Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 29

FSCO A10-003893

BETWEEN:

GRISILDA BAST

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

Before: Deborah Pressman

Heard: By final written submission received October 22, 2012

Appearances: Christine Boulos for Ms. Bast Melinda Baxter for Unifund Assurance Company

Overview:

The Applicant, Grisilda Bast, was injured in a motor vehicle accident on August 5, 2008. She applied for and received statutory accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ Disputes arose between the parties, which they were unable to resolve through mediation and Ms. Bast applied for arbitration at the Financial Services Commission of Ontario.

One of the issues in her arbitration is catastrophic impairment. Unifund has been unable to determine whether Ms. Bast is catastrophically impaired because Ms. Bast only attended two of the three in-person examinations that Unifund set up pursuant to section 44 of the Schedule.²

Ms. Bast refused to attend the neuropsychological assessment on the basis that it was never alleged that she suffered a head injury or cognitive problems arising from anything other than psychiatric issues. As a result, Unifund brought this motion.

Issues:

Is Unifund’s request that Ms. Bast attend a section 44 neuropsychological assessment reasonable and necessary?
In the event that the neuropsychological assessment is determined to be reasonable, is Unifund entitled to a stay of the arbitration proceeding until Ms. Bast has attended?

Result:

Unifund’s request that Ms. Bast attend a section 44 neuropsychological assessment is reasonable and necessary.
The proceedings are stayed until Ms. Bast attends the neuropsychological examination, unless the parties agree otherwise.

EVIDENCE AND ANALYSIS:

I find that Unifund’s request that Ms. Bast attend a neuropsychological assessment is reasonably necessary and fair. My reasons are as follows.

Subsection 44(1) of the Schedule provides that, as often as is reasonably necessary, an insurer may require an insured person to be examined by one or more regulated health professionals to assist the insurer to determine if the insured person is or continues to be entitled to a benefit.³

Both parties submitted that I be guided by the case of Al-Shimasawi and Wawanesa⁴,which outlined a list of important principles that arbitrators take into account in determining whether an insurer examination is reasonably necessary. These can be summarized as follows.

The timing of the insurer’s request.
Does the insurer reasonably require this examination in order to assess validity of a claim to ongoing benefits, rather than for purposes of trial brinkmanship or an attempt to bolster its position.
Whether any new issues are being raised in the applicant’s claim that require evaluation
The nature and number of previous examinations and the nature of the proposed examination.
Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
The possible prejudice to the parties.
The onus is on the insurer to establish that the proposed examination is reasonable.

In addition, the most recent cases on this type of motion, such as Anthonypillai and Albanese⁵, seem to shift the focus to the principle of fairness. In Ramalingam and Gonsalves⁶, the Divisional Court defined an insurer’s right to examinations in the context of fairness on the basis that fairness is fundamental to any administrative process and that an assessment may be required for a fair hearing.

The question is then whether an assessment is reasonably necessary. In addition, an arbitrator must consider whether it is fair for the insurer to have an opportunity to assess its insured and for the insured to attend an examination.

Is Unifund’s request that Ms. Bast attend a Neuropsychological Assessment Reasonably Necessary and Fair?

Overall, I find that each of the legal principles noted above favours Unifund and that Unifund has discharged its onus of establishing that the neuropsychological assessment is reasonably necessary and fair.

(i) Timing of the request

Overall, I find that Unifund is not trying to bolster its case for the arbitration hearing, but legitimately attempting to assess Ms. Bast in relation to her new claim that she is catastrophically impaired.

Ms. Bast applied for arbitration in December, 2010. After her application for arbitration, additional disputes arose over her benefits, which were mediated and subsequently added to this arbitration.⁷ In July 2011, Ms. Bast made an Application for Determination of Catastrophic Impairment (OCF-19) and sent it to both the mediator and Unifund prior to her mediation.⁸ A mediator’s report was issued on August 5, 2011. It contained the failed issue of catastrophic impairment.

In January 2012, Unifund came to know of the application for catastrophic determination and immediately requested a copy of the application and report.⁹ It then forwarded the application for catastrophic determination to Seiden Health, the section 44 assessing facility, so it may recommend whether any section 44 examinations would be required. The assessors determined that three examinations would be required in order to help Unifund determine whether Ms. Bast sustained a catastrophic impairment − an orthopaedic assessment, a psychiatric assessment, and a neuropsychological assessment.¹⁰

At the pre-hearing discussion, which took place on February 6, 2012, the parties agreed to add issues that were mediated and failed to this arbitration, including the catastrophic impairment issue. Shortly after this discussion, Unifund set up the recommended section 44 examinations and sent Ms. Bast Notices of the required assessments.¹¹ Ms. Bast attended the orthopaedic and psychiatric assessments in May 2012, but refused to attend the neuropsychological assessment and Unifund then brought this motion.

In my view, the facts support Unifund’s position that it is not engaged in “trial brinkmanship.” While there was some delay between Ms. Bast’s application for catastrophic impairment determination and Unifund’s response and the scheduling of the assessments, I nevertheless find that Unifund’s request for section 44 examinations was made in a timely manner, in relation to the ongoing arbitration. In fact, Unifund sought to have Ms. Bast assessed in May 2012, and sent her Notices in April 2012, five months before the preliminary issue hearing on catastrophic impairment was to take place. Therefore, I find that the timing of Unifund’s request is reasonable.

(ii) A new issue being raised

In any event, focusing the analysis on fairness, the fact that Unifund’s counsel initiated the assessments after the arbitration was commenced is of no consequence. Although Unifund could have requested the assessments several months earlier, the balance of procedural fairness weighs heavily in favour of Unifund because Ms. Bast raised a new issue of catastrophic impairment after she commenced her arbitration.

Arbitrators have consistently held that when an insured raises a new issue in her claim, its insurer naturally requires an opportunity to evaluate the new issue. ¹² When Ms. Bast made an application for catastrophic impairment determination, she established a new issue that required Unifund to conduct an evaluation so it can assess if she is catastrophically impaired and therefore perhaps entitled to further benefits.

Ms. Bast’s application was substantiated with a report from Dr. Kakar, a psychiatrist.¹³ His report contained new information concerning the nature and extent of Ms. Bast’s injuries and included several references to her cognitive complaints, which support the reasonableness of Unifund’s request that Ms. Bast attend a neuropsychological assessment to measure her cognitive problems.

In the circumstances of this case, I find that Unifund’s right to examine Ms. Bast is required to ensure a fair hearing. Ms. Bast established catastrophic impairment as a new issue. She then mediated it and added it to her arbitration. At the least, Unifund is entitled to respond to Dr. Kakar’s report given the new information on cognitive difficulties raised in his report.

(iii) The nature of the requested assessment relative to previous assessments and Ms. Bast’s injuries

The requested examination, a neuropsychological assessment, relates to a determination of catastrophic impairment. A CAT assessment is naturally different from any other assessment and would not be a repeat of any previous assessment conducted in this case. In the course of adjusting Ms. Bast’s claim, Unifund sent her for insurer examinations to determine her ongoing need for various benefits.¹⁴ However, Unifund has never sent Ms. Bast for catastrophic-related examinations or any neuropsychological assessments, and the parties agreed that the number of assessments to date has not been excessive.¹⁵

Unifund provided direct medical evidence that a neuropsychological assessment is required because it is directly related to Ms. Bast’s injuries, specifically her cognitive problems, which are better measured by such an assessment. In a letter dated July 9, 2012, Seiden Health assessors stated the following. ¹⁶

The neuropsychological assessment is required to evaluate Ms. Bast’s cognitive complaints. According to the report of psychiatrist Dr. Ravi Kakar, who signed the Application for Determination of Catastrophic Impairment (OCF-19), her cognitive concerns include difficulties with her memory, attention, concentration, comprehension and executive functioning. These concerns need to be evaluated in detail in order to fully capture the extent of Ms. Bast’s ongoing impairment and assign an accurate rating as per the AMA Guides to the Evaluation of Permanent Impairment.

Therefore, Unfund’s evidence substantiated that the neuropsychological assessment is reasonably necessary and that the completed orthopaedic and psychiatric assessments are insufficient to determine whether Ms. Bast is catastrophically impairment. Without this examination and resulting report, Unifund is unable to discharge its obligation to assess Ms. Bast for catastrophic impairment.

(iv) Prejudice

I find that the prejudice to Unifund’s opportunity to evaluate the catastrophic issue outweighs any prejudice to Ms. Bast as the only prejudice to Ms. Bast is a potential adjournment of her June, 2013 hearing. In fact, there may not be any prejudice at all if the parties are able to promptly deal with scheduling the assessment. Without an opportunity to obtain a neuropsychological assessment of Ms. Bast, Unifund cannot complete its determination of catastrophic impairment and have a fair hearing.

(v) Onus

In all the circumstances of this case, and considering all the evidence, I conclude that the proposed assessment is both fair and reasonably necessary, and that Unifund has discharged its onus of establishing such.

Should the arbitration be stayed until Ms. Bast attends the neuropsychological assessment?

As Unifund is not seeking to conduct this assessment for the dominant purpose of the arbitration, and the criteria set out in the case law favour conducting the assessment because it is reasonably necessary and fair, Ms. Bast should attend the neuropsychological assessment before proceeding with her arbitration. The arbitration is stayed until Ms. Bast attends the examination, unless the parties agree otherwise.

EXPENSES:

The parties did not address the issue of expenses. The matter of expenses is more appropriately considered by the hearing arbitrator in the context of the case as a whole.

March 7, 2013

Deborah Pressman

Arbitrator

Date