Neutral Citation: 2002 ONFSCDRS 17

FSCO A00-001252

BETWEEN:

KIMBERLY HODGINS-BABIN

Applicant

and

COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David J. Evans

Heard:

Written submissions were received on November 2, November 15, and November 23, 2001.

Appearances:

Alden M. Dychtenberg for Ms. Hodgins-Babin

Alexander M. Voudouris for Coseco Insurance Co. /HB Group/Direct Protect

Ms. Hodgins-Babin, the Applicant, was injured in a motor vehicle accident on July 31, 1999. She received various statutory accident benefits including caregiver and housekeeping benefits from Coseco Insurance Co./HB Group/Direct Protect (Coseco), payable under the Schedule.¹She claims that her primary ongoing difficulties are with headache and with pain to her neck and right shoulder and arm.

The parties dispute whether or not Ms. Hodgins-Babin is required to attend various Insurer's Examinations (IEs) scheduled by Coseco pursuant to section 42 of the Schedule.

Accordingly, the issues are:

Is Coseco's request for a Neurological Evaluation by Dr. Michael Nicolle reasonable?
Is Coseco's request for a Physiatry Evaluation by Dr. Asha Bhardwaj reasonable?
Is Coseco's request for a Psychological Evaluation by Dr. Bill Newby reasonable?
Is Coseco's request for a Functional Abilities Evaluation by Rebecca McPhee, Kinesiologist, reasonable?

Coseco's request for a Neurological Evaluation by Dr. Michael Nicolle is reasonable.
Coseco's request for a Physiatry Evaluation by Dr. Asha Bhardwaj is not reasonable.
Coseco’s request for a Psychological Evaluation by Dr. Bill Newby is reasonable.
Coseco's request for a Functional Abilities Evaluation by Rebecca McPhee, Kinesiologist, is not reasonable.

Background:

The nature of Ms. Hodgins-Babin's injuries and the history of any treatments and assessments are relevant in determining Coseco's entitlement to IEs.²

Patricia Morand, occupational therapist, conducted an occupational therapy functional assessment on October 6, 1999. Ms. Morand noted that Ms. Hodgins-Babin was not able to complete her pre-accident activities of daily living independently, but recommended further medical clarification on whether difficulties with her right upper arm were anatomically based and advised seeking medical clearance for a program to return her to her activities of daily living. The parties dispute whether or not this assessment constituted an IE. As the assessment did not determine questions of disability or entitlement, which are the issues in the main hearing of this matter, I do not find it relevant for the current purposes even if it did constitute an IE.

Coseco subsequently planned to terminate Ms. Hodgins-Babin's benefits based on an IE by Dr. David Taylor, orthopaedic surgeon. Dr. Taylor wrote a report dated November 10, 1999, in which he indicated that, although Ms. Hodgins-Babin had some limitations, he did not consider her substantially unable to perform her pre-accident activities. In an addendum dated November 24, 1999, he indicated that Ms. Hodgins-Babin was capable of caregiving activities for her children.

In response, Ms. Hodgins-Babin requested a disability assessment by a Designated Assessment Centre (DAC). She refused to attend a functional abilities evaluation (FAE) Coseco had intended to arrange for late November 1999 and a further assessment by Dr. Taylor scheduled for February 8, 2000.

Ms. Hodgins-Babin attended at the Work Strategies Diagnostic Centre DAC on January 24 and 25, 2000. Dr. John Clifford, physiatrist, conducted a medical assessment. Jillian Manton, certified kinesiologist, and Lorraine Stead, physiotherapist, conducted an FAE. The DAC concluded that there appeared to be no reason why Ms. Hodgins-Babin could not return to all activities of daily living, including caregiving activities.

Ms. Hodgins-Babin subsequently refused to attend a further orthopaedic IE with Dr. Arciszewski scheduled by Coseco for November 6, 2000. Notwithstanding, in its submissions Coseco indicates that it "was content with its adjustment of the claim" until the events of October 2001.

Ms. Hodgins-Babin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. A pre-hearing conference occurred on April 2, 2001, and arbitration hearing dates of October 22-25, 2001 were scheduled.

On October 1, 2001, Ms. Hodgins-Babin delivered the report of Dr. Paul E. Cooper, neurologist, dated November 8, 2000, and two reports of Dr. Robert Teasell, physiatrist, dated March 20, 2001 and September 21, 2001. On October 12, 2001, Ms. Hodgins-Babin delivered the psychology assessment report of Dr. Allan P. Shapiro, psychologist. On October 15, 2001, the arbitration was adjourned.

By letter dated November 2, 2001, SOMA Medical Assessments served notice on Ms. Hodgins-Babin that it had been retained by Coseco to conduct a number of IEs³ on Ms. Hodgins-Babin "for the purpose of determining his/her eligibility or ongoing eligibility for Benefits." The IEs were set out as follows:

Neurological Evaluation by Dr. Michael Nicolle⁴
Physiatry Evaluation by Dr. Asha Bhardwaj
Psychological Evaluation by Dr. Bill Newby
Functional Abilities Evaluation by Rebecca McPhee, Kinesiologist

Ms. Hodgins-Babin denies that Coseco is entitled to the requested evaluations.

The parties proceeded by way of written submissions and various reports that were filed.

The Law:

Subsection 42(1) of the Schedule reads as follows:

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.

Subsection 42(3) goes on to provide that the insurer "may require examinations as often as is reasonably necessary."

As noted above, Coseco obtained an orthopaedic examination, which was followed by the DAC assessments. Coseco makes two related submissions regarding the relevance of DAC assessments and the onus the Insurer has to meet.

The first submission is as follows:

It is the insurer's position that the DAC assessments have no impact or relevance to the insurer's right, not to mention ongoing duty to conduct insurer's examinations pursuant to Section 42 of the SABS. In this regard, the insurer relies upon Arbitrator David J. Evans' decision in Tracy Howard v. Guardian Insurance Company of Canada, FSCO file no. A00-000225,⁵ which is enclosed.

The second submission is as follows:

It is respectfully submitted that Section 42 of the SABS presumes the insurer's request for an insurer's examination to be reasonable and that the onus to show otherwise rests upon the applicant, the burden of which she has not discharged. All this is in accordance with the decision of Arbitrator Joyce Miller in Sherkat v. Co-operators General Insurance Co. ⁶

With respect, on re-reading my decision in Howard, I do not believe I made any sweeping generalizations that "DAC assessments have no impact or relevance" on an insurer's right to conduct insurer's examinations. Regardless, the law regarding both submissions is set out in the appeal decision Prudential of America General Insurance Company (Canada) and Chafe-Moote.⁷

First, the Director's Delegate⁸ set out the governing principle for what an arbitrator should consider when deciding if the Applicant made herself reasonably available for an insurer's examination. He noted that underlying the Insurer's arguments in that case was a sense that it was entitled to a fresh examination on each claim and regular examinations with respect to ongoing claims:

This is an overly technical view of the legislation that could lead to endless and repetitive assessments. The arbitrator properly took a broader perspective, looking at all the circumstances and asking if the proposed examinations were reasonably necessary.

Then, as Acting Director of Arbitrations, David Draper pointedly summarized this view in M.D. and Halifax Insurance Company⁹:

An insurer examination only becomes appropriate if it is reasonably required to determine the insured person's ongoing entitlement, or in response to a new claim.

Turning to the issue of IE and DAC assessments, he wrote in Chafe-Moote:

The importance of distinguishing the two types of assessments is that, as stated above, insurers are entitled to a reasonable opportunity to have the insured person's claims assessed by an expert of its choosing. This does not mean, however, that the availability of DAC assessments is irrelevant. They play an important part in the evaluation of claims under the SABS-1994 and, in my view, the arbitrator properly included them in her analysis.

I find this statement equally applicable to the current Schedule. As the Director put it, the appropriate question is: Given the information already available, does the Insurer reasonably require these examinations?

This brings me to the related point regarding the onus. After noting that in Sherkat the arbitrator held that if the applicant does not find the request for an examination reasonable, the onus is on the applicant to show why not, the Director wrote in Chafe-Moote:

More recently, Farley J. approached the issue somewhat differently, distinguishing between cases, such as Sherkat, where the insurer is seeking its first examination and those involving multiple assessments. In Manolakos v. Royal Insurance, [1998] O.J. No. 2157,¹⁰ he held that "the onus is on the insurance company in such circumstances to demonstrate its request for such [a s.65 insurer examination] as reasonable in the circumstances (although this would be 'automatic' where there has never been an examination)". . .The ruling on onus in Manolakos may well be binding on Commission adjudicators.

I take this passage to mean that the onus is always on the Insurer, although it will be easily met where there have been no examinations. However, considering the Director's ruling on the relevance of DAC assessments, I find that DAC assessments as well as previous insurer examinations would be relevant to onus: that is, to paraphrase Farley J., the reasonableness of the insurer examinations would only be "automatic" where there has never been an insurer's examination or a DAC assessment.

In this case there has been at least one relevant insurer examination and there have been DAC assessments. The onus is squarely on Coseco, and the reasonableness of further assessments will not be automatically assumed.

One further aspect of Coseco's submissions was also dealt with in Chafe-Moote. Coseco's submissions contain a quote from Scott and Toronto Transit Commission¹¹ where the arbitrator stated that it "is not for an arbitrator to 'second-guess' the actions or motives of the company in requiring a medical examination." The Director wrote:

The insured person must be allowed to challenge the insurer's assertion that an examination is reasonably necessary. If he or she refuses to attend and the insurer responds by suspending benefits, the arbitrator must "second-guess" the insurer's view that the examination is reasonably necessary.

On a different point, the Applicant submitted that no further examinations are necessary because neither the IE nor the DAC indicated that further evaluations were required. Arbitrator Bayefsky in Vidinopulos¹² dealt with this factor:

In my view, this is only one of a variety of factors to be considered. An insurer's request must be determined in light of the nature of the Applicant's injuries, the history of any treatment and/or assessments, and the relevance of the proposed examination to the issues in dispute in the arbitration.

Before turning to the relevance of the proposed examinations to the issues in dispute, I will deal with several other points raised by the parties.

The parties disagree with the potential amount of Ms. Hodgins-Babin's claims. She submits that her claims total only about $21,000, as she is only seeking housekeeping and caregiver expenses to the second anniversary of the accident. She also submits that an IE would only be available if she were seeking claims beyond the 104-week mark. If the size of the claim is relevant, I find that Ms. Hodgins-Babin's claims are more than minimal, and so if the IEs are otherwise reasonably required, the Insurer is entitled to them. As for any alleged time limitation, Ms. Hodgins-Babin is herself relying on reports prepared after the 104-week mark. I find that there is no requirement that an IE deal only with Ms. Hodgins-Babin's current condition where she is claiming earlier benefits for a past condition, unless the condition being assessed lies so far in the past as to make any assessment useless.¹³

Ms. Hodgins-Babin's submissions that "the insurer has attempted and continues to attempt to intimidate Ms. Hodgins-Babin by the use of DACS and FMES" are better left for any special award claims. As for the fact that Ms. Hodgins-Babin failed to attend various earlier IEs including that with Dr. Arciszewski scheduled for November 2000, Coseco submits that this is "a real and relevant issue," but as it was content with its adjustment of the claim until October 2001, I find that what is relevant is any new information it received at that point that makes its request for further IEs reasonable.

For the purposes of this decision, I find that submissions regarding late production are only relevant in so far as they affect the information Coseco or the assessors had available. I agree with Coseco's submission that it may conduct further IEs with different medical specialties — provided that the necessity for those other IEs meets the conditions set out above.

Findings Regarding the Proposed Examinations:

Neurological Exam

On October 1, 2001, Ms. Hodgins-Babin delivered a consultation note from Dr. Paul Cooper, neurologist, dated November 8, 2000. In the report he notes that Ms. Hodgins-Babin had headaches 8-10 times per year but did not have to take off work because of them. She indicated to him that after the accident "a new type of headache started that evening." The headaches were sometimes associated with numbness of the fingers of her right hand and numbness of the right arm. She indicated that she lost time from school because of the headaches.

Coseco submits that the following information contained in the report is new and requires Coseco to have Ms. Hodgins-Babin assessed by a neurologist of its choosing:

Kim has headaches that meet International Headache Society Criteria for migraine without aura prior to the accident and her post-accident headaches would meet International Headache Society criteria for chronic post-traumatic headache with minor head injury. She likely suffered a minor concussion in the accident with some flexion/extension injury to her neck.

The findings on her physical examination at the moment suggest to me that she may have a somatoform pain disorder.

Dr. Cooper recommended trials of Amitriptyline or a triptan for the headaches as well as treatment by a pain psychologist. He also thought an EMG and nerve conduction studies would be worthwhile doing to ensure the numbness in her hand was not caused by any peripheral nerve injury.

Coseco also points out that the notes and records of Dr. Thomas Miller, physiatrist, were only produced in October 2001 and indicate that he arranged an EMG study of Ms. Hodgins-Babin's right upper arm (an area of primary ongoing difficulty).

Apparently in explanation for the late production, Ms. Hodgins-Babin submits that the report was directed to her family physician, Dr. Caroline M. Bryk, and was not a medical/legal report requested by counsel. However, if the report contains new relevant information, it is an element to consider in determining whether or not Coseco is entitled to an IE.

Ms. Hodgins-Babin submits that Dr. Cooper "did not recommend any further investigation of head injury. . .He does not suggest that any head injury has caused or is contributing to Ms. Hodgins-Babin's difficulties with her housekeeping and caregiver activities." She also submits that she is not claiming for head injury investigation or treatment.

In response, Coseco submits that Ms. Hodgins-Babin could advance a claim for a relationship between her head injury (diagnosed for the first time in Dr. Cooper's report) and her entitlement to accident benefits based on the report and that the requested neurological exam would deal with her entire neurological system.

I find that regarding Ms. Hodgins-Babin's injuries, Dr. Cooper has diagnosed "chronic post-traumatic headache with minor head injury." I find that this is new information for Coseco that is reasonably relevant to the issues at the hearing, as it would be open to Ms. Hodgins-Babin to draw a link between the report and her claim. The proposed examination would therefore be relevant to the issues in dispute in the arbitration. Therefore, I find that Coseco's request for a Neurological Evaluation by Dr. Michael Nicolle is reasonable.

Physiatric Exam

Dr. Thomas A. Miller, a physical medicine and rehabilitation specialist, in his January 26, 2000 report, notes that when he saw Ms. Hodgins-Babin she was being "followed by Dr. C. Pehia (pain psychologist)."¹⁴ He wrote that motor and sensory studies in the right upper limb were normal and the EMG motor units also "were felt to be within normal limits." He suspected that the majority of her right upper limb pain syndrome "can be explained on the basis of primarily a soft tissue injury with severe pain reaction." He found her to be "markedly limited and functionally limited by her lack of mobility." As I understand it, this report was only delivered as part of Ms. Hodgins-Babin's productions in October 2001.

Ms. Hodgins-Babin submits that none of Dr. Miller's findings warrant a physiatric assessment and that, if anything, "his findings are similar to those of Dr. Taylor," the orthopaedic surgeon who conducted the IE. She also submits that Dr. Miller made no comment on the issues at the arbitration.

However, Dr. Miller in fact suggests that Ms. Hodgins-Babin's condition "would be best managed in a structured environment with support" and he mentions in that regard Dr. Robert Teasell, physiatrist, as an expert with whom he planned to communicate.

Ms. Hodgins-Babin was then assessed by the physiatrist Dr. Teasell, who prepared an initial report dated March 20, 2001, which was also only delivered on October 1, 2001. (He also prepared a second report dated September 21, 2001, which is essentially a "paper review" critiquing the DAC assessment.)

Ms. Hodgins-Babin submits that in his first report "Dr. Teasell does not even comment on the matters at hand in his report, but makes a number of treatment recommendations" including "some very light physiotherapy and counselling from a trained pain psychologist."

However, I note that in the report Dr. Teasell reviewed the earlier report of Dr. Miller, writing that although she had "improved quite substantially over when Dr. Miller had seen her with regards to range of motion" she was still limited. Dr. Teasell then diagnosed an adjustment disorder based on Ms. Hodgins-Babin's "struggle with the physical and functional limitations imposed by the pain." He also considered her to have "significant physical restrictions. . .which is going to severely limit her in terms of her ability to manage her housework and childcare." He concluded that Ms. Hodgins-Babin "was functioning reasonably well in the absence of the motor vehicle accident and it is clear that it has had a negative impact upon her life."

I find that in their reports both Dr. Miller and Dr. Teasell comment on matters at issue in the arbitration. I find that the proposed examination would be relevant in light of these assessments.

However, Ms. Hodgins-Babin submits that the DAC assessment was conducted by Dr. Clifford, who is a physiatrist. As set out above, this DAC assessment is relevant in determining whether or not Coseco is entitled to an IE by a physiatrist. I find that this fact increases the burden on Coseco for proving the reasonableness of its request. I am not convinced that there is sufficient new information in Dr. Miller's report and in Dr. Teasell's first report to warrant a separate physiatric IE, considering the extensive DAC report prepared by Dr. Clifford.

As for Dr. Teasell's second report, as noted above, it is a paper review. If Coseco feels it needs a defence of Dr. Clifford's DAC, it can prepare and file its own paper review.

I find that Coseco's request for a Physiatry Evaluation by Dr. Asha Bhardwaj is not reasonable.

However, the statements in the reports of Dr. Miller and Dr. Teasell do support Coseco's position regarding the proposed psychological exam.

Psychological Exam

As noted above, Dr. Teasell in his first report diagnosed Ms. Hodgins-Babin with an adjustment disorder. He thought Ms. Hodgins-Babin would benefit from psychological counseling from a trained pain psychologist and "would recommend Dr. Allan Shapiro who has a significant amount of expertise dealing with issues of pacing in these types of patients."

Coseco notes that only on October 12, 2001, did the Applicant deliver the report of Dr. Shapiro dated October 5, 2001.

Although Ms. Hodgins-Babin submits that there is "nothing in Dr. Shapiro's report which warrants an insurer's examination by a psychologist," she also wrote:

He suggested, however, that [Ms. Hodgins-Babin's] premorbid psychological factors likely rendered her at greater risk for increased distress and consequently, greater pain and disability.

I find that this information is new and is highly relevant to determining Ms. Hodgins-Babin's ongoing entitlement. Coseco has not had any psychological assessment, nor has there been any DAC with a psychological component. Accordingly, I find that Coseco's request for a Psychological Evaluation by Dr. Bill Newby is reasonable.

Functional Abilities Evaluation (FAE)

Coseco seeks to have an FAE conducted by a kinesiologist.

An FAE was conducted as part of the DAC. As noted above, Coseco is incorrect when it submits that the DAC assessments have no impact or relevance to the "insurer's right" to conduct its own FAE.

The DAC FAE report notes:

With the number of inconsistencies noted Kimberly Hodgins-Babin has not provided the opportunity to assess her true residual functional capacity and therefore the validity of effort [of] these results are questionable. . .This means that Kimberly Hodgins-Babin has not provided the opportunity to assess true residual functional capacity.¹⁵

Ms. Lorraine Stead, physiotherapist, wrote in the DAC Physiotherapy report: "Based on these findings, it is anticipated that Kimberly Hodgins-Babin will most likely self-limit most test trials due to self-reported pain complaints."

In light of the above, it is not clear to me that there is any purpose to a further FAE. Furthermore, the Acting Director wrote in M.D.:

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.

I find that the position of an insurer is even weaker where it is simply seeking to support the DAC’s opinion. I find that Coseco has provided very little other evidence to support a further FAE when the DAC already conducted an FAE.

Ms. Hodgins-Babin also raises a technical point, namely that under the Schedule a kinesiologist is not entitled to conduct an IE. Subsection 42(1) provides that an IE can only be conducted by someone who "is a member of a health profession or a person with expertise in vocational rehabilitation." "Member of a health profession" means a member of a College as defined in the Regulated Health Professions Act, 1991.¹⁶ Kinesiologists are not members of such a College and so are not members of a health profession. Coseco provided submissions but no evidence on whether kinesiologists are "persons with expertise in vocational rehabilitation." Even if I had found that an FAE were reasonable in these circumstances, I would have been reluctant to make findings regarding the status of kinesiologists¹⁷ in the absence of evidence.

I find that Coseco's request for a Functional Abilities Evaluation by Rebecca McPhee, Kinesiologist, is unreasonable.

EXPENSES:

I reserve the issue of expenses of this preliminary issue to the hearing arbitrator.

January 22, 2002

David J. Evans Arbitrator

Date