Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 118

FSCO A14-007847

BETWEEN:

SLOBODAN GRIVA

Applicant

and

AIG INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Marshall Schnapp

Heard: In person at ADR Chambers on February 3, 2016 and written submissions completed on February 10, 2016

Appearances: Mr. Robert Ben for Mr. Slobodan Griva

Ms. Jenna Meth for AIG Insurance Company of Canada

Issues:

The Applicant, Mr. Slobodan Griva, was injured in a motor vehicle accident on January 19, 2011 and sought accident benefits from AIG Insurance Company of Canada (“AIG”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Griva, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

A Pre-Hearing discussion was held before Arbitrator Janet Davies on January 7, 2016. As noted in her Pre-Hearing letter, dated January 7, 2016, the Insurer raised a Preliminary Issue that the Arbitration Hearing should be stayed.

Upon receipt of the written submissions and during oral arguments, the parties also raised another Preliminary Issue surrounding what information and documentation Mr. Griva’s service provider was required to provide AIG with respect to an attendant care benefit claim.

The issues in the Preliminary Issue Hearing are:

1. Whether Mr. Griva’s Application for Arbitration should be stayed pending attendance and/or completion of an Insurer occupational therapy in-home/attendant care assessment and psychological examination which were requested under section 44 of the Schedule?

2. Is Mr. Griva’s service provider, Ms. Kovacevic, required to speak with the Insurer’s occupational therapist assessor as part of the Insurer Examination and to provide AIG with the items requested in the section 46.2 request letter, as per the Schedule, dated August 20, 2015?

3. Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

1. Mr. Griva’s Application for Arbitration is stayed pending attendance and/or completion of an Insurer occupational therapy in-home/attendant care and psychological examination.

2. Mr. Griva’s service provider, Ms. Kovacevic, is not required to speak with the Insurer’s occupational therapist assessor as part of the Insurer Examination and is not required to provide the requested items in the section 46.2 request letter, as per the Schedule, dated August 20, 2015.

3. The expenses of the Preliminary Issue Hearing are deferred to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Background

The present disputes stem from the parties not agreeing to the level of Mr. Griva’s attendant care needs, his need for housekeeping and home maintenance assistance and the payment of a rent differential on a larger apartment that Mr. Griva claims is required to accommodate his disabilities. Mr. Griva filed an Application for Arbitration to deal with these disputes on September 25, 2014.

On January 21, 2015, Mr. Griva was examined under oath by counsel for AIG. From a review of the transcript, it appears Mr. Griva provided evidence that he was “a little better physically”² and his main issue was his depression.³

The first Pre-Hearing took place on June 4, 2015 before Arbitrator Bowles. At that time, counsel for AIG advised Mr. Griva of their intention to request updated assessments.⁴ A Motion was scheduled for August 12, 2015, in the event Mr. Griva did not attend the assessments.

The most recent Insurer occupational therapy in-home assessment report and Form 1 are dated November 27, 2012.⁵

After the Pre-Hearing before Arbitrator Bowles, Mr. Samis, counsel for AIG, followed up with Mr. MacDonald, counsel of record for Mr. Griva, by letter dated June 4, 2015, to determine whether or not Mr. Griva will attend updated Insurer Examinations to address housekeeping and attendant care entitlement issues as well as to determine Mr. Griva’s current status, and advised that should Mr. Griva not be willing to attend assessments, AIG would be moving ahead with a Motion.⁶

Mr. MacDonald responded to the above by letter, dated July 17, 2015, advising that he was not “agreeable to my client submitting to Insurer Examinations while we have a pending dispute going to Arbitration.”⁷

In response to the above, AIG moved forward with its Motion to deal with non-attendance at the examinations, however prior to it being heard, Mr. Griva agreed to attend the following Insurer Examinations being requested: occupational therapy in-home/attendant care, orthopedic, and psychological/neuropsychological.⁸

It appears that to date the Insurer occupational therapy in-home/attendant care examination has taken approximately 8 hours and has been conducted over two separate days but is still not complete.⁹

After the two days of being examined, Mr. Griva advised his counsel that the two days of examination left him “at the end of his rope” and he suffered negative physical and mental health consequences, which were later documented by some of Mr. Griva’s rehabilitation team, including his doctor and psychiatrist, Dr. Milenkovic.¹⁰

Dr. Milenkovic prepared a report, dated November 8, 2015, which noted in part the following:

In my opinion, Mr. Griva has undergone an enormous amount of stress over the past two weeks as a result of visits by the Occupational Therapist. Sitting, concentrating and memorizing things for prolonged periods during the assessments of October 27, 2015, and November 3, 2015, has caused Mr. Griva to experience a full-blown panic attack with subsequent prolonged exhaustion…from a psychiatric perspective; any further assessment by Ms. Lok should be discontinued.¹¹

The Arbitration Hearing is scheduled to start on August 30, 2016.

AIG’s Position

The Examinations

Mr. Griva’s attendant care and housekeeping needs remain in issue in this Arbitration as are his current physical and mental conditions, both of which are important to determining his entitlement to benefits in the Application for Arbitration. In order to properly assess his condition, the Insurer is entitled and has been requesting him to undergo an Insurer occupational therapy in-home/attendant care and a psychological examination.

The most recent Insurer occupational therapy in-home assessment report and Form 1 is from November 2012 and is over three years old.

To date, AIG has not conducted a psychological examination, which according to AIG is critical to the completion of the Insurer occupational therapy in-home assessment.

Mr. Griva previously agreed to attend the Insurer in-home attendant care, orthopedic and psychological/neuropsychological assessments. Mr. Griva did attend a partial Insurer occupational therapy in-home assessment on October 27, 2015 and November 3, 2015, but is not agreeable to allowing the Insurer occupational therapy in-home assessment to be completed.

AIG also stresses that at his recent Examination Under Oath, Mr. Griva indicated his physical condition improved a little but his main issues involve his mental condition. Thus updated examinations are required to obtain a fulsome picture of his current condition which would allow AIG to fairly evaluate Mr. Griva’s current condition and entitlement to the issues in his Application for Arbitration.

AIG is relying on section 44 of the Schedule, which it submits gives it a prima facie right to the examinations it seeks by persons chosen by the Insurer, provides that an Insurer is entitled to request an Insurer Examination to address entitlement to a benefit, and a request for an examination may be made at any time, provided it is not more often than is reasonably necessary.¹²

It also relies on the specific wording of sections of 42(7) and 42(8) which provide for an Insurer to request a new attendant care assessment to determine continuing entitlement and/or to reassess the quantum of benefits being paid.

According to AIG, it is the reasonableness of the purposed examinations that I should consider in this matter. A section 44 examination must be reasonable in the circumstances and “reasonableness” is an objective standard.¹³

Arbitrator Feldman, in Al-Shimasawi and Wawanesa Mutual Insurance Company, set out the relevant circumstances to be considered when assessing reasonableness as follows:

a. The timing of the insurer's request;

b. The possible prejudice to both sides;

c. The number and nature of previous insurer's examinations;

d. The nature of the examination(s) being requested;

e. Whether there are any new issues being raised in the applicant's claim that require evaluation;

f. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.¹⁴

AIG submits that notwithstanding that adjudicators have found the right to a medical examination under the Schedule is inherently intrusive and an invasion of individual privacy, the reasonableness of the proposed examinations is an objective standard. Latitude must be left for a range of circumstances and 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.¹⁵

In support for the need to conduct a psychological examination, AIG submitted that in the last year and a half, both Mr. Griva’s counsel and the information contained in reports from his health care providers documents a deterioration of his psychological state and suicidal ideation.¹⁶ Thus given the evolving circumstances, the proposed psychological examination is reasonable and necessary to evaluate Mr. Griva’s ongoing entitlement to and quantum of benefits.

AIG also relies on the Certas Direct Insurance Company v. Gonsalves decision by the Superior Court, an appeal from a ruling of the Director’s Delegate, where the Court made the following findings: “. . . Fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.”¹⁷

AIG acknowledges that according to both Ms. Lok and Mr. Griva’s treating occupational therapist, an assessment of this nature should usually take three to five hours.¹⁸ However, according to the information obtained from Ms. Lok by AIG’s counsel, the assessment in this case is taking longer than the three to five hours for a number of reasons, including the attendance and contribution to the process of Mr. Griva’s treating occupational therapist without prior notice; unsolicited interjections by Mr. Griva’s wife to clarify and elaborate on his responses; and the need for questions to be repeated in order to obtain clear and accurate answers from Mr. Griva or in cases where Mr. Griva’s answers and his wife’s unsolicited answers were contradictory.¹⁹

AIG submits that by Mr. Griva now refusing to complete the physical functional testing – the only remaining part of the assessment and critical to completing the Form 1 – which should take approximately two hours, he has failed to meet the requirements of section 44(9)(2) of the Schedule.

It should also be noted that during oral submissions, counsel for AIG raised the option of a different occupational therapist, other than Ms. Lok, completing the assessment as a way to meet Mr. Griva’s concerns and those of his health providers that his condition would be compromised if Ms. Lok completed the assessment.

Requests with respect to Ms. Kovacevic – the service provider

AIG submits that section 44(9)(2)(ii) of the Schedule provides it with the ability to obtain information/documentation that “…are relevant or necessary for the review of the insured’s person medical condition…”. According to AIG, Ms. Kovacevic is in a unique position to provide relevant information regarding Mr. Griva’s attendant care needs and abilities and this information is necessary for the review of Mr. Griva’s attendant care requirements partially in light of his documented cognitive difficulties. In support of this request, AIG submits that the scope of the right to an independent examination is broad and relies on Vanderidder v. Aviva Canada Inc., where the court permitted an examination by non-medical professionals if required by the examining physician as a “diagnostic aid”.²⁰

AIG is also requesting information from Ms. Kovacevic, Mr. Griva’s service provider, based on section 46.2 of the Schedule. This request was first made by letter, dated August 20, 2015, and requested the following information and documentation:

1. A copy of Ms. Kovacevic employee file from 2011 to July 2015 showing commissions earned including a copy of the employee contract;

2. A Statutory Declaration providing particulars regarding the level of care being provided;

3. A detailed description of the hours worked to provide care for Mr. Griva on a daily/weekly/monthly basis; and

4. Confirmation via bank statements of the money being paid by Ms. Griva to Ms. Kovacevic.²¹

In making the above requests, AIG submits that they will assist in documenting whether or not the expense claims meet both the “incurred” and “economic loss” requirements of the Schedule.

In support of the above, AIG relies on a recent decision from Arbitrator Mutch where after analyzing the tax returns of a non-professional service provider, the Arbitrator found that the economic loss being claimed was not as a result of providing goods and services as required by the Schedule.²²

AIG argues that without the information and documentation it first requested on August 20, 2015, it does not have sufficient information to determine if the services were incurred and if Ms. Kovacevic sustained an economic loss as a result of providing the services to Mr. Griva or whether if a loss was sustained, is it attributable to other factors.

The Applicant’s Position

The Examinations

According to Mr. Griva, the issue is not whether or not AIG is entitled to conduct examinations for attendant care and housekeeping and home maintenance benefits. Mr. Griva concedes AIG is entitled to examine him and that is why he submitted to the examinations. However the issue in this matter is whether AIG has exceeded the reasonable bounds of the examination by subjecting him to suffer adverse physical and psychological health consequences.

When AIG provided Mr. Griva notice of the Insurer occupational therapy in-home assessment, it was indicated that the examination would last three to five hours and take one day.²³ According to Mr. Griva’s Affidavit, from the questions Ms. Lok asked him, “it seemed to me that she had not reviewed my medical records…seemed to me she did not even know I had broken my neck as she asked me questions like, why do you have pain?”²⁴

On November 3, 2015, Ms. Lok returned shortly after 10:00 a.m. to continue the assessment, she asked Mr. Griva more questions and conducted tests. According to Mr. Griva, by 2:00 p.m., he was feeling tired, experiencing pain, had difficulty thinking clearly and had a severe headache – at 2:30 p.m., he went to his bedroom to rest.²⁵ After Ms. Lok left, Mr. Griva measured his blood sugar and blood pressure, both of which were increased so he then took extra medication.²⁶ He also suffered another panic attack, was sweating, his chest felt tight, was having difficulties breathing and could not sleep.²⁷

Mr. Griva went to see his psychiatrist, Dr. Milenkovic, after Ms. Lok’s second visit. The doctor decided to increase his dosage of medication to help deal with his depression and anxiety and also advised that Mr. Griva should not be examined again by Ms. Lok.²⁸

Mr. Griva also provided a report completed by Dr. Milenkovic, dated November 8, 2015.²⁹ The report outlines a number of complaints made by Mr. Griva about Ms. Lok’s management of the assessments and his medical reactions after both of her visits. The following recommendations were made by Dr. Milenkovic in the report.

In the future, it would be helpful if an examiner becomes familiar with Mr. Griva’s medical and psychiatric histories prior to any further assessments. Having regard to the foregoing and from a psychiatric perspective any further assessment by Ms. Lok should be discontinued.³⁰

Mr. Griva also takes the position that AIG will not suffer any prejudice that outweighs the harm caused to him or that will likely be caused if he is required to submit to a further examination. As well, it is Mr. Griva’s position that AIG has been provided with or has access to his complete medical and rehabilitation record.

In support of his argument, Mr. Griva noted that the Commission “strongly disapproves of an insurer using excessive Insurer Examinations as a mean to harass or intimidate an applicant or in callous disregard to information that such assessments may adversely affect the health of the applicant.”³¹

Mr. Griva also submits that Insurer Examinations may not be conducted more than “reasonably necessary” and adjudicators have held that if an Insured has any potential of harm in such an examination, it is difficult to contemplate how such an examination would ever be considered “reasonably necessary”.³²

During oral submissions, counsel for Mr. Griva confirmed there was no evidence from Mr. Griva’s treating psychiatrist that he would suffer from the proposed psychological examination.

Requests with respect to Ms. Kovacevic – the service provider

Mr. Griva concedes that section 46.2 of the Schedule allows an Insurer “acting reasonably” to request information from an attendant care provider to assist in determining what is payable for attendant care benefits.

In this matter, Mr. Griva submits that the Insurer already has the required information as evidenced by the following. 1) AIG obtained a signed handwritten statement from Ms. Kovacevic on May 2, 2014, without Mr. Griva’s consent. In the statement, Ms. Kovacevic confirms she provides 40 hours per week of attendant care for which she receives payment of $2000.00 per month and advised that she also works full-time as an insurance broker at Union Insurance & Financial Service.³³ 2) During the Examination Under Oath, held on January 21, 2015, the Insurer thoroughly canvassed the attendant care services being provided by Ms. Kovacevic and Mr. Griva’s evidence was consistent with Ms. Kovacevic’s statement, dated May 2, 2014. 3) On July 17, 2015, Mr. Griva provided Ms. Kovacevic attendant care invoices for the period between June 20, 2012 and March 31, 2015, including daily time sheets and attendant care services provided. 4) As well, Ms. Kovacevic’s income tax records have been provided which show a significant decline in commission from her usual work as an insurance broker. And 5) As noted in AIG’s submissions, Ms. Lok, the occupational therapist, has interviewed Ms. Kovacevic for at least 25 minutes during the second round of the Insurer Examination.

Conclusion

The Examinations

Mr. Griva provided no submissions on why he should not have to undergo the psychological assessment being requested. It is noted that none of the Affidavits or reports from any of his treating health care providers take the position that it would be unreasonable for him to undergo a psychological examination due to potential negative health concerns. Thus until Mr. Griva has completed the proposed psychological examination his Arbitration Hearing is stayed.

With respect to completing the Insurer occupational therapy in-home assessment, I note that Mr. Griva has already undergone approximately 8 hours for this assessment. However the remaining physical functional testing is critical to completing the assessment and the Form 1. From the evidence before me, it is difficult to determine with certainty why the assessment to date has taken so long. There is evidence from both parties pointing to the other for the length of the testing.

While Mr. Griva has provided ample evidence that he should not have to complete the testing with Ms. Lok due to the potential negative health consequences, I find that based on the facts before me, including Mr. Griva’s own Affidavit and his treating psychiatrist’s report, dated November 8, 2015, he can complete the remaining testing for the Insurer occupational therapy in-home assessment with another occupational therapist, as suggested by counsel for AIG. I find support in this finding by again referring to Dr. Milenkovic’s report, where he specifically commented on future examinations and concluded “In the future, it would be helpful if an examiner becomes familiar with Mr. Griva’s medical and psychiatric histories prior to any further assessments.”³⁴

The case law presented to me supports this decision, and in particular the ruling of the Court in Certas Direct Insurance Company v. Gonsalves.³⁵ I also note the case before me to have facts very different than the ones in the Macho and Unifund Assurance Company³⁶ decision and thus am finding that Mr. Griva would be acting unreasonably should he not complete the Insurer occupational therapy in-home assessment if it is conducted by an occupational therapist other than Ms. Lok.

Requests with respect to Ms. Kovacevic – the service provider

Based on the facts in this matter, the requirements of the Schedule, and the FSCO decisions before me, I am of the view that Ms. Kovacevic does not have to speak with and/or provide any information to AIG’s assessor as part of an Insurer occupational therapy in-home assessment. I do not find the Vanderidder v. Aviva Canada Inc.³⁷ decision relevant or helpful to AIG’s position. Mr. Griva’s submissions and evidence in this matter clearly demonstrate to me that Ms. Kovacevic has already provided a statement to AIG, spoken with Ms. Lok and the information and documentation required has already been provided to AIG to assist its occupational therapists in completing the Insurer occupational therapy in-home assessment.

Based on the evidence before me, I believe the documentation provided to date from Mr. Griva satisfies his onus for documenting that the attendant care services have been incurred and documenting Ms. Kovacevic’s economic loss. Having reviewed E.B. and Security National Insurance Company/Monnex Insurance Mgmt. Inc.,³⁸ I do not find that decision helpful in persuading me to order the production of Ms. Kovacevic’s employment file to further substantiate an economic loss. In fact, in that case, the Arbitrator was able to deal with the economic loss by reviewing the tax returns, which in this case have already been provided. It will be up to the Hearing Arbitrator to consider all the evidence and decide the issues at the Hearing.

EXPENSES:

The expenses of the Preliminary Issue Hearing are deferred to the Hearing Arbitrator.

April 18, 2016

Marshall Schnapp Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 118

FSCO A14-007847

BETWEEN:

SLOBODAN GRIVA

Applicant

and

AIG INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mr. Griva’s Application for Arbitration is stayed pending attendance and/or completion of the in-home attendant care assessment and a psychological assessment.

2. Mr. Griva’s service provider, Ms. Kovacevic, is not required to speak with the Insurer’s occupational therapist assessor as part of the Insurer Examination and is not required to provide the requested items in the section 46.2 request letter, as per the Schedule, dated August 20, 2015.

3. The expenses of the Preliminary Issue Hearing are deferred to the Hearing Arbitrator.

April 18, 2016

Marshall Schnapp Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Preliminary Issue Hearing (Insurer), Tab 2.F. at p. 5 of the transcript.
3. 3Ibid., at p. 7 of the transcript.
4. 4Ibid., Affidavit of Ms. O’Hara, Tab 2, para. 9.
5. 5Ibid., Tab 2.T.
6. 6Ibid., Tab 2.H.
7. 7Ibid., Tab 2.I.
8. 8Ibid., Tab 2.K.
9. 9Applicant’s Responding Record, Affidavit of Ian Furlong, paras. 28-30.
10. 10Ibid., para. 31.
11. 11Applicant’s Responding Record, Exhibit P, at p. 4.
12. 12Deschambault and Wawanesa Mutual Insurance Company (FSCO A14-005855), October 8, 2015, pp. 3.
13. 13Scott and T.T.C. (Markel Insurance) (OIC A-001116), September 4, 1992, p18.
14. 14Al-Shimasawi and Wawanesa Mutual Insurance Company (FSCO A05-002737), May 11, 2007, p. 7.
15. 15Ibid., p. 18.
16. 16Preliminary Issue Hearing, (Insurer), Tab W.
17. 17Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986, p. 3.
18. 18Affidavit of Ms. O’Hara, para. 19 and Treating Occupational Therapy Concerns Regarding IE OT Report, dated November 17, 2015, Tab Q.
19. 19Ibid., Affidavit of Ms. O’Hara, para. 20.
20. 20Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, paras. 22 and 34.
21. 21Supplementary Materials of the Insurer, Tab C.
22. 22E.B. and Security National Insurance Company/Monnex Insurance Mgmt. Inc. (FSCO A12-005316, January 16, 2015), p. 13.
23. 23Applicant’s Responding Record, Affidavit of Slobodan Griva, para. 11.
24. 24Ibid., para. 13.
25. 25Ibid., para. 19.
26. 26Ibid., para. 21.
27. 27Ibid.
28. 28Ibid., para. 22.
29. 29Applicant’s Responding Record, Dr. Milenkovic Report, dated November 8, 2015, Tab P.
30. 30Ibid., page 4.
31. 31Chafe-Moote and Prudential of America General Insurance Company (Canada) (FSCO P99-00044), September 8, 2000.
32. 32Macho and Unifund Mutual Insurance Company, (FSCO A13-014546), January 4, 2016 and H.T. and Security National Insurance Company/Monnex Insurance Mgmt. Inc. (FSCO A08-002642), February 9, 2009.
33. 33Supplementary Submissions of the Applicant, Transcribed Statement of Mira Kovacevic
34. 34See note 29.
35. 35See note 17.
36. 36See note 32.
37. 37See note 20.
38. 38See note 22.