Neutral Citation: 2003 ONFSCDRS 93 File Number: FSCO A02-000763

Between:

Jasvinder Sidhu Applicant

and

Security National Insurance Co./Monnex Insurance Mgmt. Inc. Insurer

Decision on a Motion

Before: David Muir Heard: June 2, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tripta Chandler for Ms. Sidhu
Theodore P. Charney for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Jasvinder Sidhu, was injured in a motor vehicle accident on December 23, 1999. She applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Sidhu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Motion brought by Security was formulated as follows:

Is the request of Security that Ms. Sidhu make herself reasonably available for a psychovocational assessment by Dr. Keith Travis (in response to a late-filed psychovocational assessment to be relied upon by Ms. Sidhu) authorized by the Schedule? If yes, what are the consequences if she fails to attend?

Result:

The request of Security that Ms. Sidhu make herself reasonably available for a psychovocational assessment by Dr. Keith Travis is authorized by the Schedule in the circumstances. If Ms. Sidhu continues to seek to introduce a late-filed psychovocational assessment at the arbitration, fairness requires that she be assessed by Dr. Keith Travis as requested.

BACKGROUND AND ANALYSIS:

The issue between the parties arises in somewhat unusual circumstances. On May 13, 2003, counsel for Ms. Sidhu served on counsel for Security, a psychovocational report authored by Dr. Neville Doxey and G.L. Mitson ("the Doxey report"), two psychologists who conducted a psychovocational assessment of Ms. Sidhu on April 15 and 24, 2003. Ms. Sidhu intends to rely upon the Doxey report in the arbitration hearing, which was scheduled to begin on June 2, 2003 and as such, the report was served outside of the timelines established by section 39.1 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

The Doxey report provides an opinion concerning Ms. Sidhu's psychological state at the time of the assessment, offers several possible diagnoses of her psychological condition as well as an opinion concerning her employment prospects beyond her immediate pre-accident employment.

No explanation for the late service of this report has been offered by Ms. Sidhu. There is no prior mention of Dr. Doxey being a witness at the arbitration or providing a report to be filed at the hearing. There was no notice provided to Security that a psychovocational assessment was going to be undertaken with the results to be tendered in evidence. Indeed, at a resumption of the pre-hearing on May 2, 2003 to deal with a number of outstanding production issues, counsel for Ms. Sidhu made no mention of Dr. Doxey or the possibility of a forthcoming report.

On May 13, 2003, counsel for Security wrote to counsel for Ms. Sidhu asking that the report be withdrawn so that the hearing could proceed as scheduled or, failing that, Security would be seeking an adjournment of the hearing in order to respond to the Doxey report including an assessment of Ms. Sidhu by an expert of its choosing.

In the meantime, Security retained an expert of its own, to whom it provided the Doxey report on May 20, 2003. Dr. Travis wrote to counsel for Security on May 22, 2003 and indicated that while he "might be able to provide you with some limited information based upon a file review only, to offer an independent psychological/diagnostic or psychovocational opinion it would be necessary to examine Ms. Sidhu personally."

On May 22, 2003, counsel for Ms. Sidhu wrote to Dr. Doxey requesting he provide his raw test data and test protocols, further to requests from Security. This material was provided to Security on May 26, 2003.

On May 28, 2003 the parties participated in a conference call before me to attempt to resolve their disputes and to deal with an adjournment request made by Security on the basis of Ms. Sidhu's late filing of the Doxey report and its need for time to respond to it. At that time counsel for Ms. Sidhu indicated that they were prepared to consent to a short adjournment in order to have Dr. Travis review the test data supplied by the Applicant on May 26th in preparation for the hearing, but Ms. Sidhu also indicated that she was not prepared to consent to a psychovocational assessment by the Insurer. The parties agreed to adjourn the arbitration hearing and argue what was characterised as the section 42 issue on Monday, June 2, 2003. The main arbitration hearing was rescheduled to dates in November 2003.

By way of background, Ms. Sidhu claims amongst other things in this proceeding, income replacement benefits ongoing from October 10, 2001. The claim for income replacement benefits extends beyond 104 weeks of disability following the motor vehicle accident. The claim beyond 104 weeks brings with it a significantly higher onus on the Applicant. Briefly put, she must establish not only that she is unable to perform the duties of her pre-accident employment, but also, that as a result of impairments suffered in an automobile accident, she is unable to perform the essential duties of any other occupation for which she is reasonably suited by reason of her education, training or experience.

By way of further background, Ms. Sidhu was paid income replacement benefits from the time of the accident in December 1999 until May 24, 2001 when they were terminated by Security on the basis of a multi-disciplinary assessment conducted in January and March 2001. The assessors included an orthopaedic surgeon, a functional abilities evaluator and a psychiatrist, Dr. Robert Notkin.

Ms. Sidhu requested a Disability DAC assessment. The DAC was conducted in July and August 2001 and concluded that Ms. Sidhu was not substantially disabled from performing her pre-accident work duties. As part of the DAC assessment Ms. Sidhu was examined by a psychologist, Dr. Switzman. On the strength of the DAC assessment Security terminated income replacement benefits, again, effective October 10, 2001.

There have been no other psychological or psychiatric assessments by either party, nor has Ms. Sidhu attended for psychological or psychiatric treatment. Other than the Doxey report, there have been no other psychovocational assessments of Ms. Sidhu undertaken by either party.

The parties argued this motion primarily on the basis of the language of section 42 and some of the cases decided under that section. The arguments of the parties turned in large part on different interpretations of the purpose of the section — Ms. Sidhu relied on those cases that hold that the section only authorizes assessments for purposes of adjusting the claim, while Security relied on those cases that broaden the scope of section 42 to address questions of fairness between the parties in presenting their positions at the arbitration. Ms. Sidhu also argued that the Insurer ought to have known that psychological issues were part of the claim, and it was too late now to seek an assessment of Ms. Sidhu in response to the Doxey report.

To my mind, section 42 and the discussion in the cases around its scope is beside the point. The issue before me is squarely, fairness between the parties and an arbitrator's duty to control the hearing process.

The Doxey report was filed late without any explanation. If the report is going to be relied upon by Ms. Sidhu, fairness requires that Security is entitled to a reasonable opportunity to respond to it. This point was fairly conceded by Ms. Sidhu when she consented to an adjournment of the arbitration for the purpose of allowing Security an opportunity to review the report and the test data in advance of the hearing.

In the circumstances of this case, I find that a fair opportunity to respond also includes Dr. Travis having a reasonable opportunity to meet with and assess Ms. Sidhu. My conclusion in this regard does not require a consideration of section 42. If Ms. Sidhu continues to seek the introduction of the Doxey report, then Security is entitled to an assessment as outlined in Dr. Doxey's letter of May 22, 2003. I make this finding in large part because the Doxey report is the only psychovocational assessment undertaken by either side. I have also taken into account the fact that there has been little in the way of other psychological or psychiatric assessment of Ms. Sidhu, and that which does exist, is dated, as well as being prior to the 104-week mark.

If a consideration of section 42 is required, then I agree with those arbitrators who have concluded that section 42, in addition to its evident purpose of facilitating the adjustment of an insured person's claims file, also can be utilized "to serve the ends of fairness."² So long as Security otherwise complies with the provisions of section 42, fairness would require that Ms. Sidhu make herself reasonably available for the proposed assessment.

As for remedy, the parties advised that if the assessment requested by Security was found to be authorized by section 42 of the Schedule, Ms. Sidhu will likely attend. Accordingly, and in light of the fact that dates have been set for the hearing in November no further order is required at this point.

EXPENSES:

The parties did not speak to expenses of this motion. In the circumstances, I find that the question of expenses is best deferred to the hearing arbitrator.

June 11, 2003

David Muir Arbitrator

ARBITRATION ORDER