Neutral Citation: 2002 ONFSCDRS 83

FSCO A01-000450

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ROBERT BRESNAHAN and ZACHERY BRESNAHAN (Minor)

Applicants

and

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: David J. Evans

Heard: By Written submissions received on December 3, 7 and 31, 2001.

Appearances:

Charlia D. von Buchwald for Zachery and Robert Bresnahan

Joan Takahashi for The Dominion of Canada General Insurance Company

Issues:

The Applicants, Robert and Zachery Bresnahan, were involved in a motor vehicle accident on May 8, 1996. Zachery Bresnahan, born July 16, 1989, is Mr. Robert Bresnahan's 12-year-old son. Some time after the accident, they applied for statutory accident benefits from The Dominion of Canada General Insurance Company ("Dominion"), claimed under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicants applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Dominion has requested that the Applicants attend at insurer examinations (IEs) pursuant to section 65(1) of the Schedule. These requests have been refused, as have been various production requests by Dominion.

The preliminary issues are:

1. Should the hearing scheduled for July 8 through 11, 2002, be adjourned because Mr. Robert Bresnahan failed to attend the insurer's examinations requested by Dominion?

2. What productions is Mr. Robert Bresnahan required to produce?

3. Should the hearing scheduled for July 15 through 18, 2002, be adjourned because Mr. Zachery Bresnahan failed to attend the insurer's examination requested by Dominion?

Result:

1. Mr. Robert Bresnahan has failed to make himself reasonably available for the IEs requested by Dominion. The arbitration hearing scheduled for July 8 through 11, 2002, is adjourned until Mr. Robert Bresnahan attends for the examinations.

2. I make no production orders against Mr. Bresnahan at this time, subject to any further submissions the parties may make, as discussed below.

3. Mr. Zachery Bresnahan has failed to make himself reasonably available for the IEs requested by Dominion. The arbitration hearing scheduled for July 15 through 18, 2002, is adjourned until Mr. Zachery Bresnahan attends for the examination.

ROBERT BRESNAHAN:

Factual Background:

In my pre-hearing letter dated October 29, 2001 I wrote:

Mr. Bresnahan was in an automobile accident on May 8, 1996. He returned to work the day after the accident, and continued receiving income from his employment until November 19, 1998.

From November 19, 1998, Mr. Bresnahan received long-term disability benefits (LTDs). These benefits were greater than any possible income replacement benefits (IRBs). The LTDs were terminated effective December 17, 1999.

In a report by Dr. Cancelliere dated December 29, 1999,² Mr. Bresnahan was diagnosed as suffering from a brain injury consistent with a head injury arising out of the accident. The report also recommended cognitive therapy. Mr. Bresnahan then sought IRBs and rehabilitative treatment pursuant to the Schedule.

Dominion was sent a copy of the report by letter dated January 17, 2000. By letter dated February 15, 2000, Dominion refused payment of any benefits.

Mr. Bresnahan then submitted an Application for Benefits on or about March 10, 2000.

The bases for Dominion's IE and production requests can be found in Dr. Cancelliere's report:

Occupationally, Mr. Robert Bresnahan reported that at the time of the subject MVA he was an investment advisor with Merrill Lynch. He had begun this position in 1992 (in fact he held the position until November of 1998) . . . Mr. Bresnahan reported that on May 8, 1996 he was driving his Jeep Y-J with his children in the back (Trinity behind him and Zach on the right side). He . . . stated that he had just turned to speak to his daughter when Zach pointed out that the light was green and he proceeded through the intersection . . . he could recall hearing squealing tires and looking to the left but seeing nothing "and then kaboom . . . I don't know exactly what happened after I got out of the jeep . . . The next thing I know I'm at the driver's door [of the vehicle that struck his] and I take his keys and throw them across the intersection" . . . Mr. Bresnahan went on to report that he likely insulted the driver and when the driver insulted him he started punching the driver . . . "two days later I was charged with assault and public mischief and threatening death" . . . He was given an absolute discharge with respect to the assault charge and there was no follow-up on the public mischief charge. Mr. Bresnahan reported that the criminal court case "became a fiasco" . . . the psychiatrist for his own lawyer (the defence) claimed that his actions were a product of automatism. Mr. Bresnahan reportedly disagreed with this but the defence was used anyway. Mr. Bresnahan felt that his reaction was part of an acute stress syndrome . . . Mr. Bresnahan reported that he was more independent currently because of his marital situation (separation) . . . his wife had had him arrested for forcible confinement . . . he continued to work after the subject MVA but with diminishing returns and increasing difficulties . . .

Mr. Bresnahan is experiencing difficulties in the emotional, personologic and social spheres. Mr. Bresnahan does demonstrate objective psychometric evidence of emotional/personologic difficulties consistent with his reported history of a breakdown in socio-emotional and occupational functioning . . . he may have demonstrated some of these characteristics at a reduced or controllable level premorbidly. In this regard, it would appear that he is correct in stating that the motor vehicle accident "magnified" certain aspects of his circumstances and status. It is likely that the events of the motor vehicle accident with his perception that his children might have been very badly injured or even killed (not to mention himself) and the subsequent events which transpired (including his assault of the driver of the vehicle and charges which were pressed against him) have been a significant factor in his emotional deterioration and difficulties since the subject MVA. Thus, the subject MVA is likely a substantive contributing factor to his current difficulties . . . Mr. Bresnahan was unable to maintain functioning in his previous position. This breakdown occurred over a rather lengthy period post-accident and even in his last year of employment he was able to earn a substantial salary (although much reduced over his premorbid income).

Dominion in its submissions disputes the cause of Mr. Bresnahan's disability:

Dominion believes that the "disability" stems from factors unrelated to the motor vehicle accident; namely, pre-existing emotional problems, his company being purchased by Merrill Lynch, marital disharmony, the stress of the criminal assault charges, financial pressure and so on.

Insurer Examinations:

Subsection 65(1) of the Schedule provides that an insurer may, for the purposes of any of Parts II to VIII, X and XIII and as often as reasonably necessary, give an insured person notice requiring the person 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.³ Income replacement benefits are available under Part II of the Schedule and rehabilitation benefits under Part VIII.

Dominion requires Mr. Bresnahan to attend before a psychiatrist, a neuropsychologist, and a neurologist.

I found in Hodgins-Babin⁴ that the onus to prove the necessity of an IE is always on the Insurer, although it will be easily met where there has been none, as in this case.

I find that Dominion has a prima facie case for these IEs. Mr. Bresnahan did not dispute Dominion's submission that he is basing his claim for IRBs on neurocognitive, psychological and psychiatric impairment. Indeed, only for the neuropsychological examination does Mr. Bresnahan raise substantive grounds for refusing to attend. Otherwise, he relies on procedural grounds to deny the requests. Accordingly, I find that the requests for the neurological and psychiatric evaluations are reasonable, subject to the procedural issues.

Mr. Bresnahan refuses to attend the neuropsychological examination on the basis of a "practice effect." He has attended for neuropsychological assessments arranged by his counsel, such as that before Dr. Cancelliere, in support of his claims. According to Dominion's submissions, he has also apparently undergone a neuropsychological examination by Dr. Gary Snow sometime in 2001 for the purpose of his claim against the LTD carrier, and he was also to be assessed by Dr. Lawrence Freedman in January 2002 for the purposes of the negligence action against the third party driver.

Dominion submitted as follows:

"Practice effect" simply means that results of subsequent testing may be less valid if the Applicant has learned how to answer some tests or recalls the details of some tests. It does not render an examinee untestable but it may have the effect of compromising the later results. It does not affect the validity of the earlier results. This is more of a disadvantage to the Respondent (Dominion in this case) rather than the Applicant or party being examined. As a result, neuro-psychologists usually recommend a time frame of 6-8 months or more between testing. Also, the practice effect may be avoided or minimized by the "choice" of tests administered in subsequent tests. In other words, a different test protocol, designed to test similar function, may be utilized in some cases.

Dominion noted that it had originally scheduled its own assessment with Dr. Freedman for November 8, 2001. Counsel for Mr. Bresnahan refused to allow him to attend but did agree that he attend before Dr. Freedman for the tort defendant's assessment. Dominion proposed a dual-purpose examination before Dr. Freedman which would include its own set of questions, to which Dr. Freedman and the tort defendant agreed. However, that proposal was also refused. Dominion also proposed other arrangements, such as that it be provided with Dr. Snow's and Dr. Freedman's reports for its review by another specialist. Those were also refused.

I find that Dominion is entitled to its own neuropsychological assessment. I find that it made proposals that would have reduced the number of assessments. Subject to the issue of procedure, I find that the neuropsychological assessment was reasonably required. Dominion is entitled to wait six to eight months after the last assessment in order to reduce the practice effect.

Turning to the issue of procedure, Mr. Bresnahan alleges that Dominion has not followed the procedures for treating claims set out in the Schedule and accordingly is not entitled to any IEs.

First, regarding the rehabilitation benefits, Mr. Bresnahan submits that Dominion has refused to follow the "pay pending" provisions of section 40(7) of the Schedule for "all reasonable expenses incurred by or on behalf of the insured person as a result of the accident" as set out in section 40(5), nor has it taken steps to set up a Med-Rehab DAC. However, Dominion responds that no such expenses have been incurred, as most of Dr. Cancelliere's recommendations are or would be covered by OHIP. For instance, Dominion submits that Mr. Bresnahan has attended for cognitive rehabilitation in an OHIP-funded program and that he has not submitted any expenses incurred as a result of his attendance. Further, Dominion submits that its obligation to arrange a DAC has also not been triggered because it is relying on a delayed Application for Accident Benefits; Dominion alleges that the Application was not submitted within the 90 days required by section 59(3).

Second, regarding the IRBs, Mr. Bresnahan submits that Dominion has not followed the stoppage of benefits procedure set out in section 64. However, I fail to see how this is relevant, as Dominion never started paying benefits.

I find that any allegations that Dominion failed to follow the procedures in the Schedule require a full hearing. I find that the evidence is insufficient to deny the IEs on the basis of procedural irregularities and that Dominion is entitled to assess Mr. Bresnahan.

I find that Mr. Robert Bresnahan has failed to make himself reasonably available for the IEs requested by Dominion. Accordingly, I find that the arbitration scheduled for July 8 through 11, 2002, is adjourned until Mr. Robert Bresnahan attends for the examinations.

Productions:

The following productions have been refused, as set out in Ms. Takahashi's letter of November 27, 2001 to Ms. von Buchwald:

To clarify the record, we confirm that you have refused to produce the following documents:

1. The police incident report relating to the assault charges which were laid against Mr. Bresnahan due to the altercation with the other driver which occurred immediately after the motor vehicle accident in issue, including any statements given to the police, any public court document and the defence solicitor's file.

2. All non-privileged documentation from the wrongful dismissal file against the employer which Mr. Bresnahan worked for in the year and a half after the motor vehicle accident.

3. Copies of any court documents, i.e. pleadings of public records, from the family law proceedings arising out of the separation including affidavits, financial statements, relating to the marriage breakdown which Mr. Bresnahan claims was caused by his condition attributable to the motor vehicle accident.

4. Copies of documents from the Crown Attorney and defence files arising from the assault charges again laid against Mr. Bresnahan involving his wife.

These documents are requested as it is claimed that Mr. Bresnahan's behaviour was caused by the effects of the motor vehicle accident.

As well we request the following:

[5]. The medical report of the psychiatrist who attributed Mr. Bresnahan's conduct immediately after the motor vehicle accident, to road rage.

[6.] The medical reports generated in the tort against the at fault driver.

[7.] Transcript in the tort action of the examination for discovery of Mr. Bresnahan.⁵

Before even considering Mr. Bresnahan's objections to this extensive list, I am mindful of Arbitrator Wacyk's words in Sandhu⁶ that ordering extensive productions from other proceedings would result in lengthier hearings, as parties and arbitrators sift through the additional information: "In particular, this would undermine the expediency of the arbitration process, which is an important distinguishing characteristic, and often the reason parties choose arbitration over litigation."

Furthermore, I find some of these requests of very little relevance. I agree with Mr. Bresnahan's counsel that neither any arrest for assault against Mr. Bresnahan nor any attribution of the marriage breakdown to the accident is relevant to the claim for IRBs. The requests for materials relating to the assault charges and to the family matters (items 3 and 4) are denied.

I am also not convinced of the relevance of the criminal proceedings relating to the threats against the other driver. Aside from my general disinclination to include materials from criminal matters in our proceedings, the criminal charge related to a matter occurring immediately after the accident and the defence of automatism. However, Dr. Cancelliere's report sets out a gradual breakdown in Mr. Bresnahan's abilities, leading to his dismissal from work in November of 1998. These two reports deal with entirely different time frames. I specifically disagree with Ms. Takahashi's submission that "all psychiatric reports are relevant and should be of interest to the Dispute Resolution Board." The requests for materials relating to the altercation with the other driver and the related psychiatric report (items 1 and 5) are denied.

The materials related to the other actions are quite possibly relevant. However, I must first clarify a point. Ms. Takahashi referred to medical reports and a transcript (items 6 and 7) in the tort action. Ms. von Buchwald indicates in Mr. Bresnahan's Response that "the discovery transcript and reports have been generated in the claim against the LTD carrier." As noted in my pre-hearing letter, the LTD carrier terminated the LTDs effective December 17, 1999; from his Response, it appears Mr. Bresnahan has commenced an action against the LTD carrier, claiming punitive damages.

Mr. Bresnahan resists production of materials from these proceedings on the grounds of the deemed undertaking rule. Arbitrator Wacyk considered this rule in Sandhu, which is a common law rule⁷ that has also been incorporated into the Rules of Civil Procedure. Rule 30.1.01(3) provides that all parties and counsel are deemed to undertake not to use evidence or information obtained from documentary discovery, examination for discovery, inspection of property, or medical examination other than for those proceedings in which the evidence was obtained.

However, since the parties made their submissions, the Director's Delegate upheld Sandhu on appeal.⁸ In that decision, the Director's Delegate found that it is an "unnecessary fiction" to refer to an implied undertaking in most circumstances in an arbitration. Rather, the issue should be conceived of as simply an exercise of discretion. He also made a number of findings that either reject or accept a number of the submissions that the parties have made in this case. Instead of requesting further submissions at this time, I am issuing the current decision. If the parties are still in disagreement regarding the production of the materials in the actions against the employer and the LTD carrier (items 1, 6 and 7) after reviewing the Sandhu appeal decision, they may agree upon a timetable to make further submissions, and I will issue a supplementary decision.

I note in passing that Mr. Bresnahan claims to have made production of the employment file. Dominion has replied that "not a single document has been provided from the 'employment file.'" In that regard, I note the following that was set out in the appeal decision:

Mr. Sandhu's counsel advised that he has already produced all his client's relevant medical records pursuant to FSCO's ordinary disclosure rules, and that he has produced all the medical reports he commissioned in either the tort action, or the FSCO proceeding. Counsel also advised that Mr. Sandhu's employment records have already been provided to the accountants retained by CAA.

I expect the parties to be guided by the productions in the Sandhu case and to complete agreed-upon productions before I issue a supplementary decision.

Zachery Bresnahan:

Insurer Examinations:

Zachery Bresnahan, Mr. Bresnahan's son, has ongoing claims for supplementary medical expenses under section 36 of the Schedule and for rehabilitation benefits for cognitive therapy recommended by Dr. Cancelliere claimed pursuant to section 40. Dr. Cancelliere issued his report regarding Zachery Bresnahan on July 21, 1999.

Dominion seeks Zachery Bresnahan's attendance at a neuropsychological evaluation with Dr. Brenda Speigler of The Hospital for Sick Children for the purposes of considering these expenses, particularly the treatment recommended by Dr. Cancelliere. It appears from the submissions on behalf of Zachery Bresnahan that he takes no issue with the substantive merit of this IE. The only issue appears to be that Dominion did not arrange a Med/Rehab DAC for him. However, Dominion in its Reply Submissions sets out, over the course of nearly two single-spaced pages, its attempts to arrange such a DAC. I am satisfied that any procedural lapses by Dominion, if they exist, are insufficient to deny the IE requested.

I find that Zachery Bresnahan has failed to make himself reasonably available for the IE requested by Dominion. Accordingly, I find that the arbitration scheduled for July 15 through 18, 2002, is adjourned until Zachery Bresnahan attends for the examination.

EXPENSES:

I leave the matter of expenses to the hearing arbitrator.

May 27, 2002

David J. Evans Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 83

FSCO A01-000450

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ROBERT BRESNAHAN and ZACHERY BRESNAHAN (minor)

Applicants

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:

1. The arbitration hearing in the matter of Zachery Bresnahan scheduled for July 15 through 18, 2002, is adjourned.

2. The arbitration hearing in the matter of Robert Bresnahan scheduled for July 8 through 11, 2002, is adjourned.

May 27, 2002

David J. Evans Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2This was a neuropsychological assessment. Dr. A. Cancelliere is a psychologist.
3. 3O. Reg. 776/93, s. 65 (1), as amended by O. Reg. 781/94, s. 18 (2).
4. 4Hodgins-Babin and Coseco Insurance Co./HB Group/Direct Protect, (FSCO A00-001252, January 22, 2002). I implicitly disagreed with the proposition in Sherkat and Co-Operators General Insurance Company, (OIC A95-000101, April 12, 1996), relied on by Dominion, that the burden lies on the Applicant to show that an IE is not reasonable or necessary.
5. 5I have renumbered the items for clarity. With respect to items 6 and 7, as discussed below, it appears that the medical reports and transcript were generated in an action against the LTD carrier.
6. 6Sandhu and CAA Insurance Company (Ontario), (FSCO A99-001031, October 3, 2001), upheld on appeal: see footnote 8 below.
7. 7Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359
8. 8CAA Insurance Company (Ontario) and Sandhu, (FSCO Appeal P01-00044, January 18, 2002)