's Aid reports and assessments "in order to fully investigate the entitlement to benefits." A second letter a week later reiterated the request and further asked for reports and assessments obtained by CAS and London Social Services case managers, "as they will indicate his pre-morbid social environment, cognitive/behavioural abilities and limitations in regard to daily living."

Given that the key issue in dispute between the parties is whether Mr. Benn is entitled to rehabilitation benefits because he regressed as a result of injuries sustained in the accident, I agree with Certas that the pre-accident records in question were essential to an informed assessment of Mr. Benn's entitlement to rehabilitation benefits under the Schedule. I also find that it was reasonable for Certas to put off its own IE until a more accurate picture of Mr. Benn's pre-accident status could be obtained.

Mr. Benn refused to provide relevant pre-accident records

The correspondence indicates, and I find, that Certas repeatedly requested the pre-accident records, and the reasons it required them, throughout 1999, 2000 and 2001, and that Mr. Benn refused to produce them until after the pre-hearing on February 26, 2002.

On March 30, 2001, counsel for Mr. Benn wrote to Certas that "We strongly disagree" that Dr. Maclean's (the family doctor) notes and records, the CPRI London test results, academic records and CAS records were required to determine entitlement to accident benefits. He further stated that "we have no information as to why these records are reasonably required, nor to which benefit the request relates." Given Certas's letters, above, I find this response to be somewhat disingenuous.

Nevertheless, Certas wrote back in April, reiterating that it needed the records to establish a baseline to determine Mr. Benn's pre-accident physical and cognitive functional status, because Mr. Benn's pre-accident status was "crucial" in determining his entitlement to medical and rehabilitation benefits. Certas reminded Mr. Benn that, in his own report, Dr. Strang had said that the raw data from CPRI in London could be useful for comparison purposes, and explained that it wished to send that information to Dr. Strang for his review.

In June 2001, Certas again wrote to counsel stating it was crucial to have the pre-accident records, because it wanted to arrange a repeat neuropsychological assessment with Dr. Strang, as well as an IE with an orthopaedic surgeon and a psychiatrist, to assess Mr. Benn's cognitive and physical functional status, once the information was received.

I find Certas' approach, to have Dr. Strang review his own opinion in the light of relevant pre-accident information previously unavailable, or to have Dr. Strang conduct a re-assessment, rather than request a further assessment with its own neuropsychologist, to be reasonable. In light of the psychological issues raised in the report, and Dr. Strang's opinion that pain affected Mr. Benn's behaviour, I find the request for IEs with a psychiatrist and an orthopaedic surgeon was also reasonable.

At the February 26, 2002 pre-hearing, Mr. Benn agreed to produce most of the records Certas requested. These are listed in the pre-hearing letter dated that day. In addition, Mr. Benn was ordered to produce the records of the Community Living Programme for one year prior to the accident. Three weeks later, on March 19, 2002, Certas notified Mr. Benn that it required him to attend the psychiatric and neurological IEs scheduled for May 15, 2002.

I find that Certas expected to have the information it requested from Mr. Benn in time for the IEs , and that there was sufficient time (six weeks) before the hearing scheduled for June 25, 2002 for Certas to obtain a report and provide it to Mr. Benn for review by Dr. Strang or another expert of his choice. I find Certas to have acted as reasonably as Mr. Benn's conduct permitted, and that the prejudice to Certas caused by Mr. Benn's conduct far outweighed any prejudice to him.

No Treatment Plan

The fact that no Treatment Plan was provided for Bartimaeus' services until after they were discontinued is relevant to Certas' request for IEs . I find that the correspondence between the parties is testament to Certas' repeated requests for a Treatment Plan, and its increasing frustration at being unable to obtain one. Certas' January 2001 letter to Mr. Benn's counsel stating its position on the outstanding Treatment Plan is but one example:

"with no initial or subsequent treatment plans submitted, we are left completely unable to identify the initial and current functional and cognitive status of Mr. Benn, the progress he has made over the past 10 months, and the short and long term goals of Bartimaeus...By withholding a treatment plan, you are prejudicing our right to proceed to a designated assessment centre, should we feel the outlined treatment to be not reasonable and necessary, as per Section 42 of the SABS."

When the Treatment Plan was submitted in May, Certas refused it and referred it for a Med Rehab DAC assessment, which was conducted in early October 2001, by a rehabilitation therapist, a neuropsychologist and a psychometrist. The DAC concluded that Mr. Benn suffered a mild head injury in the accident, and that there was evidence that his emotional discomfort, dependency needs and cognitive difficulties were exacerbated as a result, "as he did not experience these problems to this extent prior to the subject accident." The DAC approved the services of Ms. Laura Parent, the Bartimaeus' Support Worker, commenting that she had been successful in the past and it was apparent that Mr. Benn required the services in order to improve his independent living skills and increase his chances of successful reintegration into the workforce. Mr. Benn returned to Bartimaeus and Certas paid for services in accordance with the DAC's conclusions.

The unbiased evaluation provided by a DAC is an important step in the dispute resolution process, and Certas cannot be faulted for foregoing its own IE while adhering to the requirements of the Schedule. In this case, the DAC was provided with Dr. Strang's report, information from the family doctor and ambulance and hospital emergency records, but not the other pre-accident records discussed above. Certas is entitled to dispute the findings of the DAC, and I find its request for its own assessment that takes the whole pre- and post-accident picture into account is not unreasonable. As stated above, I find Certas was prevented from obtaining its own comprehensive assessment any sooner than it did because it did not have access to the pre-accident records.

Certas was not at fault for delaying its request for an IE

I do not accept Mr. Benn's argument that Certas should not be entitled to an IE at this time because it failed to request one earlier on. He suggested that one reason for the late request was that Certas did not really disagree that Bartimaeus' services were reasonable or necessary at the time.

Mr. Benn cited the following facts to support this argument:

Certas paid Bartimaeus' invoices for the first two months, February and March 2000;
In September 2001 Crawford Healthcare Management, the company contracted by Certas to help coordinate the services recommended in Dr. Strang's report, advised Ms. Parent "that it would be very important for Mr. Benn to continue to receive services from her in order to monitor his employment performance to ensure that he is able to maintain his employment as a mail clerk with Human Resources Development Canada (HRDC)."
In October 2001, Crawford told Ms. Parent to prepare a Treatment Plan and wean down her time spent with Mr. Benn.

Viewed in context, some of which has already been discussed above, I find these facts on their own do not support Mr. Benn's assertion. When Certas wrote to Mr. Benn's counsel in July 2000 agreeing to pay for Bartimaeus' February and March 2000 reports, it advised it would not consider further expenses until Treatment Plans were completed and submitted.

Again, in October 2000, Certas wrote to Mr. Benn to confirm that it did not consider the expenses reasonable or necessary "at this stage" and that it required all pre-accident medical and education records. Certas also advised Bartimaeus directly that it would not consider any expenses until it received a Treatment Plan, at which time it would refer the matter to a Med/Rehab DAC.

I find that Mr. Benn's refusal to provide relevant pre-accident records or a Treatment Plan until very late in the day prevented Certas from exercising its rights under the Schedule in a timely manner and left it little choice but to delay its own assessment until such time as the necessary information was provided.

EXPENSES:

I leave the matter of expenses to the hearing arbitrator.

October 25, 2002

Susan Sapin Arbitrator

Date