Neutral Citation: 2016 ONFSCDRS 1

FSCO A13-014546

BETWEEN:

SHIRLEY MACHO Applicant

and

UNIFUND ASSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Marcel D. Mongeon

Heard: In person at Hamilton, Ontario on November 4, 2015

Appearances: Ms. Shirley Macho did not participate Ms. Sandra Train participated for Ms. Shirley Macho Ms. Sharla Bandoquillo participated for Unifund Assurance Company

Issues:

The Applicant, Ms. Macho, was injured in a motor vehicle accident on December 7, 2010 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Macho, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

By letter, dated October 22, 2015, Arbitrator Janet Davies directed a Preliminary Issue Hearing in this matter on three questions. At the outset of this Preliminary Issue Hearing, the parties advised that they had resolved the first preliminary issue, which concerned mental capacity to proceed in the dispute resolution process.

The remaining issues in this Preliminary Issue Hearing are:

Is the Insurer entitled to an Order staying this Arbitration proceeding until such time as the Applicant attends an Insurer Examination (IE) as provided for under section 44 of the Schedule?
Is the Applicant entitled to benefits on an interim basis—including medical benefits, non-earner benefits, attendant care benefits, and housekeeping and home maintenance benefits?

Result:

The Insurer is not entitled to an Order staying this Arbitration proceeding in order to conduct an IE. The Insurer would neither be assisted by such an examination, nor is it reasonably necessary to conduct further examinations under section 44 of the Schedule. However, the Applicant shall not produce any expert evidence at the Arbitration Hearing that is based on assessments conducted after the date of these reasons, other than those made in her ongoing treatment and which have been shared with the Insurer.
The Applicant is entitled to payment of interim benefits in the amount of $7,000.00 for past medical expenses. Payment shall be made to the Applicant’s Representative in trust and disbursed with the agreement of any Litigation Guardian to be appointed. I have declined to award any other interim benefits.

EVIDENCE AND ANALYSIS:

Background

Because all facts were presented to me through documents, where appropriate, I comment on or note the relevance, materiality and admissibility of those documents.

On December 7, 2010, the 79-year-old Applicant was in her home. She owned a small bungalow on Burlington Street East, Hamilton.² The home has three bedrooms and a bathroom on the second floor. The staircase leading down from the second floor ended in a small landing that also faced the front door of the home.³

In the front of the home there was a small covered verandah with two or three steps up from the street level extending the entire front width of the home. The front door was on the left side of the home looking from the outside. The verandah was a concrete slab with a wrought iron fence.

It is clear to me that if one were descending the stairs in the home at night, they would be able to see lights of vehicles that were passing on the street outside. I take notice of the fact that this home is located in an area which transitions between a residential and industrial area with an industrial property (a former brewery) located directly across from the home.⁴

The Applicant lived in this home at the time of the accident with her adult daughter, Heidi.⁵ Prior to the accident, the Applicant was an active woman participating in her church, exercising in an aqua-fit program and sharing household chores with her daughter.

At approximately 3:00 a.m. on December 7, 2010, the Applicant’s daughter was watching television in the living room. The Applicant was coming down the stairs. While the Applicant was on the stairs, the lights of a vehicle outside the home were seen to be in very close proximity and coming towards the home.⁶

The police report for the accident shows that a 1997 Ford SUV was driven first in a west-bound direction and then, at approximately 90 km/hour, the car swerved out of control turning around the west end of a floral island on Burlington Street until it crossed the centre line and hit the Applicant’s home and that of her neighbour to the east. The vehicle, which had been traveling in a south-easterly direction, came to a stop between the two houses. The raised concrete verandah of the Applicant’s home likely forced the stop of the vehicle.

The vehicle collision caused a great deal of commotion both immediately before and after contacting the Applicant’s home. It is reasonable that the Applicant on the staircase would be in imminent fear that the vehicle would, in fact, enter the home and even collide with her until it actually stopped.

I note that in the report of Melissa Tobros, Registered Occupational Therapist, of September 24, 2013,⁷ the description of the accident includes that “the truck hit the garbage cans, drove through the veranda, through the wall and came to a stop within their home near the stairs where [the Applicant] was standing.”

I reject this description insofar as it suggests that the truck breached the wall of the Applicant’s home. It is the result of at least one level of hearsay statements from the Applicant herself. However, I do not draw any adverse inferences from this incorrect characterization of the accident.

In the Psychological Assessment Report of Dr. Joanna Sue and Dr. Ronald D. Kaplan of December 29, 2014,⁸ the motor vehicle accident is also described as follows:

Early in the morning (about 3am) on December 7, 2010, [the Applicant] heard her daughter awake downstairs and came down the stairs. When she was almost at the bottom of the stairs, she stated [to the assessors], “I turn that corner, I saw bright lights, I felt when the truck hit the house.” She noted “I heard it, I seen it … it was so fast”.

I accept this description of the accident and the Applicant’s reaction to it solely for the purposes of this Preliminary Issue Hearing.

After the collision, the Applicant’s daughter went outside and determined that the vehicle was driven by a female who required immediate medical attention. Care was provided by an EMS Ambulance which transported the driver for subsequent care. The driver was charged with driving with more than 80 mgs of alcohol in her blood and subsequently was held guilty of the charge.

There is contradictory evidence available from different sources as to whether or not the accident caused a danger of explosion or not. For the purposes of this Preliminary Issue Hearing, I do not need to make any finding in this regard.

After the accident, the Applicant developed a fear for her own and her daughter’s safety. The earliest date that such fears are documented in the medical evidence is a clinical note of Dr. Mark Zalter,⁹ the Applicant’s physician, of May 11, 2011 which reads:

Car hit house about 2 months ago +++ anxiety since then apparently denies this. Very jumpy, does not eat, no sleep, headaches. No suicidal or homicidal ideation. She repetitively states that she is afraid that another car is going to hit her while she is in bed. She lays awake in the family room with a large mirror in front of her to keep an eye on the driveway.

As part of the assessment portion of that record, the doctor indicates: “ptsd? Anxiety/depression; delusional?” As part of the plan, the doctor indicates: “refer to mental health team; suggested hospital but [patient] declined; [follow up] in 2 weeks”.

On June 10, 2011, a Patient Health Questionnaire for Depression was completed by the Applicant.¹⁰ The notes at the bottom of this form indicate “major depression, moderate severe”. On the same date, a note of Sonia Panchyshyn¹¹ indicates:

It was difficult to follow [the Applicant’s] thinking. Her thoughts were disorganized and she appeared unable to express herself in a logical manner. She gave fragments of an accident. It was difficult to follow any details and she seemed distressed that her daughter took away a mirror she was using to ensure the accident would not occur again. When asked what she wanted help with on 2 occasions, she stated that she wanted to be me. She wants to talk to people and help them like this writer. She completed the PHQ-9 without assistance and scored for moderate depression. It would appear that she is isolating herself, is overwhelmed and unable to do her work. This writer spoke with her daughter, Heidi for a few minutes, to confirm that there had been an automobile accident whereby the vehicle hit their porch and to invite her to next session to get a more comprehensive assessment about the mental health functioning of her mother. Recommendations: At this time it would appear that [the Applicant] needs a psychiatric assessment and is not appropriate for counselling. She may be PTSD and or suffering from onset of dementia. Will meet with her and daughter … in 2 wks.

Despite these medical interactions within 6 months following the accident, no immediate Application for Accident Benefits under the Schedule was made. An Application for Accident Benefits was finally made on March 4, 2013,¹² following engagement of counsel — more than 2 years after the actual accident.

Application was made for a number of benefits under the Schedule. From the Pre-Hearing letter of December 16, 2014, the following list of issues indicates which benefits will be in the Arbitration:

Is Ms. Macho entitled to receive a non-earner benefit in the amount of $185.00 per week from June 7, 2011 to date and ongoing?
Is Ms. Macho entitled to receive a medical benefit in the amount of $2098.00 for occupational therapy and assessments provided by Katherine Decker, Galit Liffshiz and Associates, dated June 6, 2013?
Is Ms. Macho entitled to attendant care benefits in the amount of $6000.00 per month for services provided by Heidi Macho from December 7, 2010 to date and ongoing?
Is Ms. Macho entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week for services provided by Heidi Macho from December 7, 2010 to date and ongoing?
Is Unifund liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Macho?
Is Unifund liable to pay Ms. Macho’s expenses in respect of the arbitration?
Is Ms. Macho liable to pay Unifund’s expenses in respect of the arbitration?
Is Ms. Macho entitled to interest for the overdue payment of benefits?

The following issue was added in the October 22, 2015 letter of Arbitrator Janet Davies:

Did Ms. Macho sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

In Arbitrator Janet Davies’ October 22, 2015 letter, the Arbitration Hearing originally scheduled for November 2015 was converted into a Preliminary Issue Hearing with the following three questions:

Does Ms. Macho have the mental capacity to proceed in the dispute resolution process as provided for under Rule 10 of the Dispute Resolution Practice Code (“DRPC”) and if not is there such a person willing and able to proceed in the dispute resolution process on her behalf?
Is the Insurer entitled to an order staying this arbitration proceeding until such time as the Applicant attends the IE as provided for under section 44 of the Schedule?
Is Ms. Macho entitled to benefits on an interim basis?

As briefly noted, the parties advised me at the outset of this Hearing that they did not require me to deal with the capacity issue. The parties have agreed that there are sufficient concerns about the Applicant’s cognitive abilities that a Litigation Guardian will be appointed for her.

Evidence at the Preliminary Issue Hearing

In the Hearing before me, although a sworn stenographer was available, no viva voce evidence was called by either party. The following documents were filed with me, and I will note the approximate number of pages of each document:

On behalf of the Applicant

Four (4) volumes of Documents entitled Accident Benefits Files (approx. 500 pages for each volume)
Book of Authorities (approx. 300 pages)

On behalf of the Insurer

Factum of the Insurer (26 pages)
Affidavit of Melinda McLean sworn November 4, 2015 and exhibits (approx. 500 pages)
Book of Authorities (approx. 500 pages)

As I indicated to the parties’ representatives during their submissions, I would accept the evidence as related in the documents but would still make determinations as required by the Dispute Resolution Practice Code (“the DRPC”). I refer specifically to section 39.3 of the DRPC which provides, in part, that:

The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing … (my emphasis)

After the Hearing was held, I sent an inquiry email to both counsel asking them:

a) if I may refer to the Google Street View information referred to earlier in footnote 2;

b) asking for a copy of the police report related to the accident;

c) asking for information about the driver who was driving the vehicle that hit the Applicant’s home; and

d) asking if either party wished to submit any other documentary evidence.

As a result of this inquiry, I received two additional documents — being the police report and a driver’s record report.

Onus of Proof on Issues

I made it clear to the parties on the two questions that were proceeding in the Preliminary Issue Hearing (stay sought by the Insurer, and interim benefits sought by the Applicant), the onus of proof in each question was on the party seeking the relief. We dealt with each of the two preliminary issue questions separately. The Insurer began on the first question of the stay and the Applicant began on the second question of the interim benefits.

Is the Insurer entitled to further IEs?

Evidence on further IEs

The question of whether or not the Insurer is entitled to a stay requires me to answer some preliminary questions. Those questions are:

The nature of the section 44 requests: what is the Insurer seeking in the context of the information that it already has?
Has the Insurer established that the examinations sought will assist it to determine if the Applicant is entitled to a benefit, and are reasonably necessary to do so? This is especially relevant in light of the opinion that further examinations might be harmful to the Applicant.

It is useful to begin with the applications made and the Insurer’s responses.

The OCF-1,¹³ signed by the Applicant on February 22, 2013, indicates the description of the accident is “I witnessed a truck driving through my house. The driver was drunk.” It also notes that the Applicant was a pedestrian,¹⁴ that she did seek medical attention and that she was retired.

An OCF-3¹⁵ (Disability Certificate) and an OCF-19¹⁶ (Application for Determination of Catastrophic Impairment) were both signed by a health practitioner on May 30, 2013. The OCF-3 indicates “Post traumatic stress disorder; Panic Disorder; Panic Attacks with Agoraphobia; Major Depressive Disorder”. On the OCF-19, indication is made that “Client is showing symptoms of severe PTSD which are limiting her in all [activities of daily living] and other normal functioning”. It has marked Criterion 8 and further provides that “Client is markedly impaired in ADLs, socialization, memory, concentration and coping”.

A number of OCF-18s (Treatment and Assessment Plans) have been filed as well as an OCF-6 (Expenses Claim Form).

On April 17, 2013, the OCF-1 was responded to¹⁷ as follows: The determination was that the Applicant was “Not eligible” for reasons given as:

We acknowledge receipt of your OCF 1 received March 5, 2013. As this was submitted post two years from the accident date and we have been unsuccessful at obtaining a signed statement, we will be invoking section 33(2) of the Schedule and requesting an Examination Under Oath. We are unable to make any determination in relation to this claim at this time. Further information will follow shortly.

The form also indicated under ‘Reasons why expenses are not payable’:

... we have not received an OCF-3 for this claim, nor have we received any requests for treatment. Therefore, we are unable to determine what your injuries are or what you are attempting to claim for.

On June 11, 2013, another Explanation of Benefits¹⁸ was provided by the Insurer relating to the OCF-3. It indicated that until the Examination Under Oath already requested was completed, a determination with respect to the claim could not be made.

On June 13, 2013, a similar Explanation of Benefits relating to the OCF-19 was provided.¹⁹ This document was slightly different in that it acknowledged that an Examination Under Oath commenced on June 3, 2013, but that the Insurer was waiting for its conclusion, which would take place on July 9, 2013. That document also requested the treating doctors’ medical records from the date of loss to the present.

On July 12, 2013, a more fulsome response²⁰ was provided on three aspects of the claim. The Insurer requested IEs and the Applicant’s medical records. It reiterated that all other claims would be dealt with in a similar fashion: the Insurer’s position had been and continued to be that until IEs were conducted, it could not comment on whether or not the Applicant’s disability and condition were caused by the accident.

One ‘paper’ IE was conducted by Dr. Howard Seiden by report, dated October 23, 2013.²¹ The report drew no conclusions to the referral questions other than to note: in order to address this question, a psychiatric assessment and an occupational therapy assessment “are recommended”. The report further commented:

These recommendations are based on the information that has been received. … There is also suggestion that [the Applicant] suffers from dementia. If there is evidence to support that or another neuropsychological diagnosis that could be related to the traumatic incident in records received or the assessing psychiatrist feels that this is a contributor to her impairment, then we may require a neuropsychological assessment. …

I highly recommend that assessments not be booked until all of the requested information is received. While it is possible for PTSD to manifest a delayed onset, there are a number of other DSM diagnoses that have been suggested in the notes. [The Applicant’s] present status may be related to more than one diagnosis. In that issues of mental status are paramount to diagnosis and apportionment, complete records are vital.

Two in-person IEs were attempted. The first took place on November 18, 2014 in the offices of Dr. Wendy Campbell. I note that the examination was conducted at the assessor’s office located in North York, Toronto at 10:30 a.m.²² I take notice of the fact that a trip from Hamilton to Toronto for the Applicant would take at least 60 minutes in each direction and, for planning purposes, given the vagaries of traffic, be planned to take at least 90 to 120 minutes in each direction. This is a relevant finding as I review the report of this attempted IE.

Although Dr. Campbell was able to begin her assessment, as noted in her report:²³ “[the Applicant] took several lengthy breaks during the assessment, prior to her daughter determining that the evaluation should be discontinued due to her mother’s fatigue”. The report also included the conclusion: “I believe it would be prudent to proceed with a neurological examination to rule-out the possibility of dementia”. It is an open question to what extent the Applicant’s reported fatigue was, in part, created by the long period of transportation to the assessment that I have previously noted.

Another IE was attempted by Dr. Henry Rosenblat on August 7, 2015 at the Applicant’s home.²⁴ In the presence of Amanda Manning, who is described as being from the assessment company, his report indicated that the assessment began with asking the Applicant to review and sign a consent form, which she did. After commencing the assessment, Dr. Rosenblat was concerned that the Applicant was “incapable of providing informed consent to the assessment” and concluded it on the basis that without such consent he felt that he was not able to honour his professional obligations to ensure that he had such consent. An opinion was expressed in his letter that the assessor “was concerned about the claimant’s cognitive abilities”.

Assessments conducted on behalf of the Applicant at the request of her representative are available. The most recent of these is a Catastrophic Impairment Determination Psychological Assessment, dated September 22, 2015,²⁵ prepared by Dr. Brian Levitt. Various assessments were conducted of the Applicant in early September 2015. The conclusions of the report are clear:

[The Applicant] was involved in an MVA on December 7, 2010. As a result of this accident, she has developed Posttraumatic Stress Disorder, complex and severe, with panic attacks (DSM-IV-TR and DSM-5), and chronic and severe Major Depression without psychotic features (DSM-IV-TR and DSM-5).

I strongly advise against any further assessment to address disability issues in this case due to the very real risk of causing serious psychological deterioration. …

In support of this latter conclusion, the report notes (at page 28):

[The Applicant] has demonstrated vulnerability to deteriorate further from a psychological perspective when engaged in psychological assessment. This is clear from reviewing Dr. Campbell’s … (November 18, 2014) and Dr. Rosenblat’s … (August 7, 2015) [reports]. Both assessors questioned her cognitive capacity in light of her inability to answer basic questions and the need to end the assessment prematurely. My own assessment points to serious psychological vulnerability, such that [the Applicant’s] anxiety ramps up rapidly and she becomes unable to engage appropriately with significant structure, support and redirection. Ample data have been collected by all assessors to date on this file, including treatment provider notes and records and the data I have collected and detailed in this report, in order for any further opinions to be offered based on file review. I am of the opinion that her fearful reaction to assessments is worsening, and that any further attempt at assessment in relation to disability issues will result in serious psychological deterioration.

I wish to repeat that the parties have agreed at this point that the Applicant’s cognitive abilities are so poor that she needs a Litigation Guardian.

Analysis on further IEs

There are two questions I answer to determine if a stay is necessary. These are: a) will the information provided by an IE assist the Insurer to make a determination?; and, b) in light of the opinion of Dr. Levitt that future IEs may harm the Applicant, are the examinations sought reasonably necessary?

It is useful to note what information the Insurer already has about the accident, the Applicant’s possible impairment and its connection to the accident. At a minimum, this information includes the following:

An Examination Under Oath of the Applicant, conducted June 3, 2013²⁶
An Examination Under Oath of the Applicant’s daughter, conducted the same day²⁷
All of the Applicant’s medical records from one year prior to the accident²⁸
Treatment and rehabilitation records of the Applicant post-accident²⁹
All information contained in the OCF-1, OCF-3, OCF-6, OCF-8 and OCF-25 forms submitted by the Applicant including the certifications of the medical professionals therein³⁰
The ‘paper’ IE of Dr. Seiden of October 24, 2013³¹
The observations of Dr. Wendy Campbell taken in the discontinued IE of November 18, 2014³²
The observations of Dr. Henry Rosenblat taken in the IE he chose to discontinue on August 7, 2015 due to a lack of informed consent³³

Simple facts emerge from all of this material which I have reviewed. These facts are:

Prior to the accident of December 7, 2010, the Applicant had a life that would be expected of an active 79-year-old: she went to aqua-fit; she went to church; she shared house chores with her adult daughter with whom she lived. Prior to the accident, neither her OHIP summary³⁴ nor any of her other medical records³⁵ have any suggestions of psychological, psychiatric or cognitive concerns or problems. There is no mention of cognitive decline of any form.

The accident happened on December 7, 2010.

Within 5 months of the accident, the medical record of the Applicant shows psychological and cognitive concerns. Those concerns have progressed to the point where the Applicant is no longer able to manage the Arbitration proceeding on her own.

Is the Applicant’s cognitive decline caused by the accident or not? This question will be at the very heart of the Arbitration Hearing and, accordingly, it would not be appropriate for me to make any findings on the issue. Rather, though, it is my obligation to ensure that the parties both have an equal opportunity to make their best case on that issue.

Despite all of the information that the Insurer has available to it as outlined above, it continues to seek IEs. In its submissions as expressed in its factum in this Hearing, the Insurer notes that it has never had a fully completed IE. This is correct. However, what is not clear to me is how any additional information will assist the Insurer in making a determination. The Insurer has not submitted any evidence on this point.

The Applicant’s expert, Dr. Levitt, made the following statement: “Ample data have been collected by all assessors to date on this file, including treatment provider notes and records and the data I have collected and detailed in this report, in order for any further opinions to be offered based on file review”.

Would anything new be obtained from an IE?

IEs are provided in section 44 of the Schedule “for the purposes of assisting an insurer to determine if an insured person is … entitled to a benefit”.

The cases cited by the parties on this issue point me to the general notion that IEs are part of a system of “procedural fairness”. The Applicant should not be the only one who is entitled to present medical evidence—the Insurer should have an opportunity, in the words of Gonsalves,³⁶ “to make full response”. This is, of course, an embodiment of the principle of natural justice which goes by the Latin maxim: Audi alteram partem or “listen to the other side”.

It is important to understand the special nature of medical evidence. Observations of someone’s medical condition may necessitate special training and skills. For example, anyone can read a temperature using a thermometer. However, determining the presence of pneumonia by listening to chest sounds using a stethoscope requires special training and skills. The adjudicative system allows medical professionals to testify to examinations as ‘fact’ even though in some cases it is more correctly characterized as an opinion based on observation. I will refer to this as an observational opinion.

Accepting observational opinions as facts represents a change to the normal rules of evidence. Witnesses are normally only permitted to give testimony as to what they heard or saw; they are not permitted to give opinions as to what they think what they heard or saw actually means: that is the function of the adjudicator.

However, adjudicators would likely be lost in medical observations if they were only given the raw data. An adjudicator could be played a recording of someone’s chest sounds directly; however, they would likely not be able to determine if that meant pneumonia was present.

When it comes to medical evidence, the rules allow medical professionals to provide observational opinions as fact.

This evidentiary challenge is then extended in the “listen to the other side” rule of natural justice with respect to medical assessments. Because one party’s medical professionals might make observational opinions that are more favourable to that party’s case, the legal practice has developed of ensuring both sides are permitted their own medical examinations of a party in question, to allow both sides the opportunity to have their own medical professional make the raw observations.

Using pneumonia again as an example, a medical professional representing an employer could examine a patient who has applied for sick leave and say that the appropriate sounds to be diagnosed as pneumonia are not present. Fairness requires us to allow a professional representing the employee to directly listen to the lung sounds and presumably to say that they are consistent with pneumonia. When such disputes in observations arise, it is up to the adjudicator to make the final factual determination: does the patient have pneumonia or not?

When there is a dispute between observational opinions, the adjudicator continues to have the obligation to make the final decision between the observational opinions presented.

In the case of observational opinions included in written medical records, there should be little dispute no matter which medical professional reviews those records. No interpretation is necessary. Although there might be some dispute that the other objective evidence might not lead to the same observational opinion, there is no procedural fairness issue as long as all parties have access to the same written records.

In the adjudicative process we overlay at least one more level of opinion³⁷ in coming to a decision. Taking all of the facts (including observational opinions) into account, what is the correct decision? Continuing the previous example, if the employee has pneumonia, is that sufficiently serious a reason to prevent them from coming to work?

Again, the medically untrained adjudicator is ultimately responsible for determining the applicable law and the application of that law to the facts at hand. However, adjudicators may also ask medical practitioners to help by providing another type of opinion on such questions. The second type of opinion (which I will call a ‘decision opinion’) is different from an ‘observational opinion’.

The practice has developed when allowing medical assessments by an opposing party to expect them to do two things. The first is to add new observational data (observational opinions) through a medical observer of the party’s own choosing. The second is to allow the chosen assessor to take that new observational data, combine it with past data as allowed and to express a ‘decision opinion’: an opinion on what the final decision should be.

The line between observational opinions and decision opinions expressed by medical experts can be blurry. Medical experts’ reports usually express both types of opinions with little differentiation. It is the responsibility of the adjudicator to sort this out by establishing the facts and then making their own opinion as to their decision. If the medical experts’ reports are not clear as to what is an observational opinion versus a decision opinion, then the adjudicator may find that they rely inappropriately on the medical reports before them.

In coming to a decision opinion, the adjudicator may, in appropriate cases, be assisted by properly qualified experts. As noted by the leading case on the admissibility of expert evidence, R. v. Mohan:³⁸

Expert evidence, to be necessary, must likely be outside the experience and knowledge of [the adjudicator] and must be assessed in light of its potential to distort the fact-finding process. Necessity should not be judged by too strict a standard. … Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

The previous analysis is important to determine what I believe “procedural fairness” means in the context of section 44.

Section 44 allows an Insurer to obtain its own observations (observational opinions) through its own medical professionals. However, if there are already sufficient facts, including observational opinions, on an issue, no further observations should be permitted unless good reason is shown to allow them. It is a constant theme through section 44 decisions that the invasiveness of any IE has to be balanced against the Applicant’s right to privacy. I clarify this balancing analysis by further suggesting that the insurer must be prepared to show by appropriate evidence exactly what new facts or new observational opinions they expect to obtain from an IE.

In this case, it is not clear to me how ordering the Applicant to attend further IEs will provide the Hearing Arbitrator with any new information or facts. What will likely happen if I order IEs is that more observations of the Applicant will be taken and new medical opinions will be generated. What I have not seen to date is how those additional observations or medical opinions will assist the Insurer in finally making a determination of entitlement to benefits.

Stated another way: what does the Insurer not already have that it still expects to obtain through the IE? More observations are not a sufficient reason to require an IE; those observations have to add new facts relevant to assisting the Insurer to make a determination of entitlement to benefits.

Let me take this analysis to an extreme: if I order IEs in this case and those IEs return with observations that support that the Applicant suffers from dementia, does that help establish as a fact that the Applicant’s cognitive decline is not directly caused by the accident?

The Insurer has not made this point. Neither has its expert in his ‘paper’ review.

I specifically note that Dr. Seiden’s October 23, 2013 report makes many comments about information that is missing without explaining what having that information would assist with. No specifics are provided as to the need of any of that information; a reasonable conclusion might be that this is a “fishing expedition”.

Simply stated, the Insurer has not met its burden of proof in showing me the IEs will give it information that it does not presently have that would be required to determine the Applicant’s entitlement for benefits.

I note that at a Preliminary Issue Hearing, the Insurer could easily have presented any of its experts to give me proof as to the need for further observational data about the Applicant. Rather the Insurer relies solely on section 44 without considering the conditions set therein. Just because an Insurer decides they want their regulated health professional to examine an Applicant is not sufficient for section 44; the IE must provide something that will be of assistance to the Insurer. I further note the unchallenged evidence of Dr. Levitt that “ample data” has already been collected.

I am satisfied after reading Dr. Levitt’s qualifications that he can be qualified as an expert and his report accepted as opinion evidence in the Preliminary Issue Hearing. I note that, although it was possible, the Insurer did not call Dr. Levitt for cross-examination on his report or opinion. I also note that the Insurer has not provided any rebuttal evidence on the issue of there being ‘ample data’.

In this case, it is a fact that the Applicant suffers from a significant cognitive impairment since the accident. The Insurer has not provided any explanation as to why understanding the medical cause of that impairment will assist it in making further determinations and, therefore, the Insurer has not met its onus of proof in establishing its entitlement to further section 44 IEs.

Section 44 examinations are not automatic. The Insurer has to be able to demonstrate reasons how the information to be obtained on such an examination will assist it in making a determination of an entitlement to benefits under the Schedule. Such reasons must be more than a general requirement for more information; they must be able to point to specific medical observations that may be disputed and how clarity on those observations will assist. The Insurer in this case has not done so.

Are further IEs ‘reasonably necessary’?

I now turn to the second question I posed in considering the request for IEs. Even if my analysis on the first question is incorrect, my conclusion on this question can also dispose of the request by the Insurer for additional IEs. Section 44 of the Schedule also requires examinations not to be conducted more than “reasonably necessary”.

As noted above, the Applicant’s psychiatrist, Dr. Levitt, has expressed the clear opinion that: “I strongly advise against any further assessment to address disability issues in this case due to the very real risk of causing serious psychological deterioration”. The substantiation for this opinion was provided above.

I repeat that I have accepted Dr. Levitt as an expert and that the Insurer has not provided any rebuttal evidence on the issue of the psychological deterioration of the Applicant. On a preponderance of the evidence, I am satisfied that if the Applicant is required to undergo any further IEs, there is risk that she will suffer further cognitive decline as a result of such an examination.

Blackstone’s famous formulation – “It is better that ten guilty persons escape than that one innocent suffer” – suggests the corollary that no significant harm should come to an Applicant because they have engaged in Arbitration under the Schedule. Although, as I mentioned above, there is a constant theme in section 44 cases of the balance between inconvenience of the examination and the Insurer’s right to procedural fairness, this is a situation that goes beyond personal inconvenience. The Applicant’s medical professional has expressed an unopposed opinion that she is at risk of being harmed by further IEs and I accept that opinion.

Although it may create procedural unfairness, that is not a sufficient reason to put the Applicant in harm’s way. Again, section 44 examinations are not automatic; they must be shown to be conducted no more than “reasonably necessary”. If the examinee has any potential of harm in such an examination, it is difficult to understand how it could ever be considered “reasonably necessary”. The conclusion on the second question is clear: the IEs are not reasonably necessary.

Conclusion on section 44 IEs

I am satisfied based on the foregoing analysis that the Insurer is not entitled to further section 44 examinations in this matter. I will not grant the Insurer the relief sought. My Order is to the effect that the Insurer would neither be assisted by, nor is it reasonably necessary to conduct, further examinations under section 44 of the Schedule.

However, I am also concerned to ensure that the Applicant not be able to use this finding to any tactical advantage. As a result, it is also reasonable to me that the Applicant not be able to conduct any further assessments other than as may be required for her ongoing treatment. Accordingly, I order that the Applicant not produce any expert evidence at the Arbitration Hearing that is based on assessments of the Applicant conducted after the date of these reasons, other than those made in the ongoing treatment of the Applicant and which have been shared with the Insurer.

I also suggest to the parties that if they can work together to find opportunities to have assessors for both parties work together to conduct further assessments, this would be an appropriate manner in which to proceed. In addition, it would be appropriate to have the Insurer’s assessors conduct observations of the Applicant during therapy sessions through video or other observational methods that minimize the disturbance to the Applicant. Any such arrangement also requires appropriate consent from the Litigation Guardian.

I note that if opportunities such as those I have suggested existed which the parties did not take advantage of, then it would be appropriate for the other party to draw that to the Hearing Arbitrator’s attention and ask that adverse inferences be made.

Is the Applicant entitled to interim benefits?

Facts on interim benefits

The facts already recited are also applicable to the Applicant’s request to be paid interim benefits. The following facts are additionally relevant:

The Insurer has not paid any benefits to the Applicant to date.

The relationship between the Applicant and her daughter prior to the accident had both of them functioning relatively independently. Since the accident, the Applicant’s daughter has clearly had to assume a much greater role in providing care and supervision for the Applicant. I only need to read the two attempted IEs to understand how the daughter has become the Applicant’s constant companion.

The Applicant has borrowed money in order to fund treatments. There was an amount of $7,000.00 borrowed by the Applicant in mid-2014.³⁹

The Applicant sold her home (the site of the accident) on June 2, 2015 resulting in a net payment to her of $26,222.75.⁴⁰ The Applicant and her daughter had moved into an apartment as of April 2013; the Applicant has claimed the expenses of that move on an OCF-6 for a total of $37,879.23.

Analysis on Interim Benefits

Section 279(4.1) of the Insurance Act provides:

The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.

There is no other provision in the Schedule which provides for interim orders.

Based on the provision in the Insurance Act, the practice has developed to consider the payment of interim benefits under the Schedule when certain conditions are met. The payment of interim benefits is an extraordinary remedy with few actual awards being made by the Commission.⁴¹ Three conditions are required to make an interim order:⁴²

the applicant can demonstrate a prima facie entitlement to benefits;
the applicant has a financial need for the benefits; and
the financial need is urgent.

In my analysis of the IE issue, I noted that a key question for the determination of this Arbitration will be: is the Applicant’s cognitive decline caused by the accident or not? I concluded that there is clearly a cognitive decline, and that the cognitive decline only occurs after the accident. On their face, these facts suggest that the cognitive decline is related to the accident.

No proof has been made by the Insurer to date to suggest that there is another clear cause for the cognitive decline. Although Dr. Seiden’s ‘paper’ review suggests that dementia might be a cause, there is no evidence that, even if this is the case, that clearly means that the Applicant’s cognitive decline cannot be attributed at least in part to the accident.

The facts suggest that the Applicant has suffered an impairment as a result of the accident. A prima facie case has been made out.

Turning to financial need, I point out that the Applicant has not received any benefits from the Insurer to date. I believe that it is reasonable that this alone should be sufficient to establish financial need.

I note that in most of the interim benefits decisions that have been cited to me by the parties, the Insurer had paid some benefits and then terminated them. In other words, the claimants had at least received some payment against their treatment and the other benefits that the Schedule provides. In this case, the Insurer, through an insistence on its right to conduct examinations that I have now held it is not entitled to seek, has delayed in paying any benefits at all.

There are other factors which also speak to financial need. The Applicant claims she had to sell her home and borrow money to engage appropriate treatment for her cognitive decline. I consider each of these issues as follows.

The Insurer has submitted that the funds available to the Applicant from the house sale should be taken into account in establishing that there is no financial need. I do not think this can be done given that the parties have agreed that a Litigation Guardian is required for the Applicant. In the circumstances of the pending appointment of the Litigation Guardian, it is doubtful that any of the Applicant’s capital should be touched. In addition, it would be unwise to draw on such a capital asset until the issue of the Applicant’s cognitive abilities and the ramifications of the appointment of guardians for property is determined.

With respect to borrowing money to fund her treatment, this also shows financial need. Clearly, the Applicant needs therapy to combat the cognitive decline that she is experiencing since the accident. If she did not undertake such treatment, the Insurer might make the suggestion that she has not taken appropriate steps to mitigate her situation. Even if this is not the case, the Applicant clearly needs treatment to deal with her cognitive decline and needs to borrow to obtain it. The Applicant’s financial situation is, in my opinion, one in which need has been reasonably demonstrated.

I finally turn to the question of urgency. The Insurer points out in its submissions that the Applicant is a CPP recipient and the Applicant’s daughter – whom she lives with – is a recipient of ODSP.⁴³ The implication is that the income from these sources has not changed through the accident; therefore, why should there now be urgency?

The answer is, of course, found in the care that the Applicant’s cognitive decline requires since the accident. The Applicant requires treatment which is not covered by OHIP, and she has borrowed money for that purpose. The Applicant’s daughter must be constantly present. The fact of the Applicant’s advanced age is also a factor which I believe should be considered as part of the urgency. I conclude that it is reasonable for me to find urgent circumstances exist in this case.

Based on the three conditions, this is a case where it is reasonable for an interim benefits order. Of course, any order I make is subject to the final determination of the Hearing Arbitrator in this matter.

I turn now to which benefits and what amounts are appropriate on an interim basis.

The Insurer’s submissions⁴⁴ point out that without a catastrophic impairment determination, certain benefits are limited to the first 104 weeks after the onset of the disability. There is a submission that the non-earner benefit has a “cut-off” period of 204 weeks as well. The Insurer also points out that the finding of catastrophic impairment in itself is not a benefit.⁴⁵

The Applicant has made claims, in part, for the following benefits:

medical benefits;
non-earner benefit of $185.00 per week from June 7, 2011;
attendant care benefits of $6,000.00.00 per month for services of the Applicant’s daughter from December 7, 2010; and
housekeeping and home maintenance in the amount of $100.00 per week.

In considering which of these amounts I am prepared to order on an interim basis, I continue to be guided by the conditions of an interim award being the prima facie case: urgency and need. On these conditions, I am not prepared to make any interim award for amounts that would fall into the ‘catastrophic impairment’ range. Although I am prepared to find that the Applicant’s cognitive decline is sufficiently related to the accident to make an interim award of benefits, I have not received sufficient evidence to make the further determination that that decline allows me to consider the Applicant catastrophically impaired. I leave this issue to the discretion of the Hearing Arbitrator.

In the case of medical benefits, since the evidence is clear that the Applicant has had to borrow $7,000.00 for treatment⁴⁶ and I consider the payment of medical treatment sufficient to satisfy the three conditions, I am ordering $7,000.00 in medical benefits to be paid as an interim benefit.

With respect to future medical benefits, I am not making any Order. I leave it to the Insurer to determine any additional payments it wishes to make in the context of this decision, and the fact that an issue for the Arbitration is whether or not a special award under subsection 282(10) of the Insurance Act should be paid.

In the case of non-earner benefits, the test to be satisfied is that the Applicant “suffers a complete inability to carry on a normal life”.⁴⁷ Although I am satisfied that the Applicant suffers a cognitive decline, I do not have sufficient evidence to make the determination that there is a prima facie case that she suffers a ‘complete inability to carry on a normal life’. Accordingly, I decline to include non-earner benefits in the interim benefits.

With respect to the attendant care benefits, I am satisfied on the basis of the Applicant’s cognitive decline that attendant care is appropriate and meets the three conditions for interim benefits. However, I note the limits for attendant care prescribed by subsections 19(3)1 and 2 of the Schedule in cases where there has not been a determination of catastrophic impairment. Specifically, no more than $3,000.00 per month to an aggregate of $36,000.00 can be awarded until such a determination. Since I am not prepared to determine that benefits in the catastrophic impairment range should be paid, any interim award for attendant care would be limited to the maximum-allowable non-catastrophic limit of $36,000.00

However, I must additionally consider whether or not the Applicant’s daughter suffered an “economic loss”, as understood, since the accident in order to comply with section 3(7)(e)(iii) of the Schedule. It is clear that since shortly after the accident, the Applicant’s daughter has had almost no time to herself; she is her mother’s constant companion. However, I have not been provided with any evidence that she has had any economic loss.

On the issue of the Applicant’s daughter no longer having any free time to herself, the recent Divisional Court case of Simser v. Aviva Canada⁴⁸ suggests at paragraph 41 that:

… There is nothing unreasonable in finding that mere loss of time spent is not an economic loss within the meaning of the [Schedule]. The … interpretation is also consistent with the legislative history of the current [Schedule], which shows that the requirement to demonstrate an “economic loss” was added for the express purpose of restricting the applicability of attendant care benefits.

Although the Applicant’s daughter may provide economic loss evidence at the Arbitration, it might be advisable in the interim to obtain paid attendant care services by a professional doing so in the course of his or her regular occupation or profession – for which the economic loss provision would not apply. However, there will be no interim benefit in this application for attendant care.

With respect to housekeeping and home maintenance services, section 23 of the Schedule requires a finding of catastrophic impairment for these amounts to be payable. Because I am not prepared to make this determination, I am not prepared to award this on an interim basis.

I finally note an OCF-6 with expenses of $37,879.23⁴⁹ related to apartment expenses, storage expenses and the like. At present, I do not have sufficient information to determine that, within the words of section 16(1) of the Schedule, they are “reasonable and necessary expenses incurred by or on behalf of the [Applicant] in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment”. They do not meet the first condition of a prima facie case and, accordingly, I defer a full consideration of these and any other expenses that I have not mentioned to the Hearing Arbitrator.

To summarize my interim benefits order, the Insurer shall pay the Applicant the following interim benefit:

$7,000.00 in medical costs incurred

Because of the pending appointment of a Litigation Guardian, payment of the interim amount of $7,000.00 shall be paid by the insurer within 30 days of this decision to the Applicant’s Counsel to be held in trust and disbursed as agreed with the Litigation Guardian.

EXPENSES:

The question of expenses related to this Preliminary Issue Hearing is deferred to the Hearing Arbitrator.

January 4, 2016

Marcel D. Mongeon Arbitrator

Date

Financial Services Commission of Ontario