Neutral Citation: 2005 ONFSCDRS 56

FSCO A04-000181

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ERIC FRASER

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Rosemary Muzzi

Heard:

By telephone conference call on April 28, 2005.

Appearances:

Carmine Tiano for Mr. Fraser

Jamie Pollack for Echelon General Insurance Company

Issues:

Eric Fraser, the Applicant, was injured in a motor vehicle accident on May 10, 2003. He applied for statutory accident benefits from Echelon General Insurance Company ("Echelon"), payable under the Schedule.¹ Echelon contested Mr. Fraser's entitlement to those benefits. An arbitration date has been set for May 2, 3, 4 and 5, 2005 to deal with the outstanding issues. Echelon asked Mr. Fraser to attend for section 42 insurer's examinations which he has refused to do. Echelon requested a date to argue this motion for an order staying the arbitration proceeding until Mr. Fraser attends two insurer examinations - one with a physiatrist and the other with a psychiatrist.

The preliminary issue is:

Should there be a stay of the arbitration proceeding scheduled to commence on May 2, 2005 until Mr. Fraser attends two insurer's examinations?
Should Echelon produce the accident benefits file including the adjusters' notes and records to Mr. Fraser?
Should Mr. Fraser pay Echelon's expenses of this motion?

Result:

The arbitration proceeding is stayed until Mr. Fraser makes himself reasonably available for two insurer's examinations.
Echelon shall produce the accident benefits file including the adjusters' notes and records by noon on April 29, 2005.
Each side will bear its own expenses in relation to this motion.

Facts:

These are the significant facts pertaining to the issues before me.

Mr. Fraser underwent an insurer's examination on June 20, 2003 with Dr. Joseph Kwok, orthopaedic surgeon.
On October 27, 2004, the parties appeared before Arbitrator Sandomirsky for a pre-hearing discussion. The issues in dispute were discussed and a hearing date set for May 2-5, 2005. Echelon also indicated that it would be asking Mr. Fraser to undergo a further insurer's examination because the Applicant's physical condition had not been assessed by the Insurer for some time. Mr. Fraser appears to have taken no issue with this request.
Also, at the pre-hearing discussion of October 27, 2004, Mr. Tiano, counsel for Mr. Fraser, advised that he had received a psychiatrist's report from Dr. Cooper and intended to call him as a witness at the arbitration.
On November 22, 2004, Mr. Pollack, for Echelon, advised Mr. Tiano, that an insurer's examination with a physiatrist had been scheduled to take place on January 13, 2005. Mr. Pollack's letter specifically asked that Mr. Fraser confirm his attendance at the examination. There appears to have been no response from either Mr. Fraser or his counsel. Also on November 22, 2004, Mr. Pollack requested a copy of Dr. Cooper's report.
Also on November 22, 2004, Mr. Pollack again wrote to Mr. Tiano indicating that the January 13, 2005 appointment had to be cancelled due to the unavailability of the doctor and that a new appointment date would have to be set. As before, Mr. Tiano did not respond to Mr. Pollack's correspondence.
A new insurer's examination was arranged for March 3, 2005. Mr. Fraser did not attend. Neither Mr. Pollack nor any representative of Echelon was notified that Mr. Fraser would not attend the examination.
On March 10, 2005, Mr. Tiano produced Dr. Cooper's report.
As of the date of this motion, Mr. Pollack had not yet delivered the complete accident benefits file along with adjusters' notes and records to Mr. Tiano.

Analysis:

It is clear that the onus is on the insurer to prove that insurer's examinations are reasonably necessary. Once the insurer establishes that the examinations are reasonable and necessary, the onus shifts to the insured to demonstrate that he had a reasonable excuse for not attending the examinations. If the insured offers a reasonable excuse, he can proceed to arbitration.

Many FSCO arbitrators have found that insurer's examinations are not reasonably necessary where their purpose is to bolster the insurer's case for the arbitration hearing rather than to adjust the claim for benefits.

Generally, whether an insurer's examination is reasonably necessary is determined by a consideration of numerous factors including:

the timing of the request
the number and nature of previous insurer's examinations
the number and nature of the examinations being sought
whether new issues have been raised in the claim that require evaluation
whether there is a reasonable nexus between the examinations and the applicant's injuries
the possible prejudice to the parties

In some cases, arbitrators have instead considered these matters as a question of fairness, i.e. is it fair to let the arbitration proceed without the insurer having been able to require these examinations.

I find that the insurer's examinations are reasonably necessary and that Mr. Fraser does not have a reasonable excuse for not attending them for the following reasons.

First, I cannot conclude that Echelon's request to have Mr. Fraser undergo insurer's examinations as early as October 2004 is clearly and solely a matter of bolstering Echelon's case for hearing, for the following reasons. I disagree with Mr. Tiano that Echelon's request for an examination came on the eve of arbitration. Echelon's first request for updated insurer's examinations came almost seven months before the scheduled arbitration date at a pre-hearing discussion. If Mr. Fraser had an issue with attendance at such examination, surely an objection could have been raised at that point. Indeed, the matter might have been argued by counsel and resolved by an arbitrator at that point, well in advance of the scheduled arbitration, given that one of the purposes of a pre-hearing discussion is to deal with procedural and preliminary issues. Furthermore, Echelon's notice of the examination scheduled for March 3, 2005 presented another opportunity for Mr. Fraser's objection to attendance. Instead, he simply failed to attend and, as a result, further delayed resolution of this issue. As a result, I am not prepared to make an adverse inference about Echelon's intentions with respect to the examinations, on the basis of the timing of the request. However, the fact that Echelon brings this motion only two business days before the commencement of the arbitration when clearly they were aware that Mr. Fraser had not attended back in March is also unreasonable.

It is incumbent on counsel to move on these matters as quickly as possible. The timely resolution of these matters should be the goal of counsel in order to prevent the adjournment of arbitrations set months in advance. Given the delays occasioned by both sides, I do not find that any one party is more prejudiced than the other by a temporary stay of the arbitration proceeding.

Second, given the nature of Mr. Fraser's ongoing complaints of injury, the proposed examinations with a physiatrist and a psychiatrist are related to and therefore reasonably necessary to assess his medical condition, especially where Echelon's only insurer's examinations had been conducted so much earlier and were conducted by an orthopaedic surgeon. Also, I find that Echelon's request for a psychiatrist's examination is not unreasonable at this stage given that Echelon was only served with Mr. Fraser's psychiatrist's report on March 10, 2005 even though it had been available since October 2004.

In conclusion, I find that Echelon's requested examinations are reasonable and necessary and that Mr. Fraser has not offered a reasonable excuse for his failure to attend at the examination of March 3, 2005.

Furthermore, given that the arbitration in this matter is scheduled to proceed on May 2, 2005, the arbitration proceedings must be stayed in order to accommodate the examinations. Echelon should ensure that these examinations are scheduled forthwith so that the arbitration of this matter is not further inordinately delayed.

Expenses:

I exercise my discretion to order that each side bear its own expenses in relation to this motion.

April 29, 2005

Rosemary Muzzi Arbitrator

Date