Neutral Citation: 2004 ONFSCDRS 70
FSCO A03-000880
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANA MARTINEZ
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Suesan Alves
Heard:
April 21, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Marianne Motha, Myron Sidenberg and David Gill for Ms. Martinez
Frank Benedetto for Aviva Canada Inc.
Issue:
Aviva seeks a stay of the arbitration under section 50(b) of the Schedule until such time as Ms. Martinez attends a psychiatric examination. Ms. Martinez disputes that the insurer's examination was reasonably requested and submits that she should be permitted to proceed to arbitration. The issue is:
- Is the Applicant precluded from proceeding to arbitration under subsection 50(b) of the Schedule because she failed to attend an insurer's examination pursuant to section 42 of the Schedule?
Result:
The requested examination was reasonably required to assess the Applicant's psychological impairments. The Applicant cannot proceed to arbitration with respect to her claims for income replacement benefits until such time as she attends the requested or similar psychiatric or psychological examination.
As the arbitration hearing is scheduled for July 2004, the Insurer shall arrange the assessment which it seeks and provide the Applicant with a report of that assessment promptly.
I leave the question of expenses in the discretion of the hearing arbitrator.
EVIDENCE AND ANALYSIS:
Ms. Martinez was injured in an automobile accident on July 30, 2001, while on vacation in Prince Edward Island. She claimed and was paid benefits pursuant to the Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996 (the "Schedule").
Aviva paid Ms. Martinez income replacement benefits ("IJJBs") based on her pre-accident employment as a light duty cleaner performing janitorial services for Hurley Corporation. On January 3, 2003, Aviva terminated Ms. Martinez's IJJBs based on the opinions of an orthopaedic surgeon who conducted an insurer's examination, and a disability DAC. Those assessments addressed Ms. Martinez's physical impairments.
Later in January 2003, Ms. Martinez provided Aviva with a report from a psychologist, Dr. John VanDeursen, of Inter-Disciplinary Evaluation Services. Dr. VanDeursen opined that Ms. Martinez was disabled from performing her work duties due to psychological impairments.
In his opinion, "significant improvement in Ms. Martinez's emotional adjustment will be required before she is able to return to work." Dr. VanDeursen also recommended a referral to a psychiatrist to determine whether medications might be prescribed which would assist her.
In January 2003, Ms. Martinez also provided Aviva with a report of a functional abilities assessment, an orthopaedic assessment, and asked Aviva to reinstate her income replacement benefits and pay for all three reports. Aviva did not respond to her request, and Ms. Martinez applied for mediation on March 11, 2003.
Section 42 of the Schedule permits Aviva, on reasonable notice, to request examinations of Ms. Martinez to determine whether she is entitled to a benefit. Aviva arranged for Ms. Martinez to attend an insurer’s examination before a psychiatrist, Dr. F. Cashman, on May 15, 2003.
On May 12, 2003, the office of counsel for the Applicant informed Aviva that Ms. Martinez would not attend the examination. When the Insurer asked why, the response from the office of counsel for the Applicant was:
The reason for our client not attending your Insurer's Examination is quite simple, you terminated Income Replacement Benefits based on your previous Insurer’s Examination therefore, this forfeits you from even attempting to assess our client for benefits that are not ongoing and we therefore deem it unreasonable and unnecessary see Hodgins-Babin v. Coseco.
Findings and Analysis:
Aviva submits that when Ms. Martinez submitted Dr. VanDeursen’s report, she advanced a new basis, a psychological one, for her claims for income replacement benefits. Aviva submits that on that basis a psychiatric assessment was reasonably required.
Ms. Martinez submits that psychological issues have been present from the outset of her claim, and this is not a new impairment or basis she is advancing which would entitle the Insurer to an assessment. In the initial disability certificate which she submitted to Aviva, Ms. Martinez's family physician noted post traumatic stress disorder as one of her diagnoses, and noted that she had prescribed Ativan. Ms. Martinez also noted psychological impairments when she completed the Activities of Normal Life. For these reasons, I accept that psychological impairments are not a new factor in Ms. Martinez's case.
I find the requested examination reasonable because the Applicant has placed her psychological condition in issue. In these circumstances, Aviva should be permitted an opportunity to assess her psychological impairments because it has not as yet assessed this and because such an assessment can be conducted prior to the hearing in July 2004.
The Applicant submits that Aviva has acted in bad faith and should not be permitted to assess her at this point in time. Ms. Martinez submits that over a period of three months, the Insurer ignored her correspondence, her further medical reports, and she then notified the Insurer that she had to apply to mediation. She noted that the Insurer refused to pay for her three assessments under section 24 of the Schedule, and agreed to pay for the psychological assessment only at mediation. She submitted that it was only after she applied for mediation that the Insurer sought a psychiatric assessment. As further evidence of bad faith, Ms. Martinez relied on a letter from the Insurer informing her that if she submitted a treatment plan for psychological treatment, Aviva would deny the treatments. She further submits that I would be sending a message that insurers are permitted to act in bad faith, if she were required to attend an insurer’s examination in such circumstances.
I appreciate the Applicant is frustrated with the delay in the Insurer's response and that she has questions about Aviva seeking a psychiatric assessment while intending to deny psychiatric treatment. However, in my view, while such evidence may be a consideration relevant to questions of interest, expenses or a special award, it does not, in and of itself, deprive the Insurer of its right to require an assessment to evaluate Ms. Martinez's entitlement to income replacement benefits under section 42 of the Schedule. When asked, the Applicant was unable to demonstrate any prejudice, provided the assessment did not give rise to an adjournment of the hearing. She took no issue with Aviva’s request for a psychiatric assessment as opposed to a psychological assessment.
For these reasons Aviva shall promptly arrange a psychiatric or psychological assessment of Ms. Martinez pursuant to section 42 of the Schedule and provide her with a report of that assessment well before the arbitration hearing scheduled for July 2004.
I leave the question of expenses in the discretion of the hearing arbitrator.
May 7, 2004
Suesan Alves
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 70
FSCO A03-000880
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANA MARTINEZ
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The requested examination was reasonably required to assess the Applicant's psychological impairments.
As the arbitration hearing is scheduled for July 2004, the Insurer shall arrange the assessment which it seeks and provide the Applicant with a report of that assessment promptly and well before the arbitration hearing scheduled for July 2004.
The Applicant cannot proceed to arbitration with respect to her claims for income replacement benefits until such time as she attends the requested or similar psychiatric or psychological examination.
I leave the question of expenses in the discretion of the hearing arbitrator.
May 7, 2004
Suesan Alves
Arbitrator
Date