Neutral Citation: 2002 ONFSCDRS 197

FSCO A02-000861

BETWEEN:

FERNANDA PATO

Applicant

and

NATIONAL FRONTIER INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: K. Julaine Palmer

Heard: By telephone conference call on November 6, 2002.

Appearances: Christos Nicolis for Ms. Pato Joan Takahashi for National Frontier Insurance Company

Fernanda Pato was injured in a motor vehicle accident on May 7, 1997. She received statutory accident benefits from National Frontier Insurance Company ("Frontier"), payable under the Schedule.¹ Frontier terminated weekly income replacement benefits on June 13, 2000. The parties were unable to resolve their disputes through mediation, and Ms. Pato applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on September 5, 2002 Arbitrator Muir scheduled a motion to deal with the following two issues.

Should the arbitration hearing date (now scheduled for March 2003) be stayed until Ms. Pato attends at two insurer's examinations?
Shall Ms. Pato or Dr. James Sweeney produce certain documents in Dr. Sweeney's possession?

Dr. Sweeney has given notice at this motion, as required by Rule 67 of the Dispute Resolution Practice Code. Mr. Nicolis represented him, as well as Ms. Pato. No one testified orally on this motion. Evidence was received through affidavits from both parties.

It is not reasonably necessary for Ms. Pato to attend insurer examinations with Dr. Paul Robert or Dr. Keith Travis. The hearing will proceed as scheduled.
Ms. Pato or Dr. James Sweeney shall produce the raw test data requested by the Insurer.

Issue 1: Insurer's Examinations - Background

Frontier wishes Ms. Pato to be examined by Dr. Paul Robert, orthopaedic specialist, in London. Frontier also wishes Ms. Pato to attend for two days of psychological and neuropsychological assessment with Dr. Keith Travis, psychologist, in Burlington. According to Ms. Pato's solicitor, there is no issue with respect to Dr. Travis' location—she does not object to the travel. She also has no concerns about Dr. Travis' qualifications.

Ms. Pato has previously attended two insurer examinations at Frontier's request. She was examined on July 14, 1999 by Dr. A.B. Deathe, a specialist in physical medicine and rehabilitation (a physiatrist), and on July 19, 1999 by Dr. Peter Williamson, a psychiatrist.

Ms. Pato agrees to attend for re-examination by Dr. Deathe and Dr. Williamson. However, she objects to attending for examination by an orthopaedic specialist, when she has never been treated by or referred to an orthopaedic specialist. She has been examined and treated by several specialists in physical medicine and rehabilitation.

Ms. Pato was referred by her family doctor to James Sweeney, Ph.D., for a neuropsychological assessment, conducted in April 2002. Dr. Sweeney concluded that Ms. Pato "did not suffer significant diminishment in neuropsychological status due to involvement in the 1997 accident." Ms. Pato deposed in her affidavit sworn October 31, 2002 that she was "extremely distressed" at the thought of the two-day neuropsychological assessment. She deposed that she does not "understand the reason nor necessity of this. Dr. Sweeney did not find that I suffered a brain injury as a result of the accident. A two-day assessment to provide further confirmation of this conclusion is an unnecessary intrusion into my personal life and will only aggravate my emotional difficulties."

The Law

The principles relating to the right of an insurer to an insurer's examination under section 42 of the Schedule have been detailed in numerous decisions. The parties referred to several cases, which are listed on the last page of these reasons.

Section 42 of the Schedule says that the insurer may require an examination "as often as is reasonably necessary" "for the purpose of determining whether an insured person is entitled to a benefit." When the examination is contested, as in the case before me, the insurer must prove that the examination is reasonably necessary. The standard of proof demanded is a balance of probabilities. My role is to weigh all the circumstances of the case to determine if an examination is reasonably necessary for the insurer to effectively assess entitlement.² I must consider the nature of the applicant's injuries, the history of any treatment or assessments and the relevance of the proposed examinations to the issues in dispute in the arbitration.³ I must also consider the timing of the insurer's request, the possible prejudice to either side and whether any new issues have been raised in the Applicant's claim that require evaluation.

In an early case dealing with the 1990 Schedule,⁴ Director's Delegate Naylor wrote that the primary purpose of the provision of insurer's examinations is to assist the insurer to assess entitlement to the benefit claimed. However,

this does not mean that it cannot be applied to serve the ends of fairness. . . 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. These include adequate disclosure, settlement of cases and a fair, informed hearing of the issues remaining in dispute. The objectives are generally served by permitting insurers to arrange timely medical examinations, in appropriate cases.⁵

Issue in Dispute - Main Hearing

In this case, the issue in dispute at the main hearing is Ms. Pato's entitlement to a weekly income replacement benefit from June 14, 2000 and ongoing, pursuant to section 4 of the Schedule.

Ms. Pato also claims interest, expenses, and a special award; the Insurer claims its expenses and the amount of its assessment. No treatment issues are in dispute at this hearing.

Evidence on the Motion

The evidence for this motion was voluminous. The Insurer served an affidavit of 23 paragraphs with 24 exhibits, mainly consisting of treatment plans and medical reports. Some reports were many pages long. The Applicant served a shorter affidavit of 10 paragraphs with three exhibits and a supplementary affidavit with one exhibit. After the oral argument of the motion, I received some further brief, written submissions with several short cases attached.

However voluminous the material, none of the Insurer's evidence focussed on the crux of the dispute here about the physical examination, that is the choice of an orthopaedic surgeon for an insurer's examination, and why a return to Dr. Deathe was not proposed. In paragraph 17 of her affidavit, Ms. Lesley Wildridge, a law clerk in the offices of the solicitors for the Insurer, simply deposes that she arranged "an insurer's examination of Ms. Pato to be conducted by an orthopaedic specialist, given the significant passage of time since Ms. Pato's physical condition had been examined under s. 42 of the SABs." Ms. Wildridge's affidavit records receiving Mr. Nicolis' letter of September 16, 2002 objecting to the proposed examination, but indicating a willingness for Ms. Pato to attend a further physiatric assessment with Dr. Deathe. No evidence before me responds to this willingness or the objection.

The Insurer provided a copy of the case of Lesperance v. Westlake, [1993] O.J. No. 4214, an endorsement by Justice McDermid relating to a request for a defence medical under Rule 33.02(2) of the Ontario Rules of Civil Procedure and section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In the Lesperance case, Justice McDermid ordered the plaintiff to attend an examination by a specialist in rehabilitative medicine when the plaintiff had already been examined by an orthopaedic surgeon. Apparently in Lesperance, the plaintiff claimed damages as a result of chronic pain syndrome, which he attributed to the motor vehicle accident. From the brief endorsement, it is not clear on what evidence Justice McDermid based his determination about the kind of injuries that fall "within the legitimate purview of an orthopaedic surgeon" or that of a physiatrist. Justice McDermid adopted the conclusion of an earlier Master's decision that two specialists have "different directions" and the need to "have both inputs to allow the defendants to present their case fairly." Quite apart from the fact that the Lesperance case falls under a different set of rules and legislation,⁶ no evidence as to why the further opinion of an orthopaedic surgeon is reasonably necessary is before me on this motion.

With respect to the request for Ms. Pato to attend for two days of psychological and neuropsychological assessment with Dr. Keith Travis, none of the evidence presented by the Insurer addresses the reasons it reasonably requires this examination to determine whether Ms. Pato is entitled to the continuation of income replacement benefits she claims.

Outcome re Issue no. 1

My conclusion is that the evidence before me on this motion does not support a finding that it is reasonably necessary for Ms. Pato to be examined by Dr. Paul Robert, orthopaedic surgeon. Neither am I persuaded that it is reasonably necessary for Ms. Pato to attend for two days of psychological and neuropsychological assessment with Dr. Keith Travis.

Ms. Pato has not been examined or treated by an orthopaedic surgeon since the accident in 1997. I have no evidence in this motion supporting the reasonable necessity of the selection of an orthopaedic specialist for this insurer's examination to determine whether Ms. Pato is reasonably entitled to an ongoing IRB. Indeed, the notice sent to Ms. Pato on September 6, 2002 states that the type of assessment that was scheduled was a "physiatric" examination, certainly implying that the specialty of the examining physician is physiatry. Ms. Pato objects both to the selection of the specialty of the proposed examiner as well as his identity. She says if the Insurer requires an update on her physical condition, she should return to Dr. Deathe. She has privacy concerns.

Arbitrator Blackman commented on such a lack of evidence in his case R.B. and Dominion of Canada General Insurance Company, (FSCO A00-000447, May 17, 2002):

[The Insurer] submits that an orthopaedic surgeon is the "best person" to make an evaluation regarding musculoskeletal problems. I have no evidence to support this proposition. . . the documentation fails to support the proposition that an orthopaedic surgeon is the best person to make an evaluation regarding musculoskeletal problems or that an orthopaedic examination is automatically necessary to properly adjust a claim or properly determine whether, as a result of the motor vehicle accident, [the Applicant] has suffered a musculoskeletal injury.

I find no significant change in the reported symptoms or diagnosis of Ms. Pato's physical condition that would lead me to conclude that her examination by an orthopaedic surgeon in late 2002 is reasonably necessary to determine her entitlement to weekly income benefits from June 2000, ongoing. In his insurer's examination of July 14, 1999, Dr. Deathe had recorded Ms. Pato's complaints of "daily pain in the right neck and trapezius area as well as in the right low back." According to the report of Dr. K. Sequeira, a physiatrist, in May 2001 Ms. Pato complained of right low back pain with pain radiating into her right leg after walking and climbing stairs; right neck pain; right anterior chest pain-all dating from shortly after the 1997 accident; and intermittent right knee pain from 1999 onward.

I find it would be reasonable for Ms. Pato to re-attend on Dr. Deathe. I received no evidence why re-attendance on Dr. Deathe would be inappropriate or not reasonable.⁷ I reject the Insurer's submission that this conclusion reduces an insurer to being "stuck" with the expert(s) it originally retains for examination of the insured person. My conclusion is that the evidence on this motion simply does not support adding Dr. Robert's specialty and personality into the evidentiary base in this particular case, at this stage in the arbitration proceeding, when faced with Ms. Pato's objection and the Insurer's requirement to prove the examination it proposes is reasonably necessary. My finding might have been different if, for example, for some detailed reason, the Insurer had chosen another physiatrist than Dr. Deathe for the examination, and the Applicant objected, but that is not the proposal before me.

With respect to the request for Ms. Pato to attend for two days of psychological and neuropsychological assessment with Dr. Keith Travis, I also find that the Insurer has not proven it reasonably requires this examination to determine whether Ms. Pato is entitled to the continuation of income replacement benefits she claims.

Ms. Wildridge's affidavit about this proposed psychological examination explains even less than it does about the request for another physical examination. In paragraph 14 of her affidavit, Ms. Wildridge simply sets out the fact that the company adjusting the file on behalf of Frontier "informed Ms. Pato through her solicitors [sic] office that a psychological and neuropsychological examination to be conducted by Dr. Keith Travis had been scheduled to take place on August 14, and 21, 2002."

It is true that Ms. Pato was investigated for a possible brain injury as a result of the accident. Ms. Pato's family doctor made the referral to Dr. Sweeney in December 2001. However, Dr. Sweeney concluded that Ms. Pato "did not suffer significant diminishment in neuropsychological status due to involvement in the 1997 accident." Ms. Pato is not claiming she suffered a brain injury as a result of the accident. She alleges no disability caused by a brain injury. She does claim psychological difficulties, however, arising from the accident and has been treated by Dr. Michael MacDonald since 1998.

Frontier sent Ms. Pato for an examination by psychiatrist, Dr. Peter Williamson, in the summer of 1999, at a time when Dr. MacDonald had already been treating her for about a year. Dr. Williamson felt Ms. Pato should continue both the sleep medication she was taking and participating in the supportive therapy with Dr. MacDonald. He recommended a vocational assessment to assist her to find alternative work and a work hardening program, leading up to a return to work on a graduated basis. Dr. Williamson diagnosed Ms. Pato as suffering from post-traumatic stress disorder and a "somatoform pain disorder, associated with both psychological factors and a general medical condition."

Mr. Nicolis expressed the contention in a letter to the adjuster dated August 29, 2002 that Frontier had already "chosen your expert to address the psychiatric/psychological issues. You are not entitled to both a psychological and a psychiatric assessment." He did not object to Ms. Pato attending again with Dr. Williamson for an updated assessment.

In my view, there is no "rule" that an insurer is not entitled to both a psychological and a psychiatric assessment of an insured claimant. In one case, an arbitrator found reasonable a request for a psychiatric insurer's examination, when the insurer had already obtained two psychological insurer's examinations.⁸ In that case, the Applicant was late in disclosing his own psychiatric report. However, in Ms. Pato's case, the Insurer proposes Ms. Pato attend for 14 hours over two days for neuropsychological and psychological testing and assessment, the contemplation of which Ms. Pato deposes "extremely distress[es]" her and "is an unnecessary intrusion into my personal life and will only aggravate my emotional difficulties." I agree with the comments of Arbitrator Blackman in the Martinho case, writing about a similar provision in an earlier Schedule:

The purpose of section 65 is not to allow an insurer a number of witnesses at a hearing equal to those being called by the Applicant, or to allow a more impressive array of specialists or specialties should a matter proceed to dispute resolution. The purpose of section 65 is to allow an insurer, on a continuing basis, an effective opportunity to assess an applicant's ongoing medical condition, independent of the applicant's own experts, in order to adjust its file.⁹

Frontier provided no evidence of its rationale for wishing a psychological and neuropsychological assessment at this stage, in preference to an updated psychiatric assessment, in order to assess Ms. Pato's entitlement to income replacement benefits after June 2000. Perhaps sensing the lack of evidence, during the argument of the motion, Frontier's counsel ventured into submissions on the subjective nature of interpretation of test data and the selection of tests in itself. Unfortunately, I cannot accept such submissions without evidence, such as an affidavit from Dr. Travis, to support them. The Applicant is not claiming she suffered a brain injury in the accident. Ms. Pato underwent extensive psychovocational testing with Dr. Wayne Thompson, Ph.D., C.Psych., in April 2000 as part of a post-104 week disability assessment at a designated assessment centre. Dr. Thompson and his team concluded that three occupations appeared to fit Ms. Pato's training and experience, educational background, and measured skills and aptitudes. This is the type of psychovocational testing that Dr. Williamson recommended in 1999.

As an additional point, after reading the reports filed on this motion, I accept Mr. Nicolis submission that Ms. Pato's case against Frontier, on a psychological basis, has not changed in any meaningful way over the past three and a half years, so as to justify this kind of lengthy, intrusive examination at this point in the proceeding.

Issue No. 2: Documents from Dr. Sweeney

Dr. James E. Sweeney, a psychologist who tested Ms. Pato, has refused to provide "test protocols" or raw test data for reasons set out in his correspondence of July 24, 2002. Dr. Sweeney has provided copies of his clinical notes and records to Frontier. He is willing to release the test results directly to a psychologist, with authorization from Ms. Pato. He is also willing to meet with representatives of Frontier to discuss the raw data, if he has Ms. Pato's permission. Dr. Sweeney indicates in his letter of September 3, 2002 that he is attempting to protect "the rights of my client and ensuring proper use of the clinical data and test materials." He is also attempting to "protect test data from misuse or misinterpretation by unqualified users and to maintain the integrity and security of test materials." Mr. Nicolis represented Dr. Sweeney at the hearing. Ms. Pato's position was that if Dr. Sweeney has some concerns about releasing the raw test data, she was not going to contradict him.

The Insurer filed a copy of the College of Psychologists of Ontario, Standards of Professional Conduct, paragraphs 7.1(1), 7.4(2)(a), (e), (f), and (g), and a copy of an article from the College's Bulletin on the subject of "Requests for Release of Clinical Reports, Notes and Records, Including Raw Test Data and Results."¹⁰

The article from The Bulletin has some useful comments with respect to this issue:

Principle 7.9 of the Standards of Professional Conduct states that, a member shall provide within a reasonable time the original or raw results or data of a psychological assessment to a member or to a provider of psychological services in another jurisdiction when requested to do so by a client or the legal representative or guardian of a client. Upon receipt of such a request, the member is expected to release the specified information to another psychologist/ psychological associate within a reasonable time. This principle requires prompt release of the requested materials to an identified psychological services provider when the client duly authorizes such a request.

Principle 7.9 is not a prohibition against releasing raw test data or results to someone other than a member of the College or a provider of psychological services in another jurisdiction.

[emphasis in original]

In this case, I have declined to order a stay of the proceeding until Ms. Pato has submitted to a psychological or neuropsychological insurer's examination. However, the Insurer may still wish to have Ms. Pato's raw test data or results reviewed by a psychologist. In my opinion, that would be reasonable. Dr. Sweeney should provide the raw test data to a psychologist, as directed by the Insurer's counsel, to Dr. Williamson, or directly to insurer's counsel. In my opinion, such release is not "placing confidential test procedures in the public domain," as Dr. Sweeney suggested in his July 24, 2002 letter. Further, Ms. Pato does not object to the release to another psychologist. The lack of professional qualifications of the Insurer's counsel to personally interpret this data is irrelevant to the question of the production of the material. Whether the raw test data would ever be admitted as evidence, itself, at an arbitration hearing is a matter of conjecture, to be resolved by the hearing arbitrator.

EXPENSES:

The issue of expenses of this motion is deferred to the discretion of the hearing arbitrator.

December 12, 2002

K. Julaine Palmer Arbitrator

Date

Case Law

Counsel referred me to the following cases and materials:

By the Applicant:

Binns v. Skinner Estate, (2000) 2000 CanLII 26982 (ON SC), 50 O.R. (3d) 275 (S.C.J.)

Dhir and RBC General Insurance, (FSCO A01-000741, January 15, 2002)

Hart and Allstate Insurance Company, (FSCO A98-000988, July 6, 2001)

Hodgins-Babin and Coseco Insurance Company, (FSCO A00-001252, January 22, 2002)

J. V. and State Farm Insurance Company, (FSCO A00-001002, November 27, 2001)

Martinho and York Fire & Casualty Insurance, (FSCO A98-000878, April 12, 1999)

Pertili and Zurich Insurance Company, (FSCO A97-001486, February 17, 1999)

By the Insurer:

Bogic and AXA Insurance (Canada), (FSCO A96-001192, April 30, 1999)

Belair Insurance Company Inc. and F.S., (OIC P96-00039A, June 11, 1996)

Gallo and Royal Insurance Company of Canada, (OIC A-001378, December 4, 1995)

Howard and Guardian Insurance Company of Canada, (FSCO A-000225, March 7, 2001)

Lesperance v. Westlake, [1993] O.J. No. 4214 (Gen.Div.)

McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138

Pertili and Zurich Insurance Company, (FSCO A97-001486, February 17, 1999)

Scott and TTC, (OIC A-001116, September 4, 1992)

Tsegay v. McGuire, 2000 CanLII 50968 (ON SC), [2000] O.J. No. 1557, (S.C.J.)

College of Psychologists of Ontario, Standards of Professional Conduct, paragraphs 7.1(1), 7.4(2)(a), (e), (f), and (g).

College of Psychologists of Ontario, "Requests for Release of Clinical Reports, Notes and Records, Including Raw Test Data and Results," (The Bulletin, v. 23 No.2, October 1996, pp. 11-12).