Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 51

FSCO A05-001559

BETWEEN:

CLIFFORD TAYLOR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before:

David Muir

Heard:

March 1, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on February 19 and February 28, 2007.

Appearances:

P. Michael Rotondo for Mr. Taylor

Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

This is a motion brought by State Farm for an Order adjourning or staying the arbitration hearing pending Mr. Taylor's attendance at a medical assessment. State Farm is taking the somewhat unusual tack of claiming that it is not relying upon section 42 of the Schedule to justify the request. Rather, drawing on the underlying reasoning in F.S and Belair,¹ State Farm claims that fairness requires that Mr. Taylor attend this assessment.

By letters dated January 17 and January 19, 2007, counsel for State Farm informed Mr. Taylor that it was requiring him to attend an assessment by a neurologist. Mr. Taylor has refused to attend this assessment. At the pre-hearing discussion of this case held on February 9, 2007, it was agreed that affidavit evidence was likely required and accordingly a date was set to deal with the issue.

The parties relied on affidavit evidence with associated exhibits. The deponent for State Farm, Mr. Brian Donaher, was cross-examined on his affidavit.

The issues are:

1. Does fairness between the parties require that State Farm be entitled to a neurological assessment of Mr. Taylor, by Dr. Bruce Stewart, or alternatively by Dr. Paul Ranalli?

Result:

1. State Farm is not entitled to a neurological assessment of Mr. Taylor at this time.

The facts as they relate to this issue are not complex. The Applicant, Clifford Taylor, was injured in a motor vehicle accident on July 3, 2003. He has claimed statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule², amongst others, income replacement benefits. Mr. Taylor was a landscaper in the months prior to the accident and claims to be unable to perform the essential tasks of that employment. He further claims that he is entitled to income replacement benefits beyond 104 weeks. State Farm paid income replacement benefits to March 2004.

The parties were unable to resolve their disputes through mediation, and Mr. Taylor applied for arbitration at the Financial Services Commission of Ontario on July 14, 2005, under the *Insurance Act*, R.S.O. 1990, c.I.8, as amended.

The first pre-hearing was held on May 29, 2006. The arbitration hearing is scheduled to take place in November 2007.

Mr. Taylor has a pre-existing history of headache and dizziness. Indeed, the incident resulting in the accident on July 3, 2003 may have been the result of a dizzy spell. In the accident, Mr. Taylor's head struck a vehicle and he lost several teeth and fractured his nose as a result.

In December 2004, Mr. Taylor attended a multi-disciplinary insurer's examination by a psychologist, a dentist and an orthopaedic surgeon. One of the Insurer's assessors, Dr. Paititch, noted the ongoing existence of headache and dizziness, but indicated that he could not comment further as it was beyond his expertise. The consensus view was that Mr. Taylor was not substantially unable to perform the essential tasks of his employment, although it was also noted that because there was no job description provided, there was no assessment for the effect of the dizziness. Further, it was the view of the team that if there was an issue of his fitness for work as a result of the dizziness, he should be assessed either by a family physician trained in assessment impairment, a neurologist or an otolaryngologist with an interest in dizziness.

Mr. Taylor was referred to Dr. A. Mossanen, a neurologist, by a treating physician it appears in March 2004. Dr. Mossanen offered no concrete diagnosis and did not address Mr. Taylor's entitlement to benefits.

Mr. Taylor was assessed by a neurologist, Dr. D.P. Dimitrakoudis, in June 2004. This assessment does not appear to have been at the instance of State Farm, although that is not entirely clear. Dr. Dimitrakoudis opined that Mr. Taylor's complaints of headache and dizziness were consistent with post-concussion syndrome. Dr. Dimitrakoudis offered no opinion on Mr. Taylor's ability to perform his activities of daily living.

In December 2004, Dr. Amies, asked to assess the reasonableness of a vocational assessment, opined that until there were more definitive clinical determinations of the nature and extent of Mr. Taylor's impairments, in particular the dizziness, he could not determine whether a vocational assessment was reasonable.

Mr. Taylor was seen by Dr. J. Mayer, a neurosurgeon, in the context of a med-rehab DAC in January 2005. Dr. Mayer made no comment on Mr. Taylor's ability to work, but found him to have no remaining neurological issues.

State Farm requested Mr. Taylor attend a neurological assessment sometime in 2005. There was some discussion between the parties respecting this assessment, but Mr. Taylor did ultimately attend an assessment by Dr. P. Ranalli in December 2005. Dr. Ranalli concluded that while there were injuries sustained in the accident, there were no significant remaining neurological impairments attributable to the accident that prevented Mr. Taylor from returning to his work as a landscaper. Dr. Ranalli also indicated that in his view the treatment of Mr. Taylor's chronic pain was sub-optimal.

Mr. Taylor requested approval for a neurological assessment of his own in May 2005. Based primarily upon Dr. Ranalli's views the fast-track DAC concluded that the requested assessment was not reasonable or necessary as there were no "ongoing neurological issues that required attention."

Mr. Taylor went ahead and sought these assessments despite the opinion of the DAC. Dr. R.G. Vanderlinden, neurosurgeon, offered two reports dated May 23 and June 26, 2006. These reports were only provided to State Farm in early February 2007.

Contrary to the views of Dr. Ranalli, Dr. Vanderlinden opined that Mr. Taylor has suffered as a result of the accident "serious impairments of physical, mental and psychological functioning" and was substantially unable to return to his pre-accident employment. Moreover, the impairments Mr. Taylor suffered, in particular the post-concussive syndrome, would substantially interfere in his ability to undergo retraining.

Dr. Vanderlinden found the following diagnoses to be caused by the accident:

1. Cerebral concussion,

2. post-concussive syndrome manifested by headache, dizziness and impairment of memory and concentration,

3. cervical myofascial sprain/strain,

4. oral/facial injuries including nasal fractures, dental loss and temporal mandibular joint dysfunction,

5. soft tissue injury to the right shoulder,

6. lumbar myofascial sprain/strain and probably facet joint syndrome,

7. chronic anxiety/depression aggravated by the accident.

State Farm argues that fairness requires that it be afforded an opportunity to respond to this report which raises new and substantial questions. In making this argument it relied, as indicated, upon F.S. and Belair, supra, an appeal decision from 1996 which is still good law at the Commission, as well as a decision of mine in Sidhu and Security National Insurance Co.³

Mr. Taylor resisted this notion and argued that there was no fairness issue here, that State Farm has had ample opportunity to obtain neurological opinions and, indeed, had at least one that addressed all of the issues in dispute.

I agree with Mr. Taylor to this extent. There is no substantial fairness issue here in the sense that it was raised in Sidhu. State Farm has had some opportunity to assess Mr. Taylor and he has not sprung anything new on it at the last minute. Although Dr. Vanderlinden's reports should have been delivered to State Farm much earlier than they were, the hearing is many months away and, in any event, State Farm has had an opportunity to assess Mr. Taylor. The situation here is quite different than existed in the Sidhu case, supra. In Sidhu, the applicant had filed a psycho-vocational report on the eve of the hearing, and contrary to the 30-day requirement of section 39 of the Dispute Resolution Practice Code. Morever, the report in question was the only psycho-vocational assessment undertaken by either side to the dispute. I concluded that, irrespective of section 42 of the Schedule, fairness in those circumstances required that the Insurer have an opportunity to respond to these new and, strictly speaking, out of time reports.

In short, if the hearing in this matter were scheduled in March 2007 and not November 2007 (and leaving aside for the moment the issue of the delay in delivery of the Vanderlinden reports to State Farm), I would not have concluded that fairness between the parties required a further assessment of Mr. Taylor by an expert chosen by State Farm.

To my mind the basis for my decision in Sidhu was not that F.S. and Belair had created some independent right to assessments based on an abstract sense of fairness. Rather, that in balancing the interests of the parties when considering the right to conduct invasive assessments, fairness between the parties in the context of an arbitration hearing must be one of the factors considered. In Sidhu, that analysis was taken one small step further, where, in an unusual set of circumstances, I concluded that irrespective of the Insurer's section 42 rights, it must have an opportunity to respond. In the normal course, section 42 remains an insurer's only basis for requesting an assessment.

Given the months yet before the hearing, the delivery of an expert report which, like Dr. Vanderlinden's, is at odds with previous opinions on Mr. Taylor's level of disability, might well require an adjusting response. It is not controversial that the obligation to adjust a file continues after a benefit has been terminated.⁴ Indeed, arbitrators have taken insurers to task for not responding to new information as it becomes available to them.

It is plain from Mr. Donaher's evidence, that notwithstanding the legal position State Farm is taking, he was of the view that Dr. Vanderlinden's reports raised questions about State Farm's adjusting of the file. It is also plain from the record before me that the parties' approach has not always been focussed on getting to the bottom of Mr. Taylor's circumstances. Several recommendations respecting the headaches and dizziness have been made by assessors in the years since the accident, but apparently not followed up on by anyone. Dr. Ranalli's questions about Mr. Taylor's chronic pain have not been addressed either. Indeed, in response to Dr. Amies' report above, State Farm took the position that it would not fund the vocational assessment unless Mr. Taylor attended a Disability DAC which supported his claim of disability, a somewhat unusual response. The parties might consider focussing on these issues rather than the procedural wrangling that has characterized this matter to date.

In conclusion it is at least arguable that State Farm may be entitled to a section 42 assessment. It has most definitely not requested one. State Farm is not entitled to an assessment in anticipation of the arbitration hearing in November because fairness between the parties requires it.

EXPENSES:

As this motion was heard in the context of the pre-hearing process, the expenses associated with it are most appropriately left to the hearing arbitrator.

March 15, 2007

David Muir

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 51

FSCO A05-001559

BETWEEN:

CLIFFORD TAYLOR

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:

1. State Farm is not entitled to a neurological assessment of Mr. Taylor at this time.

March 15, 2007

David Muir

Arbitrator

Date

Footnotes

1. 1F.S. and Belair Insurance Company Inc. (OIC P96-00039, June 11, 1996) appeal
2. 2The *Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996*, Ontario Regulation 403/96, as amended.
3. 3(FSCO A02-0000763, June 11, 2003).
4. 4See Ives and Wawanesa Mutual Insurance Company, (FSCO A05-002144, August 3, 2006) and the cases cited therein.```