Neutral Citation: 2002 ONFSCDRS 77
FSCO A00-000447
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
R.B.
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Lawrence Blackman
Heard:
May 8, 2002, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on May 7 and 8, 2002.
Appearances:
Jeremy Solomon for R.B.
Adam Moras for Dominion of Canada General Insurance Company
Issues:
The Applicant, R.B., was injured in a motor vehicle accident on September 20, 1997. R.B. applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.1 Dominion denied payment of certain claims. The parties were unable to resolve their disputes through mediation and R.B. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Due to the very personal nature of aspects of the Applicant's medical condition, I have anonymized this decision.
The preliminary issues at this time, as agreed to by both parties, are:
Is the medical examination with Dr. G. Lloyd scheduled by Dominion reasonably necessary, in accordance with section 42 of the Schedule?
Is either party entitled to its expenses of this preliminary issue hearing?
Result:
The medical examination with Dr. G. Lloyd scheduled by Dominion is not reasonably necessary.
The Applicant is entitled to her expenses of this preliminary issue hearing.
EVIDENCE AND ANALYSIS:
Background Facts
R.B. was injured in a September 20, 1997 car accident. In an October 14, 1997 Disability Certificate, R.B. enumerated her resulting injuries as including pain in her neck, upper back, lower back, arms, legs and hands. In the same form, her physician, Dr. A. Castiglione, diagnosed a cervical and lumbar strain and stated that an investigation by an orthopaedic surgeon was required. By letter dated November 3, 1997, Dr. Castiglione forwarded to Dominion copies of his clinical notes and confirmed R.B.'s disability as a result of neck, back and shoulder pain sustained in this accident.
Dominion subsequently referred R.B. to Dr. R. Kingstone, who practices occupational medicine. Dr. Kingstone provided a 33-page report following what he described as a thorough physical examination on November 25, 1997. Dr. Kingstone concluded that "there was no measurable impairment or disability," and that "upon careful evaluation of all of the data, it is my opinion that [R.B.] is capable of performing her usual activities of daily living" as well as meeting the physical requirements for the essential tasks of her job at the time of the accident. Dr. Kingstone did not restrict his opinion to the confines of his specific expertise, nor did he indicate the need for an examination by an orthopaedic surgeon or any another medical practitioner.
Both counsel confirmed that Dominion paid R.B. income replacement benefits ("IRBs") until January 10, 1998. The Application for Arbitration herein was received by the Commission on May 9, 2000. The pre-hearing discussion held November 15, 2000 set out as issues, amongst other things, ongoing entitlement to IRBs as well as payment of various medical expenses and a special award.
Under the Schedule, IRB entitlement for the first 104-weeks of disability is based on an inability to perform the essential tasks of one's employment at the time of the accident. Thereafter, the disability threshold is higher, requiring complete inability to engage in any employment for which one is reasonably suited by education, training or experience.
Following a May 24, 2001 consent order, R.B. was examined by the following medical practitioners chosen by Dominion:
Dr. H. Schutz, neurosurgeon, on July 5, 2001;
Dr. H. Bloom, psychiatrist, on June 28, 2001 (in addition to prior sessions on December 15, 2000 and January 19, 2001);
Dr. L. Freedman, psychologist, June 11, 2001; and,
Ms. C. Smith, physiotherapist, on August 30, 2001 for a functional capacity evaluation.
When Dr. Schutz saw R.B. on July 5, 2001, he conducted an interview and a physical examination, the latter including cranial nerve, motor system, sensory and range of movement examinations. He reviewed the available medical documentation, including MRI and ACT scans. Dr. Schutz concluded that there was no contraindication to R.B. "resuming a normal physical lifestyle at home, in her community and at work, if she so wishes." He did not indicate that the entitlement issues should be deferred pending an examination by an orthopaedic surgeon or by any other medical practitioner.
In her September 13, 2001 report, Ms. Smith, concluded that R.B. did not demonstrate "a substantial physical inability" to perform her pre-accident employment or to perform her usual homemaking activities and that from "a physical perspective [R.B.] does not currently demonstrate a complete inability to engage in employment for which she is reasonably suited by education, training or experience." Ms. Smith commented that there "may be psychosocial or psychiatric reasons for her inability to carry on with work" which would require investigation by those specialized in those fields. She did not, however, indicate any need for further assessment of R.B.'s physical abilities and specifically did not indicate any need for R.B. to be assessed by an orthopaedic surgeon.
At the request of her counsel, R.B. was seen on October 4, 2001 by Dr. F. Langer, an orthopaedic surgeon. Dr. Langer interviewed and examined R.B. and reviewed the medical brief. His examination included assessing neurologic and sensory deficits, muscle power and reflexes as well as spinal range of motion. Four reports have been forthcoming from Dr. Langer following this examination (the latter three being paper reviews).
R.B. was also seen by Dr. R. Soric, a physiatrist, at the request of the defendant in her tort action. Dr. Soric concluded in her November 27, 2001 report that on "the basis of her physical findings, there is absolutely no medical contraindication for R.B. to resume any and all activities of daily living which she managed prior to the accident." Dr. Soric did not indicate the need for any further investigation of R.B.'s physical condition. Specifically, she did not recommend an orthopaedic referral.
Submissions
By letter dated March 20, 2002, Dominion requested, pursuant to section 42 of the Schedule, that the Applicant be assessed on April 23, 2002 by Dr. G. Lloyd, an orthopaedic surgeon. By letter dated March 21, 2002, the Applicant, through her counsel, declined to attend, submitting that the appointment was not reasonable. The parties seek a determination of this issue.
Dominion submits that if there is one medical examination of the Applicant to which it is entitled, surely it is by an orthopaedic surgeon. The parties agree that Dominion has not yet had R.B. examined by an orthopaedic surgeon. In its written submissions, Dominion states that as R.B. claims to have suffered musculoskeletal physical injuries (as documented in the reports of her medical practitioners), "there is no valid reason why [she] should not submit" to an examination by Dr. Lloyd (whom Dominion says specializes in musculoskeletal injuries) in order to evaluate her true medical condition.
Dominion advises that Dr. Lloyd can now see R.B. in September 2002. The four-day hearing in this matter is presently scheduled to start June 10, 2002. Both parties consent, for other reasons, to adjourn the hearing until November 2002. The Applicant, subject to my decision and any possible appeal, would be able to attend the September 2002 appointment with Dr. Lloyd. Neither party anticipates that this appointment would delay a November 2002 hearing.
Dominion orally submitted that it had not had any "meaningful evaluation of [R.B.'s] physical and musculoskeletal injuries." It further stated that there was obviously a difference between an orthopaedic surgeon and a neurologist, that "an orthopaedic surgeon is the best person to make an evaluation" regarding musculoskeletal problems and that an orthopaedic examination was "in order to properly adjust the claim and properly determine whether as a result of the motor vehicle accident [R.B.] has suffered a musculoskeletal injury." Dominion concluded that it was entitled to have R.B. seen by the person who "can best determine what her injuries are." The Insurer orally submitted that this was not merely a case of "you have an orthopaedic surgeon [in Dr. Langer] and we want one too." In this regard, Dominion provided the decision of Bogic and Axa Insurance Canada (FSCO A96-001192, April 30, 1999), wherein Arbitrator VanderBent states that:
. . . it is unreasonable to request an examination where circumstances indicate that its only apparent purpose is to acquire medical evidence to bolster the insurer's case at a hearing.
The Applicant noted, as agreed, that Dr. Schutz is a neurosurgeon, not a neurologist. She submitted that what is important is not the medical expert's title but rather his or her qualifications. R.B. conceded that Dr. Schutz was qualified to conduct a musculoskeletal examination. The Applicant submitted that Dr. Schutz did not indicate a lack of competence to comment on the medical questions in issue, nor did he indicate that R.B. required any further assessment.
The Applicant further submitted that there is no evidence that her medical condition has changed since Dominion's four assessments last year nor has there been any subsequent medical evidence that has altered the nature or scope of this case. R.B. further argued that the appointment is not reasonable based on an April 30, 2002 letter of her treating psychiatrist, Dr. A. Levitt, which states that R.B. suffers from a bipolar disorder, that such examinations are very stressful for her and that they can precipitate her symptoms.
Findings
The question which I have to decide is whether the proposed appointment with Dr. Lloyd is reasonably necessary.
The onus is on the Insurer to establish the reasonable necessity of the proposed appointment, on a balance of probabilities.
Subsection 42(2) states that the notice of the appointment given to the insured person must state the benefit to which the examination relates. Dominion's notice merely refers to "entitlement under Parts II, III, IV, V, and VI" of the Schedule." This encompasses all possible benefits, other than death and optional benefits. This notice is not helpful. Simply quoting the provisions of the Schedule does not in any meaningful way comply with the subsection 42(2) requirement. Failing to inform the insured as to how the appointment meets the prerequisites of section 42 does not fulfil the objective of consumer protection inherent in automobile insurance.2 This failure contributes to my not being persuaded of the reasonable necessity of the requested appointment.
However, there is a further and more fundamental concern. IRBs were terminated January 10, 1998. After more than a four-year period that benefits were not paid, Dominion, on March 20, 2002, first sought to have R.B. seen by an orthopaedic surgeon. Dominion submits that I can find this appointment to be reasonably necessary upon the following findings:
it has not had any "meaningful evaluation of [R.B.'s] physical and musculoskeletal injuries;"
there is obviously a difference between an orthopaedic surgeon and a neurologist, that they take different approaches in their evaluations and that "an orthopaedic surgeon is the best person to make an evaluation" regarding musculoskeletal problems; and that,
an orthopaedic examination is "in order to properly adjust the claim and properly determine whether as a result of the motor vehicle accident [R.B.] has suffered a musculoskeletal injury."
Such findings would be significant. They could have important ramifications. These would include what weight, if any, should now be given to the reports of, amongst others, Dr. Kingstone, Dr. Schutz and Ms. Smith. They would also highlight the issue of the reasonableness of the Insurer's refusal to pay IRBs and other benefits notwithstanding the absence of an insurer's orthopaedic examination being requested until four-and-a-half years after the accident.
At this point, however, I have little, if any, evidence to make the findings presently urged on me by Dominion.
While there is presumably, as argued by the Insurer, a difference between orthopaedic surgeons and neurosurgeons and there may be different approaches taken by each, there is also presumably a difference between those areas of expertise and other types of experts, such as physiatrists, rheumatologists, chiropractors, pain specialists etc., who also see individuals with soft tissue injuries. Are all these areas of specialty automatically entitled to assess R.B. merely because they are distinct and may approach the examination differently?
Dominion submits that an orthopaedic surgeon is the "best person" to make an evaluation regarding musculoskeletal problems. I have no evidence to support this proposition. I allowed into evidence, over the Applicant's objections, internet excerpts defining neurology and orthopaedics. However, Dr. Schutz is a neurosurgeon and not a neurologist. More importantly, 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, R.B. has suffered a musculoskeletal injury.
I have no evidence that the examinations performed fairly recently by Dr. Schutz and Ms. Smith did not constitute a meaningful evaluation of R.B.'s physical and musculoskeletal injuries. To make such a finding would significantly undermine not merely the weight but also the reasonableness of both examinations. I have no evidence that an orthopaedic examination is now in order to allow Dominion to properly adjust this claim or to now properly determine whether as a result of the motor vehicle accident R.B. has suffered musculoskeletal injuries. Nor is there any evidence of any change in the Applicant's medical condition or that the nature or scope of this case has been altered. Nor has the disability test changed since the assessments conducted last year.
The Insurer's experts who examined the Applicant's physical condition do not restrict their opinion on her purported physical disability to their specific areas of expertise. There is no opinion given in those reports, or elsewhere, as to the reasonable necessity for a further assessment, this time by an orthopaedic surgeon of this insured person at this point in time. The only recommendation for an orthopaedic surgeon was that of Dr. Castiglione, some four-and-a-half years ago. In the interim, having chosen to have had R.B. assessed regarding her physical condition by other areas of expertise (there being no concession or evidence of mistake in this regard), I am not persuaded on the basis of mere argument without factual foundation, of the reasonable necessity of the proposed appointment.3
In coming to this decision, I give little weight to the letter of Dr. Levitt dated April 30, 2002. Firstly, Dr. Levitt's letter focuses on steps to be taken to reduce the degree of stress of the medical examinations, such as having R.B.'s husband accompany her. Such measures do not appear to be in dispute. Secondly, the letter is identical to Dr. Levitt's November 30, 2000 letter, following which six appointment dates were arranged on consent. No evidence was presented of a subsequent worsening of the Applicant's condition.
I am mindful, however, of the comments of Senior Arbitrator Naylor in Scott and Toronto Transit Commission (Markel Insurance) (OIC A-0011116, September 4, 1992) concerning earlier legislation that:
The regulations recognise that a balance must be drawn between the right of an insurance company to require an examination and the injured person's right to privacy. For this reason, the insurer's right to an independent medical examination is qualified - it may only be "as often as it (the insurer) reasonably requires."
That the word "necessary" has now been added as a modifier to this insurer right, serves to reinforce the respect which must be given to an insured's right to privacy. Accordingly, having also balanced R.B.'s continuing reasonable right to privacy against Dominion's continuing right to its own medical examinations as are reasonably necessary, I am yet further not persuaded by the latter's request for an additional assessment of R.B.'s physical condition, albeit by a different area of specialty.
In Scott, Senior Arbitrator Naylor also stated that:
The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed . . . 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.
An insurer does not have carte blanche regarding the choice or choices of specialty. Here too, the requirement is reasonable necessity. Although the onus is not on the Applicant, I am persuaded that Dominion has had "an effective opportunity to evaluate the applicant's medical condition."
EXPENSES:
Considering, in part, her success in this preliminary issue hearing, I exercise my discretion to award R.B. her expenses thereof .
May 17, 2002
Lawrence Blackman
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 77
FSCO A00-000447
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
R.B.
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
it is not reasonably necessary for R.B. to attend at the medical examination scheduled by Dominion with Dr. G. Lloyd.
Dominion shall pay R.B. her expenses of this preliminary issue hearing.
May 17, 2002
Lawrence Blackman
Arbitrator
Date
There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile insurance.
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.
- Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] S.C.J. No. 34, March 28, 2002, Gonthier J., at paragraph 11:
- As a result of my expressed concern of the dangers of counsel becoming witnesses, both parties agreed to excise paragraph 27 from the Insurer's factum.