Neutral Citation: 2015 ONFSCDRS 27 FSCO A13-015145

BETWEEN:

HENRYK MAZUR Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Arbitrator Janette Mills Heard: In person at ADR Chambers on January 27, 2015 Appearances: Ms. Natalie Shykula-Clarke for Mr. Henryk Mazur Mr. Kevin Motley for Personal Insurance Company of Canada

Issues:

The Applicant, Mr. Henryk Mazur, was injured in an automobile accident on August 1, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").¹ A Pre-Hearing discussion in this case was held on August 5, 2014 at 3:00 p.m. at the offices of ADR Chambers. Mr. Henryk Mazur participated, as did Ms. Grace Mancini on behalf of Personal Insurance Company of Canada ("Personal"). Ms. Natalie Shykula-Clarke represented Mr. Mazur and Mr. Kevin Motley, legal counsel, represented Personal. At the Pre-Hearing, Personal requested that a Preliminary Issue Hearing be scheduled prior to the Arbitration Hearing.

The issue in this Preliminary Issue Hearing is:

Is the Applicant precluded from moving to an Arbitration Hearing for non-compliance with all scheduled independent medical examinations as required by section 44 of the Schedule?

Result:

The Applicant is precluded from moving to an Arbitration Hearing for non-compliance with all scheduled independent medical examinations as required by section 44 of the Schedule.

EVIDENCE AND ANALYSIS:

The Position of Personal

Personal submits that the Applicant is precluded from moving to an Arbitration Hearing because he failed to attend at scheduled independent medical examinations (IMEs) on four occasions (June 7, 2012; July 5, 2012; September 21, 2012; and May 16, 2013). In correspondence between the Applicant and Personal, the Applicant gave as his reason for non-attendance his desire to be examined by a psychologist rather than a psychiatrist as preferred by Personal.

Personal submits that whilst they initially had requested a psychological examination, it considered a psychiatric examination more appropriate based on the decoded OHIP records received in June 2012 which demonstrated that the Applicant had both pre- and post-accident psychiatric issues, and later an OCF-3 from the Applicant's treating psychiatrist on April 12, 2013 wherein she asserts that the Applicant suffered from mental health issues. Furthermore, Personal's interest was not solely in assessing the treatment and assessment plan, but also in determining the applicability of the Minor Injury Guideline (MIG) and the Applicant's entitlement to Non-Earner Benefits (NEBs).

It is against this backdrop that Personal considers the assessment by a psychiatrist to be appropriate and asserts that there exists a reasonable nexus between the examination requested and the Applicant's injuries. Furthermore, Personal submits that the Applicant's treating psychiatrist also makes clear an overlap in specialty between psychiatry and psychology in that she asserts that she has been providing the Applicant with supportive psychotherapy with cognitive elements.² Accordingly, this provides proof of a reasonable nexus between the examination requested and the Applicant's injuries.

Personal submits that section 44 of the SABS makes clear that it is for the Insurer only to determine who the Applicant is to be examined by and that the insured is obligated to comply. Personal submits that section 55 of the SABS makes clear that, by virtue of his non-attendance at the requested IMEs, the Applicant is no longer entitled to move to an Arbitration Hearing. Lastly, Personal submits that it would be prejudiced if the Applicant is allowed to move to an Arbitration Hearing without attending at a scheduled IME.

The Position of the Applicant

The Applicant does not dispute his non-attendance at the IMEs. Rather, he submits that he was willing to attend IMEs scheduled with a psychologist as opposed to a psychiatrist as directed by Personal. In this regard, despite numerous requests for an IME to be scheduled with a psychologist other than the first scheduled IME which he missed, no such examination was arranged.

The Applicant submits that in order for the Insurer to comply with section 44 of the SABS, an insurer's examination must be conducted by someone of the equivalent medical designation as the health practitioner who submitted the OCF-18. Further, given that the OCF-18 at issue was submitted by a psychologist, an insurer's examination with a psychologist and not a psychiatrist should be scheduled to determine if the OCF-18 requesting a psychological assessment is reasonable and necessary.

The Applicant argues that given his particular circumstances, he would be prejudiced by a psychiatrist's assessment of the psychological treatment plan and his entitlement to benefits. This is because the clinical emphasis of psychiatry is different from that of psychology. Furthermore, because of the difference in emphasis, there does not exist a reasonable nexus between the examination requested by Personal and the Applicant's injuries. The Applicant further submits that because the requested IME is in regard to a treatment and assessment plan, and in his view, not benefit entitlement, the nexus is even more remote.

The parties agree that the only live issue before me is whether there exists a reasonable nexus between the examination requested and the Applicant's injuries. The parties also agree that the onus is on the Insurer to establish, on a balance of probabilities, that the proposed examination is reasonable.

The Law

Under section 44(1) of the SABS, an Insurer may require an Applicant to be examined to determine entitlement and/or continued entitlement to accident benefits:

(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.

(2) Despite subsection (1), if a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment and the purpose of the examination is to determine whether the insured person has sustained a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits.

(3) Subsection (1) does not apply with respect to,

(a) a benefit payable in accordance with the Minor Injury Guideline; or

(b) a funeral benefit or death benefit.

(4) Subject to subsection (7), an examination under this section may be limited by the insurer to an examination of material provided under subsection (9) in respect of the insured person without requiring the attendance of the insured person.

(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

(6) If the attendance of the insured person is required at the examination, the insurer shall give the notice required under subsection (5) not less than five business days before the examination, unless the insured person and the insurer mutually agree otherwise.

(7) If the notice under subsection (5) indicates that the attendance of the insured person is not required at the examination and it is subsequently determined by the person conducting the examination that the insured person should be in attendance and personally examined, the insurer shall give a notice to the insured person at least five business days before the examination,

(a) notifying the insured person of the change;

(b) requiring the attendance of the insured person at the examination; and

(c) setting out the day, time and location of the examination and, if the examination will require more than one day, setting out the same information for the subsequent days.

(8) A notice under subsection (5) or (7) may be verbal if a written confirmation is given as soon as practicable afterwards.

(9) The following rules apply in respect of the examination:

If the attendance of the insured person is not required, the insured person and the insurer shall, within five business days after the day the notice under subsection (5) is received by the insured person, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person's medical condition.

If the attendance of the insured person is required,

i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,

ii. the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person's medical condition, and

iii. the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.

If the examination relates to an application for attendant care benefits, the report of the examination must include an assessment of attendant care needs prepared in accordance with section 42.

The Insurer's obligations under this section are to make reasonable efforts to schedule examinations at a time convenient to the insured person and to provide them with reasonable notice.

Furthermore, an insured person who does not attend an examination pursuant to section 44 is precluded from commencing Mediation proceedings under section 55 of the SABS which states as follows:

An insured person shall not commence a mediation proceeding under section 280 of the Act unless,

(a) the insured person has notified the insurer of the circumstances giving rise to a claim for a benefit and has submitted an application for the benefit within the times prescribed by this Regulation; and

(b) the insured person has complied with section 44 if the insurer provided the insured person with notice in accordance with this Regulation that it required an examination under that section.

Evidence

There is no dispute that the Applicant did not attend at the scheduled IMEs. The evidence before me is clear that there was correspondence between the parties over a period of 12 months regarding the requested IME and whether the Applicant should be assessed by a psychologist or a psychiatrist.³

The evidence demonstrates that, initially, in response to the OCF-18 of psychologist Dr. Salmon, Personal requested that the Applicant appear for an IME with a psychologist of its choosing. It is also clear that the Applicant did not attend that IME. However, it is unclear for what reason he did not attend. Personal submits that transportation was made available to the Applicant and that he did not avail himself of it. The Applicant submits that Personal did not arrange transportation and that he waited for two hours to be collected and taken to his IME.

Thereafter, the following three requests made by Personal for IMEs were for the Applicant to be examined by a psychiatrist. The evidence before me establishes that on June 4, 2012, after an IME had been arranged for June 7, 2012 but before it was to have happened, Personal received the decoded OHIP summary of the Applicant revealing that he had received psychiatric treatment.⁴ That summary was the catalyst for Personal's later choice of a psychiatrist as opposed to a psychologist as the preferred examiner. This decision was further strengthened by receipt of the OCF-3 from the Applicant's treating psychiatrist on April 12, 2013.⁵

The evidence also establishes that Personal required the IME to assess the Applicant not only with regard to the OCF-18 as submitted by the Applicant, but also with respect to the applicability of the MIG and NEBs.⁶

In this regard, it is important to note that the Applicant's injuries were as follows: post-traumatic headaches, dizziness, nausea, confusion, psychological problems, and multiple musculoskeletal injuries including sprain and strain of hip, contusion of hip, low back pain, sprain and strain of lumbar spine, sprain of knee, contusion of knee, sprain of wrist, sprain and strain of neck, headache, muscle strain of pelvic region and thigh, and contusion of thigh.⁷

The Applicant filed letters from both his sports medicine doctor, Dr. Marciniak, and his treating psychiatrist, Dr. Koczorowska, at this Hearing. Both doctors diagnosed him as requiring psychological counselling to assist in dealing with his accident injuries and both doctors opined, inter alia, that it would be preferable for the psychological treatment plan to be assessed by a psychologist.⁸

Analysis

Section 44 of the SABS permits an Insurer to determine what kind of assessor should conduct an insurer's examination.

In Scott,⁹ the Commission recognized that a balance had to be found between the right of the Insurer to require an examination and the insured person's right to privacy. In doing so, the Commission discussed the inherently intrusive nature of medical examinations and the balance that must be struck. The Commission found that reasonableness is an objective standard and that some latitude must be left for a range of circumstances which fall within its parameters. Ultimately, the choice of a specialist is that of the Insurer as long as a reasonable nexus exists between the choice of specialist and the injuries claimed.¹⁰

In Al-Shimasawi,¹¹ the Commission considered the factors to be considered in assessing whether an examination is reasonably required as follows:

The timing of the Insurer's request;
The possible prejudice to both sides;
The number and nature of previous Insurer's examinations;
The nature of the examinations(s) being requested;
Whether there are any new issues being raised in the Applicant's claim that require evaluation; and
Whether there is a reasonable nexus between the examination requested and the Applicant's injuries.

In keeping with section 44 of the SABS, the Applicant does not dispute that the choice of specialist is that of the Insurer. As stated above, the only live issue before me is if there exists a reasonable nexus between the examination requested and the Applicant's injuries.

The Applicant submits that the case before me is different from the fact scenarios of the cases relied upon and that whilst the Applicant takes no issue with the general principles as outlined in the cases of Scott and Al-Shimasawi, the application of the general principles to the issue before me is more subtle, as outlined above.

I am mindful that both the Applicant's sports medicine physician and his treating psychiatrist recommend psychological counselling for the Applicant and that in their respective views, it would be prudent for a psychologist to examine the Applicant in regard to the proposed treatment and assessment plan.¹² Furthermore, despite the evidence of non-attendance at the first IME, which I do not fault either party for, I have no doubt that the Applicant would have attended at an IME with a psychologist.

The Applicant submits that a psychiatrist is not a medical doctor of an equivalent designation. I accept that they have different governing bodies; that one discipline is covered by OHIP and the other is not; and that psychiatrists can prescribe medication whereas psychologists rely exclusively on cognitive therapy. However, as stated above, it is also clear that they have a similar specialty. In fact, Dr. Marciniak's letter refers to this when he states that the areas of expertise of psychiatrists and psychologists are often overlapped and further, "psychologists also perform various assessments that psychiatrists do not have the time to do or do not wish to do although technically they should be qualified".¹³

Both the letters of Dr. Marciniak and Dr. Koczorowska, read in context, provide some evidence of overlap in specialty between psychiatrists and psychologists. I can appreciate that there may be a preference for a psychologist on the part of the Applicant and that this preference may be understandable. Notwithstanding, the evidence before me demonstrates a reasonable nexus between the choice of a psychiatrist on the part of Personal and the Applicant's injuries.

This is particularly so considering that the IME is also concerned with the MIG designation and NEB eligibility, not just the OCF-18, as the Applicant submits. In Scott, ¹⁴ the Commission held that the scope of the regulation is broad and flexible, "...to ensure that an insurance company has an effective opportunity to evaluate the applicant's medical condition".

I am cognizant of the inherent intrusiveness of the medical examination as referred to in Scott and later cases.¹⁵ However, unlike in Martinho,¹⁶ the request for an IME from Personal has been for one examination only. Furthermore, unlike in J.V.,¹⁷ the Applicant already has a treating psychiatrist, which obviates the need to retain a psychiatrist to rebut any potential negative assessment. Whilst it is true that the proceedings will be delayed by the requirement for the Applicant to attend at an IME, the prejudice arising to the Applicant by that delay must be balanced against the prejudice to Personal if they cannot conduct an examination. In my view, given the circumstance of this case, the balance is in favour of Personal.

Lastly, I do not accept the Applicant's submission that the choice of specialist refers to a specialist within the same medical designation. If this were in fact the case, I am of the view that the legislation would be specific in this regard. Further, jurisprudence has adopted the reasonable nexus test which would be unnecessary if the choice of specialist is solely in regard to a specialist within the same medical designation.

I also note that the applicability of an IME for purposes of assessing a proposed treatment plan or for the purposes of assessing entitlement to NEBs is clear on the face of section 44. However, given the wording of section 44(3)(a), the applicability of requesting an IME for purposes of assessing whether or not the MIG applies is less clear. Neither counsel raised this issue. In my view, because the proposed IMEs were not solely for the purposes of assessing the applicability of the MIG, I do not need to address this issue at this time and I make no finding in this regard.

Considering all of the circumstances, particularly the Applicant's injuries; the receipt of the decoded OHIP summary; the desire of Personal to assess not only the treatment and assessment plan but also the NEBs; and most importantly, the evidence of overlap in specialty between psychiatrists and psychologists, I find that there exists a reasonable nexus between the examination requested and the Applicant's injuries.

For the foregoing reasons, the Applicant must attend at a scheduled IME with a psychiatrist before moving to an Arbitration Hearing.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Dispute Resolution Practice Code.

February 13, 2015

Janette Mills Arbitrator

Date

Financial Services Commission of Ontario