Neutral Citation: 2014 ONFSCDRS 19

FSCO A13-004269

BETWEEN:

JEAN HAMILTON Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON A MOTION

Before: Arbitrator John Wilson

Heard: November 29, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jonathan A. Schwartzman for Mrs. Hamilton James M. Brown for Aviva Canada Inc.

Issues:

The Applicant, Jean Hamilton, was injured in a motor vehicle accident on June 12, 2009. She applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Hamilton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

It is important to note that one of the issues in this arbitration is whether Mrs. Hamilton meets the criteria for a catastrophic designation. Mrs. Hamilton based her claim for catastrophic impairment on category G or a marked psychological impairment.

Aviva declined to make a determination on catastrophic impairment until a further occupational therapy “in-home” assessment took place. This O.T. assessment would be in support of an assessment by its designated neuropsychologist on the issue of catastrophic impairment.

Mrs. Hamilton declined to undergo a further occupational therapy in-home assessment since, in her opinion, the Insurer had already had conducted an occupational assessment, and this, together with the clinical records of the treating occupational therapists, should have provided adequate information for the Insurer’s expert to formulate his opinion as to catastrophic impairment.

The issue in this motion is:

Should this arbitration be stayed by reason of Mrs. Hamilton’s failure to make herself reasonably available for a further in-home occupational therapy assessment?

Result:

Aviva has not demonstrated that Mrs. Hamilton should attend a further in-home occupational therapy assessment at this time. Consequently, the arbitration is not stayed.

EVIDENCE AND ANALYSIS:

Aviva brought a motion before me to stay this arbitration on the grounds that Mrs. Hamilton has refused to attend a proposed Occupational Therapy assessment scheduled by Aviva as part of its catastrophic impairment assessment process.

The motion has essentially two elements: a finding of whether or not Mrs. Hamilton was in breach of section 44 of the Schedule by failing to make herself available for assessment, and secondly whether a stay is an appropriate response to such non-attendance.

Due to time constraints I provided the outcome of the motion in letter format, to be followed at a later date by these completed reasons.

But for section 44 and the related elements of the insurance contract, Aviva would have no right to examine Mrs. Hamilton. There are no litigation examinations in arbitrations, and the common law provides no obligation to produce a party for a medical examination.

The question of the attendance of Mrs. Hamilton at the proposed examinations must then turn on whether Aviva can bring itself clearly under the provisions of section 44 of the Schedule.

Section 44 sets out a general principle that an insured should make himself or herself available for examinations “not more often than is reasonably necessary.” The section reads:

(1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. O. Reg. 34/10, s. 44 (1).

Since this was an examination related to a catastrophic impairment, section 45 of the Schedule is also pertinent:

(1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment. O. Reg. 34/10, s. 45 (1).

(2) The following rules apply with respect to an application under subsection (1):

An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.

Despite paragraph 1, if the impairment is a brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.

There was no issue about the examination by Dr. Kerry Lawson, a neuropsychologist, only this further proposed examination which was to be performed by an occupational therapist.

It is my understanding that occupational therapists do not diagnose but rather engage in the “assessment of function and adaptive behaviour and the treatment and prevention of disorders which affect function or adaptive behaviour to develop, maintain, rehabilitate or augment function or adaptive behaviour in the areas of self-care, productivity and leisure.”²

While an assessment by an occupational therapist can form a valuable part of any catastrophic impairment assessment, Aviva has the burden of demonstrating that any further examinations, especially the one in-home, that it proposes were reasonable in the context of this claim.

Mrs. Hamilton has pointed to the existence of significant occupational therapy information in the period leading up to the latest request, including a section 44 examination by an O.T. held at the request of Aviva and suggests that this fund of information provided the necessary functional background for an analysis of catastrophic impairment.

While Aviva has provided some evidence that Lifemark, the assessment agency, proposed a “situational assessment” with an occupational therapist, and later drafted a “rationale” for the inclusion of an occupational therapy assessment in the catastrophic impairment assessment process, there is nothing in the affidavit from Dr. Lawson stating precisely how the existing occupational therapy reports were inadequate, and specifying the nature of the new reports required to fill this void. Rather, he speaks to the generic usefulness of occupational therapy data in making assessments, something that is really not at issue in this motion.

Although the AMA Guides³ emphasize the importance of contextual information about activities of daily living and function, including employment, they do not specify or restrict the manner in which an assessor obtains that information.

The absence of a complete explanation from Dr. Lawson as to why a further Occupational Examination is required is critical from a variety of points of view. Section 45(2)2. of the Schedule provides for a neuropsychologist to be able to designate other registered health professionals he or she requires to assist in the assessment. The best evidence of any such requirement would be from Dr. Lawson himself, not from Aviva or the assessment broker.

As noted by counsel for Mrs. Hamilton, there were also significant and recent occupational therapy assessments, at least one created at the behest of the Insurer. All occupational therapy materials that have been generated to date in this matter would appear to provide potentially useful information to the degree that such is within the confines of the scope of practice of an occupational therapist.

In this case, it is the obligation of the neuropsychologist assessing catastrophic impairment to consult, collate and incorporate that situational information before reaching a definite conclusion as to impairment.

In his affidavit Dr. Lawson addresses in a generic manner what he sees as the shortcomings of treating occupational therapists and does not address the other potential sources of occupational therapy information. Nor does he refer to any best practices or standards of practice to bolster his assertion that only a separate and distinct O.T. assessment can have any value in a catastrophic assessment.

I note that Dr. Lawson lists, at the end of his report, all the medical documents he reviewed in making his report. He lists in excess of 31 documents that appear to have been authored by various O.T.s up to February 22, 2011. He does not, however, appear to list the Occupational Therapy In-Home report issued by Teresa Broers, an O.T. who did an in-home assessment on behalf of Aviva on October 23, 2009 (although he does list however the OCF-18 penned by Ms. Broers).

More importantly, the report actually issued by Dr. Lawson is internally inconsistent with regard to the need for further assessments. While he reported that he could not provide an opinion with regard to the four domains outlined in the AMA Guides due to the absence of assessments by an occupational therapist, he also claimed that no further “clinical information or diagnostic testing is required in order to confirm my diagnosis.” While this apparent contradiction may have an explanation, none was given by Dr. Lawson in his affidavit.

While this could well have been an oversight, such would be surprising given the Insurer’s records produced, which note the same contradiction and others, speaking of the need to direct Dr. Lawson to address the issue of the O.T. assessments in his report.

Essentially, given the numerous occupational therapy documents, including assessments, that fill a timeline approaching the Insurer’s request for a further occupational therapy examination, I am not convinced that, without a more complete explanation from Dr. Lawson as to their specific utility, Aviva has discharged its burden of proving the reasonableness of further assessments.

In this context I note un-contradicted references in the Applicant’s material to her psychological fragility, which would enter into any consideration of the reasonableness of further assessments.

Nor is there any evidence that further assessments can be held and reports delivered in time to avoid impacting the hearing currently scheduled to commence the end of April 2014.

I therefore find that Aviva has not met the evidentiary burden of proving that Mrs. Hamilton was required to attend the further occupational therapy examinations proposed by Aviva. The assessor already had access to serial assessments and occupational therapy information and provided no credible reasons as to the necessity of further examinations.

If I have misapprehended the evidence with regard to Mrs. Hamilton’s obligation to submit to further occupational therapy assessments, I would still find that a stay of the arbitration at this juncture is not an appropriate remedy.

Halsbury’s⁴ defines a stay as follows:

To stay is to suspend, stop, arrest or forbear — so that to stay execution or the other enforcement of an order or judgment pending the appeal of that order or judgment, is to hold the order or judgment concerned in abeyance, until the outcome of the appeal is determined.

Unless a stay is mandatory legislative provision, the jurisprudence is clear that a stay is a discretionary remedy. It is also an extraordinary remedy “only granted in the ‘clearest of cases’ where the accused's right to a fair trial is irreparably prejudiced or the integrity of the administration of justice is irreparably harmed.”⁵

As a discretionary remedy several factors must be weighed before any decision is made to exercise or not the discretion. Traditionally, courts have looked at the following as components of the test⁶ as to the application of a stay:

serious question
irreparable harm
balance of convenience

As Laskin J.A. noted in R. v. Knox, a party requesting a stay has “the onus to show actual prejudice by demonstrating that the missing witness would have given specific evidence without which the appellant would have been unable to fairly put forward its defence.”⁷

In this case, the “missing witness” would be the occupational therapist who has been unable to perform the allegedly necessary examination due to Mrs. Hamilton’s refusal to participate. The important part of Laskin J.A.’s observation is that there is an onus upon the party requesting the stay to make out the elements set out in RJR-MacDonald.

While I have no problem accepting that this is a serious question, I do not accept that Aviva has made a case for irreparable harm, nor even established that it suffered actual rather than potential prejudice.

Likewise, I find that the balance of convenience appears to favour Mrs. Hamilton in this matter, since it would appear that her home and equilibrium would be disrupted, the time of her hearing likely delayed, and she would be put to the expense and time of responding to any new reports. Aviva, on the other hand, would appear to already have significant occupational therapy information to incorporate into its report, as well as the opportunity to request at the hearing that an adverse inference be drawn due to the failure of Mrs. Hamilton to make herself available for a further examination, should it continue to believe that Mrs. Hamilton’s failure to participate in the assessments was unreasonable.

On these grounds I have not been persuaded to exercise my discretion to order a stay.

Alternatively, a stay might be justified because of unfairness or a finding that the actions of the opposing party constituted an abuse of process.

Certas v. Gonsalves⁸, a case relied upon by Aviva, turns on the unfairness to the insurer of being denied an adjournment to pursue further responding assessments to reply to new issues raised at the last minute. While it was not a case where a stay was imposed, it has been sometimes seen as justifying an almost automatic stay in situations such as this.

While I agree with the thrust of the decision: that in cases of unfairness an adjournment may be necessary to ensure that a party may be heard, I do not accept that Gonsalves goes so far as to give a carte blanche to insurers to stay matters rather than to adjourn when there is a dispute about the insured’s attendance, nor to be given a pass on the statutory pre-conditions of a section 44 examination.

The Insurer also relies upon Ramalingam⁹ in support of its request for a stay. I do not accept that the criteria identified by the Director’s Delegate assist Aviva in this matter. There would appear to be no last-minute changes in condition, failure to disclose and, given the un-contradicted assertions of Mrs. Hamilton’s vulnerability to further intrusive assessment, the balance between the right to privacy and the ongoing obligation to assess the file would appear to favour the Applicant. More importantly, however, it is apparent that other contemporaneous information is available to Aviva.

In this case, while the Insurer would have obviously preferred further assessments, it would not necessarily be denied fairness by proceeding on the basis of its own virtually contemporaneous O.T. assessment together with the treating O.T.s in providing supporting information to the catastrophic assessment. Nor is it clear that Mrs. Hamilton’s failure to cooperate with a further O.T. assessment is in any way an abuse of process, such that an arbitrator must exercise his or her jurisdiction to prevent just such an abuse.

As Laskin J.A. stated in Knox: “To warrant a stay, the appellant must meet the ‘clearest of cases’ standard.” This is simply not one of those cases.

I am prepared to accept, however, that if Aviva had made out a case for the reasonableness of a further O.T. exam, then an adjournment rather than a stay would be an appropriate remedy.

This is not an idle distinction. A stay brings the adjudication process to a grinding halt. An adjournment would give the delinquent party a short but reasonable time to rectify the failure to participate in the examination, failing which the arbitration would proceed, and in all likelihood, the hearing arbitrator would be asked to draw the inference from the non-appearance, that the results of the proposed O.T. examination would not have favoured the Applicant’s contention that she met the criteria for catastrophic impairment.

By adjourning, there would be the prospect of finality. A further date would be set and the matter would not be left on the shelf to simmer indefinitely. In this matter, however, Aviva only requested a stay of the arbitration and not an adjournment. I am not inclined to order relief that was not requested by either party.

Conclusion:

I have found that, on the information provided, Aviva has not met its burden of showing that further occupational therapy examinations were reasonable at the time of the assessment. Consequently, there is no reason to stay this arbitration pending Mrs. Hamilton’s attendance.

I note, however, that whatever the technical finding in this matter may be, it may well be in the interest of both parties to ensure that the evidence put before the arbitrator at the hearing into this matter is complete, and that an arbitrator might still be asked to draw inferences or conclusions from any unwillingness to complete an assessment, notwithstanding that her attendance could not be compelled.

I leave it to the parties to ponder as to whether the current situation will result in the best evidence being put before the hearing arbitrator.

EXPENSES:

I exercise my discretion to leave the determination of expenses incurred in this preliminary issue hearing to the hearing arbitrator.

February 10, 2014

John Wilson Arbitrator

Date

Financial Services Commission of Ontario