Paula Shave v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2005 ONFSCDRS 5

Neutral Citation: 2005 ONFSCDRS 5 FSCO A04-000839

Between:

Paula Shave Applicant

and

Security National Insurance Co./Monnex Insurance Mgmt. Inc. Insurer

Decision on a Motion

Before: Jeffrey Rogers

Heard: January 10, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Rene Clonfero, solicitor for Ms. Shave Richard F.L. Rose, solicitor for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

Security seeks an order determining whether it is reasonably necessary for Ms. Shave to attend to be examined, pursuant to section 42 of the SABS,¹ by Dr. P. Marton, a psychologist, and Dr. D. Simmonds, an orthopaedic surgeon.

The Notice of Motion indicates that Security seeks an order compelling attendance for these examinations, but counsel modified the request at the hearing and the motion proceeded on that basis. Counsel indicated that he currently seeks no sanction for failure to attend. He intends to do so at a later date. Counsel also indicated that it is Security's intention to reschedule the examinations, if the motion is successful. The hearing is scheduled to start on February 14, 2005.

Security's position is that although Ms. Shave was examined in October 2003 by Dr. Marton and by Dr. R. Galway, also an orthopaedic surgeon, her changing condition makes it reasonably necessary that she be examined again. Security says that it also has a right to the examinations because they are necessary to ensure a fair hearing.

Ms. Shave's position is that the Notice that she received for the proposed examinations is void and, in any event, the proposed examinations are not reasonably necessary for the purpose of determinating her entitlement to a benefit, as subsection 42(1) requires. Security has no right to have her examined for the purpose of producing evidence for the hearing.

Result:

The notice given for the proposed examination by Dr. Simmonds is void.
It is not reasonably necessary for Ms. Shave to attend the proposed psychological and orthopaedic examinations.

FACTS:

History

The record for the motion consists of the Motion Record, Responding Affidavit of the Insured and Medical Brief of the Insured. There was no viva voce evidence. The relevant facts are not in dispute. They are as follows:

Ms. Shave was a pedestrian when she was hit by a car on March 13, 2003. At the time, she worked as an accident benefits adjuster. She has not worked since October 2003. The benefits in dispute in this arbitration are income replacement, and housekeeping and home maintenance. Ms. Shave also delivered to Security a Form 1 dated June 24, 2004 (Assessment of Attendant Care Needs). She apparently does not intend to pursue a claim for attendant care benefits. The first notice of this intention was given by letter from her solicitor dated December 6, 2004.

Security served Ms. Shave with a Notice requiring her to attend for examination by Dr. Simmonds on November 30, 2004 and Dr. Marton on December 3, 2004. Ms. Shave received the Notice on November 25, 2004. The Notice was served less than five business days before the appointment with Dr. Simmonds. Security did not consult Ms. Shave about her availability before scheduling the examinations. The Notice states that the proposed assessments pertain to "Income Replacement Benefit...Attendant Care Benefits...Housekeeping Benefit...." Ms. Shave deposes that she was confused by the reference to Attendant Care Benefits because she has never made a claim for that benefit.

Previous Psychological Examination

Dr. Marton conducted a psychological examination of Ms. Shave on October 4, 2003. He was provided with the medical records then available, to inform his opinion.

When Dr. Marton examined Ms. Shave, she had been counselled for anxiety and depression by her family doctor. He had prescribed medication for these complaints and, when her condition did not improve, he had referred her to Dr. C. Skinner, a psychologist. Dr. Skinner had diagnosed "mild to moderate post-traumatic stress reaction", had recommended a course of treatment and Ms. Shave was seeing Dr. Skinner once a week. Dr. Marton was aware of this history.

Dr. Marton found "no objective evidence of psychological factors associated with the onset, severity, course of maintenance of her pain symptoms...no objective evidence of a depressive disorder, panic attacks or panic disorder, a generalized anxiety disorder or a post-traumatic stress disorder."² He concluded that there was no objective evidence of a mental disorder associated with the motor vehicle accident. His testing indicated the likelihood of symptom magnification. Dr. Marton concluded that Ms. Shave was "experiencing an adjustment disorder associated with work related stress."³

Ms. Shave continued her treatment with Dr. Skinner after Dr. Marton examined her. Security forwarded Dr. Skinner's reports and other emerging medical evidence to Dr. Marton for comment. Dr. Marton has provided four supplementary reports, the most recent dated some time after June 8, 2004.⁴ Dr. Marton has reiterated his opinion in every supplementary report, without expressing any limitation as a result of not having had an opportunity to further examine Ms. Shave.

Since Dr. Marton's last supplementary report, Security has received three further reports from Dr. Skinner and a report from Dr. B. Kirsh, commenting on Ms. Shave's mental status.⁵

Previous Orthopaedic Examination

Dr. Galway conducted an orthopaedic examination on October 20, 2003. He was provided with the medical records then available, to inform his opinion. At that time, Ms. Shave's primary physical complaints were headaches and pain in the lower back, right knee and right wrist. Dr. Galway examined Ms. Shave's right wrist, lumbosacral spine and major and minor joints of the lower extremities. He found no evidence of impaired function. He concluded that Ms. Shave’s complaints were subjective and were not accompanied by any "objective evidence of impaired function." His opinion was that "the injuries sustained were in the nature of soft tissue strains and contusions. At this point in time, these injuries have healed and have not left any residual after effects...."

Since Dr. Galway examined Ms. Shave, he has provided four supplementary reports, the most recent dated some time after August 31, 2004.⁶ He has reiterated his opinion in each supplementary report, without expressing any limitation as a result of not having had an opportunity to further examine Ms. Shave.

Since Dr. Galway's last supplementary report, Security has received one further report from Dr. W.G. Baker, Ms. Shave's family doctor, and two reports from Dr. K. Prutis, a specialist in physical medicine, commenting on Ms. Shave's physical condition. On November 23, 2004, Ms. Shave underwent surgery on her right wrist to relieve the symptoms of carpal tunnel syndrome. She is scheduled for surgery on the left wrist on January 18, 2005.

ANALYSIS

Is the Notice Void?

Subsection 42(2) of the SABS provides that 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."

Subsection 42(4) provides that the "insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person."

Since the notice was served less than five business days before the appointment with Dr. Simmonds, it is not effective notice for that appointment and Ms. Shave was therefore not required to attend. I do not find the notice to be otherwise defective.

The "reasons" requirement of subsection 42(2) is satisfied by providing enough information for the insured to make a decision on whether to attend. Information as to the benefit at issue and the area of expertise of the examiner will usually satisfy this purpose. Ms. Shave made no issue of the absence of information in the notice about expertise. Her claim to have been confused by the inclusion of Attendant Care Benefits is at least disingenuous. With her background as an Accident Benefits Adjuster, she must have recalled that she had delivered an Assessment of Attendant Care Needs and she should have been able to attribute the inclusion of that benefit to that event, in making her decision on whether to attend.

I see nothing in subsection 42(4) that requires the insurer to consult the insured before setting a date for the examination. Compliance with this subsection will be a question of fact in each case. Where an insurer delivers a notice without consulting the insured it would be normally expected to re-schedule the appointment should the insured prove unavailable. Here, Ms. Shave did not propose to attend at any time. Assuming that Ms. Shave was not available, Security had no opportunity to re-schedule. I therefore do not find that Security failed to make reasonable efforts to schedule at a time convenient to Ms. Shave.

Reasonable Necessity

In my decision in Ramalingam and State Farm Mutual Automobile Insurance Company,⁷ I ruled that an insurer has no right to require an insured to attend for examination, except as conferred by section 42 of the SABS. Ms. Shave relies on that decision to support her position that Security has no right to require her to attend in order to ensure a fair hearing. Security cited no authority for its position that I did not consider in Ramalingam. For the reasons I gave in Ramalingam, I find that Security has no right to require Ms. Shave to attend for this purpose.

Security must therefore show that the proposed examinations are reasonably necessary for the purpose of determining whether Ms. Shave is entitled to a benefit.

I accept the submission that the principles set out in Bogic and AXA Insurance (Canada)⁸ remain valid guidelines in assessing whether an examination is reasonably necessary. Security relies on the length of time since Ms. Shave was examined and her changing condition, to support its position that the proposed examinations are reasonably necessary. The relevant principle is set out in Bogic as follows:

Where there is a claim for ongoing benefits, and a lengthy period of time has transpired since the most recent examination, it is fair, and hence reasonable for an insurer to request further examinations in order to evaluate an applicant's claim. Further examinations are also reasonable where there have been changes in the nature of the insured person's medical or psychological condition which are relevant to his or her disability claim. However, it is unreasonable to request an examination where circumstances indicate that its only apparent purpose is to acquire medical evidence to bolster the insurer's case at a hearing.⁹

Although a significant period had passed since Ms. Shave was examined and there has been some change in her physical condition, the circumstances indicate that Security is not seeking the proposed examination in order to make a decision on her entitlement to the claimed benefits. It must therefore be seeking only to bolster its case for the hearing.

Assessing Security's motives requires close scrutiny of the opinions already received. Upon his examination, Dr. Marton found no evidence that any of the symptoms Ms. Shave had expressed were caused by the accident. It was not likely that he would later change his mind and conclude that the accident caused her failure to recover from the same or worsening symptoms. This is why he could confidently reiterate his opinion, upon being updated on Ms. Shave's treatment and complaints, without expression of any requirement to examine Ms. Shave again.

Similarly, Dr. Galway concluded that Ms. Shave had recovered from her accident-related injuries at the time that he examined her. This also is not the kind of opinion likely to change with the passage of time. He has also been able to confidently reaffirm his opinion upon being updated on Ms. Shave's complaints and treatment. He has given his supplementary opinions upon being informed of Ms. Shave's complaints of pain in her neck, left wrist, left knee and ankles. He has not expressed an interest in examining Ms. Shave again in order to inform his opinion.

Security has therefore already obtained up-to-date, independent opinions from a psychologist and an orthopaedic surgeon upon which it has made a decision on Ms. Shave's entitlement to the claimed benefits. The information that Security received after the most recent supplementary opinions does not cast new light on the cause of Ms. Shave's complaints. The new information therefore does not provide new reason for Dr. Marton or Dr. Galway to be interested in examining her again.

The circumstances in this case do not indicate that Security has a discrete interest in the severity of Ms. Shave's complaints. The opinions it has received indicate that none of her complaints could be accident related. Further examination would serve no adjusting purpose.

Similar logic applies if Security were entitled to further examination to ensure a fair hearing. Having already obtained unshaken opinions to support its position at the hearing, Security is in a position to fairly argue that Ms. Shave is not entitled to the benefits in dispute. Further subjecting Ms. Shave to examination does nothing to better advance that position.

For the above reasons I find that it is not reasonably necessary for Ms. Shave to attend the proposed examinations.

EXPENSES:

The only factor of the Expense Regulation relevant to the award of expenses, is degree of success. Having been entirely successful, Ms. Shave is entitled to her expenses of the motion which I fix at $500.00, inclusive of GST.

January 18, 2005

Jeffrey Rogers Arbitrator

Date

ARBITRATION ORDER