Ali Abdul Baki v. Zurich Insurance Company Ltd. (Commercial Business), 2012 ONFSCDRS 138

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

Neutral Citation: 2012 ONFSCDRS 138

FSCO A11-000973

BETWEEN:

ALI ABDUL BAKI

Applicant

and

ZURICH INSURANCE COMPANY LTD. (COMMERCIAL BUSINESS)

Insurer

REASONS FOR DECISION ON A MOTION

Before: Jessica Kowalski

Heard: September 6, 2012 by telephone conference call

Appearances: Jeffrey Raphael for Mr. Baki Kelly Lauzon for Zurich Insurance Company Ltd.(Commercial Business)

Issues:

An arbitration hearing in this matter is scheduled to start on October 1, 2012. The Insurer, Zurich Insurance Company Ltd.(Commercial Business) (“Zurich”), brought a motion for, among other things, an order requiring the Applicant, Mr. Ali Abdul Baki, to attend four post-104 week insurer examinations and an adjournment of the hearing until he does.

I informed the parties by letter dated September 11, 2012 of my order dismissing the motion. For the following reasons I did not make an order staying the arbitration until Mr. Baki attends the proposed examinations.

Background

Zurich submits that it did not become apparent that Mr. Baki’s entitlement to income replacement benefits beyond 104 weeks post-accident was a live issue until after the parties participated in a global mediation in December 2011 and the February 2012 pre-hearing.

By letter dated May 3, 2012, Zurich asked about Mr. Baki’s availability to attend four assessments but did not send any notices of examination. Mr. Baki has refused to attend any proposed examinations.

Zurich submits that Mr. Baki’s non-attendance at the requested assessments has left it without the time or opportunity to examine Mr. Baki to determine if he has suffered a complete inability to perform any employment for which he may be reasonably suited.

Zurich also submits that in the past year Mr. Baki has been diagnosed with chronic pain syndrome. Although Zurich received several reports that discussed either chronic pain or work-related disability, they did not tie chronic pain to ongoing disability or to the post-104 week test for income replacement benefits. Zurich argues that a diagnosis of chronic pain syndrome represents new medical information and a new diagnosis that entitle it to new assessments.

With the exception of fresh disability certificates (which I note were completed in August 2012), all of Mr. Baki’s medical reports were sent to Zurich in advance of the December 21, 2011 global mediation and were referred to in his mediation memorandum.

Important Dates

This matter arises out of a motor vehicle accident that occurred on April 7, 2008.

Almost two years later, on March 29, 2010, Mr. Baki filed an application for mediation, in which he set out a claim for income replacement benefits beyond the 104 week mark.

On April 7, 2010, the test for Mr. Baki’s ongoing entitlement to income replacement benefits changed from whether Mr. Baki suffered a substantial inability to perform the essential tasks of his pre-accident employment to whether he has suffered a complete inability to perform any employment for which he is reasonably suited by education, training or experience.

The mediation was held on January 24, 2011 and failed.

On March 21, 2011, Mr. Baki filed an application for arbitration that set out a claim for entitlement to income replacement benefits beyond 104 weeks and ongoing.

On December 21, 2011, the parties participated in a global mediation.

On February 15, 2012, the parties participated in a pre-hearing at the Commission.

Zurich’s request for Mr. Baki to attend examinations

By letter dated May 3, 2012 Zurich wrote to Mr. Baki’s counsel asking him to check Mr. Baki’s availability to attend the following four examinations:

Psychological Assessment with Dr. Lubbers
Orthopaedic Assessment with Dr. Taromi
Vocational Assessment with David Cohen
Neurology Assessment with Dr. V. John

Apart from proposed dates and location, the letter included no further details.

By email response dated May 5, 2012, Mr. Baki’s counsel dismissed the request as an attempt to conduct “defense medicals” and wrote that Mr. Baki would not be attending.

Zurich cancelled the assessments and forwarded no notices to Mr. Baki.

On May 4, 2012, counsel for Zurich wrote to the Commission requesting a resumed pre-hearing and motion date to deal with the refusal to attend. The Commission provided immediate dates in May and June 2012, but received no confirmation from the parties. After a revived request for a motion date, the parties agreed to August 17, 2012. On August 16, 2012, the parties advised the Commission that they consented to reschedule the motion owing to a medical emergency. They did not provide new dates. In view of the upcoming hearing, I arranged a brief telephone conference call to determine the parties’ intention with respect to the motion and to set a date if it was indeed proceeding. The parties agreed to proceed with the motion on September 6, 2012.

Analysis

Section 44 of the Schedule¹ authorizes insurer’s examinations as often as is reasonably necessary for the purpose of determining whether an insured person is entitled to a benefit. Subsection 44(5) sets out notice requirements if an insurer requires an examination under section 44.

The May 3, 2012 letter from counsel merely sought Mr. Baki’s cooperation in scheduling examinations.

When Mr. Baki refused, Zurich took no further steps to arrange examinations. The May 3, 2012 letter provided no reasons for the examinations pursuant to subsection 44(5)(a) of the Schedule and makes no reference to adjusting of the claim. Zurich concedes that it did not send notices of examination to Mr. Baki.

I find that Zurich had ample notice that Mr. Baki was claiming income replacement benefits beyond 104 weeks. Although filed one month before the 104 week mark, Mr. Baki’s application for mediation at the very least signalled his intention to do so. If there was any question, it could easily have been dealt with during the mediation, which took place a year later. If not, then by March 21, 2011, Zurich had Mr. Baki’s application for arbitration: filed three years after the accident, it set out his intention to seek income replacement benefits more than 104 weeks after the accident and on an ongoing basis.

Before the December 21, 2011 global mediation, counsel for Mr. Baki sent its mediation memorandum to Zurich. At page 4, the memorandum set out that since the accident, Mr. Baki “has been unable to return to any employment whatsoever.” At page 5, under Accident Benefit issues, the memorandum identified Mr. Baki’s claim for income replacement benefits as “to date and ongoing”, as it had been since the outset. The memorandum identified Mr. Baki’s medical reports, and he sent no new medical reports to Zurich after the global mediation.

After April 7, 2010, Zurich had a prima facie right to require Mr. Baki to be assessed, after the test for entitlement to income replacement benefits changed.²

If any question remained about Mr. Baki’s claim, before or after the global mediation, it could have been easily resolved by a simple inquiry. I have no evidence that Zurich sought clarification of whether the claim was indeed for income replacement benefits after April 7, 2010 or just a boiler-plate claim in the application.

Even if Zurich had no idea until the pre-hearing that there was a claim for post-104 income replacement benefits, had it taken reasonable steps to arrange for examinations (beyond merely asking Mr. Baki if he would be available), there would still have been time for Mr. Baki to attend the assessments and arrange for whatever rebuttal reports he felt might be necessary without jeopardizing the hearing date.

In State Farm Mutual Automobile Insurance Company and Ramalingam³, the Director’s Delegate held that “insurer examinations should be requested as early as reasonably possible and that motions brought after the pre-hearing will receive close scrutiny.”

While a section 44 assessment may be required in the name of fairness when an insured person discloses a new expert report on some material issue in dispute, an insurer cannot wait until just before an arbitration or trial, several months after the report has been disclosed and the insured has made it clear that they have been seeking a particular benefit, to request a section 44 assessment in the name of fairness. Even if it only became clear to Zurich between December 2011 and February 2012 that ongoing IRBs were a live issue or that Mr. Baki was disabled because of chronic pain, Zurich did not address the issue in a timely way.

The timing of the requests and inactivity before and after May 3, 2012 suggest that the dominant purpose of the assessments is indeed to buttress Zurich’s case for arbitration.

Conclusion

Given the delay in requesting the assessments, I cannot find that they are any longer reasonable and necessary. The hearing has been scheduled since the pre-hearing date. Zurich gave Mr. Baki the opportunity to cooperate in the scheduling of assessments but failed to follow through. It is irrelevant that Mr. Baki, by his counsel, signalled that he would refuse to attend. That refusal should not have deterred Zurich from complying with its section 44 obligations if it felt that the assessments were indeed necessary to adjust the file.

For these reasons, I decline to make an order staying the arbitration hearing until Mr. Baki attends the assessments identified in Zurich’s May 3, 2012 letter.

September 26, 2012

Jessica Kowalski Arbitrator

Date