Sros (Elizabeth) Thi Thach v. State Farm Mutual Automobile Insurance Company, 2011 ONFSCDRS 68

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2011 ONFSCDRS 68

Appeal P10-00019

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SROS (ELIZABETH) THI THACH

Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. R. Steiner for the Appellant, Ms. Sros (Elizabeth) Thi Thach

Ms. K. Tranquilli and Ms. L. Emmett for the Respondent, State Farm Mutual Automobile Insurance Company

HEARING DATE:

July 14, 2011

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Arbitrator’s letter decisions of October 29, 2010 and January 14, 2011, the latter to the extent of the reasonableness of a neuropsychological insurer’s medical examination, are confirmed.

2. Should the parties be unable to agree on a neuropsychological assessor, the parties shall, within thirty days of the date of this decision, request that this appeal be resumed.

3. Subject to any further or other appellate order, if the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested, as set out below, within sixty days of the date of this decision.

August 16, 2011

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL AND BACKGROUND

The Appellant, Ms. Sros Thi Thach, was injured in a motor vehicle accident on October 20, 2003. As a result, she applied to her first-party automobile insurer, the Respondent State Farm Mutual Automobile Insurance Company, for statutory accident benefits payable under the Schedule.¹

The Respondent accepts that the Appellant is catastrophically impaired as a result of this accident. The Respondent paid the Appellant income replacement benefits (“IRBs”) until May 25, 2005. IRBs were terminated based on an April 27, 2005 psychiatric insurer medical examination (“IME”) of Dr. G. Tafler. After mediation failed to resolve the issue of weekly IRB entitlement of $347.25 from May 25, 2005, the Appellant applied for arbitration in 2007.

On March 28, 2008, a pre-hearing was held before Arbitrator Kominar (the “Arbitrator”) where a four-day hearing was scheduled for January 2009. The hearing did not proceed at that time. Rather, the Respondent subsequently brought a motion for production of defence medical examination (“DME”) reports from the Appellant’s related tort action. The reports are:

1. October 9, 2007 report and February 2, 2008 addendum of Dr. R. Hershberg, psychiatrist

2. October 23, 2007 report and January 16, 2008 addendum of Dr. R. Soric, physiatrist

3. June 27, 2009 report of Dr. P. Tepperman, physiatrist

4. July 9, 2009 report of Dr. V. Rakoff, psychiatrist

5. November 24, 2009 report of Dr. L. McFadden, clinical neuropsychologist

The Respondent initially requested the reports of Drs. Hershberg and Soric in July 2009. These reports were brought to the Respondent’s attention upon the Appellant serving the October 7, 2008 report of her psychiatric expert, Dr. H. Merskey, that noted these reports. The Respondent requested the remaining DME reports in February 2010, after they were brought to the Respondent’s attention in Dr. Merskey’s further report of August 15, 2009 and a report of Dr. J.E. Sweeney of January 26, 2010.

The Arbitrator’s October 29, 2010 letter decision ordered production of the DME reports. The Arbitrator held, in part, that:

… in order to properly prepare for an arbitration hearing, and in order to do what is possible to guarantee a fair hearing for both sides, I find that State Farm should be able to review documentation which, prima facie, seems to have been made available to at least some of the Applicant’s experts in the accident benefits case. It is nothing less than a basic principle of good reasoning that the factual backing and rationale warrants for a conclusion are fundamentally important in deciding whether to accept that conclusion or not.

The Notice of Appeal from this preliminary issue letter decision was received November 26, 2010. An arbitration hearing date had not yet been set.

By letter decision dated December 22, 2010, on the consent of both parties and applying Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001), as to the quickest, most just and least expensive means of resolving this proceeding, pursuant to Rule 50.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated — September 2010) (the “Code”), I accepted this appeal of a preliminary arbitration decision.

Exercising my discretion under subsection 283(6) of the Insurance Act, R.S.O. 1990, c. I.8, and on consent, I stayed the October 29, 2010 Order. Applying Canadian Home Assurance Company and Scavuzzo, (OIC P-000626, May 18, 1992), I found that in the absence of a stay the appeal would be rendered moot.

In the interim, the Respondent had brought a further arbitration motion. The relief sought in this motion was for the Appellant to attend a neuropsychological IME under section 42 of the Schedule. The Arbitrator’s January 14, 2011 letter decision held that it was reasonable and necessary in the interests of a fair and complete hearing that prior to the arbitration hearing the Appellant undergo a neuropsychological assessment arranged by the Respondent.

A preliminary appeal conference was held on January 26, 2011. On consent, I exercised my discretion under the Code to accept the appeal from the January 14, 2011 preliminary arbitration order and combined these two appeals, to be heard on February 25, 2011. At the request of counsel, the hearing was ultimately adjourned to July 14, 2011.

In oral submissions, the Appellant agreed, on the condition that the DME reports are not to be produced, that a neuropsychological IME is reasonable in this case and that the Respondent may choose a neuropsychological assessor of its choice. On further consideration, the Appellant submitted that Dr. McFadden would not be appropriate, having conducted the DME. In the event the neuropsychological DME report is to be produced, the Appellant submits on that basis alone that a neuropsychological IME is not reasonable and that the Arbitrator erred in this regard.

II. ANALYSIS

(a) Did the Arbitrator err in law in ordering the DME reports produced?

The Appellant submits that the Arbitrator erred in law in failing to review, consider and apply the established principles as to whether it was appropriate to order production of the DME reports. She argues that the Arbitrator’s decision was largely based on his assertion that:

… if documentation is prima facie relevant to the issues in dispute then, in general, is producible, subject to arguments that it would be highly prejudicial for it to be produced and that the prejudice or privacy interests involved outweigh the value of the full disclosure.

The Appellant submits that this reasoning creates a rebuttable presumption in favour of production of DME reports, running counter to the established Commission case law. Citing Huntley and State Farm Mutual Automobile Insurance Company, (FSCO A05-002293, March 15, 2007) and Antony and RBC General Insurance Company, (FSCO A05-000898, January 23, 2006), the Appellant submits that relevance by itself is insufficient. While full disclosure is an important principle, expediency, efficiency and economy are equally important.

The Appellant argues that the Respondent’s request for production of the DME reports is without merit for the following reasons:

1. Production of DME reports from related tort actions, when first-party auto insurers have access to their own medical examinations under section 42 of the Schedule as often as is reasonably necessary, is inherently prejudicial to a claimant. To protect the integrity of the FSCO process, as stated in CAA Insurance Company (Ontario) and Sandhu, (FSCO P01-00044, January 18, 2002), DME reports should be ordered produced only in limited and prescribed circumstances where there is a compelling reason. The Appellant submits that there are no unique or compelling circumstances in this case justifying production of the requested DME reports. Rather, allowing the requested production undermines the integrity of the FSCO process.

2. Consistent with Abate and Liberty Mutual Insurance Company, (FSCO A03-001542, June 11, 2004) and Huntley, it is submitted that the Respondent has more than sufficient medical documentation to assess its exposure and adequately raise a defence at arbitration, including 21 IME reports generated from 2003 to 2010. The IMEs encompass 13 health practitioners in the fields of physiotherapy, massage therapy, kinesiology and neurology, as well as two experts in each of the areas of occupational therapy, physiatry, orthopaedics and psychology, in addition to three psychiatrists.

3. Several of the IMEs specifically address IRB entitlement, namely Dr. Tafler, upon whose opinion the Respondent terminated IRBs, as well as the post-104 week reports of Dr. G.S. Conn, orthopaedic surgeon, of October 2, 2008 and Dr. Z. Waisman, psychiatrist, dated October 3, 2008. When a neuropsychological assessment is added, the Respondent will have four medical experts addressing IRB entitlement, the same number as the Appellant, namely, Dr. S.H. Garner, medical/rehabilitation, Dr. H. Merskey, psychiatrist, Dr. H. Van der Spuy, psychologist and Dr. J.E. Sweeney, clinical neuropsychologist.

The Respondent, it is submitted, has relied on its IMEs to deny IRB payments for five years. The Respondent has failed to explain why its IMEs are insufficient, why it did not request further assessments as it was entitled, how it has been deprived of an opportunity to conduct IMEs or that the IMEs are unreliable such that the DMEs must be produced.

4. The DME and IME experts are the same specialties, except for a neuropsychological IME assessment the Respondent chose not to do. The assessments were conducted in the same timeframe. Production would result in a “battle of numbers” tipping the balance in favour of the Respondent whose assessments already substantially outnumber those of the Appellant. If the DME reports are ordered to be produced, the ratio of insurer to insured reports would become: neuropsychologist 2:1; physiatrist 4:1; psychiatrist: 5:1.

5. The Respondent’s own January 22, 2010 IME psychiatric report of Dr. L. Kiraly deemed the Appellant to be catastrophically impaired. Dr. Kiraly’s report also opines that the Appellant is unable to work and her ability to return to work remains highly unlikely. As such, production of the DME reports is further not warranted.

6. The Appellant chose arbitration over a court action as a more efficient and less expensive process. Citing El-Hajjar and Economical Mutual Insurance Company, (FSCO A05-002064, March 22, 2007) and Huntley, the Appellant submits that production of the DME reports will unnecessarily lengthen and complicate the arbitration proceeding, resulting in additional time and expense to the Appellant’s greater prejudice.

7. The Arbitrator erred in finding that as she failed to attend approved treatment or arranged IMEs, it was unclear for a long period whether the Appellant had an ongoing claim. Rather, the Appellant attended IMEs every year from 2003 to 2010, except for 2006.

8. The Respondent is entitled to its own IMEs only as is reasonably necessary. Ordering the DME reports to be produced allows the Respondent to obtain indirectly (reports by their nature inimical to a claimant) that it cannot obtain directly.

9. It is irrelevant that the Appellant’s experts have the DME reports. In Ledoux and Federated Insurance Company of Canada, (FSCO A06-000984, November 3, 2006), Arbitrator Bayefsky held that the DME reports he ordered produced had played a considerable role in the claimant’s expert reports. In the present case, the Appellant’s experts do not rely on the DME reports. They are simply “red herrings.”

10. It was not the Appellant’s intention in providing the DME reports to her medical experts to waive its right to non-production of those reports. Nor does giving the DME reports to doctors who do not agree with the reports waive any of the criteria in Sandhu, specifically that the IME reports must be insufficient. However, as a pragmatic suggestion, if it is necessary to fill in some of the gaps in the history of this matter, the Appellant would be willing to provide the Respondent with the interview portion of the DME reports.

The Respondent does not disagree with the Appellant as to the principles applicable to production of DME reports in the FSCO context. It argues, however, that the Arbitrator’s decision should be upheld, for the following reasons:

1. As set out in AXA Insurance Company and Kernaghan, (FSCO P07-00018, February 4, 2008), deference should be given to the first level adjudicator. Further, as stated in Certas Direct Insurance Company and Gonsalves et al., 2011 ONSC 3986 (Divisional Court), in dealing with matters of discretion in controlling the process, an appellate officer should be careful not to hear the matter de novo and substitute his or her discretion.

2. The issue is not whether one agrees with the Arbitrator but whether his decision complied with the applicable legal principles. Although the Arbitrator did not cite specific cases, he did not order production as of right but rather acknowledged the principles set out in the case law. It is not reasonable to interfere with the Arbitrator’s exercise of discretion or second guess his decision.

3. The Appellant acknowledges that as a general rule tort reports are not ordered produced absent a compelling argument. However, the general rule does not constitute a complete bar. Rather, it must be shown that the no-fault insurer’s medical information is insufficient. It is submitted that in this case the Appellant has a poor recall of events, her history of events being vague and unreliable. Further, there are significant gaps in the post-accident treatment history and the claims process such that the Respondent does not have the necessary information to permit a fair and thorough consideration of the Appellant’s entitlement to accident benefits.

4. Notwithstanding that the Appellant has served multiple reports from her experts that expressly refer to the DME assessments and opinions, the Appellant refuses to produce the DME reports. In Ledoux, Arbitrator Bayefsky found that while the medical evidence in the first-party insurer’s possession may not have been insufficient, it would be prejudiced by being denied access to the materials the claimant and his doctors had the benefit of considering. In this case, any privilege the Appellant may have possessed was waived when she served her expert reports that address the findings in the DME reports.

5. In this case as well, the Appellant had control over the dissemination over the DME reports and it was the Appellant who disclosed these reports. If the arbitration process has become more complicated, it is the result of the Appellant’s actions. If production is not allowed, the proceeding will only become even more complicated as the Respondent will seek to call the DME experts. Allowing production now will streamline the process.

6. The Appellant acknowledges the case law that there must be compelling reasons for production of DME reports. The compelling reason in this case is fairness in having a level playing field and avoiding prejudice to the Respondent where the Appellant’s experts have had the benefit of the DME reports. Further, production of the DME reports allows the best evidence to be put before the hearing arbitrator.

7. Consistent with Kitchenham v. AXA Insurance Canada (2008), 2008 ONCA 877, 306 D.L.R. (4^th) 68, there is no evidence that the tort defendants, the party whose prejudice would be relevant, object to the DME reports being produced or that they would be prejudiced by their disclosure. As the DME reports are relevant to this proceeding, the interests of justice inevitably outweigh any resulting prejudice to the party disclosing the evidence.

I find that the starting point of the issue of production of DME reports is the appeal decision in Sandhu. Delegate McMahon held that in controlling their own process, arbitrators may rule on the production of documents ordinarily not compellable as part of the Commission’s pre-hearing discovery process. The exercise of such discretion necessarily entails a consideration of the principles forming the basis for the prohibition against the use of evidence for a collateral purpose. Thus, Delegate McMahon stated that:

Any consideration of a request to order production of defence medicals must be made against the backdrop of the insurer’s ability to generate medicals within the FSCO proceeding. Section 65(1) of the SABS-94, authorizes the insurer to conduct medical examinations (“IEs”) “as often as reasonably necessary.” In addition, a dispute over a statutory accident benefit will often trigger an assessment at an independent, government sanctioned assessment centre (“DAC”) which sends a report to each party. As a result, an insurer defending a claim advanced at FSCO will rarely be able to assert that it needs the defence medicals to properly assess its exposure or assert its defence.

Delegate McMahon concluded that:

In the absence of some compelling reason why the medical reports obtained by the insurer pursuant to the SABS are insufficient, I would not grant the insurer’s request for production of the defence medicals from the tort file. The insurer is not prejudiced by the non-production, whereas production of the reports will inevitably and unnecessarily lengthen and complicate the arbitration proceeding.

Although DACs have been removed from the Schedule, insurers maintain a continuing right to conduct such IMEs as are reasonably necessary. The parties agree that the case law continues to look at whether there are compelling reasons to order production of DME reports.

Maitland and State Farm Mutual Automobile Insurance Company, (FSCO A07-002293, August 27, 2008) held that the exercise of the discretionary power to order production of a DME report requires an analysis by the arbitrator that involves a careful examination of the specific facts of each case and a balancing of interests. In his October 29, 2010 decision, the Arbitrator drew from the case law that each case must be decided on its own facts.

Several decisions, specifically El-Hajjar, Maitland and Vossos and Western Assurance Company, (FSCO A04-001072, September 9, 2005), have noted factors to be considered in ruling on the production of DME reports generated for a related tort action. These include:

1. Preserving the integrity of the Commission’s dispute resolution process. This includes recognizing that an insured person, who under subsection 281(1) of the Insurance Act has the exclusive right to select the forum in which to resolve his or her dispute regarding first-party statutory accident benefits, has chosen a less complicated, quicker and less expensive arbitration proceeding.

2. The relevance and importance to the specific issues in dispute of the medical reports sought.

3. The sufficiency of the existing documentation already in the insurer’s possession. This includes a consideration of the insurer’s statutory right under the Schedule to have a claimant examined as often as is reasonably necessary and to obtain its own medical reports.

4. Whether ordering the documents produced will likely complicate or unduly prolong the arbitration proceeding, or whether production may simplify the arbitration process, as found by Arbitrator Bayefsky in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO A99-000957, December 4, 2003).

5. The prejudice to either party.

6. As enunciated in Tanner v. Clark (2003), 2003 CanLII 41640 (ON CA), 63 O.R. (3d) 508, the importance of tribunals having available the best evidence or all of the evidence bearing upon the issue in dispute.

I adopt these criteria in the determination of whether DME reports should be ordered produced.

In Ledoux, Arbitrator Bayefsky held that:

While the Insurer's current medical evidence may not, in itself, be insufficient, I find that it would be prejudiced by being denied access to [the DME reports and the raw data upon which they relied], particularly since Mr. Ledoux, and the doctors upon which he relies, have had the benefit of considering this information. Subject to any determinations on admissibility, the hearing Arbitrator may benefit from having this information before them in order to properly understand and assess the comments and conclusions of some of Mr. Ledoux’s experts. I see no evidence to the effect that ordering production will unduly delay or complicate the arbitration proceeding.

In this case, the experts upon whom the Appellant relies in arbitration have had the benefit of considering the DMEs, as follows:

1. Dr. R. Hershberg’s October 9, 2007 psychiatric DME report and February 25, 2008 addendum:

• Dr. H. Merskey’s October 7, 2008 psychiatric report to the Appellant notes his review of a DME brief that includes Dr. Hershberg’s October 9, 2007 report and February 25, 2008 addendum;

• Dr. S.H. Garner’s September 25, 2008 medical/rehabilitation and disability report prepared for the Appellant summarizes Dr. Hershberg’s psychiatric assessment;

• Dr. H. Van der Spuy’s November 4, 2008 psychological report prepared for the Appellant, at pages 12, 15, 21-22, 26 and 36-38 notes, quotes from, discusses at length and critiques Dr. Hershberg’s report. Dr. Van der Spuy notes that in a follow-up interview the Appellant did not provide early historical information provided to Dr. Hershberg. Dr. Van der Spuy states that his conclusions and recommendations are based, in part, on the information contained in the available reports; and

• Dr. J.S. Sweeney’s January 26, 2010 neuropsychological report prepared for the Appellant summarizes Dr. Hershberg’s reports. Dr. Sweeney states that his clinical opinion is based, in part, on the reports identified in his report.

2. Dr. R. Soric’s October 23, 2007 physiatric DME report:

• Dr. Merskey’s October 7, 2008 report notes a DME brief that includes Dr. Soric’s October 23, 2007 report and a January 16, 2008 addendum;

• Dr. Garner’s September 25, 2008 report summarizes Dr. Soric’s evaluation; and

• Dr. Sweeney’s January 26, 2010 report summarizes Dr. Soric’s reports.

3. Dr. P. Tepperman’s June 27, 2009 physiatric DME report:

• Dr. Merskey’s August 15, 2009 report to the Appellant notes his review of an additional medical brief that includes Dr. Tepperman’s June 27, 2009 report; and

• Dr. Sweeney’s January 26, 2010 report summarizes Dr. Tepperman’s report.

4. Dr. V. Rakoff’s July 9, 2009 psychiatric DME report:

• Dr. Merskey’s August 15, 2009 report notes his review of Dr. Rakoff’s report; and

• Dr. Sweeney’s January 26, 2010 report summarizes Dr. Rakoff’s report.

5. Dr. L. McFadden’s November 24, 2009 neuropsychological DME report:

• Dr. Sweeney’s January 26, 2010 report, at pages 10, 17 and 22 notes, summarizes and critiques Dr. McFadden’s report. At page 10, Dr. Sweeney states that “[d]espite concluding that her test results were invalid, Dr. McFadden offered the opinion that these clinical data failed to support a diagnosis of traumatic brain injury.” At page 22, Dr. Sweeney states that “[s]ince she herself declared her test results as invalid, [Dr. McFadden] cannot support or refute the presence of brain injury clinically.”

Browne (Litigation Guardian of) v. Lavery, 2002 CanLII 49411 (ON SC), [2002] O.J. No. 564, addressed whether defendants were obliged to produce an expert’s report originally subject to litigation privilege, being prepared at the instance of counsel for use in the litigation. One of the defendants provided the report to a further expert. The further expert’s report noted receipt of the first report. The second expert report was served on the plaintiff.

Ferguson J, in determining that the first report should be produced, referred to the “fairness test.” He noted Wigmore on Evidence, Vol. 8 (McNaughton rev., 1961), cited in Hunter v. Rogers, 1981 CanLII 710 (BC S.C.), that there is always the objective consideration that when a privileged person’s conduct touches a certain point of disclosure, fairness requires that privilege shall cease, whether that was the intended result or not. Parties cannot be allowed, after disclosing as much as they please, to withhold the remainder. They may elect to withhold or to disclose, but after a certain point, their election must remain final.

Master Glustein, in Dumaliang v. Cheng 2006 CanLII 36356 (ON SC), [2006] O.J. No. 4314, noting the same passage from Wigmore, states that:

Waiver by “implication” arises when fairness requires that a party produce otherwise privileged information because that party seeks to rely on only one portion of that evidence.

I agree with the Respondent that the weight an adjudicator may assign to an expert’s opinion is important. Part of that assessment is the basis of the expert’s opinion. The Appellant’s own medical experts state that their clinical opinions are based, in part, on the reports identified. These include the DME reports. As stated by Arbitrator Sapin in Lee and State Farm Mutual Automobile Insurance Company, (FSCO A03-000181, November 27, 2003), cited by Arbitrator Leitch in Miller and Optimum Insurance Company Inc., (FSCO A07-000214, July 10, 2008):

When an expert is asked to testify about specific matters, the opposing party is entitled to notice of the substance of the expert's testimony, in order to have the opportunity to prepare an effective cross-examination. This fundamental principle informs all of the early disclosure rules that underlie the entire arbitration process at the Financial Services Commission.

The compelling reason for disclosure of the DME reports in this case is not of lack of sufficiency of the Respondent’s reports. The compelling reason is that the experts upon whom the Appellant relies regarding ongoing IRB entitlement are all in possession of the DME reports and have noted, summarized, quoted, analyzed and/or critiqued that information in reaching their respective conclusions. If the arbitration hearing is ultimately more complicated or prolonged by the inclusion of the DME reports, it is the Appellant’s provision of the DME reports to her experts that initiated that result.

I am not persuaded that the Arbitrator created a rebuttable presumption in favour of production of DME reports. Rather, for the Arbitrator, the potential prejudice to the Respondent and the importance of best evidence in the specific circumstances of this case were important considerations. Fairness dictates that, having provided her experts with the DME reports in full for their review and consideration, the Appellant cannot now withhold their production, or limit their disclosure as she wishes.

I am, thus, not persuaded that the Arbitrator erred in law in the exercise of his discretion in ordering production of the requested DME reports. Accordingly, I confirm the Arbitrator’s October 29, 2010 letter decision.

(b) Did the Arbitrator err in law in finding the requested neuro-psychological IME reasonable?

As noted, on the condition that the DMEs were not ordered to be produced, the Appellant agreed that a neuropsychological IME is reasonable in this case and the Respondent may choose the neuropsychological assessor of its choice, other than Dr. McFadden. If the neuropsychological DME report was to be produced, the Appellant argues on that basis alone that the Arbitrator erred in finding a neuropsychological IME under section 42 of the Schedule to be reasonable.

The Appellant submits that there is no precedent that permits or even contemplates ordering production of a tort DME while simultaneously ordering that the insured person attend the same type of IME as the DME report ordered produced.

The Appellant states that the Respondent was aware of the Appellant’s traumatic brain injury since receiving Dr. Merskey’s October 7, 2008 psychiatric report a month later. In October 2009, the Appellant applied for determination of catastrophic impairment solely based on brain impairment. The Respondent, she argues, chose not to conduct a neuropsychological assessment, “the precise examination required to assess whether an individual suffers from a traumatic brain injury,” but, rather, to conduct physiatric, psychiatric and neurological IMEs.

The Appellant submits that only upon serving the Respondent in February 2010 Dr. Sweeney’s neuropsychological report confirming the Appellant’s catastrophic impairment and that she was not competitively employable did the Appellant receive, on May 3, 2010, a request to attend a neuropsychological IME with Dr. A. Syed on May 13, 2010. The Appellant submits there is no justification for two neuropsychological reports. If a DME report is ordered produced, it is argued, it essentially becomes an IME.

In written submissions, the Appellant relied upon Binns v. Skinner Estate (2000), 50 O.R. (3d) 375, to argue that any further neuropsychological IME should be conducted by Dr. McFadden whom the Respondent retained in the tort action to conduct a neuropsychological DME. It is submitted that there is no prejudice to the Respondent, as Dr. McFadden’s report supports the Respondent’s position that the Appellant has not suffered a brain injury and is able to work.

However, in oral submissions, the Appellant indicated that in the event that the DMEs are ordered produced and a neuropsychological IME is also found to be reasonable, the Appellant would have to consider whether the IME may or should be conducted by Dr. McFadden.

The Respondent submits that the Appellant’s refusal to allow a neuropsychological IME, notwithstanding having served her own neuropsychological report for the purpose of the arbitration, does not allow the Respondent to know the case it has to meet or test Dr. Sweeney’s opinion, and is unfair and prejudicial to the Respondent.

The Respondent further argues that Dr. McFadden did not complete her report because the Respondent was ill. Accordingly, her results were not valid. The Respondent states that before committing itself to use Dr. McFadden as its neurological assessor, it must see Dr. McFadden’s report as well as determine whether Dr. McFadden is able to conduct an IME. In any event, the Respondent argues that Binns v. Skinner Estate is factually distinguishable from this case, where the Respondent is not a named party in the collateral tort action but, rather, the insurer of a defendant.

Dr. Sweeney, at page ten of his January 26, 2010 report prepared for the Appellant, having the benefit of Dr. McFadden’s report, states that:

Dr. McFadden’s clinical testing was not completed because Ms. Thach chose to discontinue due to nausea, dizziness and retching.

Dr. Sweeney also states that:

Dr. McFadden concluded, apparently on the basis of test behaviour and the results of symptom validity testing and other tests, that her clinical data were invalid.

The Arbitrator’s January 14, 2011 decision found it reasonable and necessary in the interests of a fair and complete hearing that the Appellant undergo a neuropsychological IME. He did not address the question of overlapping neuropsychological DME and IME reports.

The Appellant concedes that a neuropsychological assessment is “the precise examination required to assess whether an individual suffers from a traumatic brain injury.” The Appellant’s neuropsychological expert notes that the equivalent DME was not completed due to the Appellant’s physical illness. In these specific circumstances, it is difficult to see the reasonableness of restricting the Respondent to an incomplete assessment. Accordingly, I am not persuaded that the Arbitrator erred in law in the exercise of his discretion in finding a neuropsychological IME reasonable.

The Arbitrator stated in his January 14, 2001 decision that:

I do not find that I have any authority to order State Farm to use any particular practitioner to conduct its examination. I will note though that it may be that a choice to use a new neuropsychologist could result in certain inferences being drawn by the hearing arbitrator. But that is just a caution and I make no finding about who State Farm should retain in this situation.

In Binns, Macdonald J. held that:

… Since the medical reports prepared in respect of the accident benefits claims are admissible in evidence in this tort action, the potential burden on a plaintiff of excessive medical examination by the same insurer, acting in different capacities, is a factor in the application of both the Insurance Act and its regulation, the Statutory Accident Benefits Schedule, and the Courts of Justice Act and its regulation, the Rules of Civil Procedure.

… I am respectfully of the opinion that the medical examination provisions of the Insurance Act and its Statutory Accident Benefits Schedule on the one hand and s. 105 of the Courts of Justice Act and Rule 33 on the other hand should be given compatible interpretations. In my view, where two or more statutes enacted by a legislature and regulations made or approved under an Act of a legislature address the same subject-matter without constituting a single scheme, they are “presumed to operate together harmoniously and to reflect a consistent view of the subject in question”: see Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 287...

I am of the view, therefore, that a prior medical examination under one statute or its regulation is relevant to the question of whether a medical examination properly may be ordered under the other statute or its regulation. As a result, I conclude that the master was not clearly in error in holding that the medical examinations conducted by the appellant for accident benefits purposes were relevant to the issue of whether it is now entitled to a further medical examination pursuant to s. 105 of the Courts of Justice Act and Rule 33.

Addressing the appellant’s assertion that it was entitled to have a further medical examination conducted by a doctor other than the two already retained, Macdonald J. stated that:

Both of the accident benefits medical examiners are doctors chosen by the appellant to advise it, and to testify, if necessary, respecting the respondent's injuries and claims. I am not persuaded that the master erred in requiring the appellant to make use of one of its accident benefits doctors in these circumstances.

In this case, DME reports prepared for a companion tort action have been ordered produced in this first-party arbitration proceeding. Part of determining the reasonableness of a specific requested IME under section 42 of the Schedule in an overlapping area of expertise is the choice of a medical practitioner. Respectfully, I find that the Arbitrator erred in finding that he had no authority to determine the reasonableness of the proposed medical practitioner.

However, the Respondent no longer necessarily proposes Dr. Syed to conduct the neuro-psychological IME. The Respondent states that it needs to review the neuropsychological DME report as well as confirm Dr. McFadden’s availability before confirming whom it proposes to conduct this assessment. On the other hand, the Appellant’s final position was that it was unsure whether Dr. McFadden should conduct the neuropsychological IME. The parties shall have thirty days from the date of this decision to clarify their positions and, should they be unable to resolve this question, request the appeal be resumed to resolve this issue.

IV. EXPENSES

I wish to acknowledge and thank counsel for their professionalism, courtesy and assistance throughout.

To allow clarification of the parties’ positions as to the choice of a neuropsychological medical examiner, the request for an expense hearing, should the parties be unable to agree on the legal expenses of this appeal, is deferred to sixty days of the date of this decision, subject to any further or other appellate order. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and the quantum of such legal expenses.

August 16, 2011

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.