Neutral Citation: 2004 ONFSCDRS 118

FSCO A03-000714

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DEREK CAMERON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Judith Killoran

Heard:

Oral submissions by telephone conference call on July 29, 2004.

Heard on May 4 and 5, 2004 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Peter S. Carlisi for Mr. Cameron

Rudolph Lobl Q. C. for Pilot Insurance Company

Issues:

The Applicant, Derek Cameron, was injured in a motor vehicle accident on December 7, 1999. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot terminated caregiver benefits on December 7, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Cameron 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 issue is:

1. Is Mr. Cameron precluded from proceeding to arbitration because of his failure to make himself reasonably available to attend a post-104 week caregiver DAC assessment pursuant to section 50 of the Schedule?

2. Is Mr. Cameron obligated to reimburse Pilot the amount of $989.75, which is the cancellation fee for the post-104 week caregiver DAC assessment?

Result:

1. Mr. Cameron made himself reasonably available to attend a post-104 week caregiver DAC assessment pursuant to section 50 of the Schedule. Therefore, Mr. Cameron may proceed to arbitration.

2. Mr. Cameron is not obligated to reimburse Pilot for the DAC assessment cancellation fee.

EVIDENCE AND ANALYSIS:

Mr. Cameron was involved in an accident on December 7, 1999. He applied for and received various benefits from Pilot, including caregiver benefits. By letter dated November 30, 2001, Pilot notified Mr. Cameron that, under subsection 13(4) of the Schedule, it was not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, he was suffering a complete inability to carry on a normal life. Pilot informed Mr. Cameron that his caregiver benefit would end on December 7, 2001 and attached a Notice of Stoppage of Weekly Benefits and Request for Assessment (an OCF-17/59), as required by the regulations.²

On December 7, 2001, Mr. Cameron forwarded to Pilot an executed request for a post-104 week caregiver designated assessment centre (DAC) assessment.³ On December 27, 2001, Mr. Cameron forwarded to Pilot a completed "Permission to disclose health information to the DAC" (OCF-14).⁴ The closest DAC was the North York Rehabilitation Centre, where a conflict was declared. The parties agreed on The Accident Injury Management Clinics (Scarborough) (AIM) to perform the assessment under the provisions of section 53 of the Schedule.

By letter dated April 11, 2002, Pilot requested that the DAC schedule an assessment with Mr. Cameron.⁵ By letter dated April 23, 2002, the DAC wrote to Mr. Cameron setting out the scheduled dates of the appointments required, the names of the assessors, and their respective specialties.⁶ Mr. Cameron was scheduled to be assessed by a psychologist, a physiotherapist, a kinesiologist and an orthopaedic surgeon. His first appointment was for May 7, 2002 at 1:00 p.m. with Dr. M. Schwartz, a psychologist.

On May 7, 2002, Mr. Cameron did attend at the DAC at 1:00 p.m. with a friend and a video camera. His friend accompanied him into the room. However, Mr. Cameron was informed by a member of the staff that the psychologist would not proceed because his friend was planning to videotape the examination. Mr. Cameron then had a brief conversation with Dr. Schwartz, the psychologist, who questioned why he wanted to videotape. Mr. Cameron explained that it was his way of protecting himself from errors. Dr. Schwartz stated that he would not proceed if the session were videotaped. According to Mr. Cameron, Dr. Schwartz gave no reasons as to why he objected to the videotaping.

According to Mr. Cameron, he did not refuse to be examined by the DAC assessor. Rather, the DAC assessor refused to examine him.

Pilot asked that Mr. Cameron's application be stayed and not allowed to proceed to arbitration. It argued that the mediation should not have taken place as FSCO has no jurisdiction to proceed with the substantive issues. Pilot relied on subsection 50(c) of the Schedule which states:

An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,

(c) he or she made himself or herself reasonably available for any assessment under section 43 and he or she complied with subsection 43(2) in respect of the assessment.

Pilot also asked for repayment of the cancellation fee for the aborted DAC assessment.

When Mr. Cameron testified, he referred me to a medical/rehabilitation DAC report dated May 26, 2000.⁷ He did so to illustrate why a videotape would have been helpful for that assessment. Dr. C. Locke, a chiropractor, commented in his report that Mr. Cameron grimaced, groaned and cried out throughout the examination. Mr. Cameron disagreed with this characterization of his behaviour. He also objected to the description of him changing his cane from one hand to the other, which made it sound as though he were inconsistent. While he acknowledged that he favoured his left leg, he disputed the implication he was malingering. Mr. Cameron believed that a videotape of the assessment would have provided objective evidence of what occurred.

Mr. Cameron participated in a series of insurer examinations with a physiotherapist, kinesiologist and orthopaedic surgeon. He testified that his experience was that the observations of the medical professionals were often subjective. Their estimation of 30 degrees might objectively be 45 degrees. In a dispute, Mr. Cameron believed that the parties could refer to the videotape for objective evidence.

Mr. Cameron disagreed that a DAC is neutral because it is paid by the insurers and so, in his opinion, is inherently biased against applicants. Mr. Cameron emphasized that an arbitrator may be more inclined to accept a doctor's evidence than his own. Mr. Cameron provided the example of videotaping his session with Dr. Rina Jain, an orthopaedic surgeon. When Mr. Cameron discovered an error in the report, Dr. Jain quickly corrected it. In Mr. Cameron's opinion, she was possibly quicker to do so as a result of the videotaping.

By letter of May 14, 2002, the DAC informed Pilot that Mr. Cameron's appointments were cancelled.⁸ In that letter, the DAC stated that it would be unable to put together a full assessment team for Mr. Cameron because not all of its assessors would agree to having their examinations videotaped. The DAC also stated that it had contacted FSCO to find out whether there was a protocol for videotaping. The DAC stated its opinion that to be fair to all parties, copies of the video would be required before Mr. Cameron left the facility and all parties would require a copy. According to the DAC, a representative of FSCO agreed with such a process and recommended that due to the increased cost of videotaping, all parties must agree. The DAC stated that due to the unusual nature of such a request, it was unable to provide a quote. In a letter dated June 20, 2002, the DAC advised Pilot that it would charge a cancellation fee for the scheduled post-104 week caregiver DAC assessment for Mr. Cameron. An invoice was enclosed in the amount of $989.75.⁹

By letter of June 21, 2002, Mr. Cameron's counsel responded to AIM and asked for the name of the person at FSCO with whom the DAC discussed the issue of videotaping. He also asked if it would be possible for videotaping to take place with copies immediately provided to all parties. He asked AIM to advise if it would be necessary to have the videotape taken to a separate facility for copying.¹⁰ Mr. Cameron's counsel never received a response to his letter.

On August 9, 2002, Mr. Cameron's counsel wrote to a mediator at FSCO. He confirmed that a continuation of the mediation that began on March 12, 2002 was scheduled for April 4, 2002 but was postponed due to the unavailability of counsel. He asked for a rescheduling of the mediation and noted that subsequent to the cancellation, there were issues with respect to Mr. Cameron attending a DAC. He then enclosed a copy of the correspondence from AIM and his response. A follow up letter dated November 29, 2002 was forwarded to the mediator. Mr. Cameron's counsel received no response until a Report of Mediator dated February 17, 2003 was forwarded to him. The Report concluded that all of the issues remained in dispute.

On March 12, 2003, Mr. Cameron's counsel responded to the Report of Mediator dated February 17, 2003. On May 7, 2003, Mr. Cameron's counsel confirmed a conversation with a representative of FSCO on April 11, 2003, whereby he was informed that FSCO was not willing to proceed any further with respect to mediation. He was advised to proceed by way of Application for Arbitration or court proceeding. On May 16, 2003, Mr. Cameron signed an Application for Arbitration.

ANALYSIS

Designated Assessment Centres are established by a committee appointed under section 7 of the Insurance Act. Each designated assessment centre is authorized, for the purpose of the regulations, to conduct and assess specific types of impairments related to the application for particular benefits.

The Disability Designated Assessment Centre Assessment Guide, April 2000, sets out the protocols under which assessments are conducted. The Schedule requires that a dispute arising from an insurer's denial to pay after 104 weeks of disability shall be referred to a designated assessment centre authorized to conduct a post-104 week assessment.

This is the first case before an arbitrator at FSCO involving an applicant's refusal to submit to a DAC assessment unless it is videotaped. However, there has been a case which involved an applicant's refusal to submit to an insurer's examination unless it was recorded.

In Peters and Guarantee Company of North America¹¹, the arbitrator found that an applicant's refusal to submit to an insurer's examination unless it was allowed to be recorded was unreasonable within the meaning of the Schedule. The arbitrator ruled that the onus rests with the applicant to prove that the refusal to submit to the examination unless the proceedings are recorded is reasonable.

In Rodriguez and Wawanesa Mutual Insurance Company¹², the applicant sought to be accompanied by her husband or mother during a psychiatric examination. The arbitrator denied the reasonableness of this request.

In Onno and Wawanesa Mutual Insurance Company¹³, the applicants set as a pre-condition to their attendance at a DAC assessment, that they be reimbursed for any lost wages. Two faxes were sent to the insurer asking for confirmation or, in the alternative, a rescheduling of the appointments for after work hours. No response was received from the insurer and the applicants did not attend the DAC assessment. Wawanesa then relied on subsection 43(2) of the Schedule to deny benefits on the basis that the applicants had not made themselves reasonably available for assessment. The arbitrator stated that the underlying legislative objective of the DAC system was to ensure that both parties had access to independent, neutral and balanced assessments. She found that the applicants made themselves reasonably available but Wawanesa refused their reasonable request to reschedule the assessment.

On June 11, 2004, Phan and Waterloo Insurance Company¹⁴ was released. It dealt with the issue of whether FSCO had jurisdiction to mediate the issue of Mrs. Phan's entitlement to certain benefits, pursuant to subsection 50(c) of the Schedule. I offered the parties in the case before me an opportunity to make further submissions. The hearing resumed on July 29, 2004 by telephone conference call.

In Phan, the arbitrator found that Mrs. Phan did not return a completed OCF-14, which was a prerequisite to arranging a medical/rehabilitation DAC assessment. Waterloo raised a preliminary issue that Mrs. Phan failed to make herself reasonably available for a medical/rehabilitation DAC assessment pursuant to subsection 50(c). Consequently, Waterloo alleged that Mrs. Phan was barred from proceeding to arbitration. Finally, 28 months after the proposed treatment plan had been submitted, Mrs. Phan provided an OCF-14. The arbitrator found that Mrs. Phan did not explain her failure to provide the OCF-14 between the date of the original request on January 14, 2002 and the date of receipt by Waterloo on March 18, 2004.

Consequently, the arbitrator ruled that Mrs. Phan's 28-month delay was unreasonable and made the DAC process unworkable. Accordingly, she found that Mrs. Phan did not comply with subsection 43(2) of the Schedule, which requires an applicant to provide the DAC assessors with such information as is reasonably necessary. The arbitrator found that Mrs. Phan was not entitled to commence a mediation proceeding with respect to the medical benefit in dispute and could not proceed to arbitration.

Mr. Cameron submitted that Mrs. Phan's delay in signing the OCF-14 was entirely within her control. In contrast, he asserted that it was not unreasonable to insist on videotaping the DAC assessment. He made himself available and it was the DAC which refused to proceed. In Mr. Cameron's case, the issue was left to the DAC as FSCO had not articulated a policy. Consequently, it was not within Mr. Cameron's control to ensure that the DAC assessment take place.

Pilot responded that the common theme between Mr. Cameron and Mrs. Phan is that of delay. Pilot submitted that Mr. Cameron unilaterally delayed the process and deprived the DAC assessment of any probative value when he refused to proceed with the DAC assessment unless it was videotaped.

Mr. Cameron denied responsibility for the inordinate delay. He stated that his counsel attempted to negotiate with the DAC and received no response. He questioned how the DAC could arbitrarily decide how the assessment was to be conducted. Mr. Cameron submitted that the situation was beyond both the control of the insurer and insured. However, he objected that he should not be denied certain fundamental rights as a result.

The Ontario Court of Appeal decision in Bellamy v. Johnston¹⁵, dealt with a party undergoing a defence medical examination under section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure where the party wanted to record the examination. The Court of Appeal held that a party undergoing a defence medical examination, pursuant to section 105 of the Courts of Justice Act, has no right to record the conversations which occur during the examination. However, the Court, as part of its obligation to supervise the discovery process, may set terms and conditions relating to the examination, including a condition relating to the recording of the examination. The onus is on the plaintiff to demonstrate the need for the record, such as defence bias or previous experience with the assessor.

In Willits v. Johnston¹⁶, the defendants sought an order requiring the plaintiffs to undergo an insurer's examination by a particular psychiatrist without the examination being videotaped or having copies of the doctor's notes produced. The psychiatrist submitted that the video-audio recording of his examination would threaten the integrity of his examination and, thus, affect his ability to properly conduct a complete psychiatric examination. The court found that there was substantial and compelling evidence that the refusal of the psychiatrist to allow video-audio recording was the result of a preference and not a requirement to conduct a proper medical examination, and, as such, was not necessary to protect the integrity of the medical examination. Accordingly, the court found, based on the evidence before it, that the refusal of the psychiatrist to conduct a medical examination in the presence of a video-recording, was unreasonable.

There are two distinctions between the DAC process and an insurer's examination or a defence medical under the discovery process. The first difference is that a statute mandates the referral of an insured to a specific DAC. The insurer does not choose the facility which will examine the insured nor does the insurer choose the assessors. The second difference is that the DAC findings are binding upon the insurer, pending resolution of any dispute pursuant to sections 279 to 283 of the Insurance Act.

Pilot submitted that it had no input into who the assessors would be at a DAC assessment. Hence, the medical assessors should be in control of the process. Pilot also objected to Mr. Cameron imposing preconditions to being examined. Pilot questioned how having a videotape would make any difference if the dispute concerned whether the Applicant was making maximum effort.

Mr. Cameron relied on an information communiqué from the DAC Committee. The communiqué stated the DAC Committee had no position regarding the recording of DAC assessments.¹⁷ Mr. Cameron submitted that it was incumbent on the DAC in the case before me to communicate why it objected to the videotaping.

In my view, the issue in the case before me is not one of the reasonableness of Mr. Cameron's insistence on videotaping the DAC assessment. The issue is whether Mr. Cameron made himself reasonably available for the DAC assessment.

As the failure to make oneself reasonably available for a DAC assessment has extremely severe consequences for an applicant's substantive rights, it is my view that the threshold for making oneself reasonably available is relatively low. Mr. Cameron attended at the DAC assessment on May 7, 2002 promptly at 1:00 p.m. He was prepared to be assessed and answer all relevant questions. However, the DAC refused to conduct the assessment because not all of its assessors were prepared to allow videotaping. I have not been presented with any explanation or evidence as to why the DAC refused to allow Mr. Cameron to videotape the assessment.

Despite the best efforts of Mr. Cameron's counsel to obtain reasons for the DAC's refusal to allow the videotaping and to negotiate a resolution to this impasse, he received no response from the DAC. Mr. Cameron believed that he was entitled to videotape his DAC assessment. Whether this belief was reasonable or not, it is not in keeping with the spirit of consumer protection legislation that Mr. Cameron should be deprived of his substantive rights as a result of the DAC's refusal to proceed with the assessment. The DAC failed to provide reasons for its refusal and made no attempt to resolve this contentious issue.

I find that Mr. Cameron made himself reasonably available for the purposes of a DAC assessment and complied with the requirements of section 50 of the Schedule. Consequently, I also find that it is not appropriate for Mr. Cameron to reimburse Pilot for the DAC assessment cancellation fee. In fact, I find no provision in the Schedule for such a reimbursement even if my findings had been to the contrary.

EXPENSES:

I leave the issue of expenses to the discretion of the hearing arbitrator.

August 13, 2004

Judith Killoran

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 118

FSCO A03-000714

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DEREK CAMERON

Applicant

and

PILOT 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. Mr. Cameron made himself reasonably available to attend a post-104 week caregiver DAC assessment pursuant to section 50 of the Schedule. Therefore, Mr. Cameron may proceed to arbitration.

2. Mr. Cameron is not obligated to reimburse Pilot for the DAC assessment cancellation fee.

August 13, 2004

Judith Killoran

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. 2Exhibit 1, Tabs B and C
3. 3Exhibit 1, Tab C
4. 4Exhibit 1, Tab D
5. 5Exhibit 1, Tab E
6. 6Exhibit 1, Tab F
7. 7Exhibit 3, pg.5
8. 8Exhibit 1, Tab G
9. 9Exhibit 1, Tab H
10. 10Exhibit 10
11. 11(FSCO A98-000693, May 13, 1999) pp. 6&7
12. 12(FSCO A98-000400, August 26, 1999)
13. 13(FSCO A00-000111, September 27, 2000)
14. 14(FSCO A03-001311 and A03-001312, June 11, 2004)
15. 151992 CanLII 7491 (ON CA), 55 O.A.C. 62, 90 D.L.R. (4th)564
16. 16Ontario Superior Court of Justice, April 3, 2003
17. 17Information Communiqués, Butterworths Ontario Motor Vehicle Insurance Practice, pg. 12.1.132