Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 114
FSCO A05-001887
BETWEEN:
KAMALJIT GOGNA
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Joyce Miller
Heard: February 21 and 22, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Sulaiman Mangal for Mr. Gogna Christina Polano for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Kamaljit Gogna, was injured in a motor vehicle accident on January 9, 2004. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated weekly income replacement benefits on February 9, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Gogna applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:
Should Mr. Gogna's income replacement benefit have been suspended on February 9, 2005 for failing to submit to a psychological assessment with Dr. Nemeth on March 21, 2005, pursuant to subsection 42(8) of the Schedule?
Is Mr. Gogna precluded from proceeding through arbitration pursuant to subsection 50(1)(b) of the Schedule, because he failed to attend for an insurer examination with Dr. Nemeth on December 19, 2005?
Result:
Pursuant to subsection 42(5)(b) of the Schedule, the psychological assessment on March 21, 2005, with Dr. Nemeth is not a reasonable examination to which Mr. Gogna should be required to continue to submit to. Accordingly, Mr. Gogna's income replacement benefit should not have been suspended on February 9, 2005 pursuant to subsection 42(8).
Mr. Gogna has provided a reasonable explanation why he refuses to submit to a further psychological assessment with Dr. Nemeth. Accordingly, Mr. Gogna is not precluded from proceeding to arbitration pursuant to section 50(1)(b) of the Schedule.
If needed, the parties may speak to me on the issue of expenses within 30 days of receipt of this decision.
BACKGROUND:
At the request of State Farm, Mr. Gogna attended a multi-disciplinary insurer's medical assessment at Canadian Rehabilitation Institute pursuant to subsection 42(1) of the Schedule. On December 22, 2004, he underwent a neurological assessment with Dr. Mayer. A Punjabi interpreter was present for this assessment. On January 5, 2005, he underwent a Functional Abilities Evaluation (FAE) with Darren Parsons and on January 13, 2005 he had a physiatry assessment with Dr. Czok.
In his report of January 18, 2005, Dr. Mayer recommended that Mr. Gogna undergo a psychological evaluation. Accordingly, State Farm requested that Mr. Gogna attend a psychological assessment with Dr. Nemeth at the Canadian Rehabilitation Institute. There was a miscommunication in respect of the first appointment set for January 31, 2005. Mr. Gogna missed this appointment. Pursuant to subsection 42(8) of the Schedule, State Farm suspended Mr. Gogna's income replacement benefit on February 9, 2005. A second appointment was rescheduled for March 21, 2005.
Mr. Gogna attended the assessment with Dr. Nemeth on March 21, 2005. On March 30, 2005, Dr. Nemeth provided a detailed 11 page report of her assessment. In her report she noted that Mr. Gogna had abruptly left the assessment after one hour.
On April 1, 2005, State Farm sent Mr. Gogna an OCF-9 stating that his weekly benefits remain suspended "due to non-compliance in cooperating with the psychological assessment of Dr. Nemeth." As a result, on April 14, 2005, Mr. Gogna applied for mediation wherein he disputed the suspension of his benefits on the basis that Dr. Nemeth's behaviour had caused the assessment to end.
On June 15, 2005, State Farm wrote to Mr. Gogna's representative wherein it states:
"...there will be no consideration for reinstatement of the IRB until such time as Mr. Gogna makes himself fully compliant and cooperates fully with the required psychological examination."
The mediation failed on June 17, 2005. Mr. Gogna applied for arbitration on August 19, 2005.
At the pre-hearing, on November 24, 2005, Mr. Gogna's representative advised State Farm that Mr. Gogna was available to undergo a psychological assessment, other than with Dr. Nemeth.
On December 2, 2005, State Farm advised Mr. Gogna that it had scheduled a medical examination with Dr. Nemeth for December 19, 2005.
On December 8, 2005, Mr. Gogna's representative advised that a Punjabi interpreter would be required for the Psychological Assessment.
On December 12, 2005, Mr. Gogna's representative wrote to State Farm's counsel stating:
This shall confirm that we specifically asked that you not schedule the appointment with [Dr. Nemeth] as our client had a very upsetting experience with her and left the appointment because she was screaming at him during one point of the examination.
Under the circumstances I feel it's appropriate to have our client examined by another doctor of your choice. ...
On December 13, 2005, State Farm's counsel wrote back to Mr. Gogna's representative stating that Dr. Nemeth had advised that "she conducted herself in a calm and appropriate manner throughout the appointment that took place on March 21, 2005."
The letter further stated:
As State Farm is entitled to have the assessment completed by the assessor of its choice, and as Dr. Nemeth has already reviewed most of Mr. Gogna's medical file, it is State Farm's position that your client has an obligation to complete the assessment with Dr. Nemeth.
SUBMISSIONS
State Farm's Submissions
State Farm submits that Dr. Nemeth had acted in a completely professional manner and that the assessment was terminated when Mr. Gogna abruptly left the assessment. State Farm submits that a psychological assessment with Dr. Nemeth was reasonable. State Farm submits that Mr. Gogna has not provided any reasonable excuse for his refusal to complete the assessment or to make himself available to re-attend the assessment with Dr. Nemeth. Accordingly, State Farm submits that pursuant to sections 42(8) and 50(1)(b) of the Schedule, Mr. Gogna's income replacement benefits should remain suspended and he should be precluded from proceeding to arbitration.
Mr. Gogna's Submissions
Mr. Gogna submits that he, in good faith, attended the March 21, 2005 psychological assessment with Dr. Nemeth and that she terminated the assessment. Mr. Gogna submits that at the assessment Dr. Nemeth's manner was impatient, harsh and unaccommodating. Mr. Gogna submits that he has at all times made himself reasonably available for insurer's examinations and continues to be available for another psychological examination with any appropriate specialist other than Dr. Nemeth.
Mr. Gogna submits that State Farm is acting in an arbitrary and high-handed manner by continuing to suspend his income replacement and insisting that he be examined by an assessor where a claim of abusive conduct has been made. Accordingly, Mr. Gogna submits that he is entitled to have his income replacement benefit reinstated and is entitled to proceed through arbitration.
THE LAW
Subsection 42(1) of the Schedule provides:
For the purpose of determining whether an insured person is entitled to a benefit, except a funeral or death benefit, an insurer may give the insured person notice requiring him or her to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.
Subsection 42(5) of the Schedule provides:
For the purpose of the examination,
(a) the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and
(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.
Subsection 42(8) provides:
If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5),
(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5);
(b) no benefit is payable for the period after the person has failed to attend the examination or failed to comply with subsection (5) and before the insured person submits to the examination and complies with subsection (5).
Section 50(1) provides in part:
An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,
(b) he or she made himself or herself reasonably available for any examination required by the insurer under section 42...
EVIDENCE, ANALYSIS AND FINDINGS:
In order to determine whether Mr. Gogna is precluded from proceeding through arbitration, State Farm must first establish that an insurer's examination was reasonably necessary. If this is established, then the onus shifts to Mr. Gogna to demonstrate that he had a reasonable excuse for not submitting to the examination.
In this case, Mr. Gogna does not dispute the reasonableness of State Farm's request for a psychological assessment. Accordingly, the onus now shifts to Mr. Gogna to demonstrate that he has a reasonable excuse for not completing the psychological assessment with Dr. Nemeth and refusing to re-attend with her.
Based on Dr. Nemeth's clinical notes of the March 21, 2005 examination, her report dated March 30, 2005 and her testimony at the hearing as well as Mr. Gogna's testimony, for the following reasons, I find that it is more likely than not that Mr. Gogna attended the assessment in good faith with the intention of fully participating in the assessment and that Dr. Nemeth's handling of the interview precipitated the termination of the assessment. Succinctly, I find that Mr. Gogna has provided a reasonable explanation as to why he did not complete the psychological assessment on March 21, 2005 and continues to refuse to be assessed by Dr. Nemeth.
In her report, Dr. Nemeth described the interview as follows:
This was an extremely challenging interview to conduct, not due to a language barrier, but due to the way in which Mr. Gogna responded to questions. For example, he claimed not to be able to remember dates of his accidents or the locations where they occurred. He was quite focused on his pain and other physical symptoms, and often grimaced. ...
In addition to not recalling information pertaining to his motor vehicle accidents, Mr. Gogna claimed not to be able to recall some important aspects of his historical functioning. For example, it took him an inordinate amount of time to recall what he did after he completed school in India, and he stated that he could not recall the year that he came to Canada. ...
Dr. Nemeth testified that Mr. Gogna responded to questions in an evasive manner. She stated that she constantly had to prompt Mr. Gogna to get specific information. She testified that "typically people instantly respond" to her questions, but Mr. Gogna took an "inordinate" amount of time to recall something as basic as what he did after he finished high school in India. The fact that the event took place over 18 years ago, in her view, was not relevant to the slowness of his answer.
Dr. Nemeth testified that an example of his evasive manner is that he could not recall the year when he came to Canada. When asked under cross-examination if he eventually answered this question, she responded "not according to my notes." When it was pointed out to her that her clinical notes indicated that he told her he came to Canada when he was 23 years old and that her report notes that he told her that he came to Canada seven or eight years ago, Dr. Nemeth responded that this was not sufficient. In her view, Mr. Gogna should have been able to tell her, without much hesitation, what the exact year was that he came to Canada.
Under cross-examination, Dr. Nemeth conceded that Mr. Gogna eventually answered her questions, but in a very slow fashion, and only after repeatedly asking him the questions. This is confirmed in her report where she states that "Mr. Gogna's limited account of his accidents and subsequent treatment appeared to be consistent with the documentation that was on file." Her clinical notes and records also show that he responded to family history questions. In her report, Dr. Nemeth recorded that 30 minutes into the assessment Mr. Gogna asked for a drink of water. She also noted that 45 minutes into the assessment when he took off his collar to put on some topical pain ointment, he stopped talking.
When asked why she noted these inconsequential details in her report, Dr. Nemeth responded that it was her view that Mr. Gogna was not behaving as other insureds assessed by her have behaved in similar circumstances. She stated that unlike other people who ask if they can have a drink of water, Mr. Gogna stood up suddenly and said he needed a drink of water.
Regarding the fact that he stopped talking when he removed his neck collar to apply the topical ointment for pain, Dr. Nemeth testified that this was unusual as other people can normally continue conversing when engaged in this kind of activity. In addition, Dr. Nemeth testified in a firm manner that Mr. Gogna should not have been wearing a neck collar one year after his soft tissue injury and that she had told him so.
According to Dr. Nemeth's report, the interview ended as follows:
After one hour, Mr. Gogna requested permission to lie down on the examination bed that was in the interview room. His request was granted, as long as he agreed to continue with the interview. However, he asked for a pillow, and when he was told that there was none available, he became very angry. He picked up the plastic bottles of medication that were on the desk, slammed them down, put them in his pocket, and left the assessment.
Under cross examination, Dr. Nemeth conceded that she never checked see if in fact the multi-disciplinary facility, which she was familiar with, had a pillow.
Mr. Gogna's version is that after Dr. Nemeth said there was no pillow available, she told him to lie down on a therapy bed in the hallway. He said he fell asleep and was awaken by someone at the facility who told him a taxi was waiting, which he said he had never ordered. He said he then went to Dr. Nemeth and asked for his medication, which he had left in the room, and asked her if he can go. According to Mr. Gogna, Dr. Nemeth said "yes, your taxi is there." Mr. Gogna gave his evidence in a straightforward, consistent and credible manner. Although he did not request an interpreter, it was very clear that English was not his mother tongue. His English was very heavily accented. He had to repeat himself several times so that he could be understood. He spoke slowly, but did not give the impression he was evading questions. He listened carefully and responded appropriately. His testimony, under cross-examination, was not impugned.
For the following reasons, I find it is more likely than not that Mr. Gogna did not unilaterally terminate the psychological assessment.
I accept Mr. Gogna's testimony that when he attended the assessment with Dr. Nemeth, he fully intended to complete the interview. He had previously attended and fully cooperated with three other insurer assessments. For his appointment with Dr. Nemeth, he arrived early. In fact, he was so anxious about being on time that when the taxi arrived he rushed out of his house in his sandals and bare feet. Dr. Nemeth verified that he was already at the clinic when she arrived and noted in her report that he was wearing sandals.
Even if I were to accept Dr. Nemeth's version of how the assessment ended, based on her testimony and the documentary evidence, I find that Dr. Nemeth created an insensitive, critical, impatient and tense atmosphere for the assessment. I find that it is more likely than not that Mr. Gogna felt Dr. Nemeth's impatient and critical attitude toward him and for this reason he may have been provoked into leaving the assessment.
Prior to the interview with Mr. Gogna, Dr. Nemeth ought to have known from the medical documentation she said that she had reviewed, that English was not Mr. Gogna's first language and that he had had a Punjabi interpreter present for his assessment with the neurosurgeon. As well, the medical document she reviewed and summarized in her report showed that Mr. Gogna had "difficulty with memory, communication and emotional distress."2
In addition, Dr. Nemeth's clinical notes indicate that at the commencement of her assessment she had made the notation: "Noted he was in pain, dizzy, but agreed to proceed."3 Her clinical notes also indicate that Mr. Gogna told her: "I forget things ... I have so much depression."4 As well, her report notes that Mr. Gogna told her that he takes four to five Tylenol #3 per day, three Naprosyn per day, and uses two different types of topical creams to deal with his pain.
Dr. Nemeth appears to have ignored this information. She seemed to have had a preconceived idea of how Mr. Gogna should have responded to her questions. Despite English not being Mr. Gogna's first language, that he was in pain, depressed, dizzy, having memory and communication problems and was heavily medicated, in her view Mr. Gogna should have answered her questions instantly, without hesitation. She expected him to instantly know facts that took place 18 years ago and precise details of an accident that had happened in 1995. She was not satisfied when he told her he came to Canada at age 23; she expected him to give her the precise year without hesitation.
As well, during the assessment, Dr. Nemeth expected Mr. Gogna to act in a certain manner. She testified that she expected him not to have stopped talking when he paused to remove his collar to apply topical pain ointment, nor did she did expect him to suddenly stand up and ask for a drink of water. She expected him to continue with the interview, while lying down and feeling dizzy. She acknowledged in her testimony that she made no effort to try and accommodate his reasonable request for a pillow.
An insurer's psychological assessment is an invasive examination into an insured's personal life by a stranger. Accordingly, it requires the utmost of tact and sensitivity on the part of the assessor in conducting the interview. At a minimum it requires the assessor to put the insured at ease so that the insured would feel comfortable with the assessor and co-operate in answering intimate and personal questions. As well, consideration should be given not only to the person's physical and psychological condition at the time of the assessment, but also there should be a degree of cultural sensitivity and an understanding that each person is an individual in their own right.
The sense one has from Dr. Nemeth's testimony is that she seemed to have wanted to breeze through this assessment in a mechanical fashion, based on a subjective criteria of how other people she has assessed behaved. By focussing on how Mr. Gogna should behave, I find that Dr. Nemeth was unreasonably critical and insensitive to Mr. Gogna's individual, reasonable needs. In my view, Dr. Nemeth's critical view of Mr. Gogna's behaviour confirms Mr. Gogna's version of the assessment, namely, that he felt her treatment of him was pressured and harsh.
Accordingly, for these reasons, I find that Mr. Gogna attended the insurer's psychological assessment with the intention of fully co-operating with the assessment, as he had done previously with the three other insurer's assessments. As well, I find that the actions of Dr. Nemeth precipitated the termination of the assessment either by specifically asking him to leave or by making it so uncomfortable for him that he was forced to leave. The letter of December 12, 2005 from Mr. Gogna's representative, noted above, confirms that Mr. Gogna did not refuse an insurer's psychological assessment but had reasonable grounds not to want to submit to a further examination by Dr. Nemeth. On the facts of this case, I find that the insurer's insistence that Mr. Gogna re-attend with Dr. Nemeth and ignoring his experience with her was unreasonable.
Accordingly, I find that pursuant to subsection 42(5)(b) of the Schedule, the psychological assessment with Dr. Nemeth is not a reasonable examination to which Mr. Gogna should be required to continue to submit. Accordingly, Mr. Gogna's income replacement benefit should not have been suspended on February 9, 2005 pursuant to subsection 42(8).
I also find that Mr. Gogna has provided a reasonable explanation why he refuses to submit to a further psychological assessment with Dr. Nemeth. Accordingly, I find that Mr. Gogna is not precluded from proceeding to arbitration pursuant to subsection 50(1)(b) of the Schedule.
EXPENSES:
If needed, the parties may speak to me on the issue of expenses within 30 days of receipt of this decision.
July 11, 2006
Joyce Miller Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 114
FSCO A05-001887
BETWEEN:
KAMALJIT GOGNA
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
State Farm should not have suspended Mr. Gogna's income replacement benefit from February 9, 2005 and ongoing.
Mr. Gogna may proceed through arbitration.
If needed, the parties may now speak to the issue of expenses.
July 11, 2006
Joyce Miller Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See Exhibit 1, Tab 10 where Dr. Nemeth summarizes at pages 6, 7 and 8 the medical documents that she reviewed and page 9 where she quotes from the OCF-12.
- See Exhibit 3, Dr. Nemeth's clinical notes of her interview with Mr. Gogna, p. 1
- Ibid., p. 4