Najeeb Almousawi v. TD General Insurance Company, 2017 ONFSCDRS 231

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 231

FSCO A12-000481

BETWEEN:

NAJEEB ALMOUSAWI

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

Before: Alan Mervin

Heard: By telephone conference call on June 9, 2017.

Appearances: Samia Alam for Mr. Almousawi

Asma Desai for TD General Insurance Company

Issues:

The Applicant, Najeeb Almousawi, was injured in a motor vehicle accident on December 22, 2009. He applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.¹ TD General terminated certain benefits and the parties were unable to resolve their disputes through mediation.

Mr. Almousawi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the last resumption of pre-hearing in this matter, the issue of a determination of Catastrophic Impairment was added to the existing issues in dispute. The Applicant has undergone a multidisciplinary assessment at the request of the insurer to determine if the Applicant is catastrophically impaired (CAT assessment), as well as his own CAT assessment.

Three years had passed between the Insurer’s initial CAT assessment and the Applicant’s CAT assessment, and the Insurer has requested that the Applicant undergo a further CAT assessment.

The Applicant has refused to attend these assessments and the Insurer now brings this motion requesting a stay of the arbitration until such time as the Applicant attends the assessments.

The issues in this hearing are:

Is it reasonably necessary for the Applicant to attend further assessments with respect to catastrophic impairment determination? and
Should the arbitration be stayed pending attendance at these assessments?

Result:

The further assessments to determine catastrophic impairment are not reasonably necessary.
The arbitration is not stayed. The arbitration will proceed as scheduled.

EVIDENCE AND ANALYSIS:

Facts:

The Applicant filed an Application for Arbitration or about January 26, 2012, claiming entitlement to Income Replacement Benefits and interest.

In July 2012, the Applicant completed an Application for Determination of Catastrophic Impairment (OCF 19), which was received by the Insurer on or about October 19, 2012. This issue, as well as entitlement to funding for the over and above the amount cost of catastrophic rebuttal reports (which the Insurer was ordered to pay as a result of a motion brought by the Applicant for funding of rebuttal reports), were added to the arbitration at a subsequent resumption of pre-hearing.

The Insurer then scheduled a multidisciplinary CAT assessment by a team consisting of: Dr. Paitich, (orthopedic surgeon who had already expressed his opinion in an earlier paper review), Dr. Lawrie Reznek (psychiatrist), Dr. Keith Meloff (neurologist), and Elyse Freedman (OT).

The assessments were commenced in November 2012 and the IE multidisciplinary CAT report was completed in February 2013. The Applicant received it on or about March 14, 2013.

The assessors concluded that the Applicant did not meet the threshold for catastrophic impairment. The Insurer’s assessors found no marked impairment in any of the four spheres of functioning, and an only 15% Whole Person Impairment (WPI). Based on this report, the Insurer denied CAT entitlement.

The Applicant then requested funding for his own multidisciplinary assessment to obtain rebuttal reports, which request was denied by the Insurer. The Applicant brought a motion for funding of these assessments before me, and on July 9, 2015, I released my decision allowing partial funding of these reports as an interim expense. The Applicant then arranged and conducted its own multidisciplinary CAT assessments.

The Applicant was assessed over a period of several months. The assessments began on September 25, 2015, but were not completed until on May 11, 2016. At least some of the delay in completion was apparently due to difficulties with assessor availability.

The Applicant’s assessors were Varun Madan (OT), Dr.Tajedin Getahum, (orthopaedic surgeon), Dr. Andrew Gomez-Vargas ( neurologist) and Dr. Annette Lorenz (psychologist), and the resulting report was dated July 6, 2016.

The resulting report concluded that the Applicant met the CAT threshold with a finding of three class 4 marked impairments and one class 3 to 4 marked impairment, and a WPI of 57%. There was a significant difference of opinion between the conclusions reached by each party’s assessors, and consequently, since receipt of the Applicant’s CAT reports the Insurer has requested that the Applicant undergo a further set of CAT assessments, due to the passage of time and receipt of additional medical evidence.

The Insurer arranged a further multidisciplinary assessment at Cira Medical, scheduled to commence on September 7, 2016 before Dr. Keith Meloff, neurologist. The Applicant did not attend the first assessment, and the Insurer has been advised that the Applicant would not attend any subsequent CAT assessments.

The Insurer has now brought this motion, seeking an Order that the upcoming arbitration be stayed until the Applicant attends further IE assessments to determine whether he has sustained a catastrophic impairment.

The Law:

Section 44 (1) of the Schedule authorizes insurer examinations. While there is no specified limit to the number of IE’s allowed, the section specifies they may not be held more often than is reasonably necessary, for the purpose of determining whether an insured person is or continues to be entitled to a benefit.²

Arbitrators have consistently held that the purpose of an insurer examination is to determine whether an insured person is entitled to a benefit claimed and that the insurer bears the onus of proving that the requested examination is authorized by the Schedule.

In Belair Insurance Company Inc. and F.S.,³ Director’s Delegate Naylor held that an insurer may require an IE after benefits are terminated and the insured person applies for mediation and arbitration in the case of a “continuing and evolving claim for ongoing benefits,” especially “where the basis of the claim substantially changed after mediation was commenced.”

Rather than focusing on the insurer's motivations or other subjective factors, the prevailing arbitral authority is that the enquiry should focus mainly on the objective factors identified in numerous decisions⁴ and more recently, again set out by Director’s Delegate Makepeace in State Farm Mutual Automobile Insurance Company and Ramalingam,⁵ including:

the timing of the request, especially whether 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 insurer examinations;
whether information provided by the claimant since the insurer's last insurer examination suggests a new diagnosis, a change in the claimant's condition or a new direction in medical investigation of it;
whether there is a reasonable nexus between the requested examination and the insured person's injuries;
whether the insurer accepts the claim and continues to pay benefits; and
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

There is no authority for an arbitrator to order a claimant to attend an insurer examination, but arbitrators have broad implicit powers to control their process to ensure a fair hearing.⁶

Prior decisions of the Commission⁷ have created an arbitral “rule” that allows an arbitrator to exercise his or her discretion to stay a hearing to allow for an insurer examination in the case of an ongoing claim and stayurn the hearing until the Applicant attends the IE, where, considering all the circumstances, fairness requires it and the section 44 requirements are otherwise met.

Position of the Parties:

(a) The Insurer’s Position

The Insurer requests that the Applicant undergo a further set of Multidisciplinary CAT assessments. The reasons for this can be summarized as follows:

The notice for the requested examinations complies with the requirements of s 44(5), particularly that it contains all necessary information required by s 44(5), including the medical and any other reasons for the assessments;
Section 44 does not limit the number of Insurer Assessments, providing they are reasonable and necessary;
It has been over 3 years since the last set of Insurer assessments. The passage of time and new medical evidence require new updated assessments in order to properly assess the claim and ensure procedural fairness, so that the Insurer can respond to the very different conclusions of the Applicant’s assessors;
The Insurer has suggested that most of the delay was caused by the Applicant;
The assessments requested in light of the above are reasonable and necessary;
The Insurer requires these assessments in order to fulfill its obligation to adjust the claim of the Applicant;
As the arbitration is scheduled to take place in October, 2017, the Insurer submits that the assessments can be completed without the necessity of a further adjournment, which, if granted, might prejudice the Applicant.

(b) The Applicant’s Position

The Applicant’s position can be summarized as follows:

The notice for the examinations is deficient, and does not comply with section 44, particularly as it does not adequately set out the medical and any other reasons for the examinations.
The Applicant’s claim for a determination of catastrophic impairment is not a benefit.
Although section 44 does not limit the number of IE’s, the Applicant has already undergone a full set of CAT IE’s as well as his own CAT examinations and a further set of examinations are not reasonable nor are they necessary.
The Insurer chose not to request written addendum reports after receiving the Applicant’s CAT assessments (which the Applicant suggests that the Insurer originally requested, and for which an adjournment was granted), which would not require the Applicant to undergo a further set of in- person IE’s which are, by their nature, inherently intrusive and an invasion of privacy.
The Applicant submits that, had the Insurer not denied funding for the applicant’s CAT assessments, which required a motion resulting in the previously scheduled hearing being adjourned, the assessments would have been completed in a timely matter and the matter could have proceeded without requiring the adjournments.
There has been no significant change in the diagnosis of the Applicant’s condition since the Insurer’s first CAT assessments and there is sufficient other medical evidence on which the Insurer can rely. The Applicant argues that there is no significant change in the Applicant’s condition, and suggests the Insurer is requesting the assessments because there is a difference of opinion between his assessors and the Insurer’s assessors
The Applicant submits that the Insurer has taken an adversarial role, has not agreed to attend a global mediation which was originally discussed, and had generally taken a litigious approach to this claim. The Applicant submits that the main reason for this request is to bolster its position at arbitration, and not to assess the claim.

The Notice of Examination

Upon review of the Notice of Examination, I find that the notice of August 6, 2016 was deficient, because, in the absence of medical or any other reasons within it, it did not comply with the requirements of section 44(5) of the Schedule.

A Notice of Examination on the letterhead of Cira Medical Services, the Insurer’s chosen assessors, was addressed to Mr. Paul Barrafato, the Applicant’s solicitor, and dated August 5, 2016.⁸ The document, with the heading, “Notification”, stated the following:

“Please be advised that at the request of TD General Insurance Company –Burlington, the above individual has been scheduled for the following impartial assessment(s):…”

This paragraph was followed by a chart containing the dates, times, location, names of the assessors, duration of each assessment, and the type of exam. The first line of the chart read as follows:

Date and Time

Length of Exam

Examiner

Type of Exam

Location

Wednesday, September 7, 2016

1 hour

Dr. Keith Meloff

Catastrophic IME – Neurology

TORONTO OFFICE-DUNDAS 180 Dundas Street West, Suite 1050, Toronto ON M5G 1X8

The next 3 boxes of the chart were set out in the same manner, advising of the details for the three additional examinations scheduled. Below the chart, the Notice concluded with the following paragraph:

“Please note that your client has received notification of the same and should you request any changes to any of the above scheduled appointments, you must directly contact…” .

A plain reading of this paragraph would lead one to believe that a copy of this notice was sent directly to the Applicant as well as Mr. Barrafato, containing the same information.

A week later, following the notice, a further letter from TD Insurance dated August 12, 2016 was addressed to Mr. Al-Moussawi, and copied to Mr. Barrafato, the Applicant’s solicitor, containing further details of the upcoming scheduled examinations.⁹

Section 44(5) of the Schedule sets out the information that is required to be contained within the notice itself, with the first requirement being the “medical and any other reasons for the examination”.

The Applicant has submitted in his factum dated June 7, 2017 that the notice given does not comply with section 44(5), as it lists no reason at all. Having reviewed the Notice, I agree. There is no “medical or any other reason” contained in the notice. Stating the type of examination is not a medical reason.

There have been several cases that have held that when a notice is deficient, an insurer is not entitled to an order that the proposed insurer examination is reasonable and necessary.¹⁰

Further, although it could be argued that the letter from TD dated August 12, 2016 sent a week after the notice, does contain the required information (and I am not making a finding that it does), that information must be contained within the notice itself ¹¹ [underline mine], and clearly, that was not within the notice sent.

I made a similar finding in a recent case where, after the initial notice was given, subsequent correspondence from the Insurer contained further details and included reasons for the examinations. The Insurer argued that the notice should be read together with the subsequent correspondence and therefore satisfied the requirements of 44(5).¹²

In my view, the notice requirements must be strictly construed because of the serious consequences to an insured person of refusing to attend an IE for which proper notice has been given, and the inherent invasive nature of IE’s.¹³

In absence of a medical or any other reason within it, I find that the notice did not comply with the requirements of section 44(5) of the Schedule. As the Notice was deficient, the Applicant was not required to attend the examinations, and therefore, there is no reason to stay the arbitration.

OTHER ISSUES

While I have found that the Applicant did not have to attend the examinations that were arranged for him, I have considered the other issues raised by the parties, and should I be wrong in this finding, I would have reached the same conclusion, even had I found the notice to be valid.

Fairness

Both parties have now had full sets of multidisciplinary CAT examinations. The Insurer had refused to fund the Applicant’s proposed CAT examinations, and as a result, the Applicant brought a motion before me requesting an order for funding of CAT examinations. The Insurer had correctly submitted that under the Statutory Accident Benefits Schedule – Effective September 1, 2010, (“the new Schedule”) funding of rebuttal reports had been eliminated, and therefore, the Applicant was therefore not entitled to funding of the requested rebuttal reports. The Applicant had argued that as the accident happened in 2009, prior to the new Schedule coming into force, the right to rebuttal reports had vested and the old Schedule governed.

I disagreed with the Applicant and found that the right had not vested, but, under the circumstances, fairness dictated and I ordered partial funding of the CAT reports, in order to “level the playing field.”

Delay

At this point in time, to order another full set of CAT reports in my view would be patently unfair. Although over 3 years has passed since the Insurer’s CAT reports were done, the Applicant has submitted that there has been no new medical diagnosis. The Applicant has submitted that had the Insurer funded the rebuttal reports when requested, the matter could have proceeded, the adjournments would not have been required and the delay was caused by the Insurer’s refusal to fund the reports in the first place.¹⁴

I agree that had the Insurer initially funded the requested reports, the matter may not have been delayed to the extent that it has, but that is not to say that the Insurer caused the delay by denying funding. The new Schedule specifically eliminated funding for rebuttal reports, and prima facie, the Applicant would not be entitled to the requested funding. The awarding of funding as an interim expense is an extraordinary remedy that I found to be merited under the circumstances, and, although funding was ultimately ordered, the Insurer did not act improperly in its denial of funding and should not be blamed for doing so.

The Insurer submitted that a good portion of the delay was caused by the Applicant. However, the Applicant submitted that examiner availability was limited and some of the resulting delay was unavoidable. It took some time for the assessment team to complete their assessments, which commenced in September 2015 and were not completed until May 2016. There was some further delay caused by the length of time from the hearing until a decision was issued on the motion.

According to the Applicant, the Insurer requested an adjournment at the July 15, 2016 pre-hearing so its assessors could review the Applicant’s CAT reports and prepare rebuttal reports. However, The Applicant submits that instead, it received a Notice of Examination on August 5, 2016, for further CAT assessments so the Applicant could be re-assessed for catastrophic entitlement. The Arbitration hearing was then adjourned in October 2016, rescheduled to January, 2017, but again adjourned because the Applicant was unavailable due to a family emergency. On consent, the arbitration was then adjourned to October 31, 2017.

Unfortunately, it has therefore been over three years between the time the insurer received its initial CAT reports and the Applicant’s CAT reports were compared. However, the passage of time alone does not necessarily entitle an Insurer to conduct further IE’s.

Under the circumstances of this case, even taking into account the period of time between the assessments, in my view, the delay has not resulted in any new medical diagnoses. No medical documents were produced at the hearing of the motion to support any findings of a new diagnosis, or significant change in the Applicant’s condition since the first set of CAT assessments that might justify a further set of in- person assessments.

Proximity to Hearing

At this point in time, contrary to the Insurer’s suggestion that there is sufficient time to complete the assessments without adjourning the hearing, I disagree. Even if the assessments can be completed reasonably promptly, without complications due to scheduling difficulties of assessors or the Applicant, the Applicant would require time to review the new assessment reports with its own experts, and may or may not require its own rebuttal reports, which then might necessitate yet a further adjournment. Because of the proximity to the hearing, it would appear that it is more likely that the matter will not be ready to proceed at the scheduled time.

Should a further adjournment become necessary, because of the limited time available to hold hearings in the upcoming months, and the usual scheduling difficulties of the experts and representatives of the parties, it is simply not realistic to believe that this matter would be completed within FSCO’s limited timelines, and without causing significant prejudice to the Applicant.

CONCLUSION

IE’s by their nature, are inherently invasive, intrusive and an invasion of privacy. Nevertheless, Insurers are entitled to require them if they are reasonable and necessary, In each case, when deciding if the IE’s should be allowed, one must consider the balance between the insured’s rights to privacy and the insurer’s ongoing obligation and right to adjust the claim.

Taking into account the timing of the requests, which might ultimately result in a further adjournment request, the proximity to the hearing, the number of proposed assessments, the amount of other available medical information already available, the balance between the Applicant’s right to privacy and the Insurer’s ongoing right and obligation to adjust the claim, under the circumstances of this case, I find that a further set of in-person CAT IE’s is neither reasonable nor necessary.

EXPENSES

No materials were submitted with respect to costs of this motion by either party. I therefore leave the determination of costs of this motion to the hearing arbitrator.

August 29, 2017

Alan Mervin Arbitrator

Date