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

Neutral Citation: 2013 ONFSCDRS 80

FSCO A11-003314

BETWEEN:

ANDREW TAILLEUR

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

ATTENDANCE AT AN INSURER EXAMINATION (IE)

Before: Deborah Pressman

Heard: By final written submission received May 10, 2013

Appearances: Daniel Roncari for Mr. Tailleur Arthur R. Camporese for Royal & SunAlliance Insurance Company of Canada

Overview:

The Applicant, Andrew Tailleur, was injured in a single motor vehicle accident on May 11, 2003, when he was 18 years of age. As a result of the accident, he sustained injuries and was deemed catastrophically impaired due to his GCS score. He applied for and received various statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ At some point, disputes arose between the parties which they were unable to resolve through mediation and Mr. Tailleur applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

One of the issues in dispute in this arbitration is Mr. Tailleur’s entitlement to ongoing attendant care benefits. Royal could not complete its Assessment of Attendant Care Needs (Form 1) without considering Mr. Tailleur’s current psychological difficulties, as they have an impact on his attendant care needs. Royal then set up a neuropsychological examination pursuant to section 44 of the Schedule.² Mr. Tailleur refused to attend the neuropsychological assessment and Royal brought this motion.

Issues:

The issues in this motion are:

Is it reasonably necessary for Mr. Tailleur to attend a neuropsychological IE, pursuant to s. 44 of the Schedule?
In the event that the IE is determined to be reasonable, is Royal Entitled to a stay of these Arbitration proceedings until Mr. Tailleur has attended?

Result:

It is reasonably necessary for Mr. Tailleur to attend a neuropsychological IE, pursuant to s. 44 of the Schedule.
The arbitration is stayed until Mr. Tailleur attends the IE.

Is Mr. Tailleur’s attendance at a neuropsychological assessment reasonably necessary and required for a fair hearing?

I find that Royal’s request that Mr. Tailleur attend a neuropsychological assessment is reasonably necessary and required for a fair hearing. Therefore, I order the arbitration stayed until Mr. Tailleur attends the assessment. 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

More recently, judges and arbitrators have 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.⁴

In addition, there are several important considerations that arbitrators take into account in determining whether an IE is reasonably necessary. These are outlined in the case of Al‑Shimasawi and Wawanesa Mutual Insurance Company and include the timing of the request, whether new issues have been raised in the claim that require evaluation, the number and nature of previous insurer’s examinations and the nature of the proposed examination, whether there is a reasonable nexus between the examination requested and the injuries, and possible prejudice to the parties.⁵

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. Overall, based on the legal principles noted above and the evidence, I find that the requested neuropsychological assessment is reasonably necessary and fair.

Since his accident, Mr. Tailleur has completed post-secondary college programs and a work placement and lived on his own, as well as with his fiancée.⁶ In November 2010, seven years after the accident, Royal determined that Mr. Tailleur was independent in his self-care and only required assistance with stretching/exercises and his financial affairs.⁷ Mr. Tailleur disagreed with Royal’s determination and applied for arbitration.

Prior to the pre-hearing, which took place in June 2012, Royal requested an updated Attendant Care Needs Assessment in order to determine whether Mr. Tailleur’s needs have changed since the previous assessment.⁸ Mr. Tailleur did not submit an updated assessment nor the Form 1 and Royal arranged an Insurer’s in-home OT assessment on September 4, 2012, which Mr. Tailleur attended. Royal’s assessor concluded that physically, Mr. Tailleur does not require any help with his self-care.⁹ However, she could not complete her assessment or the Form 1 without taking into consideration his current psychological injuries, as they have an impact on his attendant care needs. She then recommended that Mr. Tailleur undergo a neuropsychological assessment because his last neuropsychological assessment was in 2006. Royal promptly sent out notice for the requested assessment, but Mr. Tailleur refused to attend the neuropsychological assessment.¹⁰

In my view, the facts support Royal’s position that it is not engaged in “trial brinkmanship” because the timing of Royal’s request is reasonable.¹¹ When Royal requested the assessment (October 2012), it was well in advance of the hearing originally set for April 2013.¹² In fact, Mr. Tailleur agreed to attend the in-home assessment that Royal had set up. It was only after the assessor could not complete her Form 1 and Royal requested that Mr. Tailleur undergo a further neuropsychological examination that Mr. Tailleur refused to attend. Therefore, I find that Royal is not trying to bolster its case for the arbitration hearing, but legitimately attempting to assess Mr. Tailleur‘s ongoing entitlement to attendant care benefits.

One of the considerations in this type of motion is the number and nature of previous IEs. As one would expect in a catastrophic claim, Mr. Tailleur has undergone numerous examinations in the last 10 years. However, his last neuropsychological assessment took place seven years ago.¹³ That alone might be a reason for Royal to update its assessment in Mr. Tailleur’s case. Therefore, I find it reasonable that Royal requires an updated neuropsychological assessment.

Another consideration is the nexus between the examination requested and the insured’s injuries. Royal provided direct medical evidence that a neuropsychological assessment is required to assess Mr. Tailleur’s current attendant care needs because it is directly related to Mr. Tailleur’s injuries, specifically his cognitive problems, which are better measured by such an assessment, as evident in Ms. Wilson’s report.¹⁴

Mr. Tailleur submitted that Ms. Wilson, as an occupational therapist, is not qualified to recommend a neuropsychological assessment, and that this new assessment would not likely reveal results that significantly differ from the last neuropsychological assessment in 2006. However, several assessors agreed that Ms. Wilson’s in‑home assessment cannot encompass Mr. Tailleur’s cognitive problems and that a neuropsychological assessment is required. Shortly after Royal advised that it would be arranging for a neuropsychological assessment, Mr. Tailleur sent Royal a request to allow his own treating psychologist, Dr. Velikonja, to conduct the same assessment.¹⁵ And in February, 2013, Ms. Dyk, also Mr. Tailleur’s assessor, supported Ms. Wilson’s request for a neuropsychological assessment. In her medical legal assessment, Ms. Dyk recommended “…that an updated neuropsychological test be performed to obtain a baseline of Mr. Tailleur’s neuropsychological functioning at present… .”¹⁶ Therefore, I also find that the neuropsychological assessment is reasonably necessary because of its nexus to Mr. Tailleur’s injuries.

Generally, Mr. Tailleur’s submissions did not address the kinds of considerations an arbitrator takes into account in determining this type of motion. For example, he submitted that Royal does not have the right to choose the neuropsychological assessor because Mr. Tailleur’s own treating psychologist is the most appropriate assessor to conduct the neuropsychological examination. I disagree because the Schedule and the case law are quite clear; an insurer is entitled to choose its evaluating medical specialist.¹⁷

Mr. Tailleur also submitted that attending the neuropsychological examination by an assessor of Royal’s choosing would be detrimental to his health. However, in the lifetime of this claim, Mr. Tailleur was able to participate in numerous examinations with different assessors, and I was not provided with evidence that these examinations caused any harm.¹⁸ Notably, Mr. Tailleur’s own treating psychologist noted that Mr. Tailleur would “likely react better to a brief assessment that was conducted by a clinician familiar to him… .”¹⁹ I also find it telling that as recently as January 2013, Mr. Tailleur was capable and willing to undergo his own medical legal assessment with Ms. Dyk, in order to support his claim for the arbitration.

In all the circumstances of this case, I find that Royal’s right to examine Mr. Tailleur is required to ensure a fair hearing. Royal has a right to fully evaluate the attendant care claim. With the hearing scheduled for December 2013, there should not be any prejudice or delay to Mr. Tailleur, if the parties promptly schedule the examination. In fact, Mr. Tailleur has already obtained the necessary rebuttals and evidence to assert his claim in the arbitration.²⁰

After considering all the evidence and the appropriate legal principles, I conclude that the proposed assessment is both fair and reasonably necessary, and that Royal has discharged its onus of establishing such.

Should the arbitration be stayed until Mr. Tailleur attends the neuropsychological assessment?

As the criteria set out in the case law favour conducting the assessment because it is reasonably necessary and fair, and as Royal is not seeking to conduct this assessment for the dominant purpose of the arbitration, Mr. Tailleur should attend the neuropsychological assessment before proceeding with his arbitration.

The arbitration is stayed until Mr. Tailleur attends the IE, 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.

June 27, 2013

Deborah Pressman Arbitrator

Date