Hongmei Yang v. Co-operators General Insurance Company, 2016 ONFSCDRS 133

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 133

FSCO A15-003178

BETWEEN:

hongmei yang

Applicant

and

co-operators general INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Arbitrator Benjamin M. Drory

Heard:

By written submissions completed between March 21, 2016 and March 31, 2016

Appearances:

Mr. Stanley Razenberg participated for Ms. Hongmei Yang

Mr. Bruce A. Keay participated for Co-operators General Insurance Company

Issues:

The Applicant, Ms. Hongmei Yang, was injured in a motor vehicle accident on September 22, 2013 and sought accident benefits from Co-operators General Insurance Company (“Co-operators”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Yang, 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.

The issues in this Motion are as follows:

1. Is Co-operators entitled to a stay of the proceeding in respect of the catastrophic issue if the Applicant fails to attend an Insurer’s Independent Medical Examination (“IME”) with Dr. Christopher Hope, neuropsychologist, or, in the event of Dr. Hope’s unavailability, another neuropsychologist as chosen by the Insurer?

2. Is either party entitled to expenses respecting this Motion, pursuant to the Dispute Resolution Practice Code (“the Code”)?

Result:

1. Co-operators’ request for a stay of the proceeding in respect of the catastrophic issue is declined. The matter shall proceed as scheduled beginning on June 13, 2016.

2. The question of expenses related to this Motion is deferred to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Background

This Motion originally initiated with a request for an Order for productions. By letter, dated February 10, 2016, Mr. Keay wrote requesting a resumption of the Pre-Hearing seeking an Order compelling Ms. Yang’s counsel (Ms. Wendy Sokoloff) to comply with some of his client’s requests for productions. A resumption of the Pre-Hearing was eventually scheduled for the afternoon of March 28, 2016 to address that issue. By subsequent correspondence, dated March 3, 2016, Mr. Keay stated that Ms. Yang had not attended a neuropsychological IME that had been scheduled with Dr. Hope, and therefore ought to be precluded from addressing the issue of catastrophic impairment in the Hearing, by virtue of s. 55 of the Schedule. Mr. Keay proposed to use the March 28, 2016 resumption to address this issue, unless Ms. Sokoloff would advise Ms. Yang to attend the IME indicated. No response was received from Ms. Sokoloff within a one-week deadline that I set. Accordingly, a written Motion was initiated instead to address the issue—it was fundamentally framed as a request by Co-operators to stay the Arbitration proceeding in respect of the catastrophic issue both (a) if Dr. Hope’s IME was not attended, and (b) if Ms. Yang failed to comply with Co-operators’ request for productions. The parties agreed to expedited timelines for submissions given the proximity of the scheduled Hearing.

The production Order request was addressed verbally between Mr. Razenberg (an associate of Ms. Sokoloff), Mr. Keay, and I at the March 28, 2016 telephone resumption. I was satisfied at that time that there had been significant efforts by Ms. Yang’s counsel to the produce the documentation requested; many of the items had in fact been produced, and the handful of remaining requested items outstanding were not a result of deficient efforts on their own behalf. Mr. Keay advised that the Insurer might later seek Motions to compel productions directly from the third parties involved. It was ultimately agreed that the request for an Order respecting productions was no longer in dispute following the resumption. But the issue respecting the stay request remains live, and is the subject of this Motion.

Decision

Co-operators’ Submission

The grounds for Co-operators’ Motion were sections 44 and 55 of the Schedule. Co-operators submitted an Affidavit by Ms. Helene Towsley. Ms. Towsley advised that Co-operators arranged for Ms. Yang to be assessed in respect of the catastrophic impairment issue by Dr. Christopher Hope, a neuropsychologist, on Monday June 8, 2015, but Ms. Yang failed or refused to attend that assessment.

Ms. Towsley stated that Ms. Yang submitted an Application for Determination of Catastrophic Impairment (“OCF-19”) to Co-operators in March 2015. Co-operators wrote back to Ms. Yang and her lawyer, acknowledged receipt of the OCF-19, and advised that they were not satisfied that her impairment sustained as a result of the accident met the parameters of Criteria 7 or 8² of the Application for Determination of Catastrophic Impairment, and advised the Applicant that they would require an IME of her.

In order to determine which medical professionals should assess the Applicant with respect to her OCF-19, Co-operators arranged for a catastrophic paper review of the file with Judy Phillips, an occupational therapist with AssessMed Quality Assessments. On April 11, 2015, Ms. Phillips reported that, based on her review of the medical documentation available, Ms. Yang should undergo a psychiatric assessment, a physiatry assessment, a neuropsychological assessment and an occupational therapy assessment.³ Co-operators wrote to the Applicant and sent her a Notice of Examination, dated April 27, 2015, which advised her that she was to be assessed by Dr. Stanley Debow (psychiatrist), Joanne Romas (occupational therapist), Dr. Albert Cheng (physiatrist), and Dr. Christopher Hope (neuropsychologist). The appointment with Dr. Hope (the IME at issue in this Motion) was scheduled for June 8, 2015.⁴

Ms. Sokoloff then wrote to Ms. Towsley on May 1, 2015, and advised that they would agree to the occupational therapy, physiatry, and psychiatry IMEs respecting the OCF-19, but they would not agree to the neuropsychological IME.⁵ Ms. Towsley wrote back on May 5, 2015 and noted that, pursuant to s. 44 of the Schedule, an Insurer may require an insured person to be examined by more than one person chosen by the Insurer who are regulated health professionals. Dr. Hope was chosen as an assessor for the IME as he had the qualifications and experience to do the assessment. Ms. Towsley advised Ms. Sokoloff that if her client would not comply with the IME, then she would not be allowed to mediate until such time as she complies with the Insurer Examination process.⁶ Ms. Yang failed to attend the IME with Dr. Hope scheduled for June 8, 2015.

Dr. Bob Karabatsos, an orthopaedic surgeon, was later asked by AssessMed to prepare the Executive Summary for the purposes of the final Catastrophic Impairment Determination. In his report, dated July 13, 2015, he noted that Ms. Yang attended only two of the three catastrophic assessments, and that she failed to attend the neuropsychological assessment with Dr. Hope. Dr. Karabatsos noted that based on physical examination of the Applicant, she did not meet the definition of catastrophic impairment based on a 55% whole person impairment (i.e. Criteria 7), but he wrote “a complete catastrophic impairment rating report cannot be completed until an assessment is completed to address Criteria 8” (i.e. Class 4 Impairment (marked impairment) or Class 5 Impairment (extreme impairment) due to mental or behavioural disorder).⁷ Accordingly, Dr. Karabatsos could not fully complete his catastrophic impairment rating report.

Ms. Towsley stated that Ms. Yang has failed or refused to attend the IME in issue with Dr. Hope to date, and the only reason provided is the advice of her counsel, wherein they do not feel she has sustained a head injury, and therefore they suggest a neuropsychological evaluation is not reasonable nor necessary. However, Ms. Towsley suggests the medical records include a consultation by Dr. Ken Roberts, dated July 14, 2013, which described a “CT lesion in the right lower lobe that could have been on the basis of aspirated blood or local alveolar hemorrhage, it could also be a community acquired atypical pneumonia…” Further, Ms. Yang’s family physician, Dr. Hsu, completed a Disability Certificate, dated September 30, 2013, in which under the heading “Injury and Sequelae Information” he wrote “concussion symptoms, nausea, vomiting, headache, neck, and whiplash injury, acute traumatic stress disorder, nightmares, mood disturbance, bilateral shoulder pain.”⁸ On December 4, 2013, Dr. Scott McCullough wrote of the Applicant that “she described prominent neck and back pain along with throbbing headaches, she has ongoing sensitivity to noise and light and what sounds like tinnitus, she has ongoing dizziness, and in the cognitive domain she describes memory problems, but also she has intrusive thoughts of the accident.”

Therefore, Ms. Towsley asserted that there is sufficient justification to warrant an IME of the Applicant by a neuropsychologist, given the circumstances. She noted that at the Pre-Hearing for this matter, which took place on November 4, 2015, Ms. Sokoloff insisted that an early date be provided for the Arbitration Hearing, and against the objections from Mr. Keay, the Hearing in this matter was scheduled for June 13 to 30, 2016.

Ms. Yang’s Response

Mr. Razenberg, counsel with Sokoloff Lawyers, advised that he was assisting Ms. Sokoloff with this file, and submitted Ms. Yang’s response to Co-operators’ Motion. Mr. Razenberg advised that Ms. Yang resists Co-operators’ Motion seeking an Order staying the Arbitration proceeding until Ms. Yang attends at an IME with a neuropsychologist for three reasons:

1. On the facts of this case, the request for a neuropsychological assessment is not reasonable, as no brain injury or cognitive deficits are being alleged;
2. Co-operators’ request for any further IMEs at this point is not reasonable, given the Insurer’s allegation of fraud and claim for repayment of all statutory accident benefits, coupled with the Insurer’s refusal to consider any further claims for statutory accident benefits;
3. Granting this Motion would certainly disrupt the Arbitration Hearing set to commence on June 13, 2016.

Mr. Razenberg stated that sections 44 and 45 of the Schedule govern an Insurer’s right to conduct a catastrophic impairment IME. They provide for, in part, as follows (emphasis added by Mr. Razenberg):

Examination required by insurer

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

(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. O. Reg. 34/10, s. 44 (2).

Determination of catastrophic impairment

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

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

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

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

(3) Within 10 business days after receiving an application under subsection (1) prepared and signed by the person who conducted the assessment or examination under subsection (2), the insurer shall give the insured person,

(a) a notice stating that the insurer has determined that the impairment is a catastrophic impairment; or

(b) a notice stating that the insurer has determined that the impairment is not a catastrophic impairment and specifying the medical and any other reasons for the insurer’s decision and, if the insurer requires an examination under section 44 relating to whether the impairment is a catastrophic impairment, so advising the insured person. O. Reg. 34/10, s. 45 (3). (Emphasis added)

Mr. Razenberg referred to the case of Bogic and Axa Insurance (Canada),⁹ and stated that Arbitrator VanderBent confirmed therein that an Insurer does not have a unilateral choice concerning which IMEs are scheduled and when. The Insurer’s request must be objectively reasonable, and several factors were set out in assessing reasonableness. Arbitrator VanderBent observed as follows (from paragraph 14 of his decision; emphasis Mr. Razenberg’s):

1. Arbitrators have consistently emphasized that the purpose of subsection 23(2) [currently s. 44] of the Schedule is to enable an insurer to fairly and effectively assess a claim for weekly disability benefits. This is not merely an insurer’s right, but an obligation it owes to its insured.
2. The regulation attempts to balance an insurer’s right to request an examination and an applicant’s right to privacy. A request may be made only as often as is reasonably required. However, neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination. “Reasonableness” is an objective standard. It is not for an arbitrator to “second guess” an insurer’s actions or motives in requiring a medical examination.
3. The choice of specialist is that of the insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed. An insurer may require more than one examination, or examinations by more than one specialist or a multi-disciplinary assessment.
4. Subsection 23(2) [currently s. 44] of the Schedule is not limited to requests made before the termination of benefits or commencement of mediation.
5. Where there is a claim for ongoing benefits, and a lengthy period of time has transpired since the most recent examination, it is fair, and hence reasonable for an insurer to request further examinations in order to evaluate the applicant’s claim. Further examinations are also reasonable where there have been changes in the nature of the insured person’s medical or psychological condition which are relevant to his or her disability claim. However, it is unreasonable to request an examination where circumstances indicate that its only apparent purpose is to acquire medical evidence to bolster the insurer’s case at a hearing.
6. The closer a request is made to a hearing, the closer the scrutiny of its reasonableness, to ensure that there is no avoidable delay or that the insured’s preparation for the hearing is not prejudiced. The speed and informality of the dispute resolution process do not allow for the insurer to investigate the Applicant’s claim indefinitely.
7. While an arbitrator has no authority to compel an insured person to submit to an insurer’s examination which has been reasonably requested pursuant to s. 23(2) [currently s. 44], an arbitrator may adjourn the hearing until the insured person attends such examination. However, an arbitrator’s power includes the discretion, in appropriate cases, to refuse to adjourn a hearing to allow an insurer time to conduct a medical examination, where to do so would be unfair to the applicant.

Mr. Razenberg submitted that applying the reasoning in Bogic to the facts of the case supports Ms. Yang’s submission that a neuropsychological IME is not reasonably necessary at this time.

With respect to the first principle from Bogic (“the purpose of s. 44 IME is to fairly and reasonably assess the claim”), Mr. Razenberg stated that the statute recognizes that a neuropsychological assessment is required when one sustains a brain impairment (see s. 45(2)2 of the Schedule); but on the facts of the case, no brain or cognitive impairment is being alleged. The OCF-19 completed by Ms. Yang’s family physician was being made on the basis of a psychological condition and a physical condition; there was no reference to a brain impairment or to any cognitive impairment.¹⁰ By letters, dated May 1, May 6 and May 14, 2015, Ms. Sokoloff wrote to the Insurer repeatedly confirming that there is no brain impairment or cognitive impairment being claimed in this case, and seeking an explanation as to why a neuropsychological assessment was being requested.¹¹ The Insurer provided two responses: they first wrote advising that they have a unilateral choice to arbitrarily select any assessment type of their choosing; later, the Insurer wrote back advising that Dr. Hope would in fact be providing a psychological assessment, and not a neuropsychological assessment (emphasis Mr. Razenberg’s).¹²

Mr. Razenberg submitted that even if the Insurer’s request is viewed in the context of a psychological assessment and not a neuropsychological assessment, the request is still not reasonable. The Insurer had the Applicant assessed by psychiatrist Dr. Debow on at least four separate occasions. Dr. Debow was listed in the Insurer’s Notice of Examination (OCF-25) as a catastrophic impairment assessor. Ms. Yang participated in the assessment with Dr. Debow on or about May 8, 2015. Dr. Debow provided the Insurer with an opinion both in terms of accident-related psychological impairment and diagnoses. Accordingly, a further psychological assessment would be a duplication of the psychiatric assessment performed by Dr. Debow, and not reasonably necessary.¹³

Mr. Razenberg submitted that by letter, dated July 21, 2015, Mr. Keay wrote to Ms. Yang and his office alleging fraud on Ms. Yang’s part.¹⁴ Since that date, Co-operators has denied any and all claims submitted by Ms. Yang or on her behalf, on the basis that her claim for statutory accident benefits has been terminated due to material misrepresentation under s. 53 of the Schedule.¹⁵ Mr. Razenberg stated that given the Insurer’s position that the Applicant lies to all medical assessors and treatment providers regarding the state of her health, it is unreasonable for the Insurer to now seek that the Applicant participate in the expense of a further IME assessment. The Insurer has made it clear that they will not consider any further entitlement to any statutory accident benefits until the Insurer’s allegation of fraud has been adjudicated—which is, in part, the subject of the upcoming Arbitration Hearing.

With respect to the second principle from Bogic (“reasonableness is an objective standard”), Mr. Razenberg reiterated that the Insurer’s request for a neuropsychological assessment is not objectively reasonable because no brain injury or cognitive impairment is alleged, the Insurer has had numerous psychiatric IME assessments, and the Insurer is alleging that the Applicant lies to the assessors in furtherance of her claim.

With respect to the third principle from Bogic (“nexus between choice of specialist and injuries claimed”), Mr. Razenberg submits that there is no reasonable nexus between the injuries claimed and a neuropsychologist. He suggests Co-operators themselves acknowledged that they would be conducting a psychological assessment and not a neuropsychological assessment. While Mr. Razenberg agreed that there is a reasonable nexus between a psychologist and the injuries claimed, he submitted that a further psychological assessment is not reasonably necessary in view of the fact that the Insurer has had the Applicant assessed on four occasions by psychiatrist Dr. Debow. Dr. Debow was listed on the Insurer’s catastrophic impairment IME Notice, and the Applicant participated in an assessment with him. Dr. Debow provided the Insurer with an opinion on the Applicant’s accident-related psychological impairments and diagnosis. Mr. Razenberg submitted that a further psychological assessment would add nothing new.

With respect to the fourth principle from Bogic (“IME assessments are not limited to pre-termination time periods”), Mr. Razenberg acknowledged that an Insurer has an ongoing right to conduct further IMEs which are reasonably necessary, even after a benefit has been terminated. He asserts that Ms. Yang is not saying that Co-operators’ termination of benefits is what precludes them from arranging a further IME assessment—to the contrary, Ms. Yang had participated in three catastrophic impairment IME assessments even after Co-operators denied certain benefits, during a time period that it was writing to Ms. Yang pointing to their medical opinions (from Dr. Oshidari) that she had not sustained any organic injuries/abnormalities, or any true impairment.¹⁶ After the catastrophic impairment IME assessments were completed, Co-operators then made its allegations of fraud. Mr. Razenberg submitted that Co-operators’ allegations of fraud, and the nature of the fraud being alleged, calls the reasonableness of their request for further IMEs into question—the Insurer has made it clear that they will not consider any further entitlement to any statutory accident benefits until their fraud allegation has been adjudicated. Accordingly, the Insurer cannot now argue that it needs a further IME to assess the Applicant’s entitlement to benefits, as it is more likely than not that the Insurer is seeking the further IME to bolster its position respecting entitlement, in case it does not succeed on the issue of fraud.

With respect to the fifth principle from Bogic (“has a lengthy period of time transpired since the last IMEs”), Mr. Razenberg submitted that Co-operators conducted extensive IMEs less than one year ago, and that there has been no drastic change in Ms. Yang’s condition since that time to warrant further IMEs. He submits that Co-operators only seeks the neuropsychological IME in order to bolster its denial/fraud argument.

With respect to the sixth principle from Bogic (“timing of the Insurer’s request”), Mr. Razenberg submits that the request for a neuropsychological assessment arose at the same time as the request for a psychiatry assessment.¹⁷ Following this course of IMEs, the Insurer raised its allegations of fraud. At that time, it had already been given an opportunity to have numerous assessments with Dr. Debow, a psychiatrist, as well as a physiatry assessment with Dr. Cheng and an occupational therapy assessment with Joanne Romas.

The Insurer commenced this Motion approximately three months before the Hearing was set to start—which is thereby only two months away from the 30-day deadline the parties have under Rule 39 of the Code to serve upon one another all materials they intend to rely upon at the upcoming Hearing and identify all witnesses. Co-operators has known that Ms. Yang contested the reasonableness of this IME for almost a year. The Insurer filed its Response in this proceeding approximately 10 months ago, and could have brought this Motion at any time since filing its Response. The Insurer has provided no explanation for why this Motion was brought on the eve of the Hearing dates, and not sooner. Even if a request for a neuropsychological assessment would be found to be reasonably warranted, Mr. Razenberg submits that the proximity of time between this Motion and the Hearing, and specifically the fact that allowing this IME would frustrate the Hearing dates, was in-and-of-itself reason to deny Co-operators’ Motion.

With respect to the seventh principle from Bogic (“would a stay or adjournment of the Arbitration be unfair to the Applicant”), Mr. Razenberg submits that on the facts of this case, a stay or adjournment of the upcoming Arbitration Hearing would be manifestly unfair to the Applicant. Co-operators had provided no detailed explanation for why a neuropsychological assessment is reasonably necessary, especially given numerous assessments with a psychiatrist had already been conducted, and had arguably conceded the fact that a neuropsychological assessment is not reasonably necessary by stating that it would like a psychological assessment instead. Co-operators alleged fraud on Ms. Yang’s part, and ceased paying all statutory benefits on that basis. Mr. Razenberg states that Ms. Yang desperately “wants her day in court”—as quickly as possible, so that she can prove her case on its merits and gain access to the benefits that she desperately needs. He claims the Insurer’s allegation of fraud and claim for repayment weigh heavily on Ms. Yang, and she wants to hear the case against her and respond to the unproven allegations.

Mr. Razenberg asserted that the Applicant only asks for her Arbitration Hearing to prove her claims and to test the Insurer’s allegations, and that the parties proceed to a Hearing of the issues on their merits.

Co-operator’s Reply

Co-operators reiterated its request that the portion of Arbitration proceeding concerning the catastrophic issue be stayed until the Applicant attends an IME with a neuropsychologist; its basis was as follows.

Judy Phillips’ catastrophic paper review of April 11, 2015, which indicated that Ms. Yang would need to be assessed by a neuropsychologist, noted that her family physician, Dr. Hsu, reported on September 30, 2013 that Ms. Yang had concussion symptoms. Further, she noted that the Applicant’s treating occupational therapist, Mr. Raymond Wong, reported October 9, 2013 that she should have additional assessments, including an assessment by a neuropsychologist.

On May 25, 2015, following Ms. Sokoloff’s persistent refusal to allow her client to attend the neuropsychological assessment, Co-operators wrote to Ms. Sokoloff and advised that Dr. Hope would perform a psychological assessment of the Applicant, and as Co-operators was funding psychological intervention for her, they chose Dr. Hope as the assessor for the IME as he has the qualifications and experience to do this type of assessment.

Co-operators submitted that there had been no delay on its part in bringing this Motion for a stay of the Arbitration proceeding insofar as the catastrophic issue was concerned. The original Application for Arbitration did not include a catastrophic impairment determination as an issue in dispute; it was not added as an issue in dispute in this proceeding until my second Pre-Hearing letter, dated November 18, 2015.

It reiterated the law it relies on in this Motion. Sections 44 and 45 of the Schedule set out the circumstances under which an Insurer is entitled to an IME of an Applicant, and in particular in respect of a claim that the Applicant has sustained a catastrophic impairment. Section 55 of the Schedule sets out that an insured person shall not commence a mediation proceeding under s. 280 of the Insurance Act if any one of certain circumstances exist—including that the Insurer has provided the insured person with notice in accordance with the regulation that it requires an examination under s. 44, but the insured person has not complied with that section. Co-operators submitted that Ms. Yang was not entitled to mediate the issue concerning catastrophic impairment as she failed to attend the IME in issue pursuant to ss. 44 and 45 of the Schedule, and therefore pursuant to s. 281(2) of the Insurance Act could not have mediated her claim, and therefore is not legally entitled to proceed to Arbitration on that issue.

Mr. Keay provided the Divisional Court case of Ramalingam v. State Farm,¹⁸ which he asserted stood for the proposition that certain objective factors should be considered when assessing an Insurer’s request for an IME, rather than focusing on the Insurer’s motivations or subjective factors. The factors to be considered include the timing of the request, whether the Claimant disclosed relevant materials as soon as reasonably possible in accordance with the Code, and whether the Insurer made its IME request as soon as it reasonably determined the need for the examination. Another factor is whether there was a reasonable nexus between the requested examination and the injured person’s injuries, among other factors. Mr. Keay submitted that Co-operators’ request for an evaluation of Ms. Yang by Dr. Hope is reasonably required based on the medical evidence, including Dr. Hsu, who diagnosed her as suffering from a concussion, and the treating occupational therapist, who recommended that she undergo a neuropsychological evaluation.

Mr. Keay also provided the case Phillipaiya and T.D.,¹⁹ wherein he stated that the Arbitrator concluded the Insurer’s request for the IME was reasonable after considering the balance between the insured person’s right to privacy and the Insurer’s ongoing right and obligation to assess the claim. The Arbitrator was influenced by the fact that Mr. Phillipaiya had still not produced many of the medical records that the Insurer had repeatedly requested, and the IMEs were reasonably required in order for the Insurer to determine Mr. Philippaiya’s ongoing entitlement to the benefit in issue.

Mr. Keay noted that elsewhere in Bogic, the Arbitrator held that “it is not for an arbitrator to “second guess” an Insurer’s actions or motives in requiring a medical examination. The choice of specialist is that of the Insurer, provided that a reasonable nexus exists between the choice of specialist and the injuries claimed.”

Mr. Keay concluded by saying that Co-operators is not seeking a delay of the entire Arbitration Hearing—only the issue of the catastrophic impairment determination, which was added late by Ms. Yang after the Pre-Hearing in November 2015. The request for the stay of the Arbitration was only initiated when no response was forthcoming respecting additional productions requested once that issue was added. If Ms. Yang would agree to attend the evaluation with Dr. Hope, then there may be no need to stay the Hearing, on the assumption Dr. Hope could complete the assessment and produce his report more than 30 days prior to the commencement of the proceeding. Respecting Mr. Razenberg’s suggestion that Dr. Debow’s examination should be sufficient, Mr. Keay noted that Dr. Debow had not rendered an opinion regarding whether or not the Applicant has sustained a catastrophic impairment, and anticipated Ms. Yang’s counsel would object to him giving an opinion on that issue at the Hearing. Dr. Debow’s opinion only concerned whether or not Ms. Yang has sustained a complete inability to carry on a normal life, and was therefore directed towards the non-earner benefit. The fact that Co-operators has terminated payment of benefits on the basis of a material misrepresentation did not disentitle the Insurer to an IME of the Applicant respecting the catastrophic impairment claim—Co-operators’ position was not only that Ms. Yang made a material misrepresentation, but also that she does not qualify as having sustained a catastrophic impairment, and the Insurer should be entitled to have medical assessments in place to address that position at the Arbitration hearing.

Analysis

Both parties raised persuasive and credible points. I ultimately find that the balance of fairness points in favour of the Applicant in the circumstances of this Motion. As stated by Arbitrator Sapin in Phillipaiya, the question of whether of an IME is reasonably required turns very much on the facts.²⁰

I accept that Insurers have wide latitude under s. 44 of the Schedule to schedule IMEs to assess whether Applicants are entitled to benefits sought, and more than one IME may be sought at their discretion. However, what the cases on point have established is that that right is not absolute. Arbitrator Sapin’s comments in Phillipaiya are notable to me (emphasis mine):²¹

The parties cited a number of cases in support of their positions. For the most part, arbitrators and judges agree on certain general principles, beginning with the understanding that although the primary purpose of IEs under the Schedule is for the insurer to determine initial or ongoing entitlement to benefits, i.e., to adjust claims, “as often as reasonably required”, the timing of the requests and other circumstances may limit that right the closer the parties are to arbitration. The statutory right to an IE is limited by an adjudicator’s discretion to control the dispute proceedings in the interests of procedural fairness to both parties. Since the Divisional Court decision in Gonsalves,²² the emphasis has shifted from one of strict adherence to the requirement of the Schedule to whether the IE request is consistent with procedural fairness.

In Ramalingam,²³ the Director’s Delegate outlined factors arbitrators should consider in determining whether an IE is reasonably necessary:

• The timing of the request, especially where it will require the hearing to be adjourned;

• Whether the claimant disclosed relevant materials as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether the insurer made its IE request as soon as it reasonably determined the need for the examination;

• What other information is available to the insurer, including information provided by the claimant and the number, nature and date of previous IE’s;

• Whether information provided by the claimant since the insurer’s last IE suggests a new diagnosis, a change in the claimant’s condition or a new direction in medical investigation of it;

• Whether the insurer accepts the claim and continues to pay benefits;

• Generally, whether the request is reasonable considering the balance between the insured person’s right to privacy and the insurer’s ongoing right and obligation to assess the claim.

I accept that Bogic also remains a persuasive case, and that the criteria referred to therein reflect important principles that guide an Arbitrator in considering a case such as this.

I do not accept the assertion on behalf of Ms. Yang that the IME was requested unreasonably late by Co-operators. In fact, this IME request was initially made early on—at the same time as it requested the three other IMEs, which Ms. Yang’s counsel agreed were reasonable, and Ms. Yang attended. It entirely appears that it was for the purpose of adjusting the claim. But I am persuaded by the Applicant’s submission that the Insurer has quite a bit of other information in this case—including most notably that Ms. Yang attended three other IMEs without incident, including one with the psychologist Dr. Debow. Mr. Razenberg submitted that Ms. Yang was assessed by Dr. Debow on four occasions. This is not a case like Phillipaiya itself where the Insured had not attended any IMEs at all, which from my review was a key aspect that led to the result in that case. I also accept from the record²⁴ that Co-operators ultimately said Dr. Hope would be conducting a psychological assessment (and not a neuropsychological assessment), as Co-operators was funding psychological intervention for Ms. Yang at the time. I do not suggest that Dr. Hope’s assessment would be duplication of Dr. Debow’s assessment; however, I find Mr. Razenberg’s assertion reasonable that a further psychological assessment is not necessitated in the circumstances, where Ms. Yang had already submitted to a psychological assessment with Dr. Debow. Ms. Yang’s counsel also asserted repeatedly on the record that no brain injury has been alleged, which I note is the basis in s. 45 of the Schedule mandating involvement of a neuropsychologist.

I accept Mr. Razenberg’s assertion that even if Dr. Hope’s examination is completed, it is not likely to actually influence Co-operators’ decision whether to pay Ms. Yang benefits or not, given their ongoing allegation of material misrepresentation and claim for repayment of benefits paid. However, that being said, I do not find it an especially compelling factor in this case—regardless of whether Co-operators would change their opinion or not on the basis of the examination, their entitlement to conduct the examination emanates from s. 44 of the Schedule, and is not a question of simply whether it influences the decision to say ‘yes’ or ‘no’.

A most compelling factor to me in this case is the timing of this Motion relative to the Hearing. I am sympathetic to the Applicant’s submission that all she wants is for her Hearing to proceed, and she wants it as soon as possible—which has been her stance throughout this proceeding, including at the Pre-Hearing.

There are a great number of issues in dispute in this matter—which, as of the most recent Pre-Hearing letter (March 22, 2016), are as follows:

1. Did Ms. Yang suffer a catastrophic impairment, as defined in s. 3(2) of the Schedule, as a result of the motor vehicle accident?

2. Is Co-operators entitled to a repayment of all accident benefits paid to Ms. Yang, totaling over $118,000.00 (no further specifics provided), respecting payments of non-earner benefits, medical benefits, cost of examinations, rehabilitation benefits and interest?

3. Co-operators asserted that it was entitled to terminate all benefits under the Schedule on the basis of material misrepresentation (s. 53).

4. Is Ms. Yang entitled to receive non-earner benefits at a rate of $185.00 per week for the period from June 18, 2015 to date and ongoing?

5. Is Ms. Yang entitled to attendant care benefits at a rate of $6,000.00 per month, and not as stated in the Application for Arbitration, for services provided by Jiaying Zhu from September 22, 2013 to date and ongoing, less amounts paid?

6. Is Ms. Yang entitled to payments for housekeeping and home maintenance services at a rate of $100.00 per week for services provided by Jiaying Zhu from September 22, 2013 to date and ongoing?

7. Is Ms. Yang entitled to receive medical benefits in the following amounts?:

8. For acupuncture and massage therapy provide by Song’s Natural Health Clinic:

i. $4,633.00 for a treatment plan, dated September 15, 2014

ii. $5,311.00 for a treatment plan, dated September 15, 2014

iii. $4,633.00 for a treatment plan, dated January 12, 2015

iv. $4,633.00, denied November 20, 2014

v. $4,633.00, denied January 23, 2015

vi. $4,633.00, denied June 3, 2015

2. For services provided by ChaoLun Medical & Health Services:

i. $587.59 for psychological counselling, submitted June 3, 2014

ii. $587.59 for occupational therapy, submitted August 8, 2014

iii. $433.49 for psychological counselling, submitted August 18, 2014

iv. $4,554.80 for occupational therapy and acupuncture, denied March 3, 2015

v. $3,024.64 for psychological services, denied June 18, 2015

3. For prescription expenses:

i. Provided by unspecified service provider:

1. $466.25, denied August 17, 2015

2. $492.58, denied September 11, 2015

3. $339.55, denied October 8, 2015

ii. Provided by Shoppers Drug Mart:

1. $467.30, expenses claim form (OCF-6), dated November 3, 2015

2. $261.19, expenses claim form, dated December 2, 2015

3. $90.27, expenses claim form, dated January 6, 2016

4. $120.56, expenses claim form dated February 8, 2016

5. Is Ms. Yang entitled to payments for the cost of examinations for services provided by ChaoLun Medical & Health Services Inc. in the following amounts?:

6. $334.02 for a neurocognitive assessment, dated June 11, 2014?

7. $1,5909.00 [sic] for an in-home reassessment, denied September 17, 2015

8. Is Co-operators liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Yang?

9. Is Co-operators liable to pay Ms. Yang’s expenses in respect of the Arbitration?

10. Is Ms. Yang liable to pay Co-operators’s expenses in respect of the Arbitration?

11. Is Ms. Yang entitled to interest for the overdue payment of benefits?

In light of the number and seriousness of the claims asserted by both parties, three weeks were granted to hear this matter—which is significantly more than normal. At its heart, this is fundamentally a case where the Applicant says she is catastrophically injured, opposed by the Insurer alleging that the Applicant is not only not catastrophically injured, but in fact has lied to it repeatedly over time, entitling it to a significant repayment (over $118,000.00) of benefits previously improperly paid to her.

I do not make any conclusions regarding the merits of the claims themselves—that is for the Hearing Arbitrator. But the underlying philosophy of the entire FSCO dispute resolution process is timely and efficient resolution of disputes. Delay in paying benefits to Applicants has a significant impact upon them during those periods. Generally, this impact is exacerbated in the case of catastrophically injured Applicants. I cannot say if Ms. Yang satisfies the test of catastrophic impairment or not; but if she does, then to put off the Hearing for another year or so would have a significant adverse impact on her. Co-operators’ claim for over $118,000.00 in repayment also leads my analysis in the same direction—that issue clearly represents a significant risk for Ms. Yang in proceeding with the Hearing. If the Hearing proceeds as scheduled and she is unsuccessful on all counts, then she will in fact have expedited being forced to pay a very significant amount of money to the Insurer.

I note in passing that staying the catastrophic impairment issue would not only affect that issue by itself. There is a claim for attendant care benefits at a rate of $6,000.00 per month—by law, claims at rates between $3,000.00 per month to $6,000.00 per month can only be satisfied when an Applicant is found to be catastrophically impaired. Similarly, housekeeping and home maintenance benefits are in dispute—and Co-operators’ Response to the Application for Arbitration (“Form E”), dated May 25, 2015, stated that Ms. Yang did not buy the optional housekeeping and home maintenance benefit on her insurance policy, making her ineligible to claim the benefit—unless deemed catastrophically impaired. So the Hearing Arbitrator’s ability to consider both the attendant care and housekeeping and home maintenance issues would be directly impacted by a stay of the catastrophic impairment issue. I believe that fairness and efficiency demand that all of the issues in this case be considered together by the Hearing Arbitrator.

I do not agree with Mr. Razenberg’s submission that this Motion was initiated unduly late by Co-operators—it realistically could not have been heard by any Arbitrator prior to the Pre-Hearing of November 4, 2015. But that said, I also do not agree with Mr. Keay’s suggestion that the catastrophic impairment issue was added late in the proceedings after the Pre-Hearing. At the Pre-Hearing on November 4, 2015, both counsel advised me that the catastrophic impairment issue had been mediated earlier that week, on November 2, 2015, and that I should expect to receive the Report of Mediator shortly. The entire discussion at the Pre-Hearing was predicated on a common understanding that the catastrophic impairment dispute was central to the case, and everyone involved knew it was going to be added to the proceeding soon. Catastrophic impairment was officially added as in issue in this case two weeks later, by my letter dated November 18, 2015.

Significant effort was expended at the Pre-Hearing in determining the Hearing dates for this matter. The dates were set in accordance with the discussion, and bearing in mind Practice Note 7 of the Code. A foundational goal of the dispute resolution process is timely resolution of disputes.

This Motion was initiated in March 2016 for a Hearing scheduled beginning June 13, 2016. Submissions were completed on March 30, 2016. In accordance with Rule 39 of the Code, all evidence either party intends to rely on at the Hearing must be submitted 30 days before that date—i.e., by May 14, 2016. The motion process takes a certain amount of time, and all involved were certainly aware of that. To grant a stay of the catastrophic issue to, effectively, mandate the neuropsychological IME would almost surely subsequently lead to an adjournment of the full Hearing in order to fairly allow for the report (and any counter-reports) to be completed. I do not believe an adjournment of the Hearing would be fair to the Applicant in this case, nor consistent with the goals and principles of the dispute resolution process. Accordingly, I decline to grant the stay requested, and the Hearing shall proceed on the scheduled dates starting June 13, 2016.

EXPENSES:

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

May 2, 2016

Benjamin M. Drory Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 133

FSCO A15-003178

BETWEEN:

HONGMEI YANG

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Co-operators’ request for a stay of the proceeding in respect of the catastrophic issue is declined. The matter shall proceed as scheduled beginning on June 13, 2016.

2. The question of expenses related to this Motion is deferred to the Hearing Arbitrator.

May 2, 2016

Benjamin M. Drory Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Criteria 7 and 8 in the OCF-19 are equivalent to the wording of provisions 3(2)(e) and (f), respectively, in the definition of “catastrophic impairment” in the Schedule.
3. 3Exhibit C to Ms. Towsley’s Affidavit.
4. 4Exhibit D to Ms. Towsley’s Affidavit.
5. 5Exhibit E to Ms. Towsley’s Affidavit.
6. 6Exhibit F to Ms. Towsley’s Affidavit.
7. 7Exhibit H to Ms. Towsley’s Affidavit.
8. 8Exhibit I to Ms. Towsley’s Affidavit.
9. 9Bogic and AXA Insurance (Canada), [1999] O.F.S.C.I.D. No. 80 (FSCO A96-001192, April 30, 1999).
10. 10Paragraph 37 of Ms. Sokoloff’s Affidavit and Exhibit 18 thereof.
11. 11Paragraphs 40, 42, and 45 of Ms. Sokoloff’s Affidavit and Exhibits 21, 23, and 26 thereof.
12. 12Paragraphs 41, 44, and 46 of Ms. Sokoloff’s Affidavit and Exhibits 22, 25, and 27 thereof.
13. 13Paragraph 48(d) of Ms. Sokoloff’s Affidavit and Exhibit 29 thereof.
14. 14Paragraph 4 of Ms. Sokoloff’s Affidavit and Exhibit 3 thereof.
15. 15Supra, Note 13.
16. 16Paragraph 38 of Ms. Sokoloff’s Affidavit and Exhibit 19 thereof.
17. 17Paragraph 39 of Ms. Sokoloff’s Affidavit and Exhibit 20 thereof.
18. 182009 CanLII 44115 (Ont. SCDC) (August 25, 2009).
19. 19FSCO A12-001040, September 6, 2013.
20. 20Phillipaiya, at p. 5.
21. 21Phillipaiya, at pp. 3-4.
22. 22Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 2986 (June 23, 2011).
23. 23State Farm Mutual Automobile Insurance Company and Ramalingam (FSCO P05-00026, August 13, 2007), upheld on judicial review.
24. 24Exhibit 27 to Ms. Sokoloff’s Affidavit (i.e., Ms. Towsley’s letter of May 25, 2015).