Kimberlee Anne Stanley v. Pilot Insurance Company, 2002 ONFSCDRS 178

Neutral Citation: 2002 ONFSCDRS 178

FSCO A01-001482

BETWEEN:

KIMBERLEE ANNE STANLEY

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Catherine Skinner

Heard:

By telephone conference call on November 4, 2002.

Appearances:

David Levy for Ms. Stanley

Carlos Rippell for Pilot Insurance Company

Issues:

The Applicant, Kimberlee Anne Stanley, was injured in a motor vehicle accident on November 19, 1998. She applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot terminated weekly income replacement benefits on May 31, 1999. The parties were unable to resolve their disputes through mediation, and Ms. Stanley applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Ms. Stanley precluded from proceeding to arbitration and should there be a stay of arbitration proceedings under section 50(b) of the Schedule if Ms. Stanley does not make herself reasonably available for two examinations required by Pilot under section 42?

Result:

Ms. Stanley is precluded from proceeding to arbitration if she does not make herself reasonably available for section 42 examinations with Dr. Arthur Ameis, a physiatrist, and Dr. William Longdon, a psychiatrist. The arbitration hearing scheduled for February 10, 11, 12 and 13, 2003 will be stayed unless Ms. Stanley makes herself reasonably available for these examinations.
Pilot will schedule an examination under section 42 with Dr. Longdon no later than December 10, 2002.

FACTS:

The following facts are not disputed:

Ms. Stanley was involved in a car accident on November 18, 1998 and sustained whiplash-related injuries. She applied for and received weekly income replacement benefits from November 24, 1998 to May 31, 1999. Pilot terminated payment of her income replacement benefits because she did not attend an examination with Focus Assessments on June 1, 1999, in accordance with paragraph 42(8)(a) of the Schedule. The question of Ms. Stanley's failure to attend at the examination of June 1, 1999 is raised in Pilot's response to an Application for Arbitration, but is not the subject of this motion hearing. This motion hearing relates solely to Ms. Stanley's failure to attend at scheduled insurer's examinations in October 2002 and December 2002.

A mediator's report was issued in this case on August 27, 2001. Ms. Stanley applied for arbitration on November 14, 2001. A pre-hearing discussion took place on April 18, 2002. An arbitration hearing was scheduled for February 10 to 13, 2003 to determine Ms. Stanley's entitlement to income replacement benefits ongoing from May 31, 1999, medical benefits and housekeeping benefits.

Pilot included a list of required productions in its December 27, 2001 written response to Ms. Stanley's Application for Arbitration. Counsel for Pilot wrote to Ms. Stanley's counsel requesting production of certain documents on June 4, 2002, July 3, 2002 and September 24, 2002. Ms. Stanley has not produced the documents requested by Pilot in these letters, with the exception of an OHIP summary.

Pilot is currently in possession of the following medical evidence: a report by Ms. Stanley's family doctor dated January 29, 1999; the report of a Functional Abilities Evaluation required by Pilot and dated May 3, 1999; the report of a Medical Rehabilitation DAC dated December 6, 2001; ongoing physiotherapy status reports from 1998 and 1999; the notes and records of St. Michael's Hospital and Lockwood Clinic; and a decoded OHIP summary that Pilot received on May 31, 2002. There was disagreement about whether Pilot had received the clinical notes and records of Ms. Stanley's family physician.

There is reference in the OHIP summary to psychiatric treatments that Ms. Stanley has been receiving after the accident. On July 3, 2002, Pilot requested production of the clinical notes and records of Ms. Stanley's treating psychiatrist and other physicians noted in the OHIP summary. These have not been produced.

On October 1, 2002, Pilot wrote to Ms. Stanley requiring her to attend at an examination with Dr. Longdon on October 29, 2002, and with Dr. Ameis on December 4, 2002. Pilot requested these examinations pursuant to section 42 of the Schedule. Ms. Stanley did not attend the examination on October 29, 2002 and has indicated that she will not attend the examination on December 4, 2002.

Pilot has brought this motion for a stay of proceedings until Ms. Stanley attends at insurer medical examinations with Dr. Longdon and Dr. Ameis, as required under section 42.

SUBMISSIONS:

Pilot's Submissions:

Pilot submits that its request for examinations with a physiatrist and a psychiatrist is reasonable and necessary. It points out that Ms. Stanley has not been assessed since the May 3, 1999 Functional Abilities Assessment conducted by Focus Assessments. She has never been assessed by specialists in psychiatry or physiatry and Pilot submits that these examinations are necessary to adequately assess the medical condition of Ms. Stanley. Pilot indicates that it has attempted to obtain medical information about Ms. Stanley in a less obtrusive manner by requesting the clinical notes and records of Ms. Stanley's physicians, but these have not been produced. Pilot points out that the test for entitlement to income replacement benefits changes at 104 weeks of disability and that there have been no medical assessments of Ms. Stanley after the 104-week mark. Pilot also indicates that the decoded OHIP summary indicates a potential psychological component to Ms. Stanley’s condition and the OHIP summary only came to its attention on May 31, 2002. Pilot submits that this is a new issue which requires investigation through an insurer's examination with a psychiatrist.

Pilot denies that this is an attempt on its part to build up its case for arbitration. It submits that it does not have sufficient evidence on which to assess Ms. Stanley's medical condition. It submits that the timing of its request for these insurer's examinations is based on the recent production of the decoded OHIP summary and its continuing efforts to obtain information by requesting production.

Ms. Stanley's Submissions:

Counsel for Ms. Stanley submits that examinations under section 42 are for the purpose of establishing an applicant's entitlement to benefits. The timing of Pilot's request for examinations in this case, he submits, suggests that this is an attempt to obtain defence medicals and is not for the purpose of establishing the Applicant's entitlement to benefits. He submits that Pilot is making its request for these examinations on the eve of arbitration and that attendance at these examinations would be prejudicial to Ms. Stanley. He submits that Pilot has had the opportunity of requesting insurer's examinations since the time of the accident but has not done so since 1999. In his view, the fact that Pilot waited until October 2002 to schedule such examinations confirms that these are not for the purpose of assessing Ms. Stanley's claim.

ANALYSIS:

It is well established that the onus is on the Insurer to first demonstrate that the examinations are reasonable and necessary. If this is established, the onus shifts to Ms. Stanley to demonstrate that she had a reasonable excuse for not attending the examinations. If she offers a reasonable excuse, she will not be precluded from proceeding through the arbitration system in accordance with section 50 of the Schedule.

In Scott and Toronto Transit Commission,² Arbitrator Naylor outlined the general principles concerning insurers' medical examinations in the following terms:

The scope of the regulation is broad and flexible, in order to reflect the reality of the requirements of modern interactive medical practice, and to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition. The issue is whether, in the circumstances of the case, the examination is reasonably required to effectively assess the nature and extent of the applicant's injures. In making this determination, all the circumstances must be weighed.

In evaluating the reasonableness and necessity of insurers' examinations, arbitrators have considered, amongst others, the following factors: the timing of the insurer's request, the possible prejudice to both sides, the number and nature of previous insurer's examinations, the nature of the examinations being requested, whether there are any new issues being raised in the applicant’s claim that require evaluation, and whether there is a reasonable nexus between the examinations requested and the applicant’s injuries.

In this case, I find it reasonably necessary for Pilot to require examinations with Dr. Longdon and Dr. Ameis. Pilot has not evaluated Ms. Stanley's condition since the Functional Capacities Evaluation of May 1999. That was the only insurer's examination attended by Ms. Stanley. The most recent report produced on behalf of Ms. Stanley is dated January 29, 1999.

There is no available medical evidence about the extent of Ms. Stanley’s disability after the 104-week mark, at which time the test for entitlement to income replacement benefits becomes more stringent. Ms. Stanley is claiming ongoing entitlement to income replacement benefits past the 104-week period.

There have never been insurers examinations with a physiatrist or a psychiatrist. Ms. Stanley is reported to have suffered from whiplash-related injuries as a result of the accident. Dr. Ameis specializes in physiatry and I find that there is a reasonable nexus between his specialization and Ms. Stanley's reported injuries. The OHIP summary suggests a possible new direction in the claim with respect to Ms. Stanley's psychological condition. Counsel for Ms. Stanley would not stipulate that Ms. Stanley's ongoing claim of disability does not include a psychological component. I find that there is a reasonable nexus between the psychiatric examination being requested and Ms. Stanley's claim for ongoing disability.

I find that the examinations are reasonably required to allow Pilot to effectively assess the extent and nature of Ms. Stanley's injuries. Pilot is entitled to obtain its own up-to-date medical information about Ms. Stanley's condition.

Ms. Stanley does not agree to attend the scheduled examinations because the timing of Pilot's request suggests trial brinksmanship and because she feels she would be prejudiced by attending the examinations at this late stage in the proceeding. Specifically, counsel for Ms.Stanley argued that she would be prejudiced because the insurer's examination reports would become available shortly before the arbitration hearing and she would not have an opportunity to obtain reply medical evidence. I find that Ms. Stanley does not offer a reasonable excuse for not attending at the scheduled examinations.

In F.S. and Belair,³ Director's Delegate Naylor commented on the importance of the timing of insurers' requests for examinations as follows:

The timing of a request is a factor in considering its reasonableness; it becomes very important where it would delay the process. The closer a request is made to a hearing, the closer 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.

In this case, Pilot notified Ms. Stanley of the scheduled examinations on October 1, 2002. The examinations were scheduled for October 29, 2002 and December 4, 2002. The arbitration hearing is scheduled for February 10 to 13, 2003. Although it would have been preferable for Pilot to have requested these examinations sooner, I do not find the timing of their request unreasonable. Pilot only became aware of a possible psychological component to Ms. Stanley's condition on May 31, 2002 and has requested additional information about her psychological status since that time. Pilot attempted to use less intrusive means to obtain information about Ms. Stanley's condition before scheduling the insurer's examinations. I am not persuaded that the delay in scheduling the examinations is so great that it significantly prejudices Ms. Stanley's ability to prepare her case.

The requested examinations under section 42 are reasonable and necessary and I find that Ms. Stanley has not offered a reasonable excuse for her failure to attend at the examination of October 29, 2002 and her intention to not attend at the examination of December 4, 2002.

Section 50 provides that an applicant is precluded from proceeding to mediation if she does not make herself reasonably available for an insurer’s examination. Several arbitration cases have considered the appropriate remedy for a failure to attend at an insurer’s examination after mediation has been filed and the applicant is in the arbitration system. In F.S. and Belair,⁴Senior Arbitrator Naylor relied on section 21 of the Statutory Powers and Procedure Act and her authority to make orders to ensure a fair hearing and found that she had jurisdiction to order an adjournment of an arbitration proceeding until an applicant attended an insurer’s examination.

I rely on Senior Arbitrator Naylor's analysis in F.S and Belair, and find that the appropriate remedy in this case is to stay the arbitration proceedings unless Ms. Stanley attends at the insurer's examinations. If Ms. Stanley does not make herself reasonably available for the two insurer’s examinations before the scheduled arbitration hearing, that arbitration will be stayed.

Pilot should make every effort to ensure that these examinations do not result in a delay in the arbitration proceeding and, for that reason, I have included in my order, a provision that Pilot is to reschedule an examination with Dr. Longdon no later than December 10, 2002 which is 60 days before the scheduled commencement of the arbitration hearing. There is already an examination scheduled with Dr. Ameis for December 4, 2002.

EXPENSES:

I exercise my discretion to order that each side bear its own expenses in this preliminary motion hearing.

November 13, 2002

Catherine Skinner Arbitrator

Date