Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 25
FSCO A04-000994
BETWEEN:
ANGELA MOLE
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before:
Denise Ashby
Heard:
January 16, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mary DeRose for Mrs. Mole
Avrim Joseph for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Angela Mole, was injured in a motor vehicle accident on December 4, 2001. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.1 Wawanesa denied benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Mole 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:
- Is it reasonably necessary that Mrs. Mole attend a neurological and psychiatric assessment pursuant to subsection 42(3) of the Schedule?
- If yes, is Wawanesa entitled to an adjournment of the arbitration hearing presently scheduled for four days commencing Monday, April 10, 2006?
Is Mrs. Mole liable to pay Wawanesa's expenses in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Wawanesa liable to pay Mrs. Mole's expenses in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Result:
It is not reasonably necessary that Mrs. Mole attend a neurological and psychiatric assessment pursuant to subsection 42(3) of the Schedule and therefore Wawanesa is not entitled to an adjournment of the arbitration hearing presently scheduled for four days commencing Monday, April 10, 2006.
Mrs. Mole is not liable to pay Wawanesa's expenses in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Wawanesa is liable to pay Mrs. Mole's expenses, fixed at $500.00 and payable forthwith, in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
INTRODUCTION:
On December 4, 2001, Mrs. Mole was walking across a street when she was struck by a motor vehicle. She was taken to hospital, examined and discharged.
Wawanesa seeks an order that a neurological and psychiatric assessment is reasonably necessary to determine whether Mrs. Mole is entitled to benefits pursuant to the Schedule. Also, in the event it were determined the examination is reasonably necessary, Wawanesa seeks an order adjourning the hearing presently scheduled for four days commencing April 10, 2006, to permit sufficient time for the assessment and the report to be made available to the parties.
EVIDENCE AND ANALYSIS:
Submissions of the Parties:
Wawanesa submits that in May 2005, Mrs. Mole served reports which raised a new medical basis for her claim and has unreasonably refused to attend an insurer's examination to determine whether she is entitled to benefits based on the new diagnosis.
Mrs. Mole submits that there is sufficient medical evidence upon which to base a determination of her entitlement to benefits. Further, she maintains that Wawanesa is seeking the assessment for evidentiary purposes rather than to adjust the file. Mrs. Mole submits that there is no new medical basis for her claim. She maintains that Wawanesa merely failed or chose not to investigate symptoms noted by its assessor, Dr. Irving Grosfield, an orthopaedic surgeon, in July 2002.
On July 4, 2002, Dr. Grosfield examined Mrs. Mole on behalf of Wawanesa. In his report he made the following observations:
As a result of a pedestrian-motor vehicle accident on December 4, 2001, Ms. Angela Mole has sustained a contusion of her head. There was a possible period of unconsciousness. When she was seen at Etobicoke General Hospital she was placed on a head injury routine for the next 24 hours...
Ms. Mole claims to have dizziness and nausea when she is lying down. A recliner bought for her by the insurance company. This is not my field of expertise and to evaluate this, I would suggest a neurological or ear, nose and throat consultant...
Ms. Mole does require evaluation from a psychiatric standpoint and for possible psychiatric and/or psychological consultation and treatment. As stated by Ms. Mole, her concern is that her psychological and not her physical problems are the major problems in her present situation and I would strongly agree with her on this.2
On December 22, 2004, Mrs. Mole provided the medical reports of Dr. Richard Gladstone, a neurologist, and Dr. David Kurzman, a psychologist, to Wawanesa. On May 10, 2004, Mrs. Mole applied for arbitration. On June 15, 2005, a pre-hearing was held at which the hearing date was set. On September 19, 2005, Mrs. Mole was sent a notice that a psychological/neurological assessment had been scheduled on January 9, 2006.3 On October 5, 2005, counsel for Mrs. Mole advised that her client would not be attending the assessment.4 On October 17, 2005, Wawanesa's counsel responded as follows:
If you are now going to withdraw any suggestion that Ms. Mole is in fact disabled either on a neurological or neuropsychological basis and further agree not to file the reports of Drs. Gladstone and Kurzman in the pending arbitration, then Dr. Berry's examination will be cancelled. However, if you are not prepared to agree to this, then the appointment with Dr. Berry will proceed as scheduled.
If upon reflection, you are still not prepared to agree to this, kindly let us know and we will bring on a motion at the Commission to have the point determined.5
Reasons:
The provisions of the Schedule relevant to this motion are subsections 42(1) and (3) of the Schedule as follows:
42.(1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person 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.
(3) The insurer may require examinations as often as is reasonably necessary.
It is well established that the onus is on the insurer to show that the proposed medical examination is reasonably necessary for its assessment of entitlement to benefits rather than a need to bolster its case for litigation arising from its denial of a benefit.6
In July 2002, Wawanesa was aware that Dr. Grosfield, its expert, thought neurological and psychiatric assessments were reasonable. It was apparent then that Mrs. Mole was complaining of symptoms which might have been consistent with a closed brain injury. In December 2004 Wawanesa received the reports of Dr. Gladstone and Dr. Kurzman upon which Mrs. Mole bases her claim to benefits based on neuropsychological problems.
Wawanesa chose not to recommend a neuropsychiatric assessment when it received Dr. Grosfield's report or during the next three years, notwithstanding its receipt of the neurological report of Dr. Gladstone or the psychological report of Dr. Kurzman in December 2004. The inference to be drawn from Wawanesa's failure to seek an assessment was it did not believe a further assessment was necessary for the adjustment of the file.
Wawanesa's counsel's letter of October 17, 2005, proposes that Wawanesa would cancel the assessment if Mrs. Mole abandoned her claim that neurological or neuropsychological problems were the basis for her claim and did not submit her supporting medical evidence at the arbitration. This offer taken together with Wawanesa's failure to seek a psycho-neurological assessment in the period from July 2002 to September 19, 2005 leads me to conclude that Wawanesa's offer was a litigation tactic unrelated to the adjustment of the file. Therefore, I find that Wawanesa's overarching reason for seeking the assessment was to bolster its case at arbitration and the assessment is not reasonably necessary.
EXPENSES:
Mrs. Mole has successfully defended Wawanesa's motion. Therefore, I exercise my discretion to award Mrs. Mole her expenses incurred in this motion set at $500.00 payable forthwith.
February 8, 2006
Denise Ashby
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 25
FSCO A04-000994
BETWEEN:
ANGELA MOLE
Applicant
and
WAWANESA MUTUAL 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:
It is not reasonably necessary that Mrs. Mole attend a neurological and psychiatric assessment pursuant to subsection 42(3) of the Schedule and therefore Wawanesa is not entitled to an adjournment of the arbitration hearing presently scheduled for four days commencing Monday, April 10, 2006.
Mrs. Mole is not liable to pay Wawanesa's expenses in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Wawanesa is liable to pay Mrs. Mole's expenses, fixed at $500.00 and payable forthwith, in respect of the motion under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
February 8, 2006
Denise Ashby
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Written Response of the Applicant, Tab C, page 8
- Wawanesa's Motion Materials, Tab 2
- Wawanesa's Motion Materials, Tab 3
- Wawanesa's Motion Materials, Tab 4
- Singarajah and Wawanesa, (FSCO A02-000785, June 16, 2003); Belair Insurance Company Inc. and F.S., (OIC Appeal Decision P96-00039A, June 11, 1996); Swanson and Wellington Insurance Company, (FSCO A98-000067, May 26, 1998), Merg Kong and Personal Insurance Company of Canada, (FSCO A04-001188, March 15, 2005)