Neutral Citation: 2014 ONFSCDRS 157 FSCO A13-001614

BETWEEN:

JOAO FERNANDES

Applicant

and

WESTERN ASSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Suesan Alves

Heard: Written submissions received by May 9, 2014

Appearances: Samia M. Alam for Mr. Fernandes Arthur R. Camporese for Western Assurance Company

Issues:

The Applicant, Joao Fernandes, was injured in a motor vehicle accident on January 17, 2007. He applied for and received statutory accident benefits from Western Assurance Company (“Western Assurance”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Fernandes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Western Assurance Company seeks a further psychiatric examination of Mr. Fernandes in relation to his claim that he sustained a catastrophic impairment due to the death of the psychiatrist who conducted the earlier insurer examination.

Mr. Fernandes is opposed to the further examination, but is prepared to agree to it, provided Western funds a rebuttal assessment. Western disagrees that this condition should be imposed. However, Western submits that should I require it to fund the rebuttal assessment, I should limit the cost to $2,000. Mr. Fernandes disagrees with the imposition of a financial limit. Both parties seek their expenses.

The preliminary issue is:

Should Mr. Fernandes be required to attend a further psychiatric insurer examination?
If yes, should a condition be imposed requiring Western to fund a rebuttal assessment to a maximum of $2,000?
Which party is liable to pay the other’s expenses of this motion?

Result:

A further psychiatric insurer examination is reasonably required.
As a condition of the assessment Western is required to fund a rebuttal assessment. The cost of that assessment should be reasonable, but is not limited to $2,000.
If the parties are unable to agree on expenses, I leave them in the discretion of the hearing arbitrator.

Findings and Analysis

Background

Mr. Fernandes was injured in a motor vehicle accident on January 7, 2007 and claimed statutory accident benefits from Western Assurance Company. He applied for a determination of catastrophic impairment. He was examined by a psychiatrist of his choice in September 2009 in relation to the question of whether he sustained a catastrophic impairment.

Western responded by arranging insurer examinations by a psychiatrist, a neurologist and an occupational therapist to address the question of catastrophic impairment. Western’s assessments were completed in March 2010. Mr. Fernandes obtained a psychiatric rebuttal report from his treating psychiatrist in November 2010.

Dr. Shapiro, the psychiatrist who had performed Western’s psychiatric insurer examination, died. Western seeks an Order requiring Mr. Fernandes to attend a further insurer examination with a new psychiatrist to determine if he sustained a catastrophic impairment.

Mr. Fernandes opposes this further examination; however, he is prepared to attend, provided Western funds a rebuttal report to the new psychiatric assessment obtained by Western. Western opposes this term. It submits it has already paid for one rebuttal report and should not be obliged to fund a second. Western submits that if I impose a condition that it fund a rebuttal assessment, the cost of that assessment should be limited to $2,000. Mr. Fernandes disagrees with the imposition of that limit.

A further Insurer Examination?

Arbitral case law establishes that an arbitrator at the Financial Services Commission of Ontario does not have the authority to compel an insured person to submit to an insurer examination. Instead, arbitrators determine whether the requested insurer examination is reasonably necessary or is reasonably required. If the arbitrator determines that the examination is not reasonably necessary or reasonably required, the insured person can proceed with the arbitration. If the arbitrator determines that the examination is reasonably required, the arbitration will be adjourned or stayed until the person attends the insurer examination in question.

Despite the intrusive nature of a psychiatric assessment, I find that given Dr. Shapiro’s death, a further examination is reasonably required in the interest of fairness. F.S. and Belair Insurance Company Inc.²

Should Western be required to fund a rebuttal psychiatric assessment in the amount of $2,000?

Mr. Fernandes submits that Western should pay for a rebuttal assessment as a condition of the further psychiatric assessment. Western disagrees and submits that Mr. Fernandes already has a rebuttal assessment in relation to the report of Dr. Shapiro. Western submits that any such rebuttal assessment should be limited to $2,000. Mr. Fernandes disagrees that a limit should be imposed.

I find that similar considerations of fairness should inform my treatment of Mr. Fernandes’ request for a rebuttal assessment. On this basis, I find that it is appropriate to impose as a condition that Western fund a rebuttal assessment by a psychiatrist, so that insofar as possible, the parties remain on the same footing as they would have been, had Dr. Shapiro not died.

I reject Western’s submission that because Mr. Fernandes already has a rebuttal report, it should not be required to fund a further rebuttal. The earlier rebuttal responds to Dr. Shapiro’s report. What is important is that the Applicant be in a position to respond to the Insurer’s fresh psychiatric assessment.

The Schedule under which Mr. Fernandes claims benefits provides him with a right to obtain a rebuttal assessment to respond to an insurer examination and to have the cost paid by Western. In R.J. and Dominion of Canada General Insurance Company,³ Arbitrator Wilson held that this was a substantive right. I agree with Arbitrator Wilson.

In State Farm Mutual Automobile Insurance Company and Federico,⁴ Delegate Blackman applied the analysis in Dikranian v. Quebec (Attorney General),⁵ to the automobile insurance contract. He held that the rights of the insured crystallized at the time the contract was made, or at the latest at the date of the accident. For these reasons, I am not persuaded that Mr. Fernandes’ right to a rebuttal assessment was removed by subsequent amendments to the Schedule.

For similar reasons, I am not persuaded that I should limit the cost of the rebuttal assessment to $2,000 as requested by the Insurer. The accident occurred in 2007. The Schedule under which Mr. Fernandes is entitled to benefits does not impose such a limit in relation to rebuttal reports for catastrophic impairment assessments.

While the cost of the rebuttal report should be reasonable, I am not persuaded that I should impose a limit of $2,000 to the cost of the report.

In the result, I adjourn the hearing pending Mr. Fernandes’ attendance at the requested insurer examination and pending completion of the rebuttal assessment at Western’s expense.

Expenses

Both parties seek their expenses. I leave the expenses of this motion in the discretion of the hearing arbitrator.

September 30, 2014

Suesan Alves Arbitrator

Financial Services Commission of Ontario