Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 77

FSCO A15-001225

BETWEEN:

TRACY BOND

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

Before: Arbitrator H. Michael Kelly, Q.C.

Heard: In person at ADR Chambers on January 5, 2016 followed by teleconference on February 17, 2016

Appearances: Ms. Natalie Scott for Ms. Tracy Bond

Ms. Allison Klymyshyn for Personal Insurance Company of Canada

Issues:

The Applicant, Ms. Tracy Bond, was injured in a motor vehicle accident on March 25, 2007, and in April 2007, sought accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.¹ Subsequently, by OCF-19 (Application for Catastrophic Impairment), dated April 24, 2013, the Applicant applied for a determination that she had suffered catastrophic impairment in the said accident, under “Criteria g”.² The parties were unable to resolve their dispute through mediation, and Ms. Bond, 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.

Personal has brought this Motion pursuant to s. 44(1) of the Schedule, O. Reg. 34/10, seeking an Order (a) compelling Ms. Bond to attend an Independent Medical Examination ("IME") by Psychologist Dr. Jeffrey I. Goodman, and (b) staying this Arbitration until Ms. Bond complies with the requested Order.

The issues in this Motion are:

Is it reasonable and necessary, pursuant to s. 44(1) of the Schedule, that the Applicant, Ms. Tracy Bond, attend an IME by a Psychologist chosen by the Insurer (the proposed Psychologist is Dr. Jeffrey I. Goodman)?
Should this Arbitration be stayed pending Ms. Tracy Bond's attendance at the psychological IME?
Is either party entitled to expenses respecting this proceeding?

Result:

The Applicant, Ms. Tracy Bond, shall attend, no later than sixty days following the release of this decision, an IME by Psychologist Dr. Jeffrey I. Goodman, or such other Psychologist that Personal may select for that purpose.
This Arbitration will not be stayed at this time.
If the parties are unable to agree on the entitlement to, or quantum of, expenses of this matter, the parties, or either party, may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant obtained an independent psychological assessment report from Psychologist, Dr. Ken Reesor, PhD, dated December 5, 2011,³ that sought his opinion as to whether or not Ms. Bond met “Criteria g” for catastrophic impairment, arising from the accident. He reviewed with Ms. Bond the circumstances of the accident, and her relevant pre-accident and post-accident history, activities, limitations, and mental and behavioural condition. He interviewed Dr. Maureen O'Connell, Ms. Bond's ongoing treating Psychologist, and, as well, summarized a number of psychiatric and psychological records and reports applicable to Ms. Bond, covering the period from 2009 to the date of his retainer. He concluded that, as a result of the accident, Ms. Bond has suffered a Class III (i.e. "Moderate Impairment") Mental/Behavioural Impairment as defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 4th Edition, Chapter 4 criteria.⁴ He cited authority instructing that a Class 3 Impairment is equivalent to a Whole Body Impairment ("WBI") of between 38% and 50%. He assigned to Ms. Bond the mid-point, i.e. 44%. He stated that Ms. Bond's mental/behavioural disability, on balance of probability, would not improve.

I have no evidence before me as to when Dr. Reesor's report was provided to Personal.

Ms. Bond's application in April 2013, for determination of catastrophic impairment, submitted by her family doctor, Dr. Snelling, was based upon a 34-page independent psychiatric report of Psychiatrist Dr. Ken Suddaby, dated February 18, 2013,⁵ and his Addendum report, dated April 2, 2013.⁶ Dr. Suddaby, in the said reports, opined that Ms. Bond was suffering Major Depression (recurrent, moderate, without psychosis, chronic); Post Traumatic Stress Disorder (chronic); Pain Disorder associated with both Psychological Factors and a General Medical Condition; Borderline Personality Disorder; and Borderline Intellectual Functioning. He opined that the accident caused an exacerbation of Ms. Bond’s pre-accident Pain Disorder, associated with both psychological and physical elements; an exacerbation of Personality Disorder and Major Depression; and a new onset of Post Traumatic Stress Disorder. His opinion on the probability of improvement in Ms. Bond's condition was pessimistic, particularly with respect to future gainful employment. He felt that Ms. Bond's mental health impairment was substantially contributed to by the accident.

Dr. Suddaby's Addendum report was issued in response to the request of Applicant's counsel for a specific opinion as to whether or not Ms. Bond fell within Class 4 ("marked impairment") or Class 5 ("extreme impairment") under Criteria g. Dr. Suddaby stated his opinion that Ms. Bond has a moderate impairment (but at the high end of Class 3) and assigned a WBI related to psychological/psychiatric disability, at 29%. He stated that as one of the four categories applicable to Ms. Bond's psychiatric/psychological health (i.e. Deterioration in Work or Work-Like Settings) would fit within Class IV, she fit within the definition of catastrophic impairment in accordance with Criteria g.

By Explanation of Benefits (OCF-9 Form, dated May 10, 2013), Personal denied the catastrophic impairment characterization and advised Ms. Bond that Personal was in the process of arranging an Occupational Therapy assessment. Personal arranged IMEs by a Psychiatrist Dr. Peter J. Kerr; and Occupational Therapist Ms. Sherry Mosher-Taillefer (assisted by Occupational Therapist, Ms. Susan Filuk), all of whom were certified in the AMA Guides to evaluate permanent impairment. Personal received their reports, dated November 13, 2013. In Appendix A of his report, Dr. Kerr lists the extensive medical, psychiatric, and psychological records related to Ms. Bond, that he reviewed. Dr. Suddaby, likewise, had an extensive pile of records that he reviewed.

In their reports, Dr. Kerr and Ms. Mosher-Taillefer opined that Ms. Bond's account of her physical and mental health complaints was unreliable and exaggerated, and revealed abnormal illness behaviour, a social dysfunction. Dr. Kerr stated that Ms. Bond's alleged complaints were not at all related to the motor vehicle accident, and that therefore an assessment for determination of catastrophic impairment was not warranted. Based upon the said reports, Personal, in November 2013, advised Ms. Bond that it denied the catastrophic impairment characterization.

The Applicant submitted a Treatment and Assessment Plan (OCF-18), dated October 31, 2014, completed by her treating Psychologist, Dr. Maureen O'Connell, seeking payment for ongoing therapy. Personal denied the Treatment Plan, and advised that it intended to arrange a Section 44 IME with a Psychologist, to address the reasonableness of the proposed Treatment Plan. Mr. McNally, Ms. Bond's counsel, wrote to Personal on February 25, 2015, reminding Personal that it had expressed the intention to arrange the IME.⁷ Mr. McNally requested an update in that regard, and suggested that if Personal had not, by then, arranged the IME, Personal should consider approving the Treatment Plan. Mr. McNally also addressed Personal's failure to pay for Dr. O'Connell's services rendered from September to November 2014.

The Application for Arbitration was filed in February 2015. Personal retained Cavanagh LLP (Ms. Allison J. Klymyshyn) who filed the Insurer's Response denying the claim of catastrophic impairment.

A Pre-Hearing on June 4, 2015 set the Arbitration Hearing date for 4 days commencing December 16, 2015, in Ottawa.

Dr. Reesor provided a follow-up assessment report, dated July 7, 2015. He had re-assessed Ms. Bond on June 30, 2015. In his report, Dr. Reesor disputed many of the findings of Dr. Kerr, and particularly Dr. Kerr's opinion that Ms. Bond's impairment was not accident-related. He found that Ms. Bond's WBI had not appreciably changed since his first report, but now characterized her mental/behavioural impairment as being either near the border between Class 3 and Class 4 (50%), or perhaps exceeding it. That assessment, according to Personal, exceeds Dr. Reesor's original assessment of 44%. Dr. Reesor reasoned that, given the likelihood that some physical impairment can be shown to have arisen from the accident, and thereby enhance the percentage, Ms. Bond's impairments exceed the catastrophic impairment threshold of 55%.

Dr. Reesor's report was sent to Ms. Klymyshyn on July 20, 2015, and advised that Ms. Bond would be relying upon Dr. Reesor's evidence at the Hearing. Personal claims that this was the first notice that it had received that Ms. Bond would be relying on Dr. Reesor's evidence.

After receiving Dr. Reesor's July 7, 2015 report, Ms. Klymyshyn contacted Mr. McNally to advise that Personal wanted to arrange an IME a psychologist.⁸ It appears that Mr. McNally originally agreed, but then took the position that Personal's request was neither fair nor reasonable because (a) Personal had originally, in response to Dr. Suddaby's reports, taken the position that the accident had no causal connection to Ms. Bond's complaints, and that, consequently, no catastrophic impairment assessment was required, and (b) Dr. Reesor's recent assessment did not materially change his opinion contained in his first report. Mr. McNally advised that he may reconsider his position with respect to Personal's request for a psychological IME, if Personal were prepared to abandon its position that the accident was not the cause of Ms. Bond's impairment(s).

Ms. Klymyshyn had written four letters to Mr. McNally requesting copies of the contents of the document brief that was referred to in Ms. Bond's Application for Arbitration. I note that the Pre-Hearing Letter of June 4, 2015 makes no reference to outstanding document production. In his letter to Ms. Klymyshyn, dated October 21, 2015, Mr. McNally apologized for his oversight, and I assume that he has since provided the necessary copies. On October 21, 2015, Mr. McNally wrote to Ms. Klymyshyn providing a list of the witnesses he intended to call on behalf of Ms. Bond at the Hearing. The list included seven expert witnesses and three lay witnesses, in addition to the Applicant.

As a result, the parties agreed to seek the adjournment of the Hearing. The Hearing was adjourned on consent to commence on October 31, 2016, for eleven days.

Personal now seeks an Order requiring Ms. Bond to attend an IME with Psychologist Jeffrey I. Goodman, PhD at his offices in Toronto. His C.V. is contained in the Motion Record of the Insurer.

POSITIONS OF THE PARTIES

Should Ms. Bond be required to attend the IME with Dr. Jeffrey I. Goodman?

Personal acknowledges that it has the onus to demonstrate to the Arbitrator that the requested IME is both reasonable and necessary, in accordance with section 44(1) of the Schedule, Ontario Regulation 34/10, and the case law.

Personal submits:

(a) Personal has not, as yet, obtained a Psychologist's opinion, and did not know until it received Dr. Reesor's second report at the end of July 2015, that Ms. Bond intended to rely on Dr. Reesor's evidence at the Hearing to address the issue of catastrophic impairment. Ms. Bond will be calling, at the Hearing, two Psychologists - Dr. Reesor, and her current treating Psychologist, Dr. Maureen O'Connell.

(b) Dr. Reesor, in his second report, increased the levels of disability assigned to Ms. Bond's mental and behavioural condition.

(c) The reports of Dr. Kerr and Ms. Mosher-Taillefer are the only reports that Personal has received addressing the catastrophic impairment issue, and they are two and one-half years old, and will be almost three years old by the Hearing date. Ms. Bond has had the opportunity to receive a Psychologist's report as recently as July 2015; Personal, in fairness, should be given the same opportunity.

(d) Personal's request for the IME was timely, following its receipt of Dr. Reesor's second report.

(e) The Hearing date is far enough off to accommodate the IME and any responding examination required by Ms. Bond.

(f) Ms. Bond's treating Psychologist, Dr. Andrew Payne, informed Personal on October 29, 2015 that at Ms. Bond's last appointment in October, 2015, Ms. Bond advised that she had lost 55 pounds, and had recently undergone four surgeries.⁹ It therefore appears that Ms. Bond's condition may be evolving.

(g) Although Personal had furnished to Mr. McNally its list of documents for use at the Hearing in March 2015 (supplemented in May 2015), Mr. McNally did not respond until the fall of 2015, to the four written requests of Ms. Klymyshyn that he furnish that disclosure.

(h) Personal's request for the IME is both reasonable and necessary to enable Personal to address its duty and right to properly assess Ms. Bond's condition, and to enhance the achievement of a full and fair Hearing. Personal's request for the IME is supported by s. 42(1) of the previous Schedule, and by s. 44(1) of the Schedule in dispute, and by applicable case law cited in Personal’s Factum.

(i) If the requested IME determines that Ms. Bond has likely suffered a catastrophic impairment as a result of the accident, such finding could potentially alleviate the need for the Hearing.

The Applicant responds:

(a) Neither Dr. Kerr nor Ms. Mosher-Taillefer conducted a detailed and specific CAT assessment, but having reached the conclusion that the accident was not causally related to Ms. Bond's complaints, opined that a catastrophic impairment assessment was simply not warranted. Personal relied on that opinion and did not seek a psychology IME at that time to determine the catastrophic impairment issue.

(b) When Personal received the Treatment Plan of treating Psychologist, Dr. Maureen O'Connell, in October 2014, Personal denied the Treatment Plan, and requested a psychological IME. Ms. Bond's counsel did not refuse the intended IME at that time. However Personal did not follow up in that regard, and Mr. McNally, citing the delay, took the position that the assessment would not be opposed, if Personal agreed to drop its causation stance. Personal took no steps to seek the psychological IME until it received Dr. Reesor's second report in July 2015.

(c) After Personal had received the reports of Dr. Suddaby, it had the opportunity to retain Dr. Goodman at that time to affect a psychological IME. Personal has provided the curriculum vitae of Dr. Goodman, confirming his extensive relevant experience. Personal decided instead to retain Dr. Kerr, and after receiving Dr. Kerr's report, "that did not adequately investigate and assess the question of catastrophic determination",¹⁰ decided that its defence was primarily to be based on the causation issue. Any psychology report obtained by Personal at this time would not materially change that position. Consequently, it is reasonable to conclude that Personal's motive for requesting the psychological IME at this time is not to assess Ms. Bond's condition, but rather primarily to bolster its causation position, i.e. "trial brinkmanship"¹¹ at the Hearing.

(d) Personal's request is not fair and reasonable.

DECISION

The Insurer's request for the IME is based upon s. 44(1) of the Schedule in dispute, and s. 42 of the former Schedule. The wording of the two Schedules is identical except that the words "...as often as is reasonably necessary" from the former Schedule were replaced by the words "...but not more often than is reasonably necessary".

The text of s. 44 (1) of the Schedule in dispute is as follows:

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.

I must determine whether or not the requested IME is reasonably necessary to assist Personal in assessing the catastrophic impairment entitlement issue. Further I must exercise my discretion to determine whether or not the granting of Personal's request would be fair, and enhance the prospect of a fair Hearing.

Personal, in addressing the reports of Psychiatrist Dr. Suddaby, received in early 2013, retained a Psychiatrist, Dr. Kerr, and an Occupational Therapist, Ms. Mosher-Taillefer, to respond to Dr. Suddaby’s assessment. In those examinations, Dr. Kerr and Ms. Mosher-Taillefer did conduct full assessments of Ms. Bond's mental/psychological and behavioural abnormalities, but opined that Ms. Bond's psychological and mental health complaints were not accident-related. Dr. Kerr therefore did not provide a specific catastrophic impairment assessment, as he felt it was not required, given his opinion as to causation. Personal denied the catastrophic impairment characterization on that basis. Dr. Suddaby had assigned a 29% rating to the WBI, related to psychological and behavioural impairment. The parties proceeded to the Pre-Hearing and set the date for a four-day Hearing, commencing December 16, 2015. I note that the Pre-Hearing letter, dated June 4, 2015, did not identify the medical experts that either party intended to call at the Hearing.

The issues that will be addressed at the Hearing will be the degree and nature of the Applicant's disability, and the issue of causation. When Personal's counsel received Dr. Reesor's second report in late July 2015, Personal decided that it required a Psychologist's report to address Dr. Reesor's assessment. Dr. Reesor, in his second report, challenged Dr. Kerr's findings and conclusions, and addressed Ms. Bond's current condition, and changes to that condition following his first report. Although Dr. Reesor stated that Ms. Bond's condition had not changed to any meaningful degree since his first report, he did increase his WBI from 44% to borderline Class IV (i.e. 50%). He maintains his opinion that the disability is caused by the accident.

The reports of all current experts in this matter address the causation issue. But Personal's experts have not directly addressed the issue as to whether or not Ms. Bond's impairment is a catastrophic impairment, if an Arbitrator determines that her impairment is causally related to the accident.

As matters now stand, it appears that Ms. Bond intends to call one Psychiatrist and two Psychologists as witnesses at the Hearing, two of whom have specifically addressed the catastrophic impairment quantification. Currently, Personal has only one Psychiatrist, and one Occupational Therapist, and their assessments will be three years old by the date of the Hearing, and do not directly address the catastrophic impairment issue. Dr. Reesor's second assessment is more recent. Ms. Bond can secure updated assessments at any time, subject to time limits for disclosure prior to the Hearing. Personal, barring Ms. Bond's consent, would have to apply by Motion to a Pre-Hearing Arbitrator to obtain that relief.

I do not find that Personal has subjected Ms. Bond to excessive examinations. I do not find that Personal is primarily motivated by trial tactic in seeking the IME. I find instead that upon receiving Dr. Reesor's second report, Personal realized that his findings needed to be addressed, not only because of Personal's duty and right under section 44(1) to determine an Insured's entitlement, but also in order to achieve a full and fair Hearing.

I am cognizant of Ms. Bond's position that Personal had ample prior opportunity to arrange the IME that is now being sought. That is true. However, there appears to be sufficient time before the Hearing to complete the IME and any responding assessments, and to meet procedural requisites.

In my view, Personal should have the opportunity to arrange an IME with a Psychologist of its choosing at this time. I feel that that result is fair and equitable at this time, and enhances the prospect of a full and fair Hearing.

Personal identified Dr. Jeffrey I. Goodman as the Psychologist that Personal intends to retain for this IME, based upon his recognized experience in the assessment of catastrophic impairment. Dr. Goodman’s office is in Toronto, approximately 350 km from Ms. Bond’s current home. I neglected at the Preliminary Issue Hearing to elicit from counsel their positions as to where the IME would take place, and how the potential expenses incurred by Ms. Bond in effecting her attendance are to be addressed. Consequently, I arranged a teleconference with both counsel, Ms. Natalie Scott and Ms. Allison Klymyshyn, that proceeded on February 17, 2016 at 9:15 a.m. I advised counsel of the Order I intended to make on the issue before me, and that I required the input of the parties as to whether or not the distance factor had to be specifically addressed. Counsel advised me that the parties had reached agreement that, if I ordered the attendance with Dr. Goodman, Ms. Bond’s travel to Toronto for the IME by Dr. Goodman was not a problem, and that Personal would look after all expenses directly related to Ms. Bond’s attendance.

Is a stay appropriate?

A stay is not required or appropriate at this point. There is ample time before the Hearing for the parties to complete the examination process, including responding assessment(s) if needed. Ms. Bond co-operated in attending prior IMEs. Insurer's counsel, Ms. Klymyshyn, in oral submissions on the Motion, conceded that a stay was not necessary at this point.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, expenses of this matter, the parties, or either party, may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

March 7, 2016

H. Michael Kelly, Q.C.

Arbitrator

Date