Judy Cleary v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 4

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 4

FSCO A14-004450

BETWEEN:

JUDY CLEARY

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Arbitrator Marcel D. Mongeon

Heard:

By telephone conference call on October 7, 2015

Appearances:

Ms. Judy Cleary did not participate

Ms. Kristi Sargeant-Kerr represented Ms. Judy Cleary

Ms. Sharon Dagan represented Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. Judy Cleary, was injured in a motor vehicle accident on October 27, 2009 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Cleary, 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 Insurer has brought a Motion for an Order for a stay of proceedings pending the attendance by the Applicant at a further catastrophic impairment examination arranged by the Insurer with a psychiatrist.

The Applicant has declined such further examination submitting that the Insurer has already obtained examinations on the issues required for a determination of catastrophic impairment and that the proposed examination is not “reasonably necessary”.

The issues in this Motion are:

Is the examination proposed by the Insurer reasonably necessary?
If reasonably necessary, should these proceedings be stayed, pending the attendance by the Applicant at the examination?
Is either party entitled to its expenses?

Result:

The Insurer’s proposed psychiatric examination of the Applicant with Dr. Wiesenthal is reasonably necessary.
In order to ensure the Applicant’s attendance at the proposed examination, in the event that the Applicant does not attend such an examination on or before March 1, 2016, this matter and any scheduled Hearings shall be stayed until such attendance.
Expenses of this Motion are left to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:²

Circumstances of the Accident and Injuries

On October 27, 2009, the Applicant was involved in a significant high-speed motor vehicle accident involving a pick-up truck and attached trailer which was transporting cattle.

As a result of the accident, the Applicant sustained injuries and impairments, which included a left orbital fracture; vision problems; neck strain/sprain; rib fractures; pulmonary contusion; strain or sprain to bilateral hips; left femur fracture requiring surgical repair; sprain/strain to knees; and cognitive issues.

Chronology

The accident occurred on October 27, 2009.

On August 30, 2011, an Application for Determination of Catastrophic Impairment (“OCF-19”) was completed by Dr. Keith Sequeira, Physiatrist. Dr. Sequeira checked off boxes 6 and 7 of Part 4 of the form indicating his belief that the Applicant met those criteria for catastrophic impairment.³ I will refer to this form as the “2011 OCF-19”. It is noted that notwithstanding how Part 4 of form OCF-19 describes various criteria for catastrophic impairment, ultimately, the Schedule and specifically subsection 3(2) thereof governs rather than the descriptions in Part 4 of the form.

A series of Catastrophic Impairment Insurer Examinations were completed in February 2012 with assessors from Riverfront Medical Services including Mr. Grimaldi, Kinesiologist; Dr. Derby, Neurologist; Dr. Hines, Psychiatrist; Mr. Turgeon, Occupational Therapist; and Dr. Jaroszynski, Orthopaedic Surgeon. The team concluded that the Applicant did not qualify for a

catastrophic impairment designation as a result of the motor vehicle accident.

Specific information from the Catastrophic Impairment Insurer Examinations that is relevant includes the following:

In addition to the 5 examinations referred to, there were also ‘paper’ reviews conducted by Dr. Benjamin Meikle entitled “Catastrophic Whole Person Impairment (WPI) Ratings Report” and Dr. Sheldon Levy entitled “Catastrophic Executive Summary”.
Even though Criterion 8 had not been indicated in Part 4 of the 2011 OCF-19, the reports touched on facts that would be relevant to an analysis of that criterion.⁴ Specifically, Dr. Hines’ psychiatric report concludes: “Ms. Cleary's psychiatric condition has resulted in a Mild Impairment (Impairment levels are compatible with most useful functioning) as noted above. As her impairments do not fall under Class 4 or 5 impairments in accordance with The AMA Guides, her psychiatric condition does not meet the definition of Catastrophic Impairment with respect to Criterion 8 of the SABS”.
Dr. Derby’s neurology report and Dr. Hines’ psychiatric report both include the statement: “Conclusions put forth in this report are based upon the information currently available as well as a detailed examination. Additional information may produce different conclusions”. [My emphasis]

After the Catastrophic Impairment Insurer Examinations, Dr. Sequeira, the Applicant’s physiatrist, sent a letter on June 11, 2013, relating to the OCF-19, as follows:

Attached please find the amended OCF-19 regarding Ms. Judy Cleary. I previously indicated in my August 30, 2011 OCF-19 that criteria #6 and 7 applied. Please note that I have now amended this to indicate that the correct criteria is #8.

The OCF-19 was also signed by the Applicant on November 5, 2013. The form was actually received by the Insurer on January 21, 2014. I will refer to this form as the “2013 OCF-19”.

In part, Dr. Sequeira’s generation of the 2013 OCF-19 was motivated by a request from the Applicant’s newly engaged counsel to consider whether or not the Applicant’s impairments might fall under Criterion 8.⁵

At about the same time that the 2013 OCF-19 was being filed with the Insurer, the Applicant was also undergoing a number of additional assessments with medical professionals of her own choosing. Specifically, reports of Dr. Ricki Ladowsky-Brooks, Neuro-Psychologist, and Dr. Mitchell Spivak, Psychiatrist, were generated and served on the Insurer on or around January 29, 2014.

The Spivak (psychiatry) and Ladowsky-Brooks (psychology) reports supported that the Applicant had sustained a catastrophic impairment based on Criterion 8. Other information that I consider particularly relevant from these reports includes:

At page 6 of the Spivak report, commenting on the Hines information, it states: “There is no comment [in the Hines report] regarding [the Applicant’s] safety around cooking, but he does acknowledge that she cooks with the assistance of her family. There is little made in the way of comparison to her previous functioning, nor does there appear to be any effort to obtain collateral (sic) or to make sense of the mental status examination findings where he commented that she presented in a childlike fashion with distractibility.”
At page 8 of the Spivak report in the summary: “Furthermore, and this may be secondary to the fact that Dr. Hines did not have the collateral information available to him, it was not cited that Ms. Cleary has deficits that leave her dangerous, were it not for the fact that she has appropriate supervision. She is unable to cook without someone being present due to the fact that she has left things on the burner to the point of burning. She also forgets that objects are hot and has burned herself as a result. She reportedly leaves doors unlocked as she forgets. These findings should be reflected in the catastrophic evaluation ratings.” [My emphasis]

After receipt of the 2013 OCF-19 and the Applicant’s assessment reports, the Insurer sought to conduct new Catastrophic Impairment Insurer Examinations. Initially, the Insurer sought to have the entire battery of examinations conducted again. Eventually, the Insurer sought to conduct only a new neuropsychological examination with Dr. Zakzanis and a new psychiatric examination with a Dr. Wiesenthal.

The initial requests for examinations by the Insurer were made prior to conducting the Pre-Hearing of this matter in April 2015.

The Applicant attended the Zakzanis examination on June 22, 2015. The report thereof is available. It does not comment directly on Criterion 8 considerations. Its conclusions included:

… it is my considered opinion that the impairment levels reported do not alone meet the criteria of being at a catastrophic level in regard to neurocognitive/behavioural factors at this exact time.

This report should not be considered final, however, until such time you are in receipt of the Executive Summary as I will defer a complete catastrophic analysis here to the Medical Co-ordinator in this case, who will be providing a detailed breakdown of all injuries, physical and non-physical, in the executive summary.

It is clear that the final conclusion of this report will only be available if the Insurer is permitted to conduct the additional proposed psychiatric examination.

The Insurer sought such a psychiatric examination with Dr. Wiesenthal. The Applicant, however, objected to attending a psychiatric examination with Dr. Wiesenthal. Rather, the Applicant was prepared to re-attend a psychiatric examination with Dr. Hines who had conducted the original Insurer Psychiatric Examination. The Insurer was not prepared to use Dr. Hines for the new psychiatric examination. Although there was some dispute as to whether or not Dr. Hines might be available to conduct the examination, it is clear that the Insurer does not wish to use Dr. Hines.

The Applicant’s submission for only wanting to re-attend Dr. Hines is that in recounting the original accident, the Applicant seeks to minimize the trauma that she will face in having to relive what is a very troubling incident.

The question for determination is: is it reasonably necessary that the Applicant attend an Insurer’s Psychiatric Examination with Dr. Wiesenthal?

In submissions, it was agreed by the parties that a psychiatric examination, although intrusive, is the least invasive of all possible in-person medical assessments. Although the Applicant would be required to subject herself to interviewing and various exercises as part of such an examination, there is no need to disrobe, nothing other than incidental touching and no medical imaging.

The Arbitration Hearing in this matter is scheduled for July 2016. That scheduling allows sufficient time for a new Insurer Psychiatric Examination to be conducted without any adjournments to the Hearing dates.

The Insurer’s Submissions

The Insurer submits that it is entitled to conduct reasonably necessary examinations to continue to adjust the issue of catastrophic impairment. In this case, new examinations are appropriate because of the 2013 OCF-19 filed by Dr. Sequeira; he has indicated that Criterion 8 of Part 4 of the form is now applicable which puts different impairments and considerations into play than those under Criteria 6 or 7 previously chosen.

In addition, the passage of time since the original Insurer Examinations is a factor that should be considered. Changes in the Applicant’s condition have been suggested by her own assessments and, accordingly, it is appropriate for the Insurer to conduct new examinations to consider such changes.

As to the choice of the regulated health professional to be used for an examination, the Insurer submits that there is nothing that requires any subsequent examination to utilize the same professional that conducted the initial examination.

The Insurer acknowledges in its submissions that there is no authority to force an Applicant to attend any examination but suggests that, in the event that the Applicant is not prepared to attend, this proceeding should be stayed until such time as there is attendance.

The Applicant’s Submissions

The Applicant submits that the Insurer has no authority to seek re-examination for a determination of catastrophic impairment on the basis that it already has examinations that deal with the Applicant’s entitlement. Even though the 2011 OCF-19 was not based on Criterion 8, nonetheless, the examination reports already considered the Applicant’s entitlement under this criterion. Therefore, the Applicant submits there is no need for a new psychiatric examination.

The Applicant submits that the examination must be for the purpose of assisting the determination of entitlement to a benefit and not merely to bolster the Insurer’s case. The Applicant is prepared to “update” the psychiatric assessment by having Dr. Hines conduct the examination but is not prepared for the Insurer to have a new assessor conduct such an examination which would be an unwarranted intrusion into the Applicant’s life.

On the issue of the stay of proceedings, the Applicant submits that stays are only warranted in the most unique of cases which this is not. Rather, adjournments or adverse inferences would be more appropriate remedies for the Insurer if the Applicant does not attend a further psychiatric examination.

Are the examinations proposed by the Insurer reasonably necessary?

According to Hameed Al-Shimasawi and Wawanesa,⁶ relevant circumstances in determining the reasonableness of an Insurer Examination include:

(i) The timing of the insurer's request;

(ii) The possible prejudice to both sides;

(iii) The number and nature of the previous insurer examinations;

(iv) The nature of the examination(s) being requested;

(v) Whether there are any new issues being raised in the applicant's claim that require evaluation;

(vi) Whether there is a reasonable nexus between the examination requested and the applicant's injuries;

(vii) It is recognized by the Commission that insurer examinations are inherently intrusive; and,

(viii) The Commission strongly disapproves of an insurer using excessive insurer examinations as a means to harass or intimidate an applicant or in callous disregard of information that such assessments may adversely affect the health of the applicant.

On each of these criteria, I provide the following comments:

(i) Timing of request: The Insurer’s request was made soon after it received the 2013 OCF-19 and the Applicant’s own assessments. In my view, the timing of the request is consistent with a need on the part of the Insurer to seek to adjust the claim based on a new OCF-19 and the corresponding need to obtain an updated examination to do so.

(ii) Possible prejudice to both sides: As noted, the Spivak report suggests that Dr. Hines was missing information, especially on the issue of the Applicant being a danger in the kitchen. This could be prejudicial to the Insurer if it is not permitted to fill in this information gap with a new examination which considers the new information.

(iii) Number and nature of exams: In this case, the Applicant has been through many examinations. However, as I have noted, the proposed examination is at least physically non-invasive. Although no doubt tedious and invasive of the Applicant’s time and energy, the one additional psychological examination proposed is not sufficient in my opinion to tip a balance to what should be considered unacceptable. I note that this might not have been the case if the Insurer was insisting on repeating the entire battery of examinations. Here, though, the Insurer’s request is for two new examinations, one of which the Applicant has already allowed.

(iv) Nature of examination: As previously noted, the proposed psychological examination, although inherently invasive, is, in my view, at the minimum level of invasiveness. Although it is true that the conduct of the psychological assessment by the original assessor might be even less invasive, it is difficult for me to make this determination. I also note that section 44 of the Schedule specifically states the examination is by “persons chosen by the insurer…”. I note that there is no evidence submitted about the impact on the Applicant of having the examination conducted by the original psychiatrist.

(v) New issues raised by the Applicant: As the 2013 OCF-19 raised Criterion 8, this suggests the need for new assessments. Although the previous assessments had also touched on this criterion, obviously the Applicant’s physiatrist and counsel had considered the issue sufficiently new to have 2013 OCF-19 filed in amendment or replacement of 2011 OCF-19. Because the Applicant put this criterion into question, it is reasonable that the Insurer might want to take a closer look at the new criterion.

(vi) Nexus between assessment proposed and injuries: There is no question that the proposed psychiatric assessment is connected with the Applicant’s claim for a determination of catastrophic impairment on Criterion 8.

(vii) Inherent intrusiveness: As I have already commented, on the issue of intrusiveness, the proposed psychiatric assessment, albeit intrusive, is at a low level of intrusiveness. Although an assessment by the original assessor might make the intrusiveness even less, the difference is, in my view, minimal and there was no evidence submitted that would help establish this fact.

(viii) Callous disregard for Applicant: I do not see such circumstances being present in the Insurer’s request. As I have noted, the Insurer’s own prior assessments have, at least for the key Hines report, been noted by the Applicant’s own assessor (Spivak) as missing information. It is reasonable to have the Insurer consider such new information through appropriate health professionals. In addition, I have no evidence that the Applicant’s health would be adversely affected by the additional proposed examination.

Based on these criteria, the Insurer’s proposed psychiatric examination is reasonable. I make the following additional comments on whether or not the proposed psychiatric assessment is “reasonably necessary”.

The original Insurer Assessments in the Dr. Derby and Dr. Hines reports included the comment that new information could result in different conclusions. Although this is, no doubt, part of stock template language, the principle is correct: as the underlying facts of the Applicant’s condition develop, the medical conclusions are also likely to change.

In this case, the Applicant’s assessment reports point to certain facts relating to the Applicant’s condition that have been changing over time. As noted by Dr. Spivak, the Applicant’s challenges in the kitchen might have been developing and unknown to Dr. Hines. It is reasonable to me in these circumstances to then allow the Insurer to conduct an appropriate psychiatric assessment to explore this issue.

The Insurer’s request for further assessments is reasonable in the circumstances and there is a reasonable nexus between the Applicant’s injuries and the examination requested to establish that the request is necessary.

What is the appropriate remedy to enforce the order to attend the Insurer Examination?

An Arbitrator has no authority to order an Applicant to attend at an Insurer Examination. However, Arbitrators have broad implicit powers to control their process to ensure a fair

Hearing.⁷

Footnote 14 of the Ramalingam decision makes interesting reading on the issue of a stay in the context of attendance at an Insurer Examination. It states:

Both parties' submissions focused on the purpose and reasonableness of the IE requests, not whether an arbitrator has power to remedy non-compliance by a stay of proceedings. Though remedy was not an issue before me, I query whether an arbitrator's remedial powers include drawing an adverse inference or excluding an insured person's new medical reports where the insured person refuses an insurer's reasonable request for an insurer examination to determine entitlement in light of new information under section 42.

This footnote suggests that adverse inferences and exclusion of evidence may not be appropriate remedies.

I also note the Hamilton and Aviva⁸ case cited by the Applicant. This case includes:

Unless a stay is a mandatory legislative provision [which it is not in the case of the Insurance Act], the jurisprudence is clear that a stay is a discretionary remedy. It is also an extraordinary remedy "only granted in the 'clearest of cases' where the accused's right to a fair trial is irreparably prejudiced or the integrity of the administration of justice is irreparably harmed."

I believe that this is such a case. The Applicant’s own assessments have suggested deficiencies in the original psychiatric examination conducted by the Insurer; the Insurer now seeks to have a new examination conducted. If a new examination is not conducted by the Insurer then, when the Hearing is conducted in 2016, its psychiatric evidence will be approximately five (5) years old. This would be in comparison to whatever fresh assessments that the Applicant decided to present at the Hearing. Given that the psychiatric condition of the Applicant is at the heart of the determinations to be made at the Hearing, if the Insurer were not to have access to a reasonably fresh examination, this would be prejudicial. A stay in these circumstances is warranted.

I finally turn to the case of RJR-MacDonald Inc. v. Canada (Attorney General)⁹ which sets out the Supreme Court of Canada’s test for relief such as a stay. Three conditions are required. These are that a) there is a serious question to be tried; b) if the relief was refused serious harm would occur; and c) the balance of harm between the parties favours the relief sought.

Considering each of these conditions in turn, I comment as follows:

The issue of the Applicant’s psychiatric condition is at the heart of her Application for a Determination of Catastrophic Impairment. If the Insurer is not able to examine her, the trying of the question would be seriously altered. If the Insurer is not able to conduct the examination, serious harm - as already described above when considering the prejudice to be suffered by the Insurer - would occur. Finally, although a new psychiatric examination by an Insurer’s psychiatrist is invasive and disruptive to the Applicant, the balance between what the Applicant would have to undergo would be far outweighed by the prejudice the Insurer would suffer if it would not have access to fresh evidence. On the RJR criteria, I find that the stay is warranted.

In terms of the mechanics of a stay, the Hearing in this matter is scheduled for July, 2016. Therefore, a stay is not necessary until March 1, 2016 (about 4 months prior to the proposed Hearing date which is an arbitrary delay that I provide to allow the parties leeway in the actual scheduling of the conduct of the examination). My Order granting the stay reflects this.

EXPENSES:

At the Hearing of this Motion, the parties agreed that the question of expenses related to this Motion should be deferred to the Hearing Arbitrator.

January 4, 2016

Marcel D. Mongeon

Arbitrator

Date