Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2007 ONFSCDRS 94

FSCO A05–002737

BETWEEN:

HAMEED AL-SHIMASAWI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Richard Feldman

Heard:

By telephone conference call on April 27, 2007. Written submissions were received on April 18, 25, 26 and 27, 2007.

Appearances:

Sumitha Pudupakkam, lawyer, for Mr. Al-Shimasawi Danette Cashman for Wawanesa Mutual Insurance Company

This is a motion, brought by Wawanesa, for an order:

Compelling the Applicant to attend a section 42 insurer's medical examination in respect of alleged psychological injuries;
An order staying this proceeding until such time as the Applicant attends a section 42 insurer's medical examination in respect of alleged psychological injuries;
Its costs of this motion; and
Such other orders as I may deem just.

The arbitration hearing scheduled to commence on November 5, 2007 shall be stayed unless Mr. Al-Shimasawi makes himself reasonably available for a section 42 psychological assessment by Dr. Rashid, to be scheduled for a date that is no later than 60 days from the date of this order.
The decision on expenses is deferred.

Background

The following facts are not in dispute.

The Applicant, Hameed Al-Shimasawi, was injured in a motor vehicle accident on January 23, 2005. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Amongst other benefits, Wawanesa paid to Mr. Al-Shimasawi weekly income replacement benefits for the period from January 30, 2005 through September 9, 2005.

Although the impairments noted by medical practitioners in the first year or so after the accident focussed on physical problems (whiplash-associated disorders, right shoulder separation, lumbar strain and thoracic strain), there was some indication that the Applicant's marked lack of progress over time could be related to other factors.

For instance, Lorraine Stead, a treating physiotherapist, noted in her final report (July 21, 2005) that Mr. Al-Shimasawi reported awakening nightly with nightmares of the accident and reported a lack of energy and ambition to do anything. Ms. Stead questioned whether Mr. Al-Shimasawi might be suffering from post-traumatic stress syndrome or depression, although it appears that these diagnoses would be outside her area of expertise.

Mindy Gulas, the kinesiologist who performed a functional abilities evaluation of Mr. Al-Shimasawi at the request of the Insurer in July 2005, concluded that his performance was not an accurate reflection of his true functional abilities. She listed² many possible reasons why a test subject's performance might be inconsistent or sub-maximal³ but did not comment on which, if any, of these potential reasons might explain Mr. Al-Shimasawi's unreliable test results.

Dr. Weinberg, an orthopaedic surgeon who conducted an insurer examination on July 27, 2005, found that there was no objective evidence of musculoskeletal pathology to explain Mr. Al-Shimasawi's reported symptoms and lack of improvement. Dr. Weinberg indicated in his report that he suspected that non-physical factors may have been impeding the Applicant's progress but he did not elaborate on what those factors might be.

Based upon a worksite assessment, the functional abilities evaluation and the orthopaedic assessment referred to above, Wawanesa terminated the Applicant's income replacement benefits effective September 9, 2005. Mr. Al-Shimasawi challenged this decision. The parties were unable to resolve their disputes through mediation and, in November 2005, Mr. Al-Shimasawi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In Schedule "A" to the Application for Arbitration, under the heading "Income Replacement Benefits", it reads as follows (emphasis added):

The claimant submits that he is substantially unable to perform the essential tasks of his previous employment due to physical and psychological barriers.

He is therefore entitled to receive ongoing income replacement benefits.

In or about May 2006, the Applicant provided the Insurer with a treatment plan and a report from Dr. Kelly Benn, psychologist, who diagnosed the Applicant with: a severe depressive episode, post-traumatic stress disorder, chronic pain, irritability and anger, phobias related to being in or near automobiles, anxiety disorder and sleep disorders. Dr. Benn noted that, according to the Applicant's self-report, as of May 2006, the Applicant had not returned to his pre-accident employment nor was he considering other work due to his physical pain, that he had decreased his participation in his pre-accident activities by 90% and that, since even mildly strenuous activities exacerbated his pain, he was avoiding doing almost everything. Dr. Benn was recommending up to 24 sessions of psychological treatment. This treatment was approved by the Insurer.

A pre-hearing conference was conducted in this case by me on August 10, 2006. I issued a pre-hearing report (also dated August 10, 2006) identifying the issues in this arbitration and the witnesses the parties intended to call at the hearing. The Applicant clearly identified that he would be calling Dr. Benn as a witness as it is the Applicant's position that both physical and psychological impairments prevent him from working.

The hearing was originally scheduled to commence on January 15, 2007. On December 7, 2006, at the request of the Applicant, the hearing was adjourned until November 2007 in order to permit him to obtain the result of a surgical consultation.

On December 29, 2006, Wawanesa served notice upon the Applicant that it intended to have him examined by a psychologist (Dr. Rashid) on January 15, 2007 to determine if, because of psychological impairments suffered as a result of the January 23, 2005 accident, Mr. Al-Shimasawi continues to meet the disability test with respect to income replacement benefits. On January 10, 2007, counsel for the Applicant advised that Mr. Al-Shimasawi would not attend the examination scheduled for January 15, 2007. Wawanesa then immediately requested that the pre-hearing be resumed to deal with this issue. Wawanesa was advised by the Commission that the appropriate manner to deal with such an issue would be to bring a motion and, after some delay (that cannot be attributed solely to Wawanesa), this motion was argued before me on April 27, 2007.

Submissions of the Insurer

Wawanesa takes the position that, in order to determine whether the Applicant is suffering from any accident-related psychological impairments that render him substantially unable to perform the essential tasks of his pre-accident employment or render him completely unable to engage in any employment for which he is reasonably suited by education, training or experience, Wawanesa is entitled to an insurer's psychological medical examination pursuant to section 42 of the Schedule. The psychological assessment was originally scheduled to take place about 10 months prior to the commencement of the hearing and there is still sufficient time in which to have the assessment completed without delaying the hearing or prejudicing the right of the Applicant to pursue his claim. There is currently no report in existence in which an expert opinion has been given as to what impact, if any, accident-related psychological impairments are currently having on the Applicant's ability to work. Wawanesa has not previously had any psychological assessments conducted.

Submissions of the Applicant

The Applicant has not taken issue with the adequacy of the notice of the proposed psychological assessment. Similarly, the Applicant has not taken issue with Wawanesa's choice of psychologists.

The Applicant's main objection is that Wawanesa has known that there was at least a possibility of a psychological impairment resulting from the accident since mid-2005 and it has known since late 2005 (when it received the Application for Arbitration) that the Applicant's claim for income replacement benefits was based, at least in part, on psychological impairments. The Applicant argues that since Wawanesa took no steps to arrange a psychological assessment until December 2006, well after the Application for Arbitration had been filed, it has lost the right to have such an assessment conducted. There is no "new" issue or medical evidence to which the Insurer must respond. The Applicant submits that the requested assessment is for the purpose of bolstering the Insurer's defence of this arbitration rather than for the purposes of assessing the Applicant's ongoing claim for income replacement benefits.

The Law

Section 42 of the Schedule provides that, for the purposes of assisting an insurer determining if an insured person is or continues to be entitled to a benefit, an insurer may, as often as is reasonably necessary, require an insured person to be examined by one or more persons chosen by the insurer who are members of a health profession.

The following represents a summary of some of the more important principles governing this type of motion:

The onus is upon the insurer to establish that the proposed examination is reasonable.⁴
The appropriate question is: Given the information already available, does the insurer reasonably require this examination in order to assess the validity of a claim to ongoing benefits or in response to a new claim (rather than for purposes of trial brinkmanship or an attempt to bolster the insurer's position)?⁵
In assessing the reasonableness of the proposed examination, the Commission will consider all of the relevant circumstances, including:⁶

a. The timing of the insurer's request;

b. The possible prejudice to both sides;

c. The number and nature of previous insurer's examinations;

d. The nature of the examination(s) being requested;

e. Whether there are any new issues being raised in the applicant's claim that require evaluation;

f. Whether there is a reasonable nexus between the examination requested and the applicant's injuries.

With respect to the timing of the insurer's request:

a. An insurer has an ongoing responsibility to assess the condition of an insured person and to assess information it receives concerning that person's condition and the fact that an insurer has already denied or terminated a benefit or that the dispute resolution process provided for in the Insurance Act (i.e., mediation or arbitration) has begun does not automatically preclude an insurer from requesting reasonable assessments in accordance with the Schedule;⁷

b. The request can be made even if there is a delay from the time that the insurer first knew or ought reasonably to have known about the particular impairment in question;⁸

c. The closer in time the request for an assessment comes to the date set for the commencement of the hearing, the closer will be the scrutiny of the Commission as there will be a greater likelihood of prejudice to the applicant (by a delay of the proceedings) and a greater likelihood that the primary purpose for conducting the assessment is to obtain evidence for use at the arbitration hearing rather than adjustment of the claim;⁹

d. There is no presumptive right to an insurer's examination at the 104 week mark where the insurer has already terminated the benefits on the basis that it has concluded that the insured person failed to meet the less stringent, pre-104 week test for disability.¹⁰

With respect to possible prejudice to the parties:

a. It is recognized by the Commission that insurer examinations are "inherently intrusive";¹¹

b. The Commission strongly disapproves of an insurer using excessive insurer examinations as a means to harass or intimidate an applicant or in callous disregard of information that such assessments may adversely affect the health of the applicant;¹²

c. The Commission will consider whether the requested assessment is likely to delay the hearing;

d. The Commission will also consider the potential prejudice to the insurer's ability to independently assess the validity of an ongoing claim if it is not permitted to have the requested assessment conducted.

While an arbitrator has no authority to compel an insured person to submit to an insurer's examination which has been reasonably requested, an arbitrator may adjourn the hearing until the insured person attends such an examination. An arbitrator's power, however, also includes the discretion, in appropriate cases, to refuse to adjourn a hearing where an adjournment would be unfair to the applicant.¹³

Analysis

The Applicant is maintaining that he continues to be unable to work as a result of both physical and psychological impairments he sustained as a result of the accident on January 23, 2005. Wawanesa seeks to have the Applicant undergo a psychological assessment by a psychologist of its choice in order to independently investigate what impact, if any, accident-related psychological impairments are currently having on his ability to work. Clearly, there is a reasonable nexus between the examination requested and the impairments the Applicant is claiming to have sustained as a result of the accident. The nature of the examination itself is not unreasonable and there is no evidence to suggest that such an examination poses any risk to the Applicant.

Wawanesa has had the Applicant undergo two insurer examinations: a functional abilities evaluation (FAE) and an orthopaedic assessment. It has not previously had any psychological assessments conducted. I therefore find that the number of assessments has not been excessive or abusive and the requested assessment is not duplicative of any prior assessments conducted under section 42 of the Schedule.

The real issue in this case is the timing of the Insurer's request. Income replacement benefits were terminated in September 2005. Wawanesa has known since at least late 2005 that the Applicant's claim for income replacement benefits is based, in part, on psychological impairments and it failed to take any steps to have this investigated until late 2006. I am asked by the Applicant to infer from this that Wawanesa is not seeking a psychological assessment to assess his ongoing entitlement to income replacement benefits but to bolster its case in anticipation of the upcoming hearing.

The question is whether the Insurer's request for a psychological assessment is reasonable in light of all of the circumstances, including any prejudice that such an assessment may have on the Applicant and on the efficient and fair prosecution of this proceeding.

Wawanesa probably ought to have requested a psychological assessment sooner. Nevertheless, I find Wawanesa's request to be reasonable and that there is no evidence before me that the delay in its request has caused any prejudice to the Applicant or that such an assessment is likely to postpone the commencement of the hearing (scheduled for November 2007). It is the Applicant who has asserted that his psychological condition, together with physical impairments, continues to prevent him from working. The Insurer should be permitted to investigate this assertion through an expert of its choice.

Conclusion

For the reasons set out above, I find that Wawanesa's request for a psychological assessment of the Applicant is reasonable and the motion is granted. Counsel for Wawanesa has indicated that Dr. Rashid can conduct this examination as soon as May 22, 2007. In the event, however, that the Applicant is not reasonably available to attend on that date, in order to avoid delaying the hearing, I shall simply make it a condition of my order that the assessment be scheduled to take place within 60 days of the date of this order.

EXPENSES:

My inclination would be to leave the issue of the expenses of this motion to the hearing arbitrator. If, however, the parties object and are unable to otherwise agree on how to deal with the issue of expenses, they may now make submissions to me in accordance with Rule 79 of the Code.

May 11, 2007

Richard Feldman Arbitrator

Date