Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 80 FSCO A10-001560

BETWEEN:

CAROLINE CORBIN Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Susan Sapin Heard: By telephone conference call on June 24, 2011. Written submissions were received by May 27, 2011 Appearances: David Carranza for Ms. Corbin Tripta S. Chandler for Personal Insurance Company of Canada

Issues:

The Applicant, Caroline Corbin, was injured in a motor vehicle accident on April 5, 2009. She applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal eventually terminated weekly caregiver and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Ms. Corbin 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:

1. Was the in-home occupational therapy assessment and orthopaedic and physiatry insurer examinations requested by Personal under clause 42(10)(b) of the Schedule reasonably necessary?
2. If so, what are the consequences of Ms. Corbin’s failure to attend?

Result:

1. The in-home occupational therapy, orthopaedic and physiatry insurer examinations requested by Personal under clause 42(10)(b) of the Schedule were reasonably necessary.
2. The arbitration hearing scheduled to begin December 12, 2011 is adjourned pending the resumption of the pre-hearing discussion which shall take place no later than October 31, 2011.

Analysis:

Section 42 of the Schedule provides that an insurer may require an insured person to be examined, “as often as is reasonably necessary . . . by one or more persons chosen by the insurer,” in order to determine if the insured person is or continues to be entitled to the benefits claimed.

Personal has asked Ms. Corbin to attend a follow-up in-home occupational therapy (“OT”) assessment to determine entitlement to ongoing caregiving and housekeeping expenses, as well as an orthopaedic and a physiatry insurer examination (“IE”). Ms. Corbin has refused to attend all three, and Personal has asked for an order staying the arbitration proceeding, scheduled to begin December 12, 2011, until Ms. Corbin attends.

At the pre-hearing the parties agreed to have me determine whether the IE’s are reasonably necessary by way of a preliminary issue hearing. For the reasons that follow, I find all three assessments to be reasonably necessary.

The Law:

Section 42 of the Schedule is clear and the jurisprudence at the Commission is well-established, that an insurer is entitled to independently evaluate an insured person’s medical condition as part of the ongoing adjustment of a claim.

The general principles arbitrators consider in deciding whether IEs are reasonably necessary under section 42 have been articulated in decisions such as Scott and T.T.C. Insurance Company (Markel Insurance)², and, more recently, Al-Shimasawi and Wawanesa Mutual Insurance Company.³ An important principle, raised by Ms. Corbin, is that the requirement for IEs to be “reasonably necessary” recognizes the inherent intrusiveness of a medical examination by a party adverse in interest to the insured person, and requires “a balance must be drawn between the right of an insurance company to require an examination and the insured person’s right to privacy.”⁴ One way to restrict intrusions into privacy is for insurers to arrange follow-up IE’s with the same assessor as conducted the previous assessment.⁵ As Personal scheduled the follow-up in-home IE with a different OT, Ms. Corbin refused to attend, citing privacy as the reason.

A second important principle, not disputed by Ms. Corbin, is that the Insurer controls the assessment process. The Insurer is entitled to choose the evaluating medical specialist provided there is “some nexus” between the specialty and the injuries claimed. It is entitled to choose as many specialists as are reasonably required, and to examine as often as is reasonably necessary.⁶

Additional factors to be considered in assessing the reasonableness of proposed examinations include the timing of the request, possible prejudice to both sides, the number and nature of previous insurer’s examinations, the nature of examinations being requested, and whether there are any new issues being raised in the applicant’s claim that require evaluation.⁷ With these principles in mind, I find all three IEs requested by Personal to be reasonably required.

Follow-up in-home OT assessment:

Since the accident on April 5, 2009, Ms. Corbin has attended only one in-home occupational therapy assessment at Personal’s request, conducted by Amanda Westbrook on September 22, 2009. In a report dated October 6, 2009, Ms. Westbrook recommended 4.5 hours of housekeeping and 24.5 hours per week of caregiving assistance for four weeks. She reported Ms. Corbin was able to perform self-care tasks and on that basis Personal terminated attendant care benefits. There is no dispute, and I find, that a follow-up in-home assessment would be required after four weeks, to determine continued entitlement to housekeeping and caregiving benefits. As noted above, under normal circumstances, a second assessment should be conducted by the same person who conducted the first.

However, Ms. Corbin took issue with findings and comments in Ms. Westbrook’s report, which she claimed were “inaccurate, misleading and untruthful.” She wrote to Personal with her complaints. Ms. Westbrook defended her assessment and her report, and Personal forwarded her written response to Ms. Corbin. From the tone and content of their correspondence it is plain to see the women were seriously at odds and I find Ms. Corbin mistrusted Ms. Westbrook’s ability to conduct an examination or prepare a fair or accurate report. The distrust was mutual. Ms. Westbrook refused to conduct the follow-up in-home assessment. Under these circumstances, I find a second assessment by Ms. Westbrook would be very unlikely to yield a useful or reliable outcome and would be untenable. I further find that I have no authority to compel Ms. Westbrook to conduct the assessment.

Personal scheduled follow-up in-home assessments with three different OTs on December 28, 2009, March 10, 2010 and May 10, 2010. Despite her concerns with Ms. Westbrook’s assessment and report, Ms. Corbin refused to attend any of these assessments, insisting that Personal was required to have the same OT conduct the second assessment as had conducted the first, i.e., Ms. Westbrook. I find this unreasonable. I find the issue of mutual mistrust preventing a reliable outcome outweighs the privacy concerns cited by Ms. Corbin in this case. I do not accept her argument as a valid justification for refusing to participate in a follow-up OT IE that was of itself reasonably necessary, and, in effect, attempting to wrest control of the assessment process from the insurer and deny it an opportunity to independently assess her claims. This is particularly so in light of the fact that Ms. Corbin had obtained her own in-home assessment and follow-up conducted by a chiropractor, Dr. Sameer Ali, in May and July, 2009.

Orthopaedic IE:

Personal twice requested Ms. Corbin attend an orthopaedic IE on February 17 and May 11, 2010. Ms. Corbin refused to attend but I understand that, according to correspondence dated September 30, 2010 from her representative to Personal,⁸ confirmed at the preliminary issue hearing, she now agrees to attend. Ms. Corbin concedes that, as per the decision in Vidinopulos and Liberty Mutual Insurance Company,⁹ insurers may require multidisciplinary, and even overlapping, IEs where circumstances warrant, and Personal is entitled to both an independent in-home and orthopaedic examination.

I find the orthopaedic IE reasonably necessary in this case, in addition to the in-home IE, for a number of reasons. Firstly, according to the Agreed Statement of Facts, some of Ms. Corbin’s symptoms and injuries (pain in her neck, chest, low back and left shoulder; pain and weakness in her left leg; numbness from her shoulder to her fingertips; depression; irritability; dizziness; nausea; and problems sleeping) are orthopaedic in nature as well as ongoing. She obtained her own section 24 orthopaedic assessment in November 2009 which recommended a second MRI and follow-up for a “suspicious rotator cuff pathology,” and which specifically addressed her ability to carry out her housekeeping and caregiving tasks. No follow-up was provided. Personal’s IE request, meanwhile, was dated January 26, 2010, within a reasonable time after Ms. Corbin’s own assessment and well in advance of the arbitration hearing scheduled to begin December 12, 2011, and within the two-year period which housekeeping benefits were available.¹⁰ It was also Personal’s first opportunity to assess the musculoskeletal injuries claimed. There is nothing about Personal’s request for an orthopaedic IE that goes against any of the principles cited in the jurisprudence above.

Physiatry IE:

Ms. Corbin refused to attend a physiatry IE on the grounds there was no need for both an orthopaedic as well as a physiatry IE to determine ongoing entitlement to caregiver and housekeeping benefits. I find this examination to be reasonably required, given the nature of Ms. Corbin’s injuries and complaints, above; the lack of any previous medical IEs; the scope of the physiatry specialty itself, which aims to facilitate a return to function;¹¹ and the timing of the request – December 29, 2009. Although there may be some overlap between an orthopaedic and a physiatric assessment, Ms. Corbin suffers from chronic pain due, possibly, to accident-related injuries both orthopaedic and soft tissue in nature. I find both IE’s to be reasonably necessary and within Personal’s right to require.

Consequences of Ms. Corbin’s Failure to Attend:

Ms. Corbin’s actions in first refusing to comply with Personal’s reasonable and timely request to attend a follow-up in-home IE, and then refusing to attend later IE’s that were both reasonably necessary as well as timely, has delayed both the continued adjusting of her file and the dispute resolution process. Although that may not have been her intent, it has resulted in prejudice to Personal in moving forward with this case. Recent correspondence between the parties and copied to the Commission indicates Ms. Corbin is now disputing initial entitlement to attendant care benefits.¹² Both attendant care and housekeeping benefits are limited to two years post-accident, unless a claim is being made that Ms. Corbin sustained a catastrophic impairment in the accident. Ms. Corbin is not making this claim, as far as I am aware, and more than two years have passed since the accident. That does not render the IE’s requested by Personal unnecessary or unreasonable at this point, although retrospective assessments present their own set of difficulties.

Furthermore, Ms. Corbin continues to claim caregiver benefits. The test for entitlement to this benefit becomes stricter two years after the accident. I find the IE’s Personal has requested are also reasonably necessary to deal with entitlement beyond two years.¹³

I find the most appropriate remedy at this point is to adjourn the arbitration hearing scheduled to begin December 12, 2011, and to schedule a resumption of the pre-hearing as soon as practicable, in any event no later than the end of October 2011, for a number of reasons. These include the fact that the parties wish to add new disputes to this arbitration proceeding, my understanding that Ms. Corbin concedes the principle that Personal is entitled to request multiple assessments as long as they are reasonably required, and the parties’ request for a resumed pre-hearing to address the future direction of this case. An adjournment and a resumed pre-hearing will allow the parties time to arrange for necessary assessments in order to properly prepare for an arbitration hearing without further delay, should such be required.

EXPENSES:

The matter of expenses for this preliminary issue hearing is deferred to the hearing arbitrator.

September 22, 2011

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 80 FSCO A10-001560

BETWEEN:

CAROLINE CORBIN Applicant

and

PERSONAL 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. The following insurer examinations are reasonably necessary under section 42 of the Schedule, and Ms. Corbin failed to attend without reasonable justification: i. Any one of the in-home occupational insurer’s examinations scheduled by Personal, on December 28, 2009 with Tina Cammalleri, on March 10, 2010 with Tracy Shaw, and on May 10, 2010 with Susan Javansky. ii. The orthopaedic insurer’s examinations scheduled by Personal on February 17 and May 11, 2010. iii. The physiatry insurer’s examination scheduled by Personal.
2. The arbitration hearing scheduled for December 12, 2011 is adjourned pending a resumption of the pre-hearing discussion, to take place no later than October 31, 2011.

September 20, 2011

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(OIC A-001116, September 4, 1992)
3. 3(FSCO A05-002737, May 11, 2007)
4. 4See Scott supra, and Martino and York Fire & Casualty Insurance Company (FSCO A98-000878, April 12, 1999)
5. 5As affirmed in Martino
6. 6See Scott supra
7. 7See Al-Shimasawi supra, paragraph 19
8. 8Applicant’s Brief, Volume 1, tab 38.
9. 9(FSCO A00-000977, December 5, 2001)
10. 10Housekeeping benefits under s. 22 of the Schedule are only available for up to 104 weeks after the accident, unless the insured person sustains a catastrophic impairment as defined in ss. 5, a claim Ms. Corbin has not made in this case.
11. 11A physiatrist is a physician trained in physical medicine and rehabilitation of injury and disease-related impairments and disabilities, “using physical agents such as light, heat, cold, water, electricity, therapeutic exercise and mechanical apparatus . . .” as explained in Dorland’s Illustrated Medical Dictionary, 28th Edition, 1994.
12. 12Correspondence dated August 30 and September 6, 2011 with enclosed Report of Mediator dated August 9, 2011 identifying attendant care, medical benefits and cost of examinations as issues in dispute, which the parties have agreed to add to this arbitration proceeding.
13. 13See Ramalingam and State Farm Mutual Automobile Insurance Company (FSCO P05-00026, August 13, 2007), Appeal, the leading case on this topic (upheld by the Divisional Court), which stands for the proposition that a change in test requires an insurer to reassess a claim for ongoing benefits, and, “all else being equal, a fresh IE may be reasonable to allow the insurer to determine entitlement to ongoing benefits.” P. 6.