Natalia Vasina v. ING Insurance Company of Canada, 2007 ONFSCDRS 111

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 111

FSCO A05-001207

BETWEEN:

NATALIA VASINA

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

PRE-HEARING DECISION

Before:

David Muir

Heard:

November 14, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on January 30, March 30 and April 27, 2007

Appearances:

Henry Goldentuler for Ms Vasina

Thomas Percival for ING Insurance Company of Canada

Issues:

The Applicant, Natalia Vasina, was injured in a motor vehicle accident on May 23, 2004. She applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms Vasina applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Ms Vasina has claimed that she has sustained a catastrophic impairment within meaning of section 2(1) of the Schedule and accordingly may be entitled to certain statutory accident benefits that would otherwise have been terminated by the mere passage of time, at the 2-year mark post onset of disability. ING has requested that Ms Vasina attend at an insurer's examination to assist it in determining whether or not she has suffered a catastrophic impairment.

The examinations include assessments by a psychiatrist, a neurologist, an orthopaedic surgeon, a physiotherapist as well as an in-home assessment by an occupational therapist.

Ms Vasina has agreed to attend on the condition that she be allowed to videotape these assessments. ING at least initially was agreeable, however, the MDAC group who are conducting the assessments on behalf of Riverfront Medical Services have objected to the request for reasons set out in summary form below.

By way of further background ING, and apparently its nominated assessors as well, have agreed that if Ms Vasina wishes she may be accompanied during the assessments by an independent third party such as trained nurse, or a family member - a daughter who is involved in her care has been specifically agreed to. Ms Vasina continues to insist on a video recording of the assessments and has suggested certain terms intended to allay some of the objections raised by the assessment group. Neither party has suggested the alternative of an audio recording.

There was no formal evidence tendered by either party. A statement taken from Ms Vasina was filed as well as several medical reports that will ultimately be relied upon in the hearing. A statement of the assessor's objection to the videotaping is included in the material. The parties also each provided a number of authorities which they claim support their respective positions.

Neither party raised any objection to my jurisdiction to deal with this issue and it was argued in the form of a Motion by ING seeking an Order staying the arbitration hearing unless and until Ms Vasina attends at the insurer's assessment. Although this was not argued I am inclined to think that this would be the limit of my jurisdiction under section 42. I have no authority to order that Ms Vasina attend an assessment - I am limited to a determination of whether her refusal to attend an assessment is reasonable and if it is not, what the consequences of her refusal may be for the hearing, if there is one. Equally I do not believe I have jurisdiction to Order that the assessors in question submit to a video recording of an assessment.

The issues are:

1. Has Ms Vasina failed to make herself reasonably available for an insurer's assessment sought pursuant to section 42 of the Schedule, by refusing to attend unless she is able to record it by videotape?

2. If the answer to Question #1 above is "Yes", what is the consequence of Ms Vasina refusing to attend the assessment?

Result:

1. Ms Vasina has not unreasonably refused to attend a section 42 assessment.

The basis for Ms Vasina's request is her claim that she was injured in a prior insurer's examination and does not wish to repeat that experience. As well she claims that her statements to various assessors have not been recorded properly and she wishes to have an objective record of this particularly critical assessment. Related to this is Ms Vasina's claim that she suffers from cognitive and memory deficits giving rise to a concern as to the reliability of her recollection and ability to recount what takes place during the assessments.

ING submissions are essentially threefold: First that the onus rests on Ms Vasina to show that there are exceptional circumstances that would justify such a request; second: that her request will limit the ability of ING to have a proper assessment by an assessor of its choice because many, if not all, assessors will refuse to participate. It is significant in this regard that the basis for Ms Vasina's catastrophic claim is paragraph 3(e) - the 55% whole person impairment provision; and finally that to require its assessments to be videotaped, but not the assessments conducted on behalf of Ms Vasina creates an imbalance between the parties in presenting their cases in an arbitration hearing.

Neither party made specific reference in argument to the fact that this is a claim for statutory accident benefits. It is a first party claim and even where litigation is ongoing as in this case, there is no right to a defense medical. The Insurer is entitled to assessments pursuant to section 42 of the Schedule for purposes of adjusting the claim. This limited scope for assessments in accident benefit cases has been expanded somewhat by arbitrators to afford some level of fairness to insurers in responding to the case as presented by applicants where litigation is ongoing.²

Ms Vasina believes that she was injured during the course of a prior assessment. She apparently holds this belief strongly and made a complaint against the physician in question to the College of Physicians and Surgeons of Ontario. The Disciplinary Panel hearing the matter could come to no definitive conclusion in large part because there was no independent corroboration of Ms Vasina's claims. On the other hand there is little or no medical evidence to support her claim of an injury resulting from the assessment. She does claim that she reported this new injury to all subsequent assessors but that these complaints were not reported in any of the subsequent insurer's assessments. She also claims that as a result of significant cognitive sequella of injuries sustained in the accident including significant memory loss she will be unable to challenge effectively the conclusions of the catastrophic insurer's examination in question without some objective record of it.

As indicated ING initially had no objections to Ms Vasina recording the proposed assessment. The issue arises because the nominated assessors, MDAC on referral or on behalf of Riverfront Medical Services, refused to conduct the assessments if videotaped. The reasons given by Riverfront are resonant with those offered by other physicians in the cases referred to by the parties. I have summarized them very briefly here:

1. The recording would be defocusing and disorienting for the practitioner and the applicant. It would interfere with the standard protocol for such assessments.

2. Few doctors have had the experience of conducting assessments while being "videotaped for posterity". It is suggested that the recording of the assessment is inherently adversarial and would reduce or eliminate any therapeutic value the session might have otherwise had.

3. Steps must be taken to secure the tape and ensure its integrity pending whatever ultimate use it is put to.

4. Concerns were raised about collateral use for the tapes as well as long term custody of them.

5. Who will be responsible for the expenses associated with the taping.

6. Concerns were expressed about access to the tapes in light of the timelines for publication of the report effective March 1, 2006.

7. Many of the most qualified assessors will be reluctant to conduct an assessment while being recorded. This will make it more difficult (if not impossible) to obtain the services of the most experienced assessors.

In response to these concerns as well as those raised in the cases the parties both referred to, Ms Vasina suggested the following protocol for the video recording:

1. The camera is to be set up in an unobtrusive manner before the examination by a professional videographer.

2. There will be no editing of the video-recording.

3. The operator will not be present in the examination room.

4. The tape is to be sufficient time capacity to eliminate any necessity to interrupt the examination.

5. The tape is to record and display the passage in seconds on a continuous basis and the time frame codes sequentially.

6. Immediately upon completion of the examination, possession of the tape is to be taken by the videographer.

7. Immediately and/or within 48 hours of the completion of the examination, the videographer is to make two unedited additional copies of the tape and deliver the original and/or one copy to ING's counsel, or in the alternative two video cameras side by side will record the examinations.

An obvious lacuna in the proposal above is the provision of a copy to the assessor conducting the assessment.

Perhaps the leading case in this area is Bellamy v. Johnson, 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591. The issue in that case was the appropriateness of an order allowing the tape recording of a defence medical. Although arising in a quite different context I find that the concurring reasons of Justice Doherty are particularly apt:

I have read the reasons of Brooke J.A. I agree with him that a party who is undergoing a medical examination pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, has no right to record the conversations which occur during that examination.

In deciding whether to permit the tape-recording of conversations which occur during a "defence medical", the court must consider the potential impact of that recording on:

1. the opposing party's ability to learn the case it has to meet by obtaining an effective medical evaluation;

2. the likelihood of achieving a reasonable pre-trial settlement;

3. the fairness and effectiveness of the trial.

The first of these three considerations predominates. Without an effective medical evaluation, the defendant cannot know the case he or she must meet and the chances of a pre-trial settlement and a fair and effective trial must suffer. An effective defence medical is one which yields the information referred to in rule 33.06(1) [am. O. Reg. 711/29, s. 21]:

33.06(1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order. (emphasis added by me)

The tape-recording of conversations during the medical examination should not be allowed if that recording would detract from the examiner's ability to provide the information referred to in rule 33.06 [am. O. Reg. 711/89, s. 21].

If the recording would not interfere with the conducting of an effective medical examination, the court should go on to consider whether the recording would promote pre-trial settlements and enhance the fairness and effectiveness of the trial process. If the recording would produce a full and accurate record which could be made available to all parties in a timely fashion, the recording might well enhance settlement prospects. Also, to the extent that statements made during the examination become controversial, a full and reliable record of those statements would facilitate the fact-finding process. Indeed, in many cases it would avoid the controversy and expedite the trial.

Each application to permit tape-recording during the examination will depend on its own facts. If the moving party demonstrates the potential for a bona fide concern as to the reliability of the doctor's or plaintiffs account of any statements made during the examination, and if the moving party proposes a method and terms of recording the examination which would provide both parties with a full and accurate record of those statements in a timely fashion, then an order permitting the recording would be appropriate. (Emphasis added by me)

I turn next to the second and third considerations enumerated above. I agree with Brooke J.A. that the material does not demonstrate a lack of accuracy in prior unrelated reports prepared by Dr. Peerless. At most, it suggests some dispute in respect of a few particulars referred to in those reports. Most of these disputes concern relatively minor matters and are no more than one would expect in the normal course. I doubt very much whether this material could raise a bona fide concern as to the accuracy of any account of statements made during the examination subsequently given by Dr. Peerless.

In any event, merely permitting the plaintiff to tape-record statements made during the examination would not necessarily result in a more reliable or more complete record of what was said. The material relied on by the plaintiff does not suggest any procedures that would ensure the accuracy of the initial recording or preserve its integrity pending trial. Nor does the plaintiff's material suggest that the tape-recordings or transcripts of those recordings would be made available to the defence in a timely fashion following the examination. Without appropriate safeguards, merely permitting the plaintiff to take a tape-recorder into the medical examination would not promote the likelihood of reasonable pre-trial settlements, or enhance the fairness or effectiveness of the trial.

In the result, I agree that the appellants did not make out a case for the tape-recording of their conversations with Dr. Peerless. I would dismiss the appeals with costs to the respondents throughout in any event of the cause.

There are two instances of FSCO arbitrators considering this issue. In Cameron and Pilot Insurance Company³, the applicant had attended a catastrophic DAC assessment with a friend who intended to videotape the assessments. The DAC declined to continue if Mr. Cameron insisted on videotaping the proceedings. No reasons were given for the DAC's refusal to proceed. Framing the issue as whether, or not, Mr. Cameron had made himself reasonably available for the assessment (and not whether the videotaping of the assessments was reasonable) the arbitrator determined that Mr. Cameron had made himself reasonably available for the assessment.

In a somewhat earlier decision, Peters and Guarantee Insurance Company of North America⁴, the arbitrator considered whether the applicant's insistence on making an audio recording of an insurer's assessment was reasonable. After an analysis of Bellamy, supra, and a consideration of the similarities and differences between a defence medical and an insurer's examination, the arbitrator found that there may be occasions where an applicant's insistence on the recording of an assessment would be considered reasonable. However:

The onus is on the applicant to satisfy the arbitrator that the refusal to submit to the examination unless the proceedings are tape recorded, is reasonable. The arbitrator must also determine that the proposed method of tape recording the examination will not interfere with the medical examination, the likelihood of achieving a settlement, or the fairness and effectiveness of the arbitration hearing.

In this particular circumstance the arbitrator concluded that the applicant's concerns: that the assessor in question had on prior occasions been rude to her; and that she differed with an observation he had made about her disability, were issues that would be more appropriately dealt with by her giving evidence and in cross-examination of the assessor by her counsel. The arbitrator was also concerned that there were insufficient procedural safeguards to ensure the accuracy and reliability of the tape recording which may well have simply lead to further disputes about the recording itself.

Drawing on the principles enunciated in these cases it is clear that there may be circumstances where an applicant's insistence on recording an assessment (in some way) would be reasonable. In the particular circumstances of a section 42 assessment, it follows that in some circumstances the failure to attend an assessment because an assessor refused to consent to some form of recording would not constitute a failure to attend a required assessment.

An applicant must establish that there is some basis for the concern giving rise to the request. The Court of Appeal articulated the standard as "a potential for a bone fide concern". It seems to me that this includes a significant subjective component. There may be circumstances where an entirely subjective belief on the part of an applicant in, for example the unreliability of an expert would support the recording of an assessment.

Such requests are apparently not routine and indeed should not be, as they inevitably will add to the complexity and expense of these matters. In this case Ms Vasina has stated that she is prepared to pay the costs of the videotaping and provide a copy to ING. As a discretionary expense and not one contemplated by the Expense Regulation it is unlikely that the costs associated with such recordings would be recoverable.

It also must be shown that the method of recording will not adversely affect the ability of the assessor to do their job and provide to the insurer the information it needs to make a determination of entitlement. For the Court of Appeal in Bellamy this was the primary consideration, although in reading between the lines of the reasons of Justice Doherty, it may be that this onus is easily met by an applicant and may indeed shift at some point to the assessors in question to show what the problem with a recording would be.

Finally, there must be a consideration of the impact the recording of such assessments on the dispute resolution process and on the conduct of the ultimate arbitration hearing, if there is one. I do think that, as did the arbitrators in Peters⁵ and Cameron⁶, that there are important distinctions between a section 42 (or a DAC) assessment and a defence medical that would suggest a higher level of openness and transparency than might be required in a traditional tort case.

Turning now to consider these factors, I am not persuaded that what is proposed by Ms Vasina will in any significant way impair the ability of the assessors in question from conducting proper assessments. The concerns, as outlined in the communications from Riverfront Medical Services are not persuasive particularly as they relate to the ability of the assessors to do their jobs. To the extent that they reflect real and substantial concerns about the process, I find that Ms Vasina's suggestions concerning procedure are in part responsive to those concerns.

In this regard I have considered the submission of ING that Ms Vasina's position will limit its ability to have these assessments conducted by experts of its choosing. This is an important point, however at this stage all I have is conflicting assertions by the parties about the availability of assessors willing to participate in a videotaped assessment. Riverfront Medical Services, in its communications to Ms Vasina, has not claimed that it would be impossible to find qualified assessors prepared to undertake an assessment which is recorded. Ms Vasina asserts that given the opportunity, she would be able to identify other assessors who would be willing to conduct an assessment under these circumstances.

The analysis also requires a consideration of the impact of the recording on the prospects for settlement, the effectiveness of disclosure and the fairness of a possible arbitration hearing.

There is no evidence before me that would support any concern about the objectivity or competence that MDAC or Riverfront Medical Services would bring to this assessment. Ms Vasina, to her credit, early on abandoned any suggestions in this regard. Rather Ms Vasina claims that it is the fact that she was allegedly hurt in a prior insurer's assessment, her claims that several insurer's assessors have neglected to accurately report that, as well as her cognitive and memory problems that give rise to a bone fide concerns.

These claims are made in submissions but there is little evidentiary support for them. A review of the medical documentation provided does include a couple of references to cognitive problems including memory problems. These are not substantial but they are there. As indicated earlier there is no substantial medical evidence of an injury having been sustained in the prior insurer's assessment.

Despite the lack of a substantial objective basis for a concern, I find that a video taping recording might enhance settlement prospects in that it may, in these circumstances, enhance Ms Vasina's confidence in the conclusions of the assessment.

Ms Vasina is clearly convinced that she was mistreated in a prior insurer's assessment. She went to the time and trouble to have that issue adjudicated before a Disciplinary Panel of The College of Physicians and Surgeons of Ontario. She also appears to believe that several assessors have inaccurately recorded what she has told them about her condition. Her faith in the veracity of such assessments has been compromised. Whether her belief is fair or not, it appears to be real.

Questions about the completeness and accuracy of assessments are often issues in arbitration hearings. Collateral attacks on applicants' credibility based on hearsay in medical reports are an important element of many responding insurers' arbitration strategy. In response it is not the least bit unusual for an applicant to complain that the assessment was rudimentary or incomplete and that things that were said are not recorded or that the report of the assessor includes things that were not said or are not true. To the extent that a video recording might eliminate questions about when, how and why certain things are said and done during these assessments, it may enhance the possibilities for settlement by increasing Ms Vasina's confidence in them.

The more difficult issue is the impact of such a recording on the conduct of an arbitration hearing, if there is one. ING submits that in the event that its assessment is recorded, Ms Vasina will obtain an advantage in that she will have a video tape to cross examine on, while it will not have such recordings of her experts. This submission assumes there will be disputes arising out of these assessments and moreso that there will be an arbitration hearing, however the point is taken.

However one views the impact of what Ms Vasina seeks to do here, it does distort the process in that one party's experts will have been subject to an "objective record" and the other's perhaps not. It seems to me that this distortion cuts both ways. It is open, I suggest, for a party whose experts' assessments have been recorded in some objective way to argue in an arbitration hearing that their reports ought to be preferred because the accuracy, completeness etc. of the assessors' conclusions can be tested against an objective record of what was said and done, while there is no such record of the other sides' expert opinions. Whether that kind of submission is accepted is of course a matter for a hearing arbitrator, the point is that there are risks for an applicant in making the request at issue here.

Balancing all of these considerations and having regard to the fact that this is a section 42 assessment in a first party claim, I find that Ms Vasina is not failing to make herself reasonably available for the assessments in question by insisting on their being videotaped. I make this finding in the absence of any substantial evidence supporting a submission that her insistence on videotaping would effectively deprive ING of its ability to have the assessment conducted by assessors of its choosing.

This finding is also dependent on the parties agreeing on the recording being conducted with such safeguards that ensure that it is as objective as possible and does not unduly distort the insurer's adjusting process or the efficient, just and expeditious progress of the dispute resolution process. Ms Vasina's submissions may form the basis for such agreement and I leave it to the parties to certify their agreement within 30 days of the date of this decision, failing which I will entertain a request for a further Order, if required.

EXPENSES:

I leave the issue of expenses of this Motion to the hearing arbitrator at the conclusion of this proceeding. In the event that the parties resolve their disputes they can deal with this issue in that context.

May 31, 2007

David Muir

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 111

FSCO A05-001207

BETWEEN:

NATALIA VASINA

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms Vasina has not failed to make herself available to attend an insurer's examination pursuant to section 42 of the Schedule.

May 31, 2007

David Muir

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2For example, see Belair Insurance Company Inc. and F.S., (OIC P96-00039, June 11, 1996) Appeal
3. 3(FSCO A03-000714, August 13, 2004)
4. 4(FSCO A98-000693, May 13, 1999)
5. 5Supra.
6. 6Supra.