Neutral Citation: 2005 ONFSCDRS 21

FSCO A04-000523

BETWEEN:

FATEMEH SHIRKHODAEI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Eban Bayefsky

Heard:

December 2, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Dr. Majid Yazdani for Mrs. Shirkhodaei

Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

The Applicant, Fatemeh Shirkhodaei, was injured in a motor vehicle accident on November 16, 2002. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm suspended Mrs. Shirkhodaei's benefits as of March 26, 2003 on the basis of her non-attendance at two insurer medical examinations ("IMEs") on March 20 and 26, 2003. Mrs. Shirkhodaei also did not attend at an attendant care Designated Assessment Centre ("DAC") assessment on April 21, 2003. The parties were unable to resolve their disputes through mediation, and Mrs. Shirkhodaei 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:

Did Mrs. Shirkhodaei make herself reasonably available for IMEs on March 20 and 26, 2003, and for an attendant care DAC on April 21, 2003?
If not, what are the consequences of her failure to attend?

Mrs. Shirkhodaei failed to make herself reasonably available for IMEs on March 20 and 26, 2003, and for an attendant care DAC on April 21, 2003.
Mrs. Shirkhodaeis arbitration may, nevertheless, proceed as currently constituted.

Background

Mrs. Shirkhodaei was injured in a motor vehicle accident on November 16, 2002. State Farm had Mrs. Shirkhodaei assessed by Dr. Hunt, a psychologist, on January 23, 2003, and by Dr. C. Boulias, a physiatrist, on January 24, 2003. State Farm also had Mrs. Shirkhodaei undergo a functional capacity evaluation ("FCE") on January 24, 2003. State Farm’s claim representative at the time, Ms. Karen Herah, testified that Mrs. Shirkhodaei did not co-operate with the physiatry examination and the FCE, that these assessments were inconclusive and that State Farm, therefore, wished to set up a new FCE and physiatry assessment. Further, by letter dated January 29, 2003, State Farm notified Mrs. Shirkhodaei that it had received her application for attendant care benefits and that it wished to have her assessed by a DAC.

On March 3, 2003, Mrs. Shirkhodaei served an Application for Mediation on State Farm. By letter dated March 4, 2003, State Farm notified Mrs. Shirkhodaei that it wished to have her assessed by Dr. Oshidari, a physiatrist, on March 26, 2003 in respect of her claims of ongoing disability, treatment, housekeeping and attendant care. By a further letter dated March 4, 2003, State Farm notified Mrs. Shirkhodaei that it wished to have her assessed by Ms. L. Birdrager (actual spelling, "Birbrager"), an occupational therapist, on March 20, 2003 in respect of the same claims. On March 4, 2003, West Park Healthcare Centre wrote Mrs. Shirkhodaei confirming the two IMEs State Farm had scheduled. On March 10, 2003, State Farm received an OCF-14 form (Permission to Disclose Health Information to the Designated Assessment Centre), filled out and signed by Mrs. Shirkhodaei's representative, Dr. Yazdani, on March 3, 2003. By letter dated March 20, 2003, State Farm notified Mrs. Shirkhodaei that the DAC would be contacting her to arrange a time for the assessment. On March 28, 2003, the DAC (the North York Rehabilitation Centre Inc.) wrote Mrs. Shirkhodaei to confirm that, pursuant to the March 20, 2003 referral received from State Farm, an attendant care DAC had been scheduled for April 21, 2003. All of the noted correspondence was copied to Dr. Yazdani, at his office, KIA Legal Services.

Mrs. Shirkhodaei did not dispute receiving the notices of the two IMEs and the DAC assessment. She simply said that she did not recall receiving them, but that she "knew [she] had an appointment" and that she "had something coming up." She testified that she left the country for Iran on March 19, 2003 (the day before the first IME), because her family doctor had advised her to take a vacation since she was depressed. Mrs. Shirkhodaei testified that she spoke to her "lawyer" (namely, Dr. Yazdani) a few days before she left the country and suggested that, based on this communication, she felt she could proceed with her travel plans. Mrs. Shirkhodaei stated that Dr. Yazdani had said that, since she was sick, she could leave the country and conduct the insurer's assessments by telephone.

Mrs. Shirkhodaei did not attend the IMEs or the DAC assessment. By letter dated March 28, 2003, State Farm confirmed Mrs. Shirkhodaei's non-attendance at the IMEs on March 20 and 26, 2003, and advised her that her benefits were being suspended as of March 26, 2003 pending her attendance at these examinations. State Farm's claim representative, Ms. Herah, testified that West Park Healthcare Centre advised her by telephone either on or shortly after March 20, 2003 that Mrs. Shirkhodaei had not attended the first IME and that someone at Mrs. Shirkhodaei’s home (where the occupational therapist was to conduct an in-home assessment) had said that she was out of the country. Ms. Herah testified that she had not previously known that Mrs. Shirkhodaei was to be out of the country at this time, and that she received no further information as to Mrs. Shirkhodaei’s whereabouts or whether she would also be unavailable for the DAC assessment on April 21, 2003. Ms. Herah testified that, based on this, the OCF-14 form and the legislation, State Farm felt that it must proceed with the DAC, as scheduled.

The mediation for which Mrs. Shirkhodaei had applied in early March 2003 was to take place on April 23, 2003. By letter dated April 23, 2003 to Mrs. Shirkhodaei, Dr. Yazdani and State Farm, Ms. Nancy Aquilina, the Financial Services Commission mediator, confirmed that the mediation did not proceed given that Mrs. Shirkhodaei "was unavailable and unable to be located at the time of the mediation...." Ms. Aquilina closed the file without prejudice to Mrs. Shirkhodaei’s right to re-apply for mediation. Mrs. Shirkhodaei subsequently re-applied for mediation on December 2, 2003. The mediation took place on January 21, 2004. The matter was not resolved and Mrs. Shirkhodaei applied for arbitration on March 5, 2004. State Farm rescheduled IMEs for March 30 and 31, 2004, and an attendant care DAC for April 2, 21 and 23, 2004. Mrs. Shirkhodaei attended these assessments. The Commission conducted a pre-hearing conference in Mrs. Shirkhodaei’s arbitration on June 7, 2004, at which time the parties identified the principal issues for the arbitration as Mrs. Shirkhodaei’s entitlement to income replacement benefits from November 25, 2002 to November 25, 2004, attendant care benefits from November 18 to December 30, 2002, and housekeeping benefits from November 17 to December 30, 2002.

Ms. Herah testified that between March and December 2003, State Farm received no information as to Mrs. Shirkhodaei’s whereabouts, why she was not available for the earlier assessments or whether she would be available for a new set of assessments.

State Farm submitted that Mrs. Shirkhodaei failed to make herself reasonably available for the IMEs and attendant care DAC in the Spring of 2003 and that she is, therefore, precluded from proceeding to arbitration on the issues of, or is otherwise disentitled to, income replacement, housekeeping and attendant care benefits until her participation in the more recent assessments, which were completed on April 23, 2004. State Farm conceded that the arbitration could proceed in respect of Mrs. Shirkhodaei’s entitlement to income replacement benefits beyond April 23, 2004, since she had completed the second set of assessments.

Findings

Pursuant to section 42(3) of the Schedule, an insurer may require medical examinations as often as is reasonably necessary. Pursuant to section 43(2)(b), an insured person must submit to any reasonable DAC assessment. Sections 42(1), (2) and (4) of the Schedule indicate that an insurer may give an insured notice of an examination with a health practitioner specified by the insurer, that the notice must state the benefit to which the examination relates and that the insured person must receive reasonable notice of the examination.

Mrs. Shirkhodaei submitted that she did not need to attend the IMEs and DAC assessment because the notices of the IMEs were defective, because she had already attended the same types of examinations in January 2003 and because State Farm knew that she had left the country at the time of the scheduled DAC assessment in April 2003.

I find that the examinations were reasonably necessary, within the meaning of section 42 of the Schedule. As indicated in the relevant reports in January 2003, Mrs. Shirkhodaei "attempted only 9 of the scheduled 20 tasks" of the FCE and "refused to go through with [the physical examination] of the physiatry assessment" due to headache and dizziness. Consequently, both assessors expressed concerns about the limited nature and inconclusiveness of the examinations. In these circumstances, I find that State Farm reasonably sought a re-assessment of Mrs. Shirkhodaei's physical abilities in relation to her claims of ongoing disability, medical treatment, housekeeping and attendant care benefits.

However, I find that State Farm failed to comply with its obligation to notify Mrs. Shirkhodaei of one of the benefits to which the examinations related, namely, income replacement benefits. I, therefore, find that the notices of the IMEs were defective and Mrs. Shirkhodaei was not obligated to attend the examinations in respect of her claim for IRBs. I find that the notices were valid in respect of Mrs. Shirkhodaei's claims for housekeeping and attendant care benefits, but, as explained below, I find that her non-compliance with both the IMEs and the DAC assessment did not affect her entitlement to, or right to arbitrate, these issues.

State Farm's two letters of March 4, 2003 indicated that the IMEs were being requested in relation to Mrs. Shirkhodaei's claims of ongoing disability, treatment, housekeeping and attendant care. I find that the references to treatment, housekeeping and attendant care were sufficient to notify Mrs. Shirkhodaei that the examinations pertained to her claims of medical and rehabilitation benefits, housekeeping benefits and attendant care benefits. However, I find that the reference to her claim "of ongoing disability" did not adequately notify Mrs. Shirkhodaei that the IMEs related to her claim for income replacement benefits. The notice does not set out whether the claim of ongoing disability is in relation to Mrs. Shirkhodaei's claim of income replacement benefits or in relation to her claims of medical and rehabilitation benefits, housekeeping benefits and attendant care benefits. While the notices properly set out the consequences of Mrs. Shirkhodaei not making herself reasonably available for the examinations, they state that State Farm would not be obligated to pay the "expenses" claimed during the period of non-compliance. This could further suggest that the examinations were in relation to Mrs. Shirkhodaei’s claims of medical and rehabilitation benefits, housekeeping benefits and attendant care benefits, as opposed to her claim of income replacement benefits.

I agree with those arbitration decisions that have found that the notice requirements for medical examinations ought to be strictly interpreted given the significant consequences that can result from a failure to reasonably comply with such assessments. As stated in the case of Avdalimov and CGU Insurance Company of Canada (FSCO A00-000433, May 25, 2001):

The requirement that an insurer specify "the benefit to which the examination relates" is an important feature of the insurer examination process, because it allows an insured person who is reluctant to attend an examination to evaluate whether he wishes to continue to pursue an insurer for a specific benefit, or instead decline to attend an examination and thereby effectively choose to forego the insurer’s payment of that benefit, either permanently or for a period of time.²

In my view, State Farm ought to have clearly indicated that the IMEs were being sought in relation to Mrs. Shirkhodaei’s claim for income replacement benefits and that she stood to lose her entitlement to those benefits should she fail to make herself reasonably available for the assessments. I find that the two notices failed to comply with what is a clear and straightforward statutory requirement. I, therefore, find that it would be unreasonable to have expected Mrs. Shirkhodaei to appreciate the potential ramifications of her not attending the IMEs. I find that the notices were fatally flawed and that they, therefore, did not obligate Mrs. Shirkhodaei to attend the two IMEs in respect of her claim for income replacement benefits. Mrs. Shirkhodaei has now attended the required assessments. I find that she is entitled to proceed with her arbitration on the issue of income replacement benefits.

As noted, I find that State Farm properly notified Mrs. Shirkhodaei that the IMEs pertained to her claims of housekeeping and attendant care benefits. While State Farm’s letter of March 4, 2003 regarding the examination with the occupational therapist indicated that the "health practitioner’s office is located at at [sic] your home, ... Brimwood Bld #..., Scarborough, ON ...," I find that, to the extent that this was unclear, it was remedied by West Park Healthcare Centre's letter of the same date, which stated that the "examination on March 20, 2003 will be conducted at your home - ... Brimwood Blvd, Unit Toronto, Ontario with Ms. L. Birbrager, Occupational Therapist." I find that Mrs. Shirkhodaei was properly notified of the location of the assessment. I do not find it significant that the therapist's name is spelled slightly differently in the two letters.

State Farm's letter of March 4, 2003 regarding the examination with Dr. Oshidari did not set out his area of specialization. However, section 42(1) does not require the insurer to specify the area of specialization of the health practitioner in the assessment notice. In any event, West Park's letter of the same date indicated that Dr. Oshidari would be conducting a "physiatry" assessment. Both of State Farm's letters indicated the general purpose of the examinations, namely, to consider Mrs. Shirkhodaei's claims of ongoing disability, treatment, housekeeping and attendant care. I find that Mrs. Shirkhodaei was properly notified of the nature of the IMEs as they pertained to her claims of housekeeping and attendant care benefits.

Finally, as noted, State Farm's notices of the IMEs and the DAC assessment clearly set out the consequences of Mrs. Shirkhodaei not making herself reasonably available for the examinations, namely, that State Farm would not be obligated to pay the benefits claimed during the period of non-compliance.

I, therefore, find that State Farm's notices were valid in respect of Mrs. Shirkhodaei's claims of housekeeping benefits and attendant care benefits.

I find that Mrs. Shirkhodaei failed to make herself reasonably available for the IMEs and attendant care DAC in the Spring of 2003. To the extent there is any issue as to whether Mrs. Shirkhodaei had a reasonable explanation for failing to attend the assessments, I find that she did not. Mrs. Shirkhodaei did not dispute that she received the relevant notices. She testified that she was aware of the upcoming appointments. Even if her family doctor had advised her to take a vacation, I see no basis to conclude that she was incapable of attending the requested examinations or of informing State Farm that she would be unable to attend, either due to her depression or due to her trip to Iran. I do not accept that Dr. Yazdani would have advised her that she could conduct the noted assessments by telephone. In any event, to the extent she had communicated with Dr. Yazdani prior to leaving for Iran, I see no reason that he could not have informed State Farm that Mrs. Shirkhodaei would not be able to attend the assessments. In either case, I find that Mrs. Shirkhodaei was aware of the upcoming assessments and ought to have provided information to State Farm establishing that she could neither attend nor reasonably participate in the examinations. In the absence of such information, I find that State Farm was entitled to proceed with the remaining assessments, despite the fact that there was some indication that Mrs. Shirkhodaei had already left the country. I find that Mrs. Shirkhodaei did not make herself reasonably available for the requested assessments.

Pursuant to sections 42(8) and 43(3), where an insured person fails to make themselves reasonably available for an insurer examination or a DAC assessment, the insurer can stop payment of the relevant benefit until the person undergoes the examination or assessment, after which the insurer must resume payment of the benefit, and no benefit is payable for the period during which the person fails to submit to the examination or assessment. Pursuant to sections 50(b) and (c), an insured person is not entitled to commence a mediation unless they made themselves reasonably available for an insurer medical examination or a DAC assessment.

State Farm submitted that Mrs. Shirkhodaei is either disentitled to, or is precluded from proceeding to arbitration on income replacement, housekeeping and attendant care benefits between March 26, 2003 (the date State Farm suspended her benefits for non-attendance at the noted assessments) and April 23, 2004 (the date on which the new set of examinations were completed). I have already found that Mrs. Shirkhodaei is entitled to proceed to arbitration on the issue of income replacement benefits. I also find that, despite Mrs. Shirkhodaei's non-compliance with the noted assessments, she is entitled to proceed to arbitrate the issues of housekeeping benefits and attendant care benefits.

In my view, sections 42(8) and 43(3) of the Schedule only pertain to benefits paid or claimed during the period of non-compliance. Given that Mrs. Shirkhodaei only claimed housekeeping benefits and attendant care benefits until December 30, 2002 (which pre-dated the relevant assessments) and given her subsequent attendance at a new set of examinations, I find that her "intervening" non-compliance with the Spring 2003 assessments was irrelevant to her potential entitlement to, and ability to arbitrate, these benefits. I note, as well, that, while Mrs. Shirkhodaei did not fully participate in the January 2003 examinations, she did attend these appointments and they were directed to assessing her medical condition in respect of her claim for housekeeping and attendant care benefits. I, therefore, conclude that her non-compliance with the March and April 2003 assessments neither disentitled her to these benefits nor precluded her from proceeding to arbitration on these items.

EXPENSES:

The parties did not make submissions on the issue of expenses of the preliminary issue hearing. Given the issues to be determined at the main hearing, including Mrs. Shirkhodaei’s claim for a special award, I find that this matter is more appropriately reserved to the completion of the main arbitration.

February 21, 2005

Eban Bayefsky Arbitrator

Date