FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 73
FSCO A02-001016
BETWEEN:
CLAUDETTE TAYLOR
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Tanja Wacyk
Heard: By telephone conference call on April 9, 2003. Written submissions were completed by April 18, 2003.
Appearances:
David S. Wilson for Ms. Taylor Jean-Claude Rioux for Kingsway General Insurance Company
Issues:
The Applicant, Claudette Taylor, was injured in a motor vehicle accident on December 18, 1997. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway subsequently terminated weekly income replacement benefits ("IRBs") and the termination is disputed by Ms. Taylor. The parties were unable to resolve their dispute through mediation, and Ms. Taylor applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The following preliminary issues were addressed in the hearing:
Can Kingsway rely on its notice of examinations so as to preclude Ms. Taylor, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examination by Kingsway as required by section 42 of the Schedule?
Is Kingsway's requirement that Ms. Taylor be examined by an orthopaedic surgeon, a physiatrist, and a psychologist reasonable and necessary?
The arbitration in this matter is scheduled to begin June 23, 2003. The first insurer's examination was scheduled for May 2, 2003. Consequently, in order to facilitate the expeditious and timely resolution of this matter, on April 24, 2003 I made the following rulings on the preliminary issues, with reasons to follow. I now provide those reasons.
Rulings:
1. Kingsway cannot rely on its notice of examinations so as to preclude Ms. Taylor, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examination by Kingsway as required by section 42 of the Schedule.
Kingsway's notice of examination, dated December 20, 2002, is deficient as it refers to the medical examinations pertaining to "entitlement to income replacement benefits, medical and rehabilitative benefits, attendant care and housekeeping benefits." However, the only benefit at issue between the parties and at the pending arbitration is income replacement benefits.
As pointed out by Ms. Taylor, there is no evidence she has ever claimed attendant care benefits. Furthermore, no rehabilitation or medical benefits are being paid or are the subject of any dispute. Since Ms. Taylor is not claiming that she is catastrophically impaired, her entitlement to housekeeping benefits under section 22 of the Schedule expired 104 weeks after the accident. As I stated in my recent decision in Borja and TTCInsurance,2 a notice which simply lists benefits available under the Schedule is overly broad and defective in a material respect because it does not set out the specific purpose for the examination or the benefit to which it relates, as required by subsection 42(2) of the Schedule. Subsection 42(2) specifically requires that the notice shall state the benefit to which the examination relates.
In Borja, I found that the purpose of the requirement to identify the benefit to which the examination is related is to permit the insured person to know the affected benefit and decide whether to attend the examination or abandon the claim for the benefit. This purpose is defeated if the insurer does not specify the benefits for which it seeks more information.
More importantly in this instance, when the only benefit in dispute is IRBs, to require Ms. Taylor to submit to a much broader series of examinations would be unnecessarily intrusive and unreasonable.
While Kingsway argued that Ms. Taylor's failure to seek clarification distinguished the facts from those in Borja, I find this does not affect the result. The notice requirements of section 42(2) are clear and are imposed upon the insurer, not the insured. These requirements must be met if an insurer intends to rely on a notice so as to preclude access to the arbitration process - a result of considerable significance.
I might add that I do not agree with Ms. Taylor that the notice is deficient because it was sent only to her counsel, rather than to her as well. As Ms. Taylor's representative, notice to her counsel is deemed to be notice to her, and it is her counsel's responsibility to communicate Kingsway's request to her, as well as to provide advice regarding the request.
2. Kingsway's requirement that Ms. Taylor be examined by both an orthopaedic surgeon and a physiatrist is reasonable and necessary.
Ms. Taylor complains of chest, neck, shoulder, and low back pain. She also complains of problems with her knees.3
It was not disputed that Ms. Taylor has had three more accidents since the accident at issue in this arbitration. It was also not disputed that Kingsway has not had Ms. Taylor examined regarding her complaints.
Ms. Taylor agreed to be examined by either an orthopaedic surgeon or a physiatrist - but not both. She argued that orthopaedic surgeons often comment on things outside their expertise - and in particular regarding soft tissue injuries such as those claimed by Ms. Taylor. Consequently, Ms. Taylor argued that examination by an orthopaedic surgeon should be sufficient.
However, I agree with Kingsway that there may be both soft tissue and orthopaedic components to Ms. Taylor's difficulties and that either specialist may have recommendations that would be helpful to her.
While it may be true that specialists, at times, comment regarding areas "outside their expertise," such comment, precisely because it is outside the specialist's expertise, is of diminished value and should not substitute for an informed expert's opinion.
Consequently, I found that Kingsway's requirement that Ms. Taylor be examined by both an orthopaedic surgeon, and a physiatrist was reasonable and necessary.
3. Kingsway's requirement that Ms. Taylor be examined by a psychologist is not reasonable and necessary.
Kingsway argued that Ms. Taylor's complaints may also have a psychological component. In making this argument Kingsway relied on correspondence dated November 2, 1998, from Ms. Taylor's counsel to the adjuster on the file.4
That correspondence stated that Ms. Taylor had been seen by Dr. Waiser,5 who indicated Ms. Taylor was experiencing a "generalized depressive affect," and recommended a treatment plan proposing six months of weekly psychotherapy sessions. The letter further stated that a psychological assessment Ms. Taylor had undergone as part of a med/rehab Disability Assessment Centre assessment pointed to diagnoses of clinical depression, post-traumatic stress disorder and driving phobia.
Kingsway argued that as no subsequent psychological assessment had occurred, it did not know if Ms. Taylor's psychological problems had ever resolved, or whether they may impact on her current inability to perform the activities of her pre-accident employment.
Ms. Taylor maintained that she has not experienced psychological problems for several years. She pointed out that if she were experiencing such problems, she would rely on them to support her claim for income replacement benefits.
Ms. Taylor, a teacher, argued that while she accepted less remunerative work in 1999, this was the result of her lack of training to perform work comparable to teaching, not because she was experiencing psychological difficulties. Ms. Taylor also pointed out that she has continued to work until the present time, and is currently employed as a teacher on a part-time basis.
In light of the significant passage of time since there was any suggestion that Ms. Taylor is experiencing psychological difficulties, as well as her current work as a teacher, albeit on a part-time basis, I was not satisfied there is a sufficient basis, at this time, for Kingsway's request that Ms. Taylor be examined by a psychologist. Rather, I found that such an examination would be unreasonably intrusive.
Consequently, I held that Kingsway's requirement that Ms. Taylor be examined by a psychologist is not reasonable and necessary.
EXPENSES:
As no submissions were made regarding expenses, I leave that matter to the discretion of the hearing arbitrator.
May 12, 2003
Tanja Wacyk Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 73
FSCO A02-001016
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
CLAUDETTE TAYLOR
Applicant
and
KINGSWAY 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:
Kingsway cannot rely on its December 20, 2002 notice of examinations so as to preclude Ms. Taylor, under subsection 50(b) of the Schedule, from proceeding to arbitration because she did not make herself reasonably available for examination by Kingsway as required by section 42 of the Schedule.
Kingsway's requirement that Ms. Taylor be examined by both an orthopaedic surgeon, and a physiatrist is reasonable and necessary.
Kingsway's requirement that Ms. Taylor be examined by a psychologist is not reasonable and necessary.
April 24, 2003
Tanja Wacyk Arbitrator
Date
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, 114/00 and 482/01.
- (FSCO A02-000449, April 3, 2003)
- Tab 6 of Insurer's motion record page 3
- Insurer's supplementary motion brief - Tab 3, page 1
- who I understand to be a psychologist