Shah Hussaini v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2011 ONFSCDRS 98

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 98

FSCO A09-002164

BETWEEN:

SHAH HUSSAINI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON MOTIONS

Before: Suesan Alves

Heard: By telephone conference call on September 30, 2011.

Appearances: Bozena Kordasiewicz and George B. Dietrich for Mr. Hussaini

Annette Uetrecht-Bain for Security National Insurance Co./Monnex Insurance Mgmt.Inc.

Issues:

Mr. Hussaini was the driver of a van which was rear-ended in a motor vehicle accident on June 13, 2005. Both parties seek an adjournment of the hearing to determine his entitlement to pre and post 104-week income replacement benefits and interest under the Schedule,¹ and both parties’ claims for expenses under the Insurance Act, R. S. O. 1990, c. I.8 as amended. The Insurer seeks an Order compelling the Applicant to obtain productions, which he does not oppose.

Security National seeks an order that Mr. Hussaini attend five insurer examinations, or, in the alternative, a stay of the arbitration. Mr. Hussaini disputes that the insurer examinations are reasonably necessary. He submits that the number of assessments is excessive, their timing prejudicial and they are intended to bolster Security National’s case in the pending arbitration. The Applicant seeks an award of interim income replacement benefits because he alleges that the Insurer did not comply with its obligations when it terminated his income replacement benefits.

The issues on these motions are:

1. Should the hearing scheduled to commence on October 24, 2011 be adjourned?

2. Should a production Order be made against the Applicant?

3. Are the proposed assessments reasonably required by section 42 of the Schedule? If yes, should the arbitration hearing be stayed pending Mr. Hussaini’s attendance on these assessments?

4. Did Security National breach the termination provisions of the Schedule? If yes, should interim income replacement benefits be awarded to Mr. Hussaini under section 279 (4.1) of the Insurance Act?

5. Which party is entitled to its expenses of the motions?

Result:

1. On consent, the hearing is adjourned to June 4 to 7, 2012.

2. A production Order should be made against the Applicant.

3. There is a reasonable relationship between each of the proposed section 42 assessments, the Applicant’s diagnoses and the issues in dispute. The Applicant shall promptly obtain a report from his family physician as to his restrictions and limitations, and a report from his cardiologist as to his ability to undergo the assessments at the Insurer’s expense. I remain seized of the question of whether the examinations are reasonably required and of the request for a stay.

4. Mr. Hussaini’s motion for interim income replacement benefits is dismissed.

5. I defer the question of entitlement to expenses of the motions to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Summary

For the reasons which follow, I grant the consent adjournment and make the production Order requested. I conclude there is a reasonable connection between the examinations Security National requested, the issues in dispute and the Applicant’s diagnoses. However, given the description of Mr. Hussaini’s medical condition and in the absence of current medical information from his family physician and cardiologist, I am unable to determine whether it is safe for Mr. Hussaini to submit to these assessments.

I remain seized of the question of the reasonableness of the assessments and of the stay request. I dismiss the Applicant’s request for interim income replacement benefits, and defer the question of entitlement to expenses of these motions to the hearing arbitrator.

1. Should the hearing be adjourned?

Counsel made a joint request to adjourn the hearing in order for the Applicant to obtain the outstanding productions and provide them to counsel for the Insurer. I granted the requested adjournment of the hearing based on the consent of counsel. The new hearing dates as agreed by the parties are June 4 to 7, 2012.

2. Should an Order be made with respect to outstanding productions?

The Insurer seeks production Orders for a copy of: Mr. Hussaini’s complete CPP file; his updated bank statements from Scotiabank or any other bank where he regularly banks from 2006 to present; a copy of the employment or other file from all the places at which he has worked since the accident and in particular: records of employment for the place where he worked in 2006 and earned T4 income. It also seeks an update on his current employment including any employment files, hours worked; where he worked; number of weeks worked; rate of pay, and why he discontinued work.

Mr. Hussaini was injured in a motor vehicle accident on June 13, 2005. At the time of the accident, he was self-employed as a renovator and handyman in a sole proprietorship. In this arbitration he claims income replacement benefits from April 1, 2007 on an ongoing basis, including post 104-week benefits.

I find these documents are relevant to a determination of Mr. Hussaini’s entitlement to and the amount of his income replacement benefits. I am satisfied that the Insurer first requested Mr Hussaini’s complete CPP records in July 2011; however, it has repeatedly requested the other documents. Counsel for the Applicant agreed to obtain the documents and did not oppose the making of a production Order with respect to them. Accordingly, I order the Applicant to produce the documents requested by the Insurer.

3. Are the proposed assessments reasonable?

Mr. Hussaini was injured in an accident in June 2005. He seeks pre and post 104 week income replacement benefits in this arbitration. Security National seeks to have the Applicant undergo an orthopaedic assessment, a psychological assessment, a cardiology assessment, a two day functional abilities evaluation by an occupational therapist, and a vocational assessment and transferable skills analysis. The Insurer has not previously sought a physical examination of Mr. Hussaini.

Mr. Hussaini disputes that the requests are reasonable. He submits that they are excessive, prejudicial and that the Insurer requested them to bolster its position at the arbitration.

Section 42 of the Schedule permits an insurer to require examinations of an insured person by health professionals, social workers or persons who have expertise in vocational rehabilitation, as often as is reasonably necessary. The purpose of an examination is to assist an insurer in determining if the insured person is entitled to or continues to be entitled to a benefit for which he or she has applied.

The question of whether an insurer examination is “reasonably required” or “reasonably necessary,” has been considered in a number of arbitration and appeal decisions. The arbitrator's role on the motion is to weigh all the circumstances to determine whether an insurer's examination is reasonably necessary for the insurer to effectively assess entitlement.

In making that determination, arbitrators have considered factors such as the nature of the applicant's injuries, the history of any treatment or assessments, and the relevance of the proposed examination to the issues in dispute in the arbitration.²

Arbitrators have held that where the Applicant raises a significant change in circumstances or where treating practitioners provide opinions at odds with earlier opinions, an examination by the insurer is reasonably required.³ The timing of the request and prejudice to the parties are also important considerations in determining whether the proposed examinations are reasonable.⁴

For the following reasons, I find there is a reasonable relationship between each of the five assessments requested by the Insurer, the Applicant’s claims in this arbitration and the diagnoses he has received. I accept the Insurer’s evidence that in 2010 and in early 2011, it received reports and documentation from the Applicant which suggest that his medical condition had changed significantly.

Orthopaedic assessment

In 2005, following the accident, the Applicant provided Security National with opinion evidence that he suffered from neck and right arm pain, caused by a herniated disc in his neck, as well as headache and whiplash associated disorder III, as a result of the accident. Mr. Hussaini was off work between August 2005 and January 2006, then returned to modified duties.

In June 2006, Mr. Hussaini provided Security National with a further disability certificate from his family physician indicating that he was unable to work due to neck and shoulder pain.

However, while his initial MRI in 2005 showed a disc herniation at C5-6 and minor degenerative disc disease at C3-4, C4-5, subsequent MRIs suggest that the C5-6 disc is no longer herniated and show pathology at other areas in his neck. The Insurer seeks an orthopaedic assessment because there appears to be a change in Mr. Hussain’s condition and the Insurer wishes an opinion as to whether any present disability is attributable to the accident.

Psychological assessment

Mr. Hussaini was diagnosed with an adjustment disorder and depressed mood associated with the problems with pain and loss of function in his right arm in 2009. The report of the psychiatrist was provided in 2010. The Insurer seeks a psychological assessment to assess the depression issue, his psychological condition and its relationship to the accident.

Cardiology assessment & functional abilities evaluation

Mr. Hussaini had a heart attack in 2010. In his application for CPP benefits, Mr. Hussaini indicated that one reason he is unable to work is “chest wall pain.” The Insurer seeks to examine his cardiac condition and the impact on his ability to work by means of an assessment by a cardiologist. As of the date of the motion, the Insurer had not as yet been able to find a cardiologist to conduct this assessment.

The Insurer seeks to measure Mr. Hussaini’s physical abilities function by means of a functional abilities examination by an occupational therapist. The goal is to determine whether Mr. Hussaini can meet the physical demands of a job for which he is reasonably suited.

Vocational assessment and transferable skills analysis

In order to meet the post 104-week test for entitlement to income replacement benefits, the Applicant must adduce evidence that, as a result of the accident, he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

In light of the Applicant’s claim for post 104-week benefits advanced in the arbitration, I find there is a reasonable relationship between the vocational assessment and transferable skills analysis and the Applicant’s claims.

In light of the production requests and the Affidavit filed in support of the motion, I infer that the Insurer has delayed in making arrangements for these assessments because Mr. Hussaini has not provided information as to what work he has been able to perform or his post-accident earnings.

For these reasons, I conclude that there is a reasonable relationship between the examinations which the Insurer seeks, the benefit claims the Applicant makes in this arbitration and his diagnoses and conditions.

Are the assessments excessive and prejudicial?

The Applicant submitted that other than his heart condition, there had been little change in the fundamental nature of his condition. The Insurer’s motion was returnable on September 30, 2011, less than a month before the hearing was scheduled to begin. Based on the timing of the motion, the Applicant submitted that the Insurer was seeking to bolster its position with medical assessments.

Arbitrators have held than in the absence of a clear explanation, examinations scheduled on the eve of the hearing suggest the kind of tactical brinkmanship that arbitrators have rejected as part of the dispute resolution system.⁵ Accordingly, Security National’s request warrants particular scrutiny.

In this case, I find it difficult to place the blame for the delay in arranging assessments at the Insurer’s door. The Insurer scheduled section 42 assessments in or about February and March 2011. The Applicant responded through his counsel that he would attend the assessments if the Insurer paid him his income replacement benefits. Had the assessments taken place at that time, it is probable that the Applicant would have been provided with reports of the assessments in ample time to obtain any responding reports from his health practitioners in time for the October 2011 hearing dates.

In light of the consent adjournment of seven to eight months to obtain productions, I do not find the timing of the proposed assessments problematic. I am not persuaded that the delay involved in obtaining the assessments is prejudicial to the Applicant. I conclude that the Insurer’s requests pass the scrutiny required where assessments are requested close to the hearing date.

Although the Insurer has requested several assessments, I am not persuaded that they are excessive in light of the reported diagnoses and developments in his conditions.

In its Affidavit material, the Insurer describes Mr. Hussaini’s condition prior to his cardiac surgery as “having a marked limitation of any activity due to symptoms – patient is only comfortable at rest.” I had no evidence on the motion of Mr. Hussaini’s present condition, in particular whether his condition continues, has worsened or improved. My concern is with the physical and psychological stress of the assessments, their close spacing, and with the physical effort required in attending the assessments, particularly the functional abilities evaluation. I would not find the proposed assessments to be reasonable if undergoing them would cause him harm. On the other hand, if his condition would not be worsened by undergoing these assessments, I would find them reasonable.

I asked counsel for the Applicant how my concern might best be addressed. She proposed to obtain a report from his family physician as to his restrictions and limitations. I agree that this would be helpful. I would prefer that his cardiologist also address his ability to undergo these assessments. These reports should be done and provided to the Insurer before any of the requested assessments are undertaken. These reports are to be promptly obtained by the Applicant and prepared at the Insurer’s expense.

I would prefer that counsel work together once the reports are obtained to minimize the chance that the Insurer will be required to pay cancellation fees, and that the assessments, if reasonable, are conducted as early as possible.

If counsel agree that the assessments are reasonable once they have the Applicant’s medical reports, then the reports of each insurer assessment shall be provided to the Applicant within 15 days of each assessment and no later than April 1, 2012. This will permit the Applicant ample time to respond to any reports he wishes prior to the hearing.

If counsel are unable to agree and require a determination on the issue of reasonableness, the report of the Applicant’s family physician and of his cardiologist should be filed, and I will determine the question. Counsel may also file any other material they believe to be relevant.

I remain seized of the question of whether the assessments are reasonable in light of Mr. Hussaini’s condition as described in the Insurer’s Affidavit material. I also remain seized of the question of whether the arbitration hearing should be stayed.

Counsel for the Applicant asks that the Insurer provide the Applicant with an interpreter in the Punjabi language at each of the requested assessments. An interpreter should be provided as requested.

4. Is the Applicant entitled to interim income replacement benefits?

The Applicant alleges that Security National failed to comply with its obligations when it terminated Mr. Hussaini’s income replacement benefits, and that failing a proper refusal, he should be awarded interim income replacement benefits.

The Applicant submits that for the refusal to be proper, an insurer must inform the insured person in writing of the procedure for resolving disputes in relation to his accident benefits.

The Applicant filed a copy of the Explanation of Benefits provided in relation to his income replacement benefits with his arbitration application. According to that explanation, in August 2006, the Insurer paid the Applicant income replacement benefits in a lump sum for the period between August 20, 2005 and January 13, 2006. The Insurer also checked off the “not eligible/stoppage” box for income replacement benefits and stated: “You are not eligible for ongoing IRB’s as you have reported that you returned to work on January 13, 2006 and have not provided any additional income information in order for the insurer to determine ongoing entitlement.”

Part 6 of the Explanation of Benefits form, entitled “Applicant’s Right to Dispute” sets out Mr. Hussain’s right to dispute the termination, describes the dispute resolution process in three steps and warns of the two-year time limit.

Based on the documentation before me, I am not persuaded that Security National failed to comply with its termination obligations. I therefore dismiss Mr. Hussaini’s motion for interim income replacement benefits. My finding is for purposes of this motion and is not binding on the hearing arbitrator who may, on a more complete evidentiary record, reach a different conclusion.

5. Expenses:

Both parties claimed their expenses of these motions. I defer the question of expenses to the hearing arbitrator.

October 28, 2011

Suesan Alves

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 98

FSCO A09-002164

BETWEEN:

SHAH HUSSAINI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. On consent, the arbitration hearing is adjourned. The new hearing dates as agreed by the parties are June 4 to 7, 2012.

2. Mr. Hussaini shall forthwith produce the following documents and information to Security National Insurance Co.: his complete CPP file; updated bank statements from Scotiabank or any other bank where he regularly banks from 2006 to present; a copy of the employment or other file from all the places at which he has worked since the accident and in particular: records of employment for the place where he worked in 2006 and earned T4 income and updated documentation on his current employment including any employment files, hours worked; where he worked; number of weeks worked; rate of pay, and why he discontinued work.

3. Mr. Hussaini shall promptly obtain a report from his family physician as to his restrictions and limitations and from his cardiologist as to his ability to undergo the proposed assessments at Security National’s expense.

If counsel can agree that the assessments are reasonable once these reports are obtained, Security National shall arrange and pay for an interpreter in the Punjabi language at each assessment.

Security National shall provide Mr. Hussaini with a copy of the report of each assessor within 15 days of each assessment and no later than April 1, 2012.

I remain seized of the questions of whether the examinations are reasonably required and whether the arbitration should be stayed. If a determination is required, counsel should file the reports of the family physician and cardiologist and any other documents they believe to be relevant.

4. Mr. Hussaini’s motion for interim benefits is dismissed.

5. I defer the question of the expenses of these motions to the hearing arbitrator.

October 28, 2011

Suesan Alves

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Vidinopulos and Liberty Mutual Insurance Company of Canada, (FSCO A00-000977, December 5, 2001)
3. 3Gutzke and Dufferin Mutual Insurance Company , (FSCO A99-000640, November 27, 2000 )
4. 4F.S. and Belair, (OIC P96-00039, June 11, 1996); Chafe-Moote and Prudential of America General Insurance Company of Canada, (FSCO A99-000016, August 6, 1999), confirmed on appeal Prudential of America General Insurance Company of Canada and Chafe-Moote, (FSCO P99-00044, September 8, 2000)
5. 5F.S. and Belair, op.cit