Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 78

FSCO A11-002456

BETWEEN:

LUCILLE JODOIN

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anne Sone

Heard: On April 4 and 11, 2013, by telephone conference call

Appearances: Jessica Fullerton for Ms. Jodoin

Arthur R. Camporese for Gore Mutual Insurance Company

Issues:

The Applicant, Lucille Jodoin, was injured in a motor vehicle accident on May 22, 2000. She applied for and received statutory accident benefits from Gore Mutual Insurance Company (“Gore Mutual”), payable under the Schedule.¹ Ms. Jodoin submitted that she had sustained a catastrophic impairment as a result of the accident. Gore Mutual disagreed. The parties were unable to resolve their dispute through mediation, and Ms. Jodoin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Gore Mutual has attempted to set up catastrophic impairment assessments with Ms. Jodoin pursuant to section 44 of the Schedule.² Ms. Jodoin has refused to attend these assessments.

The issues are:

1. Is it reasonably necessary for Ms. Jodoin to attend catastrophic assessments with an occupational therapist, neurologist, ophthalmologist, orthopaedic surgeon, psychologist and psychiatrist to determine whether she sustained a catastrophic impairment as a result of the accident?

2. Is Gore Mutual Insurance Company entitled to an adjournment of the arbitration hearing in order to allow it time to conduct catastrophic assessments?

Result:

1. It is reasonably necessary that Lucille Jodoin attend section 44 orthopaedic and psychiatric assessments to determine whether she sustained a catastrophic impairment as a result of the accident.

2. Should Lucille Jodoin fail to attend catastrophic assessments with an orthopaedic surgeon and a psychiatrist arranged by Gore Mutual Insurance Company, this arbitration proceeding is stayed.

3. Gore Mutual Insurance Company is entitled to an adjournment of the arbitration hearing in order to allow it time to conduct catastrophic assessments.

Due to time constraints concerning an upcoming hearing, I made an oral ruling in this matter, with written reasons to follow. These are those reasons.

Circumstances of the accident and injuries:

On May 22, 2000, when she was 10 years old, Lucille Jodoin was a front-seat passenger in a car involved in a head-on collision. Ms. Jodoin sustained facial fractures, complete loss of vision in her right eye, a mild brain injury, as well as musculoskeletal impairments. In May of 2008,

Ms. Jodoin was assessed by Dr. Reesor, psychologist, who concluded that she had accident-related psychological impairments such as depression, anxiety and peer relational problems. In early 2009, Ms. Jodoin was undergoing treatment for physical impairments to her neck and back, including limited range of motion and muscular imbalance.

Events leading up to this Motion:

Ms. Jodoin’s initial Catastrophic Impairment Assessments

On April 27, 2009, when Ms. Jodoin was 19 years old, she submitted an application for a determination of catastrophic impairment (OCF-19) to Gore Mutual. After a paper review, Dr. Meikle, physiatrist, provided the following whole person impairment (WPI) ratings for her physical impairments:

• 24% for the complete loss of vision in Ms. Jodoin’s right eye

• 10% for a cosmetic deformity

Other “persistent impairments”, including injuries to Ms. Jodoin’s neck and back, were identified but not rated.

On June 27, 2009, Ms. Jodoin’s treating psychologist, Dr. Reesor, submitted a second OCF-19. In his report, Dr. Reesor concluded that Ms. Jodoin suffered from psychological or behavioural impairments in all four spheres of function, ranging from mild-moderate impairment in her activities of daily living to a marked impairment in social functioning. Dr. Reesor rated Ms. Jodoin’s overall impairment of function due to mental or behavioural disorder as “moderate” as there was some range of function.³ Dr. Reesor used the methodology set out in the fourth edition of the AMA Guides.⁴ These Guides equate a moderate overall impairment to a WPI in the range of 25% to 50%. Dr. Reesor concluded that a midpoint of 37.5% was an appropriate rating for Ms. Jodoin’s psychological impairments.

After Ms. Jodoin’s assessors combined her WPI ratings under subsection 2(1.1)(f) of the Schedule, her WPI was 57.5%. Under this subsection, the threshold for a catastrophic impairment is a WPI of 55%. As a result, her assessors concluded that she was just over the WPI required to qualify as having sustained a catastrophic impairment.

Gore Mutual’s Catastrophic Impairment Assessments

In the summer of 2009, in response to Ms. Jodoin’s assessments, Gore Mutual obtained multi-disciplinary insurer’s examinations that included examinations by :

• Dr. Rabinovitch (ophthalmologist)

• Dr. Dost (neurologist)

• Dr. Jarsozynski (orthopaedic surgeon)

• Dr. Tuff (psychologist)

• Ms. Nicholson (occupational therapist)

In a summary report, (containing an appendix signed by all the assessors), Dr. Dost concluded that:

• Ms. Jodoin’s WPI rating for physical impairments totalled 32%

(for loss of vision in her right eye and the cosmetic deformity)

• Ms. Jodoin had, at most, a mild psychological or behavioural impairment

• Ms. Jodoin did not meet the criteria for the designation of catastrophic impairment under either subsection 2(1.1)(f) or (1.1)(g).

Ms. Jodoin’s Rebuttal and Addendum Reports

Ms. Jodoin disputed Gore Mutual’s reports. She submitted a physiatry rebuttal report from Dr. Meikle, dated October 29, 2009, opining that Ms. Jodoin’s WPI rating for physical impairments totalled 37%.

She also submitted a psychological rebuttal report from Dr. Reesor dated September 28, 2009. In it, he opined that Ms. Jodoin suffered from impairments in all four spheres of functioning described as “mild” to “more marked” in nature. Overall, he concluded that Ms. Jodoin suffered a Class 3 or “moderate” impairment and that a WPI of 37.5% was reasonable for her psychological or behavioral impairments.

When these figures for WPI were combined, a value of 57.5% was reached. On this basis, Ms. Jodoin reiterated that she had met the threshold for catastrophic impairment under subsection 2(1.1)(f) of the Schedule.

Gore Mutual’s Addendum Reports

In addendum reports dated October 13, 2009 and January 11, 2010, Dr. Dost confirmed that nothing in Dr. Reesor’s and Dr. Meikle’s rebuttal reports altered the opinion of Gore Mutual’s assessors.

Procedural History

On February 18, 2010, Ms. Jodoin filed an application for mediation challenging Gore Mutual’s denial of her claim that she was catastrophically impaired.

After a failed mediation, Ms. Jodoin filed an application for arbitration on July 25, 2011, which resulted in a pre-hearing before me on March 26, 2012. At that time, a hearing in this matter was set for April 15 to 18, 2013. Gore Mutual states that it was not advised during or after the pre-hearing that Ms. Jodoin was seeking additional catastrophic assessments.

On March 27, 2012, Gore Mutual received an insurer’s examination report from Dr. Todd Norton regarding a treatment plan for chiropractic therapy submitted by Ms. Jodoin. After examining her, he concluded that she had an impaired cervical range of motion and that the treatment plan was reasonable and necessary.

Ms. Jodoin’s Further Catastrophic Assessments

On January 15, 2013, Ms. Jodoin served the following reports on Gore Mutual:

• File review based opinion of Dr. Meikle dated September 28, 2012

• Medical legal evaluation of Dr. Meikle dated December 13, 2012

• Psychiatric plaintiff medical evaluation of Dr. Waisman dated December 13, 2012

• WPI assessment and analysis – opinion regarding catastrophic impairment of Dr. Meikle dated December 13, 2012

Ms. Jodoin explains why it took the length of time it did to file these reports as follows:

• Three of the above reports were delayed in being finalized because the assessors did not have the clinical notes and records of Dr. Reesor

• Dr. Meikle’s paper review was not served initially, due to a desire to serve Dr. Meikle’s reports together with Dr. Waisman’s report

• It was not anticipated that it would take so long to obtain the psychiatric report of

Dr. Waisman

She did not explain why it took more than one month to serve these reports on Gore Mutual.

In his file review based opinion of September 28, 2012, Dr. Meikle noted that he had been provided with updated chiropractic records and was asked to comment on whether these records “can be utilized to determine the applicable impairment rating for spine impairment.” He concluded that these records were useful and that Ms. Jodoin suffered a 5% WPI relating to her cervicothoracic spine. He was unable to comment on the applicable impairment rating for Ms. Jodoin’s thoracolumbar and lumbosacral spine, beyond stating that it would range from 0-5% for each region (0-10% WPI total). He also provided an impairment rating of 3% for tearing in her right eye.

For the purposes of his medical legal evaluation of December 13, 2012, Dr. Meikle was asked to provide an opinion “in regards to the severity of the impairments sustained in the subject accident.” It does not appear that he translated this opinion into WPI ratings under the AMA Guides.

In his psychiatric medical evaluation dated December 13, 2012, Dr. Waisman concluded that Ms. Jodoin suffered Class 3 or “moderate” impairment in the spheres of activities of daily living and concentration, pace and persistence and Class 4 or “marked” impairment in the spheres of social functioning and adaptation. He was of the opinion that her global impairment was “marked” and that she met the threshold for a catastrophic impairment designation under subsection 2(1.1)(g) of the Schedule.

The last of the newly served reports is the WPI assessment and analysis of Dr. Meikle dated December 13, 2012. Contrary to his prior report of August 14, 2009, he was of the opinion that 5% WPI was applicable to her back, in addition to 5% WPI for her neck. He also attributed an additional 3% for right eye tearing, an impairment that was not noted in his prior report. Lastly, Dr. Meikle advised that Dr. Waisman had determined that Ms. Jodoin’s psychological or behavioural impairment was most analogous to a 56% WPI, in contrast to Dr. Reesor’s psychological impairment rating of 37.5% WPI. This resulted in an overall combined WPI score of 73-76%.

Gore Mutual’s Notices of Examination for Updated Catastrophic Assessments

On February 25, 2013, Gore Mutual wrote to Ms. Jodoin and enclosed notices of examination for updated catastrophic assessments with an occupational therapist, neurologist, ophthalmologist, orthopaedic surgeon, psychologist and psychiatrist.

On March 1, 2013, Ms. Jodoin’s counsel advised that Ms. Jodoin would not attend these assessments.

Submissions of Parties:

This motion was hotly contested, with both sides providing substantial submissions, affidavits, and transcripts of cross-examinations upon those affidavits.

Insurer’s Submissions

Gore Mutual submits that Dr. Meikle’s file review based opinion of September 28, 2012 showing a 10% WPI for Ms. Jodoin’s neck and back represents a change in Ms. Jodoin’s condition. In Dr. Meikle’s prior report dated August 14, 2009, Dr. Meikle concluded that an impairment rating of 0% for spine pain was appropriate.

Gore Mutual also submits that Dr. Waisman’s 2012 examination was the first psychiatric evaluation of Ms. Jodoin. It states that his report shows a change in her condition, because in 2009, Dr. Reesor opined that her global impairment was “moderate” and that she did not meet the threshold for a catastrophic impairment under 2(1.1)(g) alone. In addition, Gore Mutual submits that the significant change in Ms. Jodoin’s overall WPI from 57.5% to 73-76% under 2(1.1)(f) is further evidence of a change in her condition.

Gore Mutual states that it has an ongoing obligation to adjust the Applicant’s file. Since, in its opinion, the reports it received on January 15, 2013 refer to new information, it is reasonable for it to seek opinions regarding them, and otherwise will have no practical ability to respond to them.

Gore Mutual submits that it is possible that its own assessors may agree that Ms. Jodoin is catastrophically impaired, and thereby avoid the time and expense required for the hearing of a catastrophic case.

Gore Mutual further states that Ms. Jodoin will not be prejudiced by any delay occasioned by these assessments, as she has not reached the monetary limits on medical and rehabilitation benefits, and has never applied for housekeeping or attendant care benefits.

Gore contends that it requires an adjournment in order to conduct the assessments it needs prior to the start of the arbitration.

Applicant’s Submissions

Ms. Jodoin submits that I do not have jurisdiction to order her to attend insurer’s examinations.

She notes that on March 27, 2012, Gore Mutual received an insurer’s examination report from Dr. Todd Norton regarding a treatment plan for chiropractic therapy. Accordingly, Gore Mutual had an opportunity to examine Ms. Jodoin in 2012.

Ms. Jodoin submits that, although in Dr. Meikle’s 2012 reports his impairment ratings for Ms. Jodoin’s neck (5%), back (5%) and for tearing in her right eye (3%) were new, the impairments were not.

Dr. Waisman opined in 2009 that Ms. Jodoin’s psychological WPI was 56%, her global psychological impairment was “marked” and that she met the threshold for a catastrophic impairment designation under 2(1.1)(g). Ms. Jodoin submits that Dr. Waisman’s opinion represented a difference in the method of scoring from Dr. Reesor who found in 2009 that her psychological WPI rating was 37.5% and that her global psychological impairment was “moderate.”

Ms. Jodoin also submits that the higher overall WPI score of 73-76% is not evidence of a marked deterioration as Gore Mutual suggests.

Ms. Jodoin submits that a delay in the arbitration means that Ms. Jodoin is delayed in her access to housekeeping and attendant care benefits. For this reason, she opposes the adjournment request made by Gore Mutual.

The Law:

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.

There is no authority for an arbitrator to order an applicant to attend an insurer’s examination;⁵ however, arbitrators have broad, implicit powers to control their process to ensure a fair hearing.⁶ Starting with F.S. and Belair⁷, arbitrators have stayed and adjourned hearings to allow insurers’ examinations. They have done so where fairness required it, and the section 42 (now section 44) requirements were met.⁸ In F.S., Director’s Delegate Naylor said regarding hearing fairness:

It would be an extraordinary result if, in the face of an express authority to require an examination, insureds could circumvent this condition by insisting on proceeding to arbitration, while shifting the basis of their claim.

A number of arbitration decisions⁹ have set out a list of factors to be considered when evaluating an insurer’s request for an insurer’s examination, such as:

• The timing of the insurer’s request, especially whether it will require the hearing to be adjourned

• Whether the claimant disclosed relevant material as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether the insurer made its insurer’s examination request as soon as it reasonably determined the need for the examination

• 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

• 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

• The onus is on the insurer to establish that the proposed examination is reasonable.

Although these factors are helpful, I give most weight to reasons in the recent decision of the Divisional Court in Certas Direct Insurance Co. v. Gonsalves.¹⁰ In Gonsalves, the applicant was seeking benefits on the basis that she was completely unable to live a normal life due to an accident. She served two orthopaedic assessments on the insurer one month before the arbitration was about to start. The Arbitrator granted the insurer’s request for an adjournment so that the applicant could be examined by the insurer’s expert.¹¹ The applicant refused to attend another examination, and the Director’s Delegate overturned the Arbitrator’s decision granting an adjournment.¹² In the Divisional Court, the insurer applied for judicial review of the Director’s Delegate’s decision that overturned the Arbitrator’s decision.

The Divisional Court found that if the arbitration were allowed to proceed in the absence of an insurer’s orthopaedic examination, the insurer would have no practical ability to respond to the applicant’s evidence. It therefore reinstated the Arbitrator’s decision.

In Gonsalves, the Divisional Court talks about procedural fairness at paragraph 8 as follows:

Fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.

At paragraph 10, it states:

In our view, the insurer would be denied the right to make a full response and would not be heard as the dictates of procedural fairness require. It is not enough to say that the delivery of these reports was made within the permitted time frame … when, as the arbitrator found, they provide new evidence supporting a new position. This is trial by ambush.

ANALYSIS AND CONCLUSION:

Section 44 Examinations

In terms of fairness, which is required by natural justice, it is appropriate for Gore Mutual to conduct some catastrophic assessments for the reasons set out below. Gore Mutual has not conducted catastrophic assessments of Ms. Jodoin for three and one-half years. That alone might be a reason for Gore Mutual to update its assessments in a significant case.

In addition, Ms. Jodoin’s assessors assert that her WPI rating has gone from 57.5% to 73% to 76%. I find that, as in Gonsalves, Ms. Jodoin has provided new evidence supporting a new position. If the findings in Ms. Jodoin’s most recent reports, (conducted in 2012 and 2013) were substantially similar to the findings in her previous reports, (from 2008), there would be less justification for Gore Mutual to conduct its own catastrophic assessments. However, in the face of the significant change in Ms. Jodoin’s ratings under both 2(1.1)(f) and (1.1)(g), it would be unfair to preclude Gore Mutual from conducting its own catastrophic examinations.

Ms. Jodoin submits that the change in her WPI related to physical impairments does not reflect new impairments or deterioration in her condition. Rather that it results from her assessing doctor rating impairments that had not previously been rated, and that there is evidence that she had previously complained of these conditions to Gore Mutual’s assessors.¹³ Nevertheless, when the same physiatrist (Dr. Meikle), on behalf of Ms. Jodoin, adds 13% for the physical aspect of her WPI, it is difficult to accept at face value that there has been no change in her symptoms or condition.

Ms. Jodoin argues that the difference between her psychological rating in 2009 of 37.5% WPI as opposed to a 56% WPI in 2012 are merely the result of differences in scoring methodology. I do not find this argument to be persuasive. The 2012 opinion of her own assessing psychiatrist, Dr. Waisman states that her global psychological impairment was “marked” and that she met the threshold for a catastrophic impairment designation under 2(1.1)(g). I find that that report alone is significant new evidence supporting a change in position from the “moderate” global psychological impairment found by her own assessing psychologist, Dr. Reesor, in 2009.

The change in Ms. Jodoin’s higher overall WPI score of 73% to 76% under 2(1.1)(f) and change from “moderate” to “marked” psychological impairment under 2(1.1)(g) may not necessarily mean that there has been a deterioration in her condition, but it is certainly new evidence supporting a new position.

Ms. Jodoin also submits that the insurer’s examination that Gore Mutual conducted in connection with her claim for chiropractic treatment in 2012, had already afforded Gore Mutual an opportunity to examine her. She asserts that Gore Mutual’s ultimate acceptance of this claim for chiropractic treatment should have alerted the insurer that there had been changes in her condition. However, there is a clear difference between an examination conducted for the purpose of considering whether some treatment is reasonable and necessary, and catastrophic assessments conducted with reference to the AMA Guides.

Ms. Jodoin did not provide her assessments (including a copy of the report prepared by Dr. Meikle in September 2012) until January 2013, which effectively prevented Gore Mutual from obtaining its own catastrophic assessments in time to file them within the 30 day time limit required before the April 15, 2013 hearing start date. This may well have been due to difficulty in getting clinical notes and records from Dr. Ressor, and in getting reports from Dr. Meikle and Dr. Waisman; however, these circumstances should not be permitted to prejudice Gore Mutual from obtaining examinations that are reasonably necessary.

Gore Mutual did take approximately five weeks before it requested catastrophic assessments from Ms. Jodoin. However, I do not find this period of time excessive, given that it needed to review the new catastrophic assessments from Ms. Jodoin, and determine whether it would request further assessments from her. As was the case in F.S., Gore Mutual might have requested the examinations somewhat earlier than it did. However, I do not believe that the delay was so serious as to render the requests unreasonable.

Although conducting these assessments will delay the hearing of this matter, I do not see how Ms. Jodoin will be prejudiced, as she has not reached the monetary limits on medical and rehabilitation benefits available for a non-catastrophically injured person. In addition, to my knowledge, she has never applied for housekeeping or attendant care benefits. On the other hand, Gore Mutual would be prejudiced if it was forced to proceed without new catastrophic assessments in light of the new evidence from Ms. Jodoin’s catastrophic assessors supporting a new position.

I am not persuaded, however, that catastrophic assessments by Gore Mutual’s occupational therapist, neurologist, ophthalmologist or psychologist are required for a fair hearing of this case.¹⁴ This would represent an undue intrusion upon Ms. Jodoin’s privacy.

Under all these circumstances, I find that Gore Mutual has met its onus to prove that fairness requires that the catastrophic assessments it has arranged with an orthopaedic surgeon and a psychiatrist are reasonably necessary. Although I cannot compel Ms. Jodoin to undergo these assessments, I will stay this arbitration proceeding until such time as she attends the examinations that Gore Mutual arranges with an orthopaedic surgeon and psychiatrist.

Adjournment Request

For the reasons set out in this decision, and in order to allow Gore Mutual time to conduct these two catastrophic assessments, I have adjourned the arbitration hearing in this case. Once Ms. Jodoin attends the examinations that Gore Mutual arranges with an orthopaedic surgeon and a psychiatrist, I will resume the pre-hearing conference in order to select a date for the arbitration hearing.

June 20, 2013

Anne Sone Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 78

FSCO A11-002456

BETWEEN:

LUCILLE JODOIN

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. This arbitration proceeding is stayed until Lucille Jodoin attends catastrophic impairment assessments with an orthopaedic surgeon and a psychiatrist arranged by Gore Mutual Insurance Company.

2. The hearing originally scheduled to commence on April 15, 2013 is adjourned to dates to be set by me following the Applicant’s undergoing these two insurer examinations.

June 20, 2013

Anne Sone Arbitrator

Date

It could be argued that given the severity of the social functioning problems that have ensued and the impacts on her psychologically, and consistent with other use of the AMA Guides, that the significance of her social impairments that would override other considerations and put her at a Class 4 level of impairment. Conservatively, however, given the range as noted above, it would be appropriate to characterize this woman overall at a Class 3 moderate impairment level where impairment level is compatible with some, but not all, useful functioning following Chapter 14 criteria.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Section 44 was section 42 under the previous Schedule.
3. 3Dr. Reesor’s report reflects some ambivalence at page 2, where he states as follows:
4. 4American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition 1993, referred to in subsection 2(1.1)(f) of the Schedule.
5. 5Granic and Allstate Insurance Company of Canada, (OIC A-006615, January 30, 1995).
6. 6Statutory Powers Procedure Act, subsection 23(1).
7. 7(OIC P96-00039, June 11, 1996).
8. 8State Farm Mutual Automobile Insurance Co. and Ramalingam, (FSCO P05-00026, August 13, 2007) Appeal; upheld on appeal to the Divisional Court [2009] ONSC 44115.
9. 9Martucci and Economical Mutual Insurance Company (FSCO A06-000207, May 8, 2007); Al-Shimasawi and Wawanesa, (FSCO A05-002737, May 11, 2007); Ramalingam, above; Bast and Unifund Assurance Company, (FSCO A10-003893); Ouellette and Intact Insurance Company (FSCO A11-001987, December 15, 2011).
10. 102011 ONSC 3986, [2011] O.J. No. 3290 (“Gonsalves”).
11. 11Gonsalves and Certas Direct Insurance Company (FSCO A08-001248, October 9, 2009)
12. 12Gonsalves and Certas Direct Insurance Company (FSCO P09-00036, January 24, 2011) appeal
13. 13As set out in Ms. Jodoin’s Factum at paragraphs 61 to 65.
14. 14During the hearing, Gore Mutual acknowledged that catastrophic assessments by an orthopaedic surgeon and a psychiatrist would be sufficient for it to have a fair opportunity to respond to the position taken against it.