Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 132

FSCO A05-002144

BETWEEN:

MICHAEL DOUGLAS IVES

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUES

Before: Denise Ashby

Heard: July 31, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Joseph Lam for Mr. Ives

Carla Falkeisen for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Michael Douglas Ives, was injured in a motor vehicle accident on February 6, 2002. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on July 22, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Ives 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:

Is the examination scheduled in Sudbury on Friday, August 25, 2006 at 2:00 p.m., with Dr. Lloyd, orthopaedic surgeon, reasonably necessary pursuant to section 42 of the Schedule?

Result:

The examination scheduled in Sudbury on Friday, August 25, 2006 at 2:00 p.m., with Dr. Lloyd, orthopaedic surgeon, is reasonably necessary pursuant to section 42 of the Schedule.

BACKGROUND:

Mr. Ives was injured in motor vehicle accidents on September 24, 2001 and February 6, 2002. Wawanesa paid an income replacement benefit at the weekly rate of $400.00 which it terminated on July 22, 2005. A pre-hearing was held on May 1, 2006. The pre-hearing letter dated May 23, 2006, set out timelines for the exchange of written materials in support of Wawanesa's motion pursuant to section 42 of the Schedule.

The motion, which was heard on June 20, 2006, was dismissed by Arbitrator Renahan on the basis that Wawanesa had failed to serve a notice on Mr. Ives pursuant to subsection 42(4) of the Schedule² On June 20, 2006, Wawanesa served Mr. Ives with notice of a medical examination pursuant to section 42(4).

SUBMISSIONS:

Wawanesa submits that a further orthopaedic assessment is required to assist it in determining whether it reasonably terminated Mr. Ives' income replacement benefit. At the pre-hearing discussion, Mr. Ives stated his position that Wawanesa had unreasonably relied on Dr. J. Cisa's opinion of April 22, 2005, that Mr. Ives is not completely disabled from participating in any occupation for which he is suited by education, training or experience, as a result of the accidents.³ This opinion contradicted Dr. Cisa's original opinion of February 4, 2004, that Mr. Ives suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.⁴ Wawanesa submitted that Dr. Cisa's opinions are the only medical opinions it has available in respect the post-104 week income replacement benefit test. Therefore, a further examination pursuant to section 42 of the Schedule is reasonably necessary to re-evaluate its termination of the income replace benefit.

As well, Wawanesa submitted that the occupational therapist’s report dated March 3, 2005, which was not available to Dr. Cisa, identified the following symptoms:

swelling and numbness from the elbow distally and involves the hand. In addition to these complaints he describes left elbow symptoms. He reports he has developed "tennis elbow" due to overuse, attempting to compensate for the right U/E. This is aggravated with sustained or heavy activity.⁵

Wawanesa submitted that these symptoms have not been investigated which requires a further section 42 assessment to properly adjust the file.

Mr. Ives submits that it is little more than a year since Dr. Cisa last assessed him. Wawanesa has failed to demonstrate that there has been a change in his physical or psychological condition since that assessment which would necessitate a further assessment. Further, Dr. J. Hummel, orthopaedic surgeon, conducted a paper review in respect of an Application for Approval of Examination. He determined that an orthopaedic assessment pursuant to section 24 of the Schedule, to determine Mr. Ives= capacity to engage in his activities of daily living, was not reasonably required. Dr. Hummel stated: "At this stage in recovery, a third orthopaedic assessment in my opinion is not required for the type of injuries sustained, and it is therefore my opinion the assessment is not reasonably required."⁶

Mr. Ives also submits that Dr. Cisa did have access to the occupational therapy report as he was asked to comment on the reasonableness of its recommendation that a whirlpool Jacuzzi be installed in his home.

Finally, Mr. Ives submits that the assessment is being sought between the pre-hearing and the arbitration hearing and is therefore being sought in the "final stages of a legal dispute."

ANALYSIS:

It is well established, by FSCO caselaw, that the onus is on the insurer to show that a proposed medical examination is reasonably necessary to assess entitlement to benefits and not for the purpose of bolstering its case for litigation.⁷ As well, arbitrators have held that an insurer has a continuing obligation to adjust the file notwithstanding it has terminated payment of a benefit.⁸

In the present case, both parties relied on Bogic and AXXA Insurance (Canada). I agree that the Bogic principles are applicable to determining whether an examination is reasonably necessary pursuant to section 42(3) of the Schedule.

The circumstances of this matter are unusual. I accept that Dr. Cisa's opinions are the only expert medical opinions available to Wawanesa in respect of the test to determine Mr. Ives' entitlement to a post-104 week income replacement benefit. Dr. Cisa's conclusions are contradictory. Mr. Ives disputes the conclusion reached by Dr. Cisa in his April 2005 report. He submits that by relying on that decision, Wawanesa acted unreasonably in terminating his weekly income replacement benefit.

Dr. Cisa's report of April 2005 contains a list of the documents he reviewed. The list does not refer to the occupational therapy report. However, Dr. Cisa states that a purpose of the assessment is to comment on the recommendations made by the occupational therapist. Therefore, I draw the inference that Dr. Cisa had the report available to him on April 22, 2005 and by mistake the report was omitted from the list of documents reviewed. Further, the symptoms noted in the occupational therapist's report and set out above were known to Dr. Cisa during his examination. I find those symptoms do not constitute a change in Mr. Ives' physical condition requiring a further section 42 examination.

There is no evidence before me that Mr. Ives has been subjected to numerous and frequent examinations which might constitute an unreasonable intrusion into his privacy.

In Eidt and Pilot Insurance Company⁹ the arbitrator noted that the pre-hearing letter did not mention an issue related to an insurer's examination. The insurer's delay in seeking an examination was an important factor in the arbitrator finding that the examination sought by the insurer was not reasonably necessary. In the present case, the request for an examination was made at the pre-hearing. Mr. Ives declined to consent and the pre-hearing arbitrator set dates for written submissions for a preliminary issue motion. I find it plausible that as a result of the pre-hearing discussion Wawanesa requested the further examination to assist it in reassessing its termination of the income replacement benefit.

The arbitration hearing is scheduled to commence on May 28, 2007 in Sudbury. The section 42 examination is scheduled for August 25, 2006. Dr. Lloyd, who practises in Toronto, will travel to Sudbury to conduct the examination. The date of the proposed examination is well in advance of the scheduled arbitration hearing and therefore will not prejudice Mr. Ives by necessitating an adjournment of the hearing. As well, it is to be conducted in a place which is reasonably convenient to Mr. Ives.

Dr. Cisa noted improvements in Mr. Ives' condition in the year or so since his first examination. A further 16 months will have elapsed between Dr. Cisa's last examination and the one which is proposed. Dr. Hummel was of the opinion a third orthopaedic opinion was unreasonable. His opinion cannot be treated as determinative of the issue before me. An arbitrator is not bound by an expert opinion. More importantly, Dr. Hummel was considering the issue of activities of daily living, not a post-104 week income replacement benefit. His opinion does not assist me in determining whether a section 42 examination is reasonably necessary in light of the contradictory conclusions reached by Dr. Cisa.

I find that the main purpose of the section 42 examination sought by Wawanesa is the fair and effective adjusting of Mr. Ives' claim for a post-104 week income replacement benefit and not the bolstering of its case for arbitration. Wawanesa requested the examination early in the arbitration process. The examination is to take place in a location reasonably convenient to Mr. Ives and represents a reasonable intrusion into his privacy. The section 42 examination is scheduled for a date which presents no impediment to the commencement of the arbitration hearing in May 2007. Therefore, the examination scheduled in Sudbury on Friday, August 25, 2006 at 2:00 p.m., with Dr. Lloyd, orthopaedic surgeon, is reasonably necessary pursuant to section 42 of the Schedule.

EXPENSES:

Neither party made submissions in respect of the expenses incurred for this motion. Therefore, this issue will be left to the hearing arbitrator.

August 3, 2006

Denise Ashby Arbitrator

Date