Harry Simpson v. Co-operators General Insurance Company, 2003 ONFSCDRS 63

FSCO A01-001079

BETWEEN:

HARRY SIMPSON

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Judith Killoran

Heard: Written submissions were received on March 26 and April 3, 2003. By telephone conference call on April 4, 2003.

Appearances: Jerry F. O'Brien for Mr. Simpson Philippa Samworth for Co-operators General Insurance Company

Issues:

The Applicant, Harry Simpson, was injured in a motor vehicle accident on November 2, 1997. He applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Simpson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Co-operators filed a notice of motion for the following:

An order permitting the Insurer an opportunity to have Dr. Arthur Ameis attend and conduct an examination of the Applicant pursuant to section 42 of the Schedule.

Result:

Co-operators' request to have Dr. Ameis attend and conduct an examination of Mr. Simpson is reasonable and necessary pursuant to section 42 of the Schedule. Co-operators must comply with the requirements of section 42; that is, give reasonable notice of the examination; identify the benefit to which the examination relates; and make reasonable efforts to schedule the examination for a time that is convenient for Mr. Simpson.

EVIDENCE AND ANALYSIS:

Mr. Simpson is a retired farmer who was seriously injured in a motor vehicle accident on November 2, 1997, at the age of 83 years, while on his way to church. On November 11, 1997, Mr. Simpson was discharged from Chatham Public General Hospital to The Village Retirement Residence in Ridgetown for convalescence.

Ms. Susan Waymouth is a rehabilitation consultant appointed by Co-operators to perform case management functions for Mr. Simpson. She submitted her initial assessment report to Co-operators on December 19, 1997. In her report dated July 3, 1998, Ms. Waymouth confirmed that Mr. Simpson enjoyed a relatively successful home trial between April 30 and June 7, 1998, but suffered a setback on June 8, 1998 and was admitted to hospital. Mr. Simpson was transferred back to the retirement residence on June 18, 1998.

On September 5, 1998, Co-operators arranged for an insurer's examination by Dr. Anne Braun, an internist and geriatrician. Dr. Braun concluded that: "... the accident did contribute to an accelerated decline in his function in an individual who was already cognitively impaired ..."

On February 17, 2000, Co-operators was asked by Mr. Simpson's counsel to fund recommendations from an Adapt-Able Design report dated January 31, 2000. This report assessed the home modifications required to return Mr. Simpson to his home. On June 12, 2000, Dr. John Button, Mr. Simpson's treating physician, confirmed that Mr. Simpson suffered a brain impairment as a result of the accident.

An application for a determination of catastrophic impairment was submitted to Co-operators on July 10, 2000. By letter dated July 20, 2000, Co-operators advised that it was proceeding to have Mr. Simpson's catastrophic impairment assessed at a designated assessment centre ("CAT DAC").

By report dated February 8, 2001, the CAT DAC concluded that Mr. Simpson's disability met the definition of "catastrophic impairment" under the Schedule. By letter dated March 21, 2001, Co-operators reinstated attendant care benefits, which had previously been terminated. By letter dated April 19, 2001, Co-operators accepted direct billing of the accounts of the retirement residence.

On August 10, 2001, an application for arbitration was submitted for funding of the recommendations in the home modification report of Adapt-Able Design. On April 30, 2002, Co-operators was provided with a treatment plan by Dr. Gail Delaney which included the goods and services set out in the Adapt-Able Design report of January 31, 2000 and the goods and services in the Life Care Plan from Life Care Consulting dated December 7, 2001. By letter dated May 14, 2002, Co-operators refused to fund the treatment plans.

Co-operators retained Dr. Ameis to conduct a paper review of the medical documentation for the purpose of determining the following:

(b) whether or not Mr. Simpson's disability met the definition of catastrophic impairment;

(c) whether the merits outweigh the concerns sufficient to justify arranging for the Applicant to go home from his current institutional circumstances; and

(d) if yes to (b), whether the proposed arrangements for the move are reasonable and necessary.

In his report dated June 14, 2002, Dr. Ameis stated: "I have not met the patient, but in my opinion a direct assessment is not needed given the wealth of expert medical examinations that are already documented from the recent past as well as the current vegetative medical condition." Dr. Ameis concluded that it could not be established with reasonable medical certainty that the Applicant's current state arose as a direct result of the motor vehicle accident. In Dr. Ameis' opinion: "Attempting to recreate an adequate level of care and response within his own home is likely to be, at best, intermittently and inconsistently successful." He could not identify any reasonable benefit in Mr. Simpson leaving the nursing home.

Dr. Ameis has confirmed that he is willing to travel to the nursing home to observe Mr. Simpson's activities of daily living and to attend at the Applicant's home, which the Applicant seeks to have renovated pursuant to section 15 of the Schedule.

On May 28, 2002, Co-operators advised that it was proceeding with a medical/rehabilitation DAC and that the assessment centre would determine what treatment was reasonable and necessary. The medical/rehabilitation DAC assessment report from The Hamilton Hospital Assessment Centre was dated December 20, 2002. Dr. W.J. Oczkowski conducted a paper review of the medical documentation and a physical assessment did not take place. The DAC concluded that none of the treatment plans at issue were reasonable and necessary because the Applicant's impairments did not arise from the motor vehicle accident. The DAC's assessment was contrary to the earlier CAT DAC determination and placed causation in issue. Co-operators accepts the determination of the CAT DAC and does not raise causation as an issue.

Counsel for both parties have challenged the manner in which the medical/rehabilitation DAC assessment was conducted. By correspondence dated January 28, 2003, the medical/rehabilitation DAC refused again to address the necessity and reasonableness of the treatment plans in dispute because of its conclusion that Mr. Simpson's impairments did not result from the motor vehicle accident.

As a result, Co-operators asked that Dr. Ameis attend at the nursing home and conduct an examination of the Applicant. The sole purpose of the examination is to determine whether the treatment plans in dispute are reasonable and necessary. Co-operators is not challenging the finding of the CAT DAC. Mr. Simpson's counsel has refused to permit the assessment by Dr. Ameis as requested by Co-operators. Mr. Simpson's family wants him to return home from the nursing home.

Co-operators regards Dr. Ameis' report of June 14, 2002 as addressing the issue of causation, which it is no longer challenging. Co-operators submitted that two critical changes have occurred since Dr. Ameis' original report: Mrs. Simpson died and the medical/rehabilitation DAC failed to address the issue of the reasonableness and necessity of the treatment plan. Co-operators relies on Sorokin and Wawanesa Mutual Insurance Company,² which discussed the importance of considering all of the circumstances when determining whether an insurer's examination was reasonable and necessary. The arbitrator ruled in Sorokin that, in the particular circumstances of the case, an insurer's examination was a necessary contribution to the functioning of a fair, informed dispute resolution process.

The onus is on the insurer to establish on a balance of probabilities that the proposed examination is both reasonable and necessary based on an objective standard. The insured person's fundamental right to privacy must be balanced with the insurer's need to assess or adjust the claim.

Although the closer to a hearing a request for an examination is made, the closer the scrutiny of its reasonableness, the circumstances of this case are such that until very recently, both parties expected that the medical/rehabilitation DAC would present a conclusion on the reasonableness and necessity of the treatment plan. In fact, Co-operators has indicated that it was prepared to live with the DAC's conclusions. In the circumstances, it is appropriate for Co-operators to request an insurer's examination since the DAC did not make an assessment of the reasonableness and necessity of the treatment plan. Also, although extensive insurer's examinations were conducted on Mr. Simpson initially, no recent physical examination of Mr. Simpson has occurred. I find that it is reasonable and necessary for Dr. Ameis to examine Mr. Simpson prior to the arbitration hearing. I expect that there is sufficient time for such an examination to occur before the June 26, 2003 hearing date.

PRODUCTION ISSUES

The parties resolved three outstanding production issues. Mr. Simpson's counsel undertook to produce the following:

Dr. Ebehardt's pre-April 1997 records;
Updated records from the nursing home; and
Particulars of the special award claim as soon as possible.

EXPENSES:

I leave to the discretion of the hearing arbitrator the issue of expenses incurred in this motion.

April 17, 2003

Judith Killoran Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 63

FSCO A01-001079

FINANCIAL SERVICES COMMISSION OF ONTARIO