Neutral Citation: 2014 ONFSCDRS 2 FSCO A12-001355

BETWEEN:

MR. H. Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Pamila Ahlfeld Heard: December 16, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Robert Ben for Mr. H. Todd McCarthy for Personal Insurance Company of Canada

Issues:

Is it reasonably necessary for Mr. H. to attend an occupational therapy examination and neuropsychological examination pursuant to section 44 of the Schedule?
If the examination is deemed to be reasonable, is Personal Insurance Company ("Personal") entitled to a stay of the arbitration proceedings until such time that Mr. H. attends these examinations?
Is Personal barred from obtaining the above mentioned examinations because it did not comply with section 42(7) of the Schedule?

Result:

It is reasonably necessary for Mr. H. to attend an occupational therapy examination and neuropsychological examination pursuant to section 44 of the Schedule.
The arbitration proceeding is stayed pending Mr. H.'s attendance at the occupational therapy and neuropsychological examinations.
Personal is not barred from obtaining new assessments based on noncompliance of section 42(7) of the Schedule.
The issue of costs is reserved for the hearing arbitrator.

BACKGROUND

The Applicant, Mr. H. was injured in a motor vehicle accident on August 6, 2004. He applied for and received statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.¹

The facts in this case are not disputed. Mr. H. was six years old at the time of the motor vehicle accident on August 6, 2004. Mr. H. sustained an injury primarily to the frontal lobe of his brain.² Mr. H. has been consistently followed by a multi-disciplinary rehabilitation team since the accident.

Mr. H. has been receiving attendant care benefits from Personal since August 6, 2004.³ On or around April 2010, Mr. H. submitted a new Form 1 and occupational therapy assessment completed by Susan Fraser to Personal claiming an increase of attendant care benefits in the amount of $3,099.70 from April 27, 2010 ongoing.⁴ Personal was also sent a letter dated April 14, 2010 from Dr. John VanDeursen who provided a psychological update regarding Mr. H.'s attendant care needs.⁵

In response to the request for the increase in the quantum of the attendant care benefit that Mr. H. had been receiving in April 2010, the Personal prepared an OT assessment conducted by Rhona Feldt-Stein which set the quantum of these benefits at a lower amount than claimed by Mr. H. ($1,637.40 per month).⁶ A rebuttal report was then submitted by Susan Fraser on July 28, 2010.⁷

In September 2011, Mr. H. attended an insurer's examination conducted by psychologist Dr. Diane Garcia and occupational therapist Deb Haworth-Csermak. Reports were generated in January 2012 each indicating an even lower amount required for Mr. H.'s attendant needs ($556.85 per month).⁸ Mr. H.'s attendant care benefits were reduced as a consequence of the reports. A further rebuttal report was submitted to the Personal on May 8, 2012 by Mr. H.'s occupational therapist, Susan Fraser.⁹ The parties were unable to resolve their dispute regarding the quantum of this benefit through mediation, and Mr. H. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

After the prehearing conference in February 2013, Personal requested that Mr. H. attend two further insurer examinations by a neuropsychologist and occupational therapist. It is these two examinations that Mr. H. is refusing to attend and as such, this preliminary issue has been brought forward.¹⁰

INSURER'S ARGUMENT

It is Personal's position that given the difference of opinion expressed in various medical reports and given the special award being claimed by Mr. H., fairness dictates that it be allowed to properly respond to the demand for the increase in attendant care benefits.¹¹ In this regard, the insurer seeks up-do-date assessments regarding Mr. H.'s attendant needs, especially given that at the time of the prehearing, the last attendant care assessment provided to the insurer had been more than a year previous.

Mr. McCarthy argued that Mr. H. is an adolescent who is now performing well in school. He argued that Mr. H.'s development is evolving as he reaches adulthood and the assessments are required in order to update the situation with respect to Mr. H.'s needs. Further, it is argued that the additional assessments are "essential to a fair hearing for arbitration purposes and to a proper adjusting of the file from a claims examination perspective."¹² He relies on the case of Ramalingam and State Farm Mutual Automobile Insurance Company¹³ and Certas Direct Insurance Company v. Gonsalves,¹⁴ which he argues stand for, inter alia, an evaluation of factors considering "fairness" rather than a former narrow approach to insurer examination requests.

Accordingly, Personal requests an Order staying the arbitration to allow for the prompt rescheduling of the proposed assessments by Dr. Kumchy and Deb Haworth-Csermak. The insurer further requests that of the preliminary issue hearing be in the cause.

APPLICANT'S ARGUMENT

Mr. Ben argues that during the last nine years, Mr. H. has provided Personal with "voluminous medical and rehabilitation information" in order that it may assess the validity of claims made for attendant care benefits including eight formal assessments dealing specifically with this benefit and the insurer's own seven reports on the subject.¹⁵ It is further submitted that the request for further examinations came approximately three years after the attendant care benefits were claimed, disputed and mediation/arbitration proceedings commenced.¹⁶ Moreover, there have been three insurer examinations since Mr. H.'s claim for attendant care came into dispute and it is Mr. Ben's position that Mr. H.'s attendant care claim has not changed; that is to say that no new issues have been raised in this regard that require evaluation.¹⁷

In support of Mr. H.'s position, Mr. Ben relies on the factors outlined in Stanley and Pilot Insurance Company¹⁸ and State Farm Mutual Automobile Insurance Company and Ramalingam.¹⁹

Mr. Ben submitted that Personal has extensive information regarding Mr. H.'s ongoing rehabilitation and progress and that there is nothing in any of the last insurer's examinations dated January 2012 that suggests a new diagnosis of any kind.²⁰ He argued that the fact that Mr. H.'s high school report indicating continued success does not represent a change in circumstances; that Mr. H. for the most part has had continual success in his studies in school with the appropriate supports.²¹ He further submitted that the fact that Mr. H. has had some gains in using public transportation independently does not merit a change in circumstance as Mr. H.'s mother would always be required to be on standby to provide support and intervention as required.²²

Mr. Ben relies on Dr. VanDeursen's concern expressed in 2011 that the repeated examinations were placing extreme stress on Mr. H. and his parents which is detrimental to Mr. H.'s well-being.²³ In addition, he submitted that the insurer's request for further and duplicative examinations are for the purposes of bolstering the insurer's case in anticipation of the upcoming hearing.²⁴

Lastly, Mr. Ben argued that the insurer did not comply with requirements of section 42(7) of the Schedule when requesting the insurer examinations. He argued that Personal did not provide Mr. H. with formal notice and a request that Mr. H. provide a new assessment of attendant care needs by way of a new or updated Form 1 as required by the Schedule. As such, Mr. Ben contended that Personal is not entitled to compel Mr. H. for an insurer's examination under section 44 of the Schedule.

Accordingly, Mr. H. requests an order dismissing the insurer's request for the proposed additional insurer's examination.

LAW

The relevant sections of the Schedule for this motion are as follows.

42(1) Subject to subsection (2), an application for attendant care benefits for an insured person must be,

(a) in the form of and contain the information required to be provided in the version of the document entitled "Assessment of Attendant Care Needs" that is approved by the Superintendent for use in connection with the claim; and

(b) prepared and submitted to the insurer by an occupational therapist or a registered nurse. O. Reg. 34/10, s. 42 (1).

(2) If a Guideline issued for the purpose of this section specifies conditions, restrictions or limits with respect to the preparation of an assessment of attendant care needs, the assessment of attendant care needs must be prepared in accordance with the Guideline. O. Reg. 34/10, s. 42 (2).

(7) If an insurer wants to determine if an insured person is still entitled to attendant care benefits, wants to determine if the benefits are being paid in the appropriate amount or wants to determine both, the insurer shall give the person a notice requesting that a new assessment of attendant care needs for the insured person be prepared in accordance with this section and submitted to the insurer within 15 business days after the insured person receives the notice. O. Reg. 34/10, s. 42 (7).

(8) Subject to subsection (12), a notice under subsection (7) may also advise the insured person that the insurer requires an examination under section 44. O. Reg. 34/10, s. 42 (8).

Examination required by insurer

44(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).

EVIDENCE AND ANALYSIS:

Is Personal barred from obtaining new assessments for Mr. H. because it did not comply with section 42(7) of the Schedule?

Personal does not dispute the fact that the attendant care examinations were not requested exactly pursuant to section 42(7) of the Schedule but notwithstanding argues that fairness in the proceedings outweighs the non-compliance issue.

I agree with Mr. Ben that Personal did not make its requests for examinations according to the procedures outlined in the Schedule. However, that being said, Mr. H.'s occupational therapist, Susan Fraser, had the last opportunity to put her position forward in her rebuttal report of April 19, 2012.²⁵ In addition, this non-compliance could be easily rectified by Personal making new requests but in my view, this would be a moot point. It is clear from the reports that Mr. H.'s position with respect to the quantum of his attendant care since April 2010 has not changed and as such, curing this noncompliance would do nothing to resolve the dispute. As such, I find that this issue has no significant impact to my overall decision in this motion.

Are the occupational therapy assessment and the neuropsychological assessment pursuant to section 42 reasonably necessary in the circumstances?

There is an abundance of jurisprudence that focuses on factors to be considered in these types of motions. The more recent cases have been relied upon by the parties and include Ramalingam and State Farm Mutual Automobile Insurance Company²⁶ and Certas Direct Insurance Company v. Gonsalves.²⁷ Those factors are:

The timing of the request, and whether it would require the hearing to be adjourned;
Whether the insured disclosed relevant materials as soon as reasonably possible and in accordance with the Dispute Resolution Practice Code and where the insurer made its insurer examination request as soon as it reasonably determined the need for the examination;
What other information was available to the insurer; including information provided by the claimant and the number, nature and ate of previous insurer examinations;
Whether information provided by the claimant since the insurer's last insurer examination suggest a new diagnosis, a change in the claimant's condition or a new direction in medical investigation of it;
Whether there is a reasonable nexus between the requested examination and the insured person's injuries;
Whether the insurer accepts the claim and continues to pay benefits, and
Generally 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 insurer's request for new assessments in this case came after the prehearing conference in February 2013. The arbitration hearing was scheduled for December 2013. At the time of the request, the insurer's OT assessment and last neuropsychological report were more than a year out of date. However, more relevant in my view is that the actual examinations were a year-and-a-half prior to the insurer's new requests. That is to say that Mr. H. had not been examined by the insurer for attendant care benefits for at least a year-and-a-half before the prehearing conference.

I have reviewed all of the materials submitted by both parties for this motion. The reports indicate that Mr. H. has had occupational therapy assessments done every year to year and a half since the accident. Dr. VanDeursen's report of April 2010 stated the following:

While I continue to find it very difficult to provide predictions with any precision respecting [Mr. H.'s] future treatment/rehabilitation and attendant care needs, I do agree that [Mr. H.] is requiring increasing levels of attendant care support…..In general, it needs to be anticipated that [Mr. H.'s] adolescence is going to be associated with increasing challenges and turmoil, in turn, requiring consistently high levels of parenting/attendant care support.²⁸ [emphasis added]

I am of the view that given the frequency of the OT assessments since 2004 and given Dr. VanDeursen's comments regarding the changing nature of Mr. H.'s care and challenges, it is not unreasonable for Personal to request the examinations with respect to Mr. H.'s attendant care needs a year-and-a-half after the last insurer examination, notwithstanding that these requests have been made within the current arbitration process. The insurer has an ongoing obligation to provide the services required by Mr. H. as they relate to the motor vehicle accident. I therefore find that the requests were made in a timely fashion. I also note that at this point, Mr. H. has not had an insurer examination relating to attendant care benefits for over two years and it will be three years by the time the arbitration is heard.

In addition, while there are a significant amount of reports and information on file regarding Mr. H.'s progress, the reports contain a variety of opinions and this has triggered the current arbitration. As stated above, I find it is not unreasonable to get a fresh opinion given the amount of time that has passed since the last insurer's examination. In this regard, Personal has arranged for Mr. H. to be examined by a neuropsychologist, who will update Dr. Garcia's previous report of January 2012. In the meantime, Personal continues to pay attendant care benefits albeit not at the amount claimed by Mr. H.

I recognize that Mr. H. has been put through an inordinate amount of assessments over the years but many of those assessments were as a result of his ongoing treatment. Personal has an ongoing right and obligation to assess this claim and given the materials I have before me, I find that it has not exceeded what is reasonable in these circumstances.

In light of all the factors and in these particular circumstances, I find it would be unfair to proceed to an arbitration until such time that Personal has had the opportunity to assess Mr. H.'s attendant care needs. I find therefore that an occupational assessment and neuropsychological assessment is reasonable in the circumstances.

I also find that the proceedings should be stayed until Mr. H. attends the two assessments in furtherance of the objective of preserving an adequate and fair hearing process.

Once Mr. H. has undergone the two assessments, the parties should contact FSCO for a new hearing date.

EXPENSES:

Personal has requested expenses in the cause. I find this reasonable and reserve this issue to be dealt with by the hearing arbitrator.

January 3, 2014

Pamila Ahlfeld Arbitrator

Date

ARBITRATION ORDER

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

It is reasonably necessary for Mr. H. to attend an occupational therapy examination and neuropsychological examination pursuant to section 44 of the Schedule.
The arbitration proceeding is stayed pending Mr. H.'s attendance at the occupational therapy and neuropsychological examinations.
Expenses are reserved for the hearing arbitrator.