Laura B. Uwase v. Royal & SunAlliance Insurance Company of Canada, 2003 ONFSCDRS 170

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2003 ONFSCDRS 170

FSCO A02-001608

BETWEEN:

LAURA B. UWASE

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Catherine Skinner

Heard: August 13, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Ms. Uwase Jamie Pollack for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Laura B. Uwase, was injured in a motor vehicle accident on August 18, 2001. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal terminated weekly income replacement benefits on July 26, 2002. The parties were unable to resolve their disputes through mediation, and Ms. Uwase 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 issues are:

1. Were Ms. Uwase's weekly benefits terminated in accordance with section 37 of the Schedule?

2. If not, should Ms. Uwase's weekly benefits be reinstated and paid beyond the 104 week mark?

3. Is Royal entitled to further reasonably necessary medical examinations of Ms. Uwase under section 42 of the Schedule?

Result:

1. Ms. Uwase's weekly benefits were terminated in accordance with section 37.

2. Royal is not prevented from conducting further reasonably necessary medical examinations of Ms. Uwase.

EVIDENCE AND ANALYSIS:

Background

Ms. Uwase was injured in a motor vehicle accident on August 18, 2001. At the time of the accident, Ms. Uwase was employed as a passenger information representative at Toronto's Pearson International Airport. Ms. Uwase received income replacement benefits from August 25, 2001 to July 26, 2002. On May 2, 2002, Royal issued a stoppage of benefits based on insurer's examination reports issued by The Independent Group of Medical Specialists Inc. ("IGMS"). Ms. Uwase requested an assessment at a designated assessment centre ("Disability DAC") under section 37 of the Schedule. The assessment took place on July 10, 2002. Dr. Hugh Cameron of the Disability DAC reported that Ms. Uwase was no longer disabled and, on this basis, Royal terminated benefits as of July 26, 2002.

Were Ms. Uwase's weekly benefits terminated in accordance with section 37 of the Schedule?

Section 37 of the Schedule provides a procedural code that must be followed when an insurer terminates weekly benefits. Amongst other procedural safeguards, it provides insured persons with the right to be assessed by a Disability DAC.

Ms. Uwase's position is that the assessment she attended on July 10, 2002 was so flawed that she was effectively denied her right to be assessed by a Disability DAC. Accordingly, Royal's termination of her benefits was not done in accordance with section 37 of the Schedule. She submits that her income replacement benefits should be reinstated until they are properly terminated under section 37 of the Schedule.

Ms. Uwase outlined several ways in which the DAC did not comply with the Disability Designated Assessment Centre Assessment Guide (April 2000), published by the Minister's Committee on the Designated Assessment Centre System (the "Guide"). Primarily, her concerns lie in the absence of an assessment team, the fact that no independent assessment of her work activities was done, and the vagueness of Dr. Cameron's report.

More specifically, Ms. Uwase submitted that the Disability DAC was improper for the following reasons: the DAC did not have the resources to assess her actual work activities; no independent assessment of work activities was conducted; there was no core assessment team present in this case; there was no case coordinator; no standard appointment confirmation letter was sent; no assessment plan or executive summary were completed; and, the final report was not in the proper format and did not clearly articulate Dr. Cameron's conclusion.

The deviation from the Guide in this case is not so significant that I can find Ms. Uwase was effectively denied her right to be assessed by a Disability DAC. Accordingly, I do not find that the termination of Ms. Uwase's benefits was in breach of section 37 of the Schedule.

Dr. Cameron is the only medical professional to have examined Ms. Uwase for the purpose of the Disability DAC. Although the Guide requires a core team to be available to assess a claimant, the language of the Guide makes it clear that not every member of the core team must examine a claimant: "The term 'core team' is not meant to imply that these 4 assessors will see every claimant, but rather it is from this group of assessors that the 'case-specific assessment team' will most often be drawn."² I do not find that Dr. Cameron's being the sole assessor in this case is a significant deviation from the Guide. I have no evidence as to whether there was a core team identified in this case.

Although the DAC did not conduct an independent assessment of Ms. Uwase's work activities, it is apparent from the report that Dr. Cameron discussed Ms. Uwase's work with her during the examination. He wrote: "She said at the time of the accident she had a summer job at the airport. This was office work and walking around giving information."

Dr. Cameron was in possession of a Functional Abilities Evaluation ("FAE") conducted by IGMS on March 3, 2002. The FAE report identifies Ms. Uwase's pre-accident job as a Customer Service Agent at the airport. It indicates that the typical work day is 480 minutes with 30 minutes for a lunch break and other breaks, with a net time worked of 450 minutes. The assessors at IGMS tested Ms. Uwase's ability to stand, sit and walk and her dexterity, vision and hearing. IGMS concluded that Ms. Uwase was not disabled from returning to her pre-accident employment. IGMS did not conduct an on-site work assessment.

Dr. Cameron was also in possession of a report prepared by Dr. Paul Robert, orthopaedic surgeon, also with IGMS. Dr. Robert refers to Ms. Uwase's pre-accident job as a Passenger Information Representative and he concludes that she is not prevented from returning to that employment.

Dr. Cameron had the IGMS descriptions of Ms. Uwase's pre-accident employment and he obtained employment-related information directly from Ms. Uwase. A job-site assessment is not a prerequisite to an adequate Disability DAC. In this regard, the Guide states as follows: "The DAC can gather further information from the claimant and rely on their professional and clinical expertise and experience when identifying the essential tasks or caregiving/normal life activities which it will base the assessment upon. ... In the unique case, the DAC may elect to conduct its own in situ task/activity analysis."³

It is not contemplated that a Disability DAC conduct an independent assessment of a claimant's work activities on every occasion. Rather, a Disability DAC would undertake a job site assessment only in a unique case.

In this case, I find it was reasonable for the DAC to not conduct a job site assessment. Dr. Cameron had the reports of IGMS and the opportunity to interview Ms. Uwase, and therefore had sufficient information to draw a conclusion.

Finally, Ms. Uwase objects to Dr. Cameron's report, indicating that it does not clearly articulate his conclusions as the Guide requires. In his report, Dr. Cameron concludes in the following terms: "In my opinion therefore this lady has to all intents and purposes recovered from the effects of this accident. One would not anticipate any prolonged effects or any effects in the future. She is no longer disabled and is fit to carry out all her routine normal activities including those of employment."

Although Dr. Cameron did not phrase his conclusions in the precise language of the Schedule, I do not find his conclusions to be so indeterminate or vague that his report does not comply with the Guide.

Ms. Uwase pointed out several ways in which the Disability DAC did not comply with the Guide. I find, however, that there was substantial compliance with the Guide. In determining that the substantial compliance with the Guide can be sufficient, I rely on the decision in Haringer Singh and Allstate Insurance Company of Canada⁴ and on the following comment in Fortney and Lombard General Insurance Company of Canada: "I do not intend by these comments to suggest that any trivial or technical violation of section 64 justifies a reinstatement of benefits... substantial compliance with the requirements of section 64 may well be sufficient."⁵

In support of her position, Ms. Uwase referred me to the following cases: Coutu and Wawanesa Mutual Insurance Company,⁶ Boniface and Liberty Mutual Insurance Company,⁷ and, Pham and Progressive Casualty Insurance Company.⁸ These cases stand for the principle that egregious defects in the DAC process can result in a finding that benefits were improperly terminated and should be reinstated until terminated in accordance with the Schedule.

These cases were decided under a previous accident benefits Schedule⁹ that contained the following provision:

63. (2) The accident benefits advisory committee appointed under section 7 of the Insurance Act may, for the purpose of this Part, establish procedures, standards and guidelines that shall be used by designated assessment centres in conducting assessments.

The current Schedule does not contain an equivalent provision. In the Insurer's submission, this legislative evolution suggests that the legislature did not intend for strict compliance with the guidelines to be mandatory under Bill 59.

I agree with the Insurer that it is significant that the equivalent to section 63 in the Bill 164 Schedule does not appear in the Bill 59 Schedule. However, it is not necessary to rely on principles of statutory construction to find that the decisions in Coutu, Boniface and Pham are distinguishable from Ms. Uwase's case.

In Coutu, the DAC initially applied the wrong statutory test and then addressed the correct test without re-examining the claimant. The job description available to the DAC had not been completed by Ms. Coutu or her employers and was inaccurate. In Ms. Uwase's case, there was an FAE completed and Ms. Uwase was interviewed by the DAC assessor.

In Boniface, the assessors evaluated the wrong accident, did not refer to a task analysis, and did not make any findings about disability. I do not find Dr. Cameron's assessment of Ms. Uwase comparable to the assessments in Boniface.

In Pham, the DAC assessors did not render an opinion about the claimant's ability to accomplish the tasks of his pre-accident employment. The assessors indicated that they required additional information before they could reach a conclusion. In Ms. Uwase's case, Dr. Cameron reached a conclusion concerning Ms. Uwase's abilities to complete her pre-accident activities, including those of employment.

Because I do not find that the termination of Ms. Uwase's benefits was in breach of section 37 of the Schedule, I do not find that her benefits should be reinstated. It is therefore unnecessary for me to decide if benefits are to be paid past the 104 week mark.

Is the Insurer entitled to post 104 week assessments of Ms. Uwase?

The Insurer submits that it is entitled to further medical assessments of Ms. Uwase to determine whether she is entitled to benefits past the 104 week mark. It submits that Ms. Uwase put her entitlement to benefits past the 104 week mark in issue. This is confirmed in the pre-hearing letter of April 16, 2003, which identifies entitlement to post 104 week benefits as an issue for arbitration.

Ms. Uwase submits that the Insurer is not entitled to post 104 week medical assessments. In her view, any further assessments are prejudicial to her because they represent an invasion of her privacy and may be producible in a tort action. More significantly, any post 104 week assessments may be irrelevant. If an arbitrator concludes that Ms. Uwase is not substantially unable to complete the essential tasks of her employment, Ms. Uwase submits that her ability to meet the post 104 week test will not be an issue. It would therefore be prejudicial and unnecessary to subject her to post 104 week assessments before her pre-104 week entitlement has been determined.

Arbitrator Blackman addressed this issue in the following passage from Downey and State Farm Mutual Automobile Insurance Company:¹⁰ "...Ms. Downey's submissions appear to be premised on the belief that ... any consideration of the post 104-week test begins not [at the two year mark], but rather, sometime towards [the] end of the year when a decision [on the pre-104 week test] is rendered. Nowhere in the legislation do I see specific language nor an intent in this regard. ... Rather, section 42 of the Schedule provides an insurer with an ongoing right to have the insured person examined by one or more qualified persons, 'as often as is reasonably necessary.'"

Ms. Uwase submits that her case is to be distinguished from the facts in Downey because that decision was issued after an arbitration hearing had begun. I do not find this distinction to be significant and I apply the reasoning set out in Downey.

In arriving at my determination, I am reinforced by the decision in Sivaloganathan and Liberty Mutual Insurance Company¹¹ and the Director's Delegate's comments in the appeal decision Sellathamby and Allstate Insurance Company of Canada¹²

In Sivaloganathan, Arbitrator Muir found that the insurer was not bound by the determination of a Disability DAC that an insured person was unable to perform the essential duties of her pre-accident employment after the passage of the 104 week mark. The insurer could commission an insurer's medical examination and, where appropriate, issue a notice of stoppage pursuant to section 37(1) at the passage of the 104 week mark.

In Sellathamby, the issue was not whether an insurer was entitled to insurer's examinations at the 104 week mark. However, the appeal decision suggests that an insurer may be entitled to medical examinations under section 42 at the passage of the 104 week mark. Director's Delegate Makepeace commented as follows: "Although the issue was not in dispute in this appeal, I am inclined to think Allstate could have 'restarted the process' at that time (104 week mark) by issuing another stoppage notice under section 37(1) if the information then available indicated that the applicant did not satisfy the post 104 week test."

In other words, the passage of the 104 week mark brings a different test for entitlement into effect. This may justify obtaining further medical examinations under section 42 of the Schedule. Such examinations are still subject to the qualification that they be reasonably necessary.

In this case, Ms. Uwase's entitlement to income replacement benefits under the more rigorous post 104 week test is an issue in dispute. I find that the Insurer is not prevented from conducting any further reasonably necessary medical examinations under section 42 of the Schedule.

EXPENSES:

The parties made no submissions respecting expenses. I leave the issue of expenses to the arbitrator hearing Ms. Uwase's case on its merits.

November 27, 2003

Catherine Skinner Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 170

FSCO A02-001608

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LAURA B UWASE

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Uwase's weekly benefits were terminated in accordance with section 37 of the Schedule.

2. Royal is not prevented from conducting further medical examinations under section 42 of the Schedule.

November 27, 2003

Catherine Skinner Arbitrator

Date

Footnotes

1. 1The 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, 114/00 and 482/01.
2. 2Part 2.2.1 "Core Assessment Team for all Disability DACs" of the Guide
3. 3Part 4.3.1 "Task/Activity Analysis" of the Guide
4. 4(OIC A96-001403, December 31, 1996)
5. 5(OIC A97-000553, December 24, 1997). Both Fortney and Singh were decided under the Bill 164 Schedule. Section 64 in Bill 164 is equivalent to section 37 in Bill 59.
6. 6(OIC A97-001916, June 5, 1998)
7. 7(FSCO A97-002106, July 6, 2000)
8. 8(FSCO A98-001209; A97-000490, November 4, 1998)
9. 9Bill 164 - The 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.
10. 10(FSCO A01-001603, April 4, 2003)
11. 11(FSCO A03-000317, July 4, 2003)
12. 12(FSCO P02-00009, December 17, 2002)