Neutral Citation: 2004 ONFSCDRS 49

FSCO A03-000831

BETWEEN:

LEKHWANTIE NANDKUMAR

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

By telephone conference call on March 18, 2004.

Appearances:

Robert Plate for Mrs. Nandkumar

Pamela M. Stevens for Economical Mutual Insurance Company

The Applicant, Lekhwantie Nandkumar, was injured in a motor vehicle accident on November 30, 1995. The arbitration hearing of her claims against Economical Mutual Insurance Company ("Economical") for various benefits under the Schedule¹ commences on May 10, 2004, in accordance with the Insurance Act, R.S.O. 1990, c.I.8, as amended. Economical has asked an arbitrator to decide whether it is reasonable for Mrs. Nandkumar to attend Economical's psychiatric examination, and whether she is precluded from proceeding with the arbitration hearing in accordance with section 65 of the Schedule.

The preliminary issue is:

Is Ms. Nandkumar precluded from proceeding to the arbitration hearing for refusing to attend Economical's psychiatric assessment arranged under section 65 of the Schedule?

Result:

Mrs. Nandkumar may proceed to the arbitration hearing.

EVIDENCE AND ANALYSIS:

Insurers have the right to have an insured claimant examined by a health professional of their choice, as often as reasonably necessary for purposes of adjusting benefits.² On January 7, 2004, Economical notified Mrs. Nandkumar, it had scheduled a psychiatric examination for January 28, 2004. The examination notice was sent approximately five months before the May 10, 2004 commencement of the hearing, providing adequate time for Economical's psychiatrist to deliver the report and for Mrs. Nandkumar to prepare her response.

Economical does not dispute it knew about Mrs. Nandkumar's psychological symptoms long before this examination was scheduled. Her behaviour was recorded in health care reports from 1998 through the time that a Designated Assessment Centre ("DAC") conducted a psychological assessment in early 2003.

Economical made no efforts to have one of its own psychological assessors examine her condition before January 2004, and had the opportunity to request an examination before the November 5, 2003 pre-hearing. Since the pre-hearing, Economical has continued to deny Mrs. Nandkumar's claims for entitlement to all disputed accident benefits in this arbitration, except a small loss of earning capacity benefit³ it is required to pay until that issue is decided at the arbitration hearing.

In my view, requests for the insurer medical examinations during the final stages of a legal dispute must be regarded as inherently linked to their interests in advocating their position, as opposed to normal adjusting investigation. At the time of Economical's request, the pre-hearing had already taken place, the Insurer had full knowledge of Mrs. Nandkumar's psychological problems for a significant period and it was paying only the small benefit required by law. I accept Mrs. Nandkumar's argument that this examination is purely a tactical maneuver to obtain an opinion that bolsters the Insurer's case at the hearing.

This situation is distinguishable from the cases cited by Economical because this Insurer is not surprised by Mrs. Nandkumar's condition⁴ and there are no alleged changes in her condition for the insurer to examine.⁵ It is more clearly akin to the facts before Arbitrator Allen in Swanson and Wellington Insurance Company (FSCO A98-000067, May 26, 1998):

It appears that Wellington only sought to request a medical examination after contemplation of arbitration, some 18 months after the accident and about four months after mediation, under circumstances where it had paid Mrs. Swanson no weekly benefits. Therefore, the purpose for the medical examination in question appears to have been not to adjust Mrs. Swanson's claim but rather to acquire medical evidence for Wellington to bolster its case for the hearing. This, in my view, is not the purpose of section 65.

Economical complacently sat back during the adjusting, mediation and arbitration pre-hearing stages, instead of scheduling an examination during the months before the pre-hearing.⁶ Any prejudice to Economical's case is its own fault.⁷ I find that Economical request for the psychiatric examination after the pre-hearing is not reasonable for the purposes of section 65 of the Schedule, and Mrs. Nadkumar may proceed to the arbitration hearing.

EXPENSES:

The hearing arbitrator will be in a better position to decide the appropriate expense award for this motion if the parties cannot agree at the conclusion of these proceedings.

April 7, 2004

Fred Sampliner Arbitrator

Date