Neutral Citation: 2016 ONFSCDRS 93

FSCO A14-009506

BETWEEN:

PETER KOSTOPOULOS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Charles Matheson

Heard: By written submissions received February 1, 2016

Appearances: Mr. Alden Dychtenberg, lawyer, participated for Mr. Peter Kostopoulos Ms. Katherine Kolnhofer, lawyer, participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Peter Kostopoulos, was injured in a motor vehicle accident on February 3, 2014. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Mr. Kostopoulos applied for a non-earner benefit which was refused by Wawanesa because of non-attendance at the requested section 44 examinations. The parties were unable to resolve their disputes through mediation, and Mr. Kostopoulos 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 Preliminary Issue Hearing are:

Is Mr. Kostopoulos precluded from proceeding to Arbitration because he failed to attend four Insurer Examinations?
Which party is liable for the payment of the expenses of this proceeding?

Result:

This Arbitration is stayed until Mr. Kostopoulos attends an orthopedic assessment, a neurologist assessment and a psychiatric assessment. Wawanesa is directed to reschedule the examinations for the earliest date which is convenient for the assessors and Mr. Kostopoulos.
I reserve the issue of expenses to the Hearing Arbitrator. If the parties resolve their dispute without a Hearing, and are unable to resolve the issue of expenses of this Preliminary Issue Hearing, either party may make a request that I reconvene this proceeding to resolve the issue, no later than 30 days after the parties resolve all other issues.

EVIDENCE AND ANALYSIS:

Legislation and Case Law considered

Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, O. Reg. 34/10, section 44

Heath v. Economical, 2009 ONCA 391

Al-Shimasawi v. Wawanesa Mutual Insurance Company (FSCO A05-002737, May 11, 2007)

Ramalingam v. State Farm Mutual Automobile Insurance Company (FSCO P05-00026, August 13, 2007)

Background

The Applicant, Mr. Kostopoulos, was 71 years old at the time of the accident. He is 73 years old currently. At the time of the accident, the Applicant was working part time as a waiter at a restaurant, while living with his wife and two pets. He is the father of two adult daughters.

In this Preliminary Issue Hearing, the Insurer has moved that the Arbitration be stayed until such time that the Applicant completes four section 44 examinations namely:

a) Dr. Mark Downhaniuk, Neuropsychologist;

b) Dr. Rick Zarnett, Orthopedic Surgeon;

c) Dr. Robert Yufe, Neurologist;

d) Dr. Ariel Zielinsky, Psychiatrist.

The Applicant has already attended and completed a requested section 44 Insurer Examination, conducted by Ms. Linda D. Cottrell, Occupational Therapist.

A Hearing date has not yet been set for this Application for Arbitration, as this Preliminary Issue Motion was raised at the first Pre-Hearing discussion.

Decision

Applicant's counsel argues that the guiding principles for deciding whether an insured person is entitled to receive a non-earner benefit is outlined in the Ontario Court of Appeal decision known as Heath v. Economical. These principles read as follows:

Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident….

…Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

Applicant's counsel argues that the prescribed conditions above in Heath v. Economical have already been met with the Occupational Therapist's assessment report. Any further assessments are tethered by the language in section 44 of the Schedule, meaning that the other four assessments are not "reasonably necessary".

Section 44 reads as follows:

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).

(Underlined for My Added Emphasis)

In the decision in Al-Shimasawi and Wawanesa, the Arbitrator sets out the following considerations for assessing the reasonableness of a proposed Insurer Examination:

The timing of the Insurer's request;
The possible prejudice to both sides;
The number and nature of previous Insurer's Examinations;
Whether there are any new issues being raised in the Applicant's claim that require evaluation;
Whether there is a reasonable nexus between the examination requested by the Insurer and the Applicant's injuries.

Another case known as Ramalingam v. State Farm Mutual Automobile Insurance Company suggests that a final overriding consideration is procedural fairness, which must be focused on objective factors, rather than the speculation about the motives of the Insurer for requesting said examinations.

Applicant's counsel argues that it would be unfair to have so many section 44 examination reports supporting the Insurer's position when the Applicant only has two Disability Certificates. Therefore, the extra section 44 examinations are not reasonable or necessary.

The Insurer argues that it refused to pay the non-earner benefit because of non-compliance of attending the section 44 examinations, not because the Insurer believed that the Applicant did not meet the test for same.

The Insurer argues that it requires the added assessments as it requires an actual diagnosis of the injuries sustained in the accident. The Insurer asks how can the Insurer satisfy its obligation to the Applicant and adjust the file properly and in a timely manner without this objective criterion, or how can there be a fair Hearing if there is no objective evidence to support the claimed benefits.

The Applicant has not argued that the timing of the requested section 44 examinations was unreasonable.

There is evidence of the various symptoms the Applicant is presenting and/or complaining about, however, there is no evidence before me that there are any assessments or reports by any of the medical professionals who are now treating the Applicant through OHIP as to the quantifiable reasons for the symptoms displayed by the Applicant.

In my view, it is extremely relevant for the Insurer to be able to evaluate the Applicant's current condition when trying to assess whether to pay out or deny a specified benefit.

The Insurer argues that the two Disability Certificates of Dr. Lee-Cheong, dated August 22, 2014, and that of Diana Kudela, Occupational Therapist, dated August 3, 2014, adduce that the Applicant is suffering from neck, limb and lower back pain, all of which result in the Applicant's complete inability to live a normal life.

I agree with the Insurer's arguments that there is a reasonable nexus between three requested section 44 examinations and the symptoms complained about by the Applicant. The three assessments are an orthopedic, neurologist and psychiatric assessments. The Insurer failed to convince me that a fourth neuropsychologist assessment would add any value to the situation, considering the invasiveness of the assessments. I agree with the Insurer that the injuries and or their symptoms must be either orthopedically-based or psychogenic or neurologically-based.

In this case, I do not agree with the Applicant's arguments that the Insurer's sole purpose of the requested section 44 examinations are only for the purposes of bolstering its position at Arbitration. I note that, if the section 44 examination reports find in favour of the Applicant, the Arbitration itself may become unnecessary.

It is uncontested by the parties that an Arbitrator has the discretionary authority to stay a Hearing until an insured person attends such examinations.

Therefore, for the above reasons, I find that three requested section 44 examinations are reasonable and necessary in these circumstances. Accordingly, I stay the Arbitration until the Applicant attends and completes three independent medical assessments, namely an orthopedic assessment, a neurologist assessment and a psychiatric assessment.

EXPENSES:

The parties have not made submissions on expenses. I reserve the issue of expenses for the Hearing Arbitrator. If the parties resolve their dispute without a Hearing, and are unable to resolve the issue of expenses of this Preliminary Issue Hearing, either party may make a request that I reconvene this Hearing to resolve the issue, no later than 30 days after the parties resolve all other issues.

March 21, 2016

Charles Matheson Arbitrator

Date

ARBITRATION ORDER

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

This Arbitration is stayed until Mr. Kostopoulos attends an orthopedic assessment, a neurologist assessment and a psychiatric assessment. Wawanesa is directed to reschedule the examinations for the earliest date which is convenient for the assessors and Mr. Kostopoulos.
I reserve the issue of expenses to the Hearing Arbitrator. If the parties resolve their dispute without a Hearing, and are unable to resolve the issue of expenses of this preliminary Issue Hearing, either party may make a request that I reconvene this proceeding to resolve the issue, no later than 30 days after the parties resolve all other issues.