Irene McDougall v. Kingsway General Insurance Company, 2004 ONFSCDRS 171

Neutral Citation: 2004 ONFSCDRS 171

FSCO A04-000229

BETWEEN:

IRENE McDOUGALL

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: David Muir

Heard: October 29, 2004, by telephone conference call arranged by the Financial Services Commission of Ontario in Toronto.

Appearances:

Salvatore Shaw for Ms. McDougall

Catherine Korte for Kingsway General Insurance Company

Issues:

The Applicant, Irene McDougall, was injured in a motor vehicle accident on January 19, 2002. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. McDougall applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing in this case was convened on June 28, 2004. Amongst other issues discussed at that time, Kingsway sought an order requiring that Ms. McDougall attend at an insurer's medical examination. The issue was discussed with the following result:

In addition to these substantive issues to be resolved at the arbitration hearing, Kingsway indicated that it may renew a request that Ms McDougall attend a neurological assessment, and that it may now request that she attend a post-104 Disability assessment.

The parties agreed to the following procedure to deal with these issues. Kingsway will provide notice to Ms Dougall within a week of the pre-hearing or otherwise as soon as practicable. Ms McDougall will respond in a timely manner in accordance with the requirements of the Schedule. In the event that there is a dispute between the parties, Kingsway will contact the case administrator who will organize a motion hearing to deal with the issues. I leave it to the parties to agree to any further timelines for the filing of materials etc., recognizing that voluminous materials should not be required for the resolution of the interim issues. . . .

The reference to a prior request for an assessment flows from a notice sent to Ms. McDougall and her representative on April 13, 2004 advising that a section 42 neurological assessment had been arranged by Kingsway. An April 14, 2004 letter to Ms. McDougall's representative, from the adjuster retained by Kingsway, reiterated the request that she attend a neurological assessment on Monday, May 3, 2004. The purpose of this assessment (and an MRI arranged at the same time) was said to be for the purpose of determining Ms. McDougall's ongoing entitlement to income replacement benefits or medical expenses (i.e., treatment for headaches). By letter dated April 19, 2004, Ms. McDougall's representative indicated that she would not attend the neurological assessment as she had not incurred any recent expenses for treatment of headaches.

Following the pre-hearing, Kingsway gave notice to Ms. McDougall and her counsel, by letter dated July 5, 2004, requiring her to attend an assessment on July 30, 2004 by a neurologist, Dr. Ranelli, "for the purposes of determining whether Ms. McDougall is entitled to income replacement benefits."

By letter dated July 13, 2004, Ms. McDougall, by her counsel, refused to attend at the insurer's examination. In the same letter, counsel advised that Ms. McDougall would not be attending a post-104 week disability DAC assessment.

A motion was scheduled to deal with this issue.

The issues are:

Is the neurological assessment by Dr. Ranelli, proposed in the letter of July 5, 2004, authorized by section 42 of the Schedule?
If the answer to question 1 above is yes, what is the appropriate remedy should Ms. McDougall fail to attend the assessment in question?

Result:

The requested neurological assessment is authorized by section 42 of the Schedule.
The question of remedy is premature. In the event that the parties cannot resolve this issue, they may raise it before me.

ANALYSIS:

The evidence relied upon by the parties included the reports of several insurer's examination conducted in the summer of 2003, as well as a report of Ms. McDougall's family doctor, Dr. S. Silver, dated May 17, 2004.

In response to a question from me during the motion hearing, Kingsway had indicated that the prior request for a neurological assessment had been in a telephone call between counsel. After submissions concluded, Kingsway sent copies of several letters amongst its adjusters, assessment centres and Ms. McDougall's representative related to a request for a neurological assessment prior to the pre-hearing. I invited submissions from counsel for Ms. McDougall on the effect, if any, of these letters.

The facts necessary to determine this issue are not controversial.

Ms. McDougall was seriously injured in the car accident. She was hospitalized for several weeks. She appears to have suffered a closed head injury. The parties referred to a CT scan having been done which supported a finding of a subdural haematoma. The report of Dr. Conn refers to an MRI having been conducted.

Ms. McDougall has been assessed by two orthopaedic specialists, a psychologist as well as a Rehabilitation Vocationologist, at the request of Kingsway. She has not been assessed by a disability DAC. Ms. McDougall has declined to be assessed by a post 104-week disability DAC. Counsel for Ms. McDougall advised that an assessment by a neurologist of her choosing has been arranged, but has not been undertaken as of yet. I was not advised whether this assessment was going to be undertaken pursuant to section 24 of the Schedule.

In his report, Dr. Silver states that she remains unable to work as a result of the closed head injury she has suffered and the ongoing cognitive deficits that she experiences. Kingsway received this report after it made its request for a neurological assessment.

I find that the requested assessment is authorized by section 42 the Schedule.

Section 42 authorizes an insurer to require insured persons to attend an examination by a health professional for the purpose of "determining whether an insured person is entitled to a benefit." Such assessments may be required "as often as is reasonably necessary."²

Ms. McDougall states that this assessment is not being sought for the purpose of determining whether or not she is entitled to a benefit, but for the purposes of buttressing Kingsway's case at the arbitration currently scheduled to begin on June 14, 2005. Kingsway stated that it required this assessment in order to investigate this aspect of the claim, conceding that it would likely rely upon the resulting report in the upcoming arbitration. Kingsway stated that, given the issues in this proceeding, it is important that, if the matter does proceed to a hearing, the hearing arbitrator have a neurological assessment. Kingsway states, as well, that Ms. McDougall can hardly say that such an assessment is unreasonable given that her counsel has arranged for one, either as a medico-legal assessment or pursuant to section 24 of the Schedule.

Ms. McDougall states that the fact that Kingsway made its request prior to receiving Dr. Silver's report establishes the fact that this report is being sought for purposes of the hearing and not for the purpose of assessing entitlement to a benefit.

I accept that the motivations of Kingsway in seeking this assessment are at least mixed. They almost always are when an assessment is being sought after a benefit has been terminated and the parties are involved in the dispute resolution system. It does not follow that the requested assessment is not authorized by section 42.

Kingsway last conducted assessments in the summer of 2003. The claim for income replacement benefits continues beyond January 2004, that is, beyond 104 weeks.

It is not obvious why a neurological assessment has not been conducted to date, given the nature of the injuries sustained by Ms. McDougall. It appears a given that Ms. McDougall had suffered some degree of head trauma in the accident, with some documented neuro-cognitive issues.³These facts alone suggest the reasonableness of such an assessment.

It is clear that Kingsway has not sprung this request on Ms. McDougall at the last minute. It initially was scheduled just subsequent to the passage of the 104-week mark and prior to the pre-hearing. Kingsway renewed the request at the pre-hearing. The parties were unable to resolve the issue at that stage, resulting in this motion hearing. This is not a request made well after the pre-hearing, or, alternatively, just prior to the hearing. In any event, there is no prejudice to Ms. McDougall in the timing of the request and no suggestion of trial brinkmanship.

Finally, I accept Kingsway's contention that fairness requires that it be able to assess Ms. McDougall's neurological condition. If that was not clear before Dr. Silver's report, it surely is now. The fact that Ms. McDougall has made arrangements for an assessment by an expert of her own choosing is convincing proof of that fact, if more proof were required. Although it may be speculative at this point to conclude that the report of Ms. McDougall's assessment, by an expert of her choosing, will be relied upon in the hearing, requiring an assessment by Kingsway in response, it is equally speculative at this stage to pre-judge the results of the assessment requested by Kingsway. It is possible that the section 42 assessment requested by Kingsway will support her claims to impairments and either obviate the need for an arbitration hearing or limit the issues in dispute.

Ms. McDougall also submits that the reason given for the requested assessment is not specific enough and therefore the notice is invalid. This submission is without merit. I find that the reference to income replacement benefits is sufficient notice of the reason for the assessment.

Accordingly the requested neurological assessment by Dr. Ranelli is authorized by section 42 of the Schedule.

EXPENSES:

The parties did not speak to the issue of expenses. I will deal with the issue in accordance with the Dispute Resolution Practice Code, should the parties be unable to resolve the issue themselves.

November 18, 2004

David Muir Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 171

FSCO A04-000229

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN: