Alicia Binns v. Co-operators General Insurance Company, 2002 ONFSCDRS 45

Neutral Citation: 2002 ONFSCDRS 45

FSCO A01-001102

BETWEEN:

ALICIA BINNS

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: K. Julaine Palmer

Heard: March 4, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson for Ms. Binns

Ivan Luxenberg for Co-operators General Insurance Company

Issues:

Alicia Binns was injured in a motor vehicle accident on June 23, 1996. She received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ Eventually, on June 17, 1999, Co-operators submitted an offer to Ms. Binns for loss of earning capacity benefits (LECBs), as required under Part VI of the Schedule. Ms. Binns disputes both the amount Co-operators calculated as her pre-accident earning capacity (PEC) and her residual earning capacity (REC). The parties were unable to resolve their disputes through mediation, and Ms. Binns applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Both parties participated in a pre-hearing discussion on November 30, 2001 at which the issues in dispute were discussed and recorded by the pre-hearing arbitrator. A preliminary issue was also discussed, which is the subject of this decision.

The preliminary issue is:

Is Ms. Binns precluded from proceeding to arbitration because she did not attend an insurer's medical examination, pursuant to section 65 of the Schedule?

Result:

Yes. Ms. Binns is precluded from proceeding to arbitration until she attends an insurer's medical examination by Dr. Joel A. Finkelstein.

EVIDENCE AND ANALYSIS:

No oral evidence was called at this hearing on a preliminary issue. Counsels' submissions were brief and only a small amount of documentary evidence was filed.

The pre-hearing arbitrator recorded the issues in dispute between the parties as including more than Ms. Binns' entitlement to LECBs. Her entitlement to income replacement benefits (IRBs) and their correct calculation over the period July 1, 1998 to February 12, 2001 are also in dispute. The Insurer also disputes that IRBs should be paid for the whole period because of delays in completing the REC-DAC. At the preliminary issue hearing, the parties focussed only on the LECB issue.

The Insurer submitted that it had been served with updated reports, dated November 19 and 29, 2001, from an orthopaedic surgeon selected by the Applicant. That specialist had previously examined Ms. Binns in 1998 or 1999. The Insurer wished Ms. Binns to be re-examined by Dr. Joel A. Finkelstein, since she had last been examined by him in connection with this dispute on January 19, 1999. The Insurer submitted that a "paper review" by Dr. Finkelstein would be insufficient. In the Insurer's view, in the light of these updated reports, fairness required that Dr. Finkelstein be afforded another opportunity to examine Ms. Binns. From my understanding of Dr. Finkelstein's note of July 25, 2001, the two specialists have a fundamental disagreement about the cause of some of the pain Ms. Binns continues to experience and whether it is related to the trauma she sustained in the accident.

Ms. Binns submitted that Co-operators has had an adequate opportunity to examine its insured. She provided the Insurer with a copy of a report prepared by the same Dr. Joel A. Finkelstein as a result of an examination of her on December 6, 2000. This examination had been requested by the defendants in a tort action arising from the same accident on January 23, 1996. The Insurer submitted that this examination was unknown to it, until Ms. Binns agreed to produce it. The Applicant submitted that Dr. Finkelstein addressed Ms. Binns' functional limitations in that report even though this report was not requested in the context of her entitlement to IRBs or LECBs.

Ms. Binns also submitted that a further examination by Dr. Finkelstein would add nothing but further inconvenience to her. In her submission, her condition in the fall of 2001 (or spring of 2002) is irrelevant to the issues at the main hearing, where her entitlement to an LECB is the issue. Nevertheless, the Applicant indicated that she would attend on an examination if an arbitrator determined this attendance was reasonable, so that there was no question of the arbitration hearing proceeding in June 2002, as scheduled.

The parties also made submissions regarding a timing issue. On the hearing of the main issues in dispute, what date should the arbitrator consider with respect to Ms. Binns' entitlement to LECBs when a REC-DAC has been delayed long past the point of 104 weeks of disability? In this case the 104-week point likely fell in July 1998 and the REC-DAC was not completed until the late fall of 2000.

ANALYSIS:

The Applicant submits that the orthopaedic reports she has obtained from the fall of 2001 and thereafter will be irrelevant to a determination to her entitlement to an LECB. However, the reports were served on the Insurer and, in response to the Insurer's request for an insurer examination, Ms. Binns did not offer to refrain from presenting them as evidence at the hearing on the main issues in this matter.

In addition, the Applicant did acknowledge that the more recent opinion of a medical expert could be relevant if, for example, the expert finds that Ms. Binns' condition has remained unchanged over time.²

Ms. Binns last attended an insurer's examination at Co-operators' request in January 1999, more than three years ago. Under the scheme established by the Schedule, an insurer may require a person to be examined "as often as reasonably necessary" for the purpose of any of Parts II to VIII, X and XIII of the Schedule. A large body of case law at the Commission has interpreted this provision extensively. In the case law arbitrators often refer to a balancing of the interests of the parties, noting the inherently intrusive nature of a medical examination.

Ms. Binns' main opposition to the examination appears to be one of inconvenience to herself. I take notice that Ms. Binns is the mother of a young child, who may require care while she attends an insurer examination. In this regard, I note the Insurer's written offer to arrange both transportation and childcare in connection with the examination.

I have no evidence of any other special inconvenience to Ms. Binns. She lives in the west end of downtown Toronto and is asked to attend at Dr. Finkelstein's office at Sunnybrook and Women's College Health Sciences Centre on Bayview Avenue, Toronto. Dr. Finkelstein has examined her twice previously, but only once with respect to her statutory accident benefit claims. The motion requesting the examination refers to no other testing as being required, for example a functional abilities' evaluation. Accordingly, the time Ms. Binns spends with Dr. Finkelstein may be quite short. Since this is a repeat examination, Dr. Finkelstein should not even require time going over her history prior to the accident and up to his first examination.

Another important consideration in this case is the fact that in the accident Ms. Binns sustained serious injuries to her spine, which required immediate surgery. She is a young woman, in her early 20s, claiming ongoing disability as a result of those injuries. By the time the hearing takes place, six years will have passed since the accident.

The Insurer submitted that an examination with Dr. Finkelstein can be scheduled within a few weeks and his report will follow promptly. Accordingly, this examination will not delay the date already scheduled for the hearing to take place, at the end of June 2002.

The Insurer did not disclose the questions it intends to put to Dr. Finkelstein if the examination is considered reasonable. However, in view of the submissions the parties have made on the timing issue, Dr. Finkelstein may well have opinions about Ms. Binns' condition at various points in time in her recovery since the accident. Since Dr. Finkelstein did examine Ms. Binns again in December 2000, I have considered whether he could reasonably be asked to update his opinion on Ms. Binns based on the information in his clinical notes from that examination and comparing it to the recent orthopaedic reports obtained by Ms. Binns — in other words, perform a paper review. However, without any evidence on that point, beyond seeing his reports, I have concerns about the fairness of that procedure and the expert's level of comfort with that process.

In my opinion, in all these circumstances, what is being requested of Ms. Binns is not overly onerous or unduly invasive. She is asked, after a period of three years, to submit to a single examination by a doctor she has already met, in her home city. This is not a case where multiple examinations and testing are being requested, at the last minute. Considering the facts of this case, the language of section 65 and its interpretation to date, in my opinion, the Insurer's request for an updated examination of Ms. Binns by Dr. Joel A. Finkelstein is reasonable.

As in any case, it will be up to the hearing arbitrator to determine the admissibility of any report Dr. Finkelstein provides.

If Ms. Binns agrees to attend for the examination, Co-operators shall make reasonable efforts to schedule it at a time that is convenient to Ms. Binns and provide her with reasonable notice of the examination, as required by the Schedule.

EXPENSES:

The parties did not address the issue of expenses of the preliminary issue hearing before me. Accordingly, I find it appropriate to defer this matter to the discretion of the arbitrator hearing the main issues in dispute in this matter. In the event those issues are settled and the parties still cannot agree on the expenses of this preliminary issue, they should contact the case administrator to resume this hearing for submissions on that issue.

March 12, 2002

Julaine Palmer

Arbitrator

Date