Carla Cristina Lima v. Wawanesa Mutual Insurance Company, 2013 ONFSCDRS 158

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

Neutral Citation: 2013 ONFSCDRS 158

FSCO A11-000272

BETWEEN:

CARLA CRISTINA LIMA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Eban Bayefsky

Heard: December 2, 2013, by teleconference

Appearances: Wendy Sokoloff for Ms. Lima Pamela A. Brownlee for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Carla Cristina Lima, was injured in a motor vehicle accident on September 8, 2008. Ms. Lima claims that she was catastrophically impaired as a result of the accident. The Insurer, Wawanesa Mutual Insurance Company (“Wawanesa”), disputes this, as well as Ms. Lima’s claim for certain statutory accident benefits, payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Lima applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Insurer has brought a motion to stay the arbitration pending Ms. Lima’s attendance at catastrophic impairment assessments.

The issues in this motion are:

Should the arbitration in this matter be stayed pending Ms. Lima’s attendance at examinations with Dean Lurie, Dr. Moddel and Dr. Jaroszynski, on January 15, 16 and 21, 2014, respectively?
Is either party entitled to its expenses of the motion?

Result:

The hearing, currently scheduled to commence January 13, 2014, is adjourned pending Ms. Lima’s attendance at examinations with Dean Lurie, Dr. Moddel and Dr. Jaroszynski, on January 15, 16 and 21, 2014, respectively.
The issue of expenses of the motion is deferred to the hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Preliminary Issue

As a preliminary matter, the arbitration in this case is currently scheduled to commence January 13, 2014, and the issue of catastrophic impairment has yet to be formally identified as an issue for adjudication. The parties requested its addition at this point, and the following issue is, therefore, added to the arbitration:

Did Ms. Lima sustain a catastrophic impairment, as a result of the motor vehicle accident, within the meaning of section 2(1.2)(f) or section 2(1.2)(g) of the Schedule?

Background to the Motion

The relevant background to the motion is as follows. On February 14, 2012, Dr. Mamelak, a psychiatrist, submitted an Application for Determination of Catastrophic Impairment (an OCF‑19 form). In Part 4 of the Form, of the 8 possible criteria for catastrophic impairment applicable to Ms. Lima, Dr. Mamelak checked off Criterion 8 (an impairment that, in accordance with the AMA Guides, results in a Class 4 or Class 5 impairment due to mental or behavioural disorder). The Insurer did not accept that Ms. Lima was catastrophically impaired and scheduled assessments with Riverfront Medical Services (which later became Cira Medical Services) to make this determination. On May 28, 2012, Riverfront issued its reports (authored by Drs. Meikle, Hines, Ghatas and Orner), finding that Ms. Lima did not “meet the threshold for Catastrophic Impairment under Criterion 8….” The Executive Summary of the reports states as follows with respect to the parameters of the assessment:

This Catastrophic Impairment determination is directed specifically towards Criterion 8. As such, multidisciplinary assessments were arranged in order to provide a comprehensive Catastrophic Impairment determination with respect to this criterion….

Roughly a year later, at the request of her counsel, Ms. Lima underwent further catastrophic impairment assessments at Kaplan Psychologists. On April 3, 2013, the clinic issued its reports (authored by Drs. Kaplan, Levitt, Henriques and Garner), finding that Ms. Lima satisfied both Criterion 7 (an impairment or combination of impairments that, in accordance with the AMA Guides, results in 55 percent or more impairment of the whole person) and Criterion 8. With respect to the parameters of the assessments, the Executive Summary of the reports states that the assessment team “addressed all relevant catastrophic impairment criteria.”

In response to these reports, the Insurer sought further comments from Cira Medical Services. Dr. Hines and Dr. Meikle conducted paper reviews of the new information and issued reports dated June 10 and 17, 2013, respectively. Dr. Hines reported that the additional documentation did not cause him to alter his original conclusions. Dr. Meikle noted Dr. Hines’ findings and stated that, since his colleagues had not initially performed assessments with respect to Criterion 7, it was not possible to comment on whether Ms. Lima satisfied that category of catastrophic impairment. Dr. Meikle also indicated that, if requested, further assessments could be conducted “in order to provide an opinion regarding any/all of the other Catastrophic Impairment criteria.”

On September 25, 2013, the Insurer notified Ms. Lima that she was required to attend further assessments as to whether she was catastrophically impaired pursuant to Criterion 7. By letter dated October 2, 2013, counsel for Ms. Lima advised that she would not be attending the noted examinations.

The Insurer maintains that it will be prejudiced if it is not permitted to assess Ms. Lima in respect of Criterion 7, having previously understood that the claim of catastrophic impairment was only in respect of Criterion 8. Ms. Lima argues that, despite Dr. Mamelak’s OCF-19, the Insurer was required to assess Ms. Lima in respect of all 8 categories of catastrophic impairment, that since it did not, it cannot now assess Ms. Lima in respect of Criterion 7, and that even if the Insurer is, as a general matter, entitled to further assess Ms. Lima, the requested assessments are not reasonable and necessary in the circumstances of this case. The Insurer also maintains that the motion itself was not brought in a timely way.

Findings

For the following reasons, I find that the motion should be granted, but with a slightly different remedy.

Regarding the timeliness of the motion, while the Insurer only served and filed its Supplementary Affidavit, Factum and Brief of Authorities 5 days prior to the hearing of the motion, I find that, by serving and filing its Motion Record (Notice of Motion, Affidavit, supporting exhibits, and Draft Order, as well as a covering letter confirming the time, date and manner in which the motion was to be heard) on November 19, 2013 (more than 10 days before the hearing of the motion), it complied with the basic requirements of bringing a motion under Rule 67.3 of the Dispute Resolution Practice Code. In any event, I accept that the Supplementary Affidavit was prepared in response to discussions between counsel subsequent to the serving of the Insurer’s Motion Record and that Ms. Lima was fully capable of responding to the motion.

Regarding the substance of the motion, I accept that the Insurer will be prejudiced if it is not permitted to assess Ms. Lima in respect of Criterion 7, both in its general obligation to adjust Ms. Lima’s claim for statutory accident benefits, as well as its ability to properly respond to Ms. Lima’s claim of catastrophic impairment at the arbitration. Ms. Lima argues that the Insurer should not now be permitted to assess Ms. Lima under Criterion 7, and will likely argue at the arbitration that the only real evidence on whether she satisfies Criterion 7 is her own catastrophic impairment assessments from Cira Medical Services. In my view, it would be inherently unfair for an arbitration to be conducted on catastrophic impairment in such a one-sided manner. In any event, I find that the Insurer is entitled to request that Ms. Lima attend further catastrophic impairment assessments at this stage of the proceeding.

Dr. Mamelak’s OCF-19 only sought a determination of catastrophic impairment in respect of Criterion 8. Ms. Lima argued that, because Dr. Mamelak was a psychiatrist, he could only deal with Criterion 8, and that the Insurer was obligated to conduct assessments in respect of all 8 categories of catastrophic impairment. I do not accept either of these submissions. While Dr. Mamelak is a psychiatrist, I see nothing precluding him, as a physician, from requesting a catastrophic impairment determination in respect of the other criteria listed in the OCF-19, if he suspected that they might be relevant to the question of the nature and extent of Ms. Lima’s disability. I, therefore, find it significant that Dr. Mamelak only identified Criterion 8 as the basis upon which he requested a catastrophic impairment assessment. However, even if it could be said that, due to his particular area of expertise, he was restricted to dealing with Criterion 8, I do not accept that the Insurer was then obligated to conduct a comprehensive catastrophic impairment assessment. Nothing in the Schedule indicates that, in response to an OCF-19, an insurer is required to conduct assessments in respect of all other possible categories of catastrophic impairment, and, as a practical matter, this would be a potentially cumbersome and wasteful process, quite apart from it being unduly intrusive for the insured person. Ms. Lima suggested that, since section 44 of the Schedule (regarding insurer examinations) allows an insurer to have an insured person assessed by more than one specialist, it required the Insurer to assess Ms. Lima in respect of all 8 categories of catastrophic impairment. I do not accept this. I find that the Insurer was entitled to rely on, and be guided by, Dr. Mamelak’s OCF-19 identifying Criterion 8 as the only category under which Ms. Lima was seeking to be determined to be catastrophically impaired, and that, while it could (and, in fact, did) enlist more than one specialist to assess Ms. Lima’s Application, it was not required to assess her in respect of every category of catastrophic impairment.

What complicates the process in this case, of course, is that, subsequent to the OCF-19 and Insurer’s assessment in respect of Criterion 8, Ms. Lima underwent further assessments on her own and obtained opinions indicating that she was catastrophically impaired under Criterion 7, as well as Criterion 8. Both parties maintained that these reports do not constitute a new Application for Determination of Catastrophic Impairment, such as to start the process over again, and that the issue is, then, whether, given Ms. Lima’s new reports on Criterion 7, the Insurer’s request that she attend further insurer examinations on Criterion 7 is reasonable and necessary. For the following reasons, I find that it is.

The principles for determining whether an insurer’s request for an examination is reasonable and necessary have been set out follows:

The onus is on the insurer to establish that the proposed examination is reasonable;
The timing of the request;
The possible prejudice to both sides;
The nature and number of previous examinations and the nature of the examinations being requested;
Whether any new issues are being raised; and
Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.²

For the following reasons, I find that the Insurer has discharged its onus of showing that the proposed examinations are reasonable and necessary.

While there was some delay between the Insurer’s receipt of Ms. Lima’s assessment reports and the request for the new examinations, I do not find that the delay was unreasonable. The Insurer reasonably sought further opinions on the significance of Ms. Lima’s reports, and, as a result of the responses received from Drs. Hines and Meikle, reasonably sought further assessments directed specifically at Criterion 7. I accept the submission of counsel for the Insurer that the delay between receipt of the paper reviews and the request for the examinations was likely a combination of the adjuster’s workload and the intervening summer holidays. In any event, I do not find that the adjuster unduly delayed. The requested examinations were originally scheduled for October and November 2013, roughly two to three months before the arbitration was to commence. I do not find that the Insurer was engaging in “trial brinksmanship”, but was rather reasonably trying to assess the nature and extent of Ms. Lima’s impairments in light of the new reports she obtained, and only once it became apparent that Drs. Hines and Meikle would not be addressing Criterion 7.

Because Ms. Lima refused to attend the requested examinations, they have now been scheduled for mid-January 2014, the time the arbitration is to commence. Granting the Insurer’s motion will, therefore, necessitate an adjournment of the arbitration. I accept that this will prejudice Ms. Lima by delaying the adjudication of her case. However, I find greater prejudice to the Insurer if it is not permitted to investigate Ms. Lima’s recent claim that she is catastrophically impaired under Criterion 7, and is required to proceed to an arbitration where only Ms. Lima will be introducing evidence on Criterion 7.

It is true that Ms. Lima has undergone numerous insurer examinations (at least 17) and that the Insurer now wishes her to undergo three more (by Dr. Jaroszynski, an orthopaedic surgeon, Dr. Moddel, a neurologist, and Dean Lurie, a kinesiologist). Ms. Lima argues that, based on the various assessments she has already attended, there is ample evidence of the physical impairments she has suffered, such as to allow a full consideration of whether she satisfies Criterion 7. However, none of the Insurer’s previous examinations have addressed the specific question of whether Ms. Lima has suffered at least 55% impairment of the whole person, a special and complicated analysis only possible in relation to the requirements of the AMA Guides. The proposed assessments will now address that question, and by doing so will provide a fuller and more balanced evidentiary basis upon which to adjudicate Ms. Lima’s claims.

Ms. Lima’s catastrophic impairment assessments clearly raised a new issue in this arbitration, and I find it reasonable that the Insurer be permitted to investigate that question.

Finally, there is a clear nexus between the proposed examinations and Ms. Lima’s injuries.

I, therefore, find that the requested assessments are reasonable and necessary.

The Insurer sought a stay of the arbitration pending Ms. Lima’s attendance at the proposed examinations. Given that the assessments have been scheduled at the time the arbitration is to commence, I find a more reasonable remedy to be to adjourn the hearing pending Ms. Lima’s attendance at the assessments. The parties should contact the Case Administrator on this file to provide new dates for the arbitration.

EXPENSES:

The Insurer sought its expenses of the motion, on a substantial indemnity basis. I did not hear submissions from the parties on this matter. In my view, this issue is more appropriately considered by the hearing Arbitrator in the context of the case as a whole.

December 9, 2013

Eban Bayefsky Arbitrator

Date