Neutral Citation: 2004 ONFSCDRS 16

FSCO A03-000623

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RODNEY ROBINSON

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David Muir

Heard:

January 28, 2004 by teleconference initiated by the The Financial Services Commission of Ontario.

Appearances:

Scott M. Merrifield for Mr. Robinson

Talaal Bond for ING Insurance Company of Canada

Issues:

The Applicant, Rodney Robinson, was injured in a motor vehicle accident on November 20, 1999. He applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING), payable under the Schedule.¹ The parties have been unable to resolve their disputes, and Mr. Robinson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. ING terminated weekly income replacement benefits in October 2000. The issue in dispute in this arbitration is Mr. Robinson's entitlement to income replacement benefits from October 23, 2000 ongoing, interest, and legal expenses.

PRELIMINARY ISSUE:

ING seeks to have Mr. Robinson attend at an insurer's neurological assessment pursuant to section 42 of the Schedule. Mr. Robinson has refused to attend, claiming that the assessment is not authorized by section 42. The parties have been unable to resolve their dispute and a preliminary issue hearing was scheduled to deal with it.

The issue in this preliminary issue hearing is:

1. Is the requested neurological assessment authorized by section 42 of the Schedule?

If the assessment is authorized by the regulation, then the potential consequence of Mr. Robinson's refusal to attend may arise.

Result:

1. The requested assessment is not authorized by section 42 of the Schedule.

BACKGROUND:

This preliminary issue was argued based on very limited evidentiary record. No vive voce or affidavit evidence was provided by either party. The notice purporting to require Mr. Robinson's attendance at the assessment, as well as some correspondence between counsel was filed. In addition, the parties relied upon various medical reports provided specifically for this preliminary issue hearing, as well as others filed in anticipation of the main arbitration hearing originally scheduled to begin in December 8, 9, 10 and 11, 2003, but adjourned to March 22, 23, 24 and 25, 2004.

Mr. Robinson was injured in a motor vehicle accident. His initial complaints arising from the accident included cuts and abrasions on his left arm, bruising on his right arm, neck pain, back pain and headaches. It was these complaints that formed the basis for the way in which the parties appeared to have viewed their disputes for some period of time after the car accident.

Mr. Robinson may have struck his head on the windshield. However, the possibility of traumatic brain injury was not initially addressed. Several months after the accident Mr. Robinson began to complain of vertigo. For example, Mr. Robinson reported a dizzy spell while atop a ladder in June 2000. Dr. John C. Clifford who conducted an assessment of Mr. Robinson in July 2000, noted these reports, but concluded that the complaints were not related to the accident.² A disability by a designated assessment Centre (" Disability DAC") conducted in September 2000 noted reports of headaches two or three times a week and episodic feeling of dizziness and nausea, amongst other physical symptoms. Dr. Rooney, a physician, who participated in the DAC assessment, believed that the symptoms of vertigo were likely related to a viral labyrinthitis and would resolve on their own.

Mr. Robinson's income replacement benefits were terminated in October 2000 on the basis of the DAC's conclusion that he was physically able to perform his pre-accident job duties. Mr. Robinson is a self-employed construction contractor. He did return to work for some period of time but claims that he is unable to function at his pre-accident level.

In October 2002, Mr. Robinson was referred to Dr. Emilie Newell, a physiatrist, by a treating physician. Dr. Newell recorded complaints of pain at the base of Mr. Robinson's neck radiating up over both ears and into the area between the shoulder blades; headaches; sleep disturbance; numbness and tingling in the fingers of his left hand; nausea about 50% of the time; and impaired cognitive functioning. Dr. Newell concluded, amongst other diagnoses, that Mr. Robinson may have suffered a concussion in the accident. She recommended, amongst a number of treatment and assessment options, that a neuropsychological assessment might be appropriate to further explore the nature and causes of the cognitive impairments experienced by Mr. Robinson.

Counsel for Mr. Robinson referred him to Dr. James E. Sweeney, a neuropsychologist, for assessment in November 2002. In a report dated January 29, 2003, Dr. Sweeney found that Mr. Robinson continued to experience neuropsychological sequalae of a mild traumatic brain injury suffered in the accident. Dr. Sweeney reported that he would "strongly suspect" that Mr. Robinson's "business accomplishments [would] fall well short of those achieved prior to the motor vehicle accident due to managerial shortcomings and fatigue" arising from the injuries sustained in the accident. This report was served on ING shortly after its creation.

In a February 2003, a Medical Rehabilitation DAC ("MedRehab DAC") considered the reasonableness and necessity of a treatment plan of physiotherapy. In a report dated February 13, 2003 the DAC concluded that the treatment plan was reasonable and necessary. The DAC went on to state that Mr. Robinson may have suffered a mild to moderate concussion with some residual cognitive deficits, and strongly recommended neuropsychological assessment and psychological treatment. This report was received by ING.

In August 2003, Dr. Gail Ann Delaney, a physiatrist, reported that Mr. Robinson had suffered a concussion with signs and symptoms of clinical depression.

Dr. Trevor Smith conducted a psychovocational assessment in September 2003. In a report dated September 24, 2003, he concluded that while Mr. Robinson likely suffered only a mild or minor brain injury, he may fall into a category of mildly brain-injured individuals who go on to develop long term problems. A hallmark of these individuals is a loss or alteration of the sense of smell, which Mr. Robinson has reported, according to Dr. Smith. If Mr. Robinson fell into this category of individuals, his vocational prognosis would be "guarded" and while he may be able to work at something and with the appropriate rehabilitation may be able to "approximate his former activities more closely, but perhaps not to formal levels of achievement." Dr. Smith strongly recommended a neurological assessment, possibly a psychiatric assessment, treatment with a rehabilitation psychologist skilled in adjustment issues as well as, a speech language pathologist.

In an October 28, 2003 report, Dr. Richard O'Reilly, a treating psychiatrist, diagnosed Mr. Robinson as suffering from a clinical depression perhaps connected to the neurocognitive problems identified by Dr. Sweeney.

This matter was originally scheduled for hearing beginning on December 8, 2003. For reasons unrelated to the current dispute, the arbitration was adjourned to March 22, 23, 24 and 25, 2004.

The notice sent to Mr. Robinson, via his counsel, is dated December 9, 2003 and is sent from counsel for the Insurer, not ING. It is not copied to ING.

The notice addressed to counsel for Mr. Robinson reads in part as follows:

Further to your recent discussions with Mr. Bond, and in specific reference to Dr. Smith's recommendation, this will serve as notice that ING requires your client to be assessed by a neurologist pursuant to section 42 of the SABS (sic). The purpose of the assessment is to assist in determining entitlement to benefits claimed.

The notice advises that the assessment was scheduled to take place on January 9, 2004 in Toronto.

Mr. Robinson, by his counsel, declined to attend the requested assessment and instead indicated that he would require a ruling by an arbitrator on whether or not ING was entitled to a section 42 assessment in the circumstances.

At the conclusion of the preliminary issue hearing, I advised ING that it may wish to take steps to schedule another date for the requested assessment given the short time available before the arbitration hearing. By letter dated January 29, 2004 counsel for ING has advised that a neurological assessment of Mr. Robinson has been arranged for February 19, 2004 to be conducted by Dr. Henry Berry.

ANALYSIS:

Section 42 of the Schedule provides, in part, as follows:

42. (1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) The notice shall state the reasons why the insurer requires the examination and shall specify a date for the examination that is at least five business days after the person receives the notice.

(3) The insurer may require examinations as often as is reasonably necessary.

Mr. Robinson states that the notice is defective because it does not state a reason for the assessment and it does not specify the benefit to which it relates.

I agree, in part.

The notice does allude to a reason for the assessment in specifically referring to Dr. Smith's strongly worded recommendation that such an assessment be undertaken.

What it does not do is link ING's following up on Dr. Smith's recommendation to a benefit that is claimed by Mr. Robinson.

Arbitrators have been strict in their interpretation of the notice requirements of the provision largely because the consequences of the failure of an insured person to fulfill their obligations to make themselves available for such assessments are dire.³

I also note that the notice to Mr. Robinson does not point out to him the consequences for his claim to benefits if he does not attend the assessment, another deficiency in the notice that arbitrators have found to be fatal.⁴

I find for these reasons, that the notice is technically defective and accordingly the assessment is not authorized by the Schedule.

Mr. Robinson also states that the assessment is not being required for the purpose of determining an entitlement to a benefit, but is intended solely to buttress ING's position in the impending arbitration. Mr. Robinson relies on the fact that the issue of a possible brain injury and its effect on his functioning should have been apparent to ING in February/March 2003 when Dr. Sweeney's report and then the MedRehab DAC report were delivered to it.

ING states in response, that it has never conducted a neurological assessment of Mr. Robinson, and further that until the report of Dr. Smith, no one had ever linked the possibility of a traumatic brain injury to Mr. Robinson's entitlement to income replacement benefits. Upon receipt of Dr. Smith's report in October or November, ING acted promptly to set up the assessment.⁵

The Schedule does not provide for defence medicals. It does provide for assessments at the instance of the insurer, for the purpose of determining entitlement to a benefit claimed under the Schedule. In the normal course an insurer will conduct assessments, and on the strength of those assessments make determinations regarding an insured's entitlement to benefits. The onus is on the insurer to show that an assessment is authorized by the Schedule, although where there have been no prior assessment this onus will normally be easily met.⁶

The difficulty with the request of ING relates most acutely to its timing. It is not correct to state that it was not until Dr. Smith's report (perhaps received in October or November 2003) that it first had a medical opinion that linked Mr. Robinson's complaints of cognitive impairments to his claim to income replacement benefits. ING had the reports of Dr. Sweeney and the MedRehab DAC which raise precisely the same issues, likely by March 2003.

While it is true that Dr. Sweeney does not specifically relate his concerns to an entitlement to income replacement benefits, it is not clear to me that Dr. Smith's report in September is more explicit about such a nexus. I do note that in his report, Dr. Sweeney concluded that Mr. Robinson's functional abilities as they related to his business activities would fall far short of his pre-accident level of function. In any event, I do not agree that the failure of a physician to specifically link a diagnosis to entitlement to a benefit is determinative.

I find that, the combined effects of Dr. Sweeney's report and the MedRehab DAC which was issued at about the same time should have been clear notice to ING that a new and substantial theory of Mr. Robinson's disability had come to light. ING chose not to investigate this issue when it first arose, but instead waited several months until after Dr. Smith's report. Although, it is asserted by counsel that it was Dr. Smith's report that caused ING to seek this assessment, there is no evidence to support that assertion. As I have indicated above, a comparison of the various reports do not cry out for this conclusion.

In this regard, I note that the notice requiring the assessment is from counsel and not ING. I have no evidence before me that ING was involved in the decision to seek this assessment. A section 42 assessment is sought in aid of adjusting the claim and not about preparing for an arbitration. In the absence of any other evidence about the genesis of this request, I find that I am entitled to draw the inference that the assessment in question is being sought primarily for the purpose of buttressing ING's case at the arbitration, both because of the timing of the request and the fact that ING was not apparently involved in the decision to ask for it.

A complicating factor in assessing an insurer's entitlement to a section 42 assessment arises from the line of cases which has imported a need to do "fairness between the parties" in the arbitration process⁷. A consideration of fairness here, again requires a consideration of the timing of this request in relation both to when ING ought to have been aware of the issue it now seeks to explore, and to the date of the hearing.

ING has secured another date for the assessment - February 19, 2004. The arbitration hearing begins on March 22, 2004. It is inconceivable that ING will be able to comply with the filing requirements of Rule 30 of the Dispute Resolution Practice Code. ING has had plenty of time to conduct this assessment, but instead chose to wait to a time that creates the potential for significant prejudice to Mr. Robinson in having to respond to a report served on the eve of an arbitration hearing, raising the possibility of a further delay in having his claim to income replacement benefits adjudicated.

I also note, that while ING is seeking to compel Mr. Robinson to attend a neurological assessment just prior to the arbitration hearing, it refuses to allow Mr. Robinson to undertake a neurological assessment of his own pursuant to section 24 of the Schedule⁸. To my mind, the timing of its request and the refusal of ING to allow Mr. Robinson a neurological assessment of his own, suggests an attempt to achieve a strategic advantage going into the arbitration. Even if this is not the case, the timing of the request, as I have found above, is significantly prejudicial to Mr. Robinson's ability to proceed with the arbitration hearing in late March.

For all of these reasons I find that the requested assessment is not authorized by section 42 of the Schedule. Hence, Mr. Robinson has not failed to make himself reasonably available for it and the arbitration ought to proceed as scheduled.

Having come to these conclusions, I would be remiss in pointing out to the parties that the issues raised by Dr. Sweeney are important ones that will have to be properly considered at some point. As I suggested to them in the course of the preliminary issue hearing, it may be most efficient for the parties to agree to a process to resolve them outside of a future arbitration hearing.

EXPENSES:

The parties did not speak to expenses. If they are unable to resolve the issue themselves they may apply for an expense hearing pursuant to section 79 of the Dispute Resolution Practice Code.

February 9, 2004

David Muir

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 16

FSCO A03-000623

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RODNEY ROBINSON

Applicant

and

ING NORTH AMERICA 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. The requested assessment by Dr. Henry Berry is not authorized by section 42 of the Schedule.

February 9, 2004

David Muir

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. 2The parties were unclear whether Dr. Clifford's reports were prepared for the accident benefits proceeding or the tort. Counsel for ING advised that it did not have these reports when it terminated benefits in October 2000.
3. 3See for example M.S.D. and Citadel General Assurance Company, (FSCO A01-00156, February 19, 2003), and the cases cited therein.
4. 4Tesfay and Allstate Insurance Company of Canada (FSCO A97-001439, April 7, 1999), upheld on appeal (FSCO P99-00023A, June 21, 1999) cited in M.S.D. supra. at p.5.
5. 5As indicated earlier no affidavit or vive voce evidence was provided by either party. For example no evidence was lead to establish precisely when the various reports were received by the Insurer. The important fact that the reports of Dr. Sweeney, the MedRehab DAC and Dr. Smith were received was agreed by counsel and no objection was taken to their being said to have been received in the time frames set out above.
6. 6Manalakos and Royal Insurance [1998] O.J. 2157.
7. 7F.S. and Belair Insurance Company. (P96-00039A, June 11, 1996); Glynn and General Accident Assurance Company(OIC P96-00085, March 17, 1997).
8. 8Ex, 2, letter to Scott Merrifiekl, dated January 16, 2004.