Becky Schindler v. State Farm Mutual Automobile Insurance Company, 2011 ONFSCDRS 86

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 86

FSCO A10-003234

BETWEEN:

BECKY SCHINDLER

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Alec Fadel

Heard: By telephone conference call on August 3, 2011

Appearances: David Miller for Ms. Schindler

Matt Duffy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Becky Schindler, was injured in a motor vehicle accident on November 20, 2003 and suffered a moderate traumatic brain injury. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on November 24, 2009 after a report by Dr. B. Clark, physiatrist, dated October 8, 2009 that concluded that the applicant did not meet the post-104 week test. In April 2011, the insurer requested that the applicant attend a neuropsychological assessment scheduled for May 12, 2011, in order to address the ongoing issue of her entitlement to an income replacement benefit. The applicant refused to attend claiming that the examination was not reasonably required under s. 42 of the Schedule. At the pre-hearing of this matter the insurer raised the issue of a further neuropsychological evaluation and this preliminary issue hearing was scheduled.

The preliminary issue is:

Is a neuropsychological examination reasonably required pursuant to section 42 of the Schedule?

Result:

The proposed neuropsychologial examination is not reasonably required pursuant to section 42 of the Schedule.

THE LAW

Under section 42 of the Schedule, insurers may require an insured person to be examined by a member of a health profession as often as is reasonably necessary, for the purpose of determining initial or ongoing entitlement to a benefit. The relevant parts of section 42 of the Schedule, in force at the time, provide as follows:

(1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(3) The insurer may require examinations as often as is reasonably necessary.

Background

Prior to the termination of the income replacement benefit, the applicant underwent two neuropsychological assessments pursuant to s. 42 with Dr. K. Zakzanis. In the report of December 3, 2004, Dr. Zakzanis was of the view that the applicant was unable to return to her customer service job at the LCBO. However, at a subsequent assessment which took place on November 2, 2005, Dr. Zakzanis concluded that while the applicant had a neuropsychological impairment that prevented her from doing her pre-accident employment, she did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience.

The applicant attended a post 104-week disability DAC completed in January and February 2006, and the overall conclusion was that the applicant did not suffer a complete inability to engage in any employment as per the Schedule. However, the occupational therapist who assessed the applicant as part of the DAC, concluded that the applicant would only be able to sustain half days at work. On that basis, the insurer continued to pay the income replacement benefits while the applicant sought suitable employment. I note that as part of the DAC, the applicant underwent a neuropsychological assessment with Dr. E. Roy.

At the request of her counsel, the applicant underwent a psycho-vocational assessment with Dr. T. Smith, psychologist, who concluded in a report dated June 17, 2009, that she had the clear potential to re-enter the workforce identifying four direct entry positions at a lower rate of pay than her LCBO job and identifying other occupations that would require re-training. State Farm obtained its own vocational assessment of September 25, 2009 which identified a number of suggested occupations. It also had the applicant assessed by Dr. B. Clark, physiatrist, who in his report dated October 8, 2009, concluded that the applicant did not meet the post 104-week test for income replacement benefits.

The applicant obtained a neuropsychological report by Dr. L. Saxby dated February 3, 2010, who concluded that she had enduring impairments that would affect her employability. Dr. Saxby took issue with the occupations identified by Dr. Smith noting that they appeared unrealistic and concluded that the applicant appeared to suffer a complete inability to engage in any full-time employment from a neuropsychological perspective. Dr. Saxby noted that the assessment did not allow for a full interpretation of cognitive test findings due to the applicant’s questionable ability to engage in the testing process.

The applicant asked Dr. Smith to comment on the Saxby report and in a report dated December 8, 2010, he stated that he was not surprised to hear that the applicant’s state deteriorated to a point where she had become unemployable. Dr. Smith concluded that the applicant’s prospects for re-employment were very guarded and becoming close to zero, he did not think she could perform the more complex job positions he originally identified and thought that based on Dr. Saxby’s report that direct-entry jobs were the best she could hope for and even those jobs seemed doubtful.

Submissions

The insurer submits that it had not requested a neuropsychological assessment since the applicant saw Dr. Zakzanis in November 2005, and that the present request for a further neuropsychological assessment arose as a result of an addendum report by Dr. Smith where he agreed with the findings of Dr. Saxby. The insurer argued that as a result of Dr. Smith’s change in opinion and the report of Dr. Saxby, it was reasonable to request a further neuropsychological assessment. It argues that the assessment is warranted under s. 42 of the Schedule given its ongoing obligation to continue to assess the applicant’s claim and noted that the case did not have a neuropsychological component to it until receiving Dr. Smith’s addendum. The insurer submits that after receiving Dr. Saxby’s report it concluded that it did not jive with Dr. Smith’s report and it was not until receiving the Smith addendum that it became clear that the insurer should have the applicant reassessed.

The applicant submits that her refusal to attend the assessment was on the basis of timing since the insurer did not request a neuropsychological assessment until around 13 months after receipt of her own neuropsychological assessment with Dr. Saxby. The applicant forwarded Dr. Saxby’s report to the insurer on or about February 17, 2010. The applicant submits that at the time of the insurer’s request for the assessment, there were no new issues being raised by the applicant that would require an assessment pursuant to s. 42. The applicant also points to the fact that the insurer already had the benefit of two neuropsychological assessments prior to stoppage one of which addressed entitlement to an IRB post 104-weeks. In addition a neuropsychological assessment was conducted as part of the post 104-week disability DAC, all with similar findings that the applicant sustained a moderate traumatic brain injury. She states that if the insurer wanted a neuropsychological assessment it should have asked for one prior to its determination to terminate the benefit or at the very latest upon receipt of Dr. Saxby’s report. The applicant submits that given the significant delay, the insurer’s primary reason for the proposed assessment is to obtain evidence for use at the arbitration hearing rather than the adjustment of the applicant’s claim for an income replacement benefit.

Analysis

In determining whether an insurer’s request for an assessment is reasonably necessary, the prevailing arbitral authority indicates that the analysis should be determined by the following criteria:

the timing of the request, especially whether it will require the hearing to be adjourned;
whether the claimant disclosed relevant materials as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether the insurer made its insurer examination request as soon as it reasonably determined the need for the examination;
what other information is available to the insurer, including information provided by the claimant and the number, nature and date of previous insurer examinations;
whether information provided by the claimant since the insurer’s last insurer examination suggest a new diagnosis, a change in the claimant's condition or a new direction in medical investigation of it;
whether there is a reasonable nexus between the requested examination and the insured person’s injuries;
whether the insurer accepts the claim and continues to pay benefits; and,
generally whether the request is reasonable considering the balance between the insured person’s right to privacy and the insurer’s ongoing right and obligation to assess the claim.²

Given the criteria set out in Ramalingham and State Farm Mutual Automobile Insurance Company, I find that the neuropsychological examination proposed by State Farm is not reasonably necessary. I do not agree that it was only upon receipt of the addendum report by Dr. Smith that the insurer was alerted to a change in condition. In fact, Dr. Smith identified psychological deterioration as a significant concern in his earlier report of June 17, 2009, where he stated:

From a psychological point of view, my concern is that her condition seems to be getting worse, if anything. She was not endorsing psychological problems when she saw Dr. Zakzanis in 2004 and 2005, but she is currently endorsing a wide range of problems. While it is not uncommon for accident victims to show increased psychological distress once it becomes clear to them that their injuries are not going to resolve completely, in my opinion her length of time off work and possibly the extent of her therapeutic contacts, is now starting to have an iatrogenic effect.

Although Dr. Smith concluded that the applicant had “the clear potential to re-enter the workforce,” he identified the need for a vocational rehabilitation consultant to assist the applicant to identify goals that she could commit herself to.

Eight months later, in her report of February 3, 2010, Dr. Saxby concluded that Dr. Smith’s appraisal of the applicant’s work potential was “unrealistic and rosy.” Dr. Saxby referred to the insurer’s vocational evaluation of September 2009 where it was found that the applicant had “difficulty following multistep directions, was atypically slow in responding in a multiple-choice answer situation and she had difficulty with decision-making, as well as minor difficulties with word finding.” Dr. Saxby noted that during that assessment, the applicant exhibited “indicators of moodiness, a rather aggressive verbal communication style, oversensitivity and fluctuations in self-esteem which very likely would affect ability to relate to others and function optimally in most jobs.”

In his addendum, Dr. Smith noted that during his earlier assessment he identified some factors that would decrease the applicant’s chances of a successful return to work. Dr. Smith commented that it had now been seven years since the accident and it was likely that the applicant’s prospects for re-employment were now very guarded and probably coming close to zero. Dr. Smith felt that Dr. Saxby’s conclusions assisted to clarify that the applicant’s involvement in the more complex jobs he originally listed would likely be contraindicated and that the direct-entry jobs were likely the best she could hope for and even those jobs now seemed doubtful.

The insurer submits that together the report of Dr. Saxby and the addendum of Dr. Smith suggest a significant change in the applicant’s condition. I do not agree. Dr. Smith, in his addendum report, noted that in his earlier report, he thought that the applicant “might be suitable for some fairly elemental position should she not receive any further treatment,” however, he had noted “that there were some factors when I saw her, which decreased her chances of successful return-to-work.” Dr. Smith clarified that he noted a need for normalization in the applicant’s life patterns and “[w]ith appropriate supports and treatments, I thought she had the potential to re-enter the workforce.” Dr. Smith noted that the applicant was seen by Dr. Saxby seven or eight months after his own assessment and it did not surprise him to hear that the applicant’s state was deteriorating to the point where she would become unemployable.

I find that the insurer’s present request was not made in a timely manner given that the neuropsychological report that it wants to address is that of Dr. Saxby dated February 3, 2010 and it was only in April 2011 that the insurer made arrangement for their assessment. I find that the report of Dr. Saxby appeared to only marginally change Dr. Smith’s view of the applicant’s employment potential. Since the insurer chose not to request a neuropsychological assessment after first receiving the Saxby report and only requested same about 13 months later, I find that the purpose of the request is more to bolster its position at the arbitration hearing and not for the purpose of assessing the applicant’s entitlement to the income replacement benefit.

EXPENSES:

Neither party made submission on the issue of expenses. The parties may raise this issue within 30 days of the date of this decision or may defer this issue to be dealt with at the conclusion of the hearing.

October 4, 2011

Alec Fadel Arbitrator

Date