Neutral Citation: 2017 ONFSCDRS 5 FSCO A15-008190

BETWEEN:

DOUGLAS ST. AUBYN Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Kimberly Parish Heard: By written submissions completed on October 14, 2016 Appearances: Ms. Michelle Brown for Mr. Douglas St. Aubyn Ms. Kathleen F. O’Hara for Dominion of Canada General Insurance Company

Issues:

The Applicant, Mr. Douglas St. Aubyn, was injured in a motor vehicle accident on March 13, 2010 and sought accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Prior Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his 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 subject motor vehicle accident happened on March 13, 2010. The procedural rules that apply are applicable under Ontario Regulation 34/10, Statutory Accident Benefits Schedule - Accidents After September 1, 2010 (“Schedule.”) The substantive benefit rules that apply are per the application of Ontario Regulation 403/06, Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996 (“Prior Schedule.”)

The issues in this Motion are:

Should the Arbitration Hearing be stayed pending the Applicant’s attendance and/or completion of the proposed insurer psychiatric assessment with Dr. Eisen, as requested under section 44 of the Schedule?
Is either party entitled to its expenses of the Motion?

Result:

The Arbitration Hearing shall be stayed pending the Applicant’s attendance and/or completion of the proposed insurer psychiatric assessment with Dr. Eisen, as requested under section 44 of the Schedule.
The issue of costs is deferred to the Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

Background

A Pre-Hearing was held at the offices of the ADR Chambers on June, 9, 2016. The parties were unable to resolve the issues in dispute which included: determination of catastrophic impairment, income replacement benefits, attendant care benefits, a medical benefit, the cost of an examination special award and interest. Dates were scheduled for an Arbitration Hearing to commence on August 14, 2017.

At the Pre-Hearing, the Insurer’s counsel, Ms. O’Hara, stated the Insurer had requested that Mr. St. Aubyn attend a follow-up section 44 Insurer’s Examination (“IE”) for a psychiatric assessment with Dr. Eisen. Ms. O’Hara stated this follow-up assessment is based upon additional medical information provided by the Applicant to the Insurer since the completion of Dr. Eisen’s psychiatric assessment of March 2014. The Applicant’s counsel, Ms. Brown, stated that the Applicant will not attend such. Ms. O’Hara’s position is the Arbitration Hearing should be stayed until Mr. St. Aubyn attends a follow-up section 44 psychiatric assessment with Dr. Eisen.

At the Pre-Hearing, I set up timelines with the parties to receive their written submissions on this Motion.

Insurer’s Submissions

The Applicant filed an Application for Determination of Catastrophic Impairment (OCF-19),² dated October 30, 2013. The Applicant submitted accompanying reports from Dr. Rosenblat (Psychiatrist) and H. Picton (Occupational Therapist), dated November 7, 2013,³ The reports suggested the Applicant suffered marked impairments in the areas of social functioning and work adaptation. The Insurer then arranged for multidisciplinary examinations which included: psychiatric, physiatric, neurological, neuropsychological, and occupational therapy assessments to address catastrophic impairment. These assessments took place between January 2014 and February 2015. Final reports were completed by March 19, 2015. The conclusions reached by these Insurer’s assessors were that the Applicant did not suffer a catastrophic impairment as a result of the motor vehicle accident of March 13, 2010.

Among the assessments was an IE psychiatric assessment performed by Dr. Eisen on March 27, 2014. At that time, the Applicant was not certain about what psychological treatment he had received since the date of loss, but reported to Dr. Eisen he had recently started seeing a Psychologist. As noted by the Insurer, the Applicant’s psychological and psychiatric treatment records had not been provided for Dr. Eisen’s review at the time he conducted the assessment.

There was a delay in the Catastrophic Impairment Reports being finalized. The physical examination component of the physiatrist assessment took three attempts to complete due to the Applicant reportedly developing anxiety when touched. This was conveyed through a letter from Dr. Challis, Clinical Psychologist, dated April 14, 2014.⁴

On October 8, 2015, the Insurer was provided with further medical reports subsequent to the psychiatric assessment being completed and finalized. The reports included an updated Occupational Therapy Assessment Report, a Neuropsychological Assessment Report and a Psychiatric Addendum Report which was completed by Dr. Rosenblat. A notice letter, dated November 20, 2015,⁵ was sent by the Insurer to the Applicant advising of a further psychological and psychiatric assessment requested to be conducted on behalf of the Insurer. The Applicant was advised in this letter that his attendance was not required as it was to be conducted by paper review. The Insurer forwarded copies of these new medical reports to Dr. Eisen for review and comment. Additionally, a Psychological Report by Dr. Challis,⁶ dated October 4, 2015, and the psychiatric records of Dr. Yatsynovich⁷ from April 15, 2013 to July 31, 2015, were provided to the Insurer. Upon review of further medical documentation provided by the Insurer, Dr. Eisen issued a Psychiatrist File Review Report, dated March 2, 2016.⁸

Dr. Eisen concluded in this report:⁹

After reviewing the additional documents, it appears that Mr. St. Aubyn has deteriorated over time. In order for me to attempt to make a determination of causality and impairments due to the subject accident, I would need to reassess him in person in order to validate the documented findings. However, given the results of my previous assessment including his evasiveness, inconsistency and validity issues, I am unable to predict whether another assessment would be more productive.

An Explanation of Benefits, dated March 7, 2016,¹⁰ was sent to the Applicant advising that Dr. Eisen required an in-person assessment to determine causality and impairments due to the accident. The Insurer followed up by fax, dated April 28, 2016. To date, the Applicant has refused to attend the proposed assessment with Dr. Eisen. The Insurer states the Applicant is in non-compliance with section 44(9) of the Schedule.

The Insurer stated that its right to an examination is “legislatively mandated and neither the wording nor the intent of the provision support a narrow or unduly restrictive right of examination”. The Regulation 273/90 (the No-Fault Benefits Schedule), enacted under the Ontario Insurance Act, R.S.O. 1990, c. I.8, is to be interpreted both broad and flexible to ensure that the Insurer has an effective opportunity to evaluate the medical condition of the Applicant, as noted in Scott and Toronto Transit Commission (Markel Insurance).¹¹

The Insurer submits that its obligations to the Insured under section 44 of the Schedule are to make reasonable efforts to schedule examinations at a time convenient for the Insured, and to provide the Applicant with reasonable notice. In the decision of Al-Shimasawi and Wawanesa Mutual Insurance Company,¹² Arbitrator Feldman stated that when assessing the reasonableness of an Insurer’s request for the Applicant to undergo a proposed examination, all of the relevant circumstances need to be considered, including:

a) The timing of the Insurer’s request; b) The possible prejudice to both sides; c) The number and nature of previous Insurer’s Examinations; d) The nature of the examination(s) being requested; e) Whether there are any new issues being raised in the Applicant’s claim that require evaluation; f) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries

Further, the Insurer relies on State Farm Mutual Automobile Insurance Company and Ramalingam, ¹³ and that its focus should be on objective factors when requesting an Applicant attend an assessment. These factors include: the timing of when relevant material is disclosed; the information already available to the Insurer; and whether any new information provided by the Applicant suggests a new diagnosis, or a change in the Applicant’s condition.

The Insurer submits that if it is denied the opportunity to conduct a follow-up psychiatric assessment of the Applicant, based on medical information received from the Applicant approximately 19 months after the Insurer completed its psychiatric assessment in March 2014, it would not be procedurally fair. The Insurer referenced the Ontario Superior Court decision of Certas Direct Insurance Company and Gonsalves.¹⁴

As noted by Justice Lederer:

Fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.

In Certas and Gonsalves, Justice Lederer indicated that if the Insurer was denied a follow-up orthopedic assessment to respond to new orthopedic opinions received from the Applicant, this would deny the Insurer “the right to make a full response” and would be contrary to the requirements of procedural fairness.¹⁵

The Insurer maintains that its request for a follow-up in-person psychiatric assessment was timely in March of 2016. A Pre-Hearing did not occur until June 2016, and a Hearing was then scheduled for August 2017. Therefore, the Applicant would still have the ability to respond to the Insurer’s Report prior to the Hearing. The Insurer submits there have been a number of additional reports supplied by the Applicant since the Insurer’s section 44 psychiatric assessment was completed in March 2014, which suggest a decline in the Applicant’s mental state, which the Applicant is currently attending ongoing treatment for. It submits that the section 44 assessment it requested is necessary to address the Applicant’s alleged physical/psychological deterioration, as noted in his medical documents provided to the Insurer since March 2014. Dr. Eisen concluded in his March 2016 file review that he could not comment properly on whether the Applicant suffered further psychiatric deterioration without performing an in-person assessment. The Insurer further asserts this assessment being requested is reasonable and necessary to address the Applicant’s claim that he has sustained a catastrophic impairment as a result of the accident.

The Insurer relies on Stanley and Pilot Insurance Company,¹⁶ which notes that the onus is on the Insurer to demonstrate that the examination it is requesting is reasonable and necessary. If this is established, the Applicant then bears the onus of providing a reasonable explanation for not attending an examination. The Insurer states it has not been provided with a reasonable explanation for the Applicant not attending a follow-up section 44 psychiatric assessment. Arbitrator Mills in Mazur and Personal Insurance Company of Canada¹⁷ found a reasonable nexus existed between the IE psychiatric assessment being requested by the Insurer and the Applicant’s injuries, and held the Applicant would need to attend the examination before proceeding to an Arbitration Hearing. The Insurer relies on the medical documentation submitted by the Applicant in 2015 claiming to support a psychological/psychiatric deterioration, thus requiring the Insurer to further review the issue. The Insurer maintains there is a reasonable nexus between the examination requested and the Applicant’s injuries as it pertains to the determination of catastrophic impairment. The Insurer requests that the Arbitration proceeding be stayed until the Applicant submits to attending the requested assessment.

Applicant’s Response

The Applicant submits that the Arbitration proceedings should not be stayed. The Applicant notes that the Insurer has not complied with the notice requirements as set out in section 44 of the Schedule, as it has not provided the medical and other reasons for the assessment. The Applicant submits that the November 20, 2015 notice letter from the Insurer noted an examination by paper review was requested with the doctors and attendance was not required. There was no information provided by the Insurer in its letter regarding what benefit would be addressed at the assessment, and no date, time, or location were provided. The Applicant relies on Augustin and Unifund Insurance Company¹⁸ for the proposition that the Insurer is required to include medical reasons why it requires the Applicant to attend an IE. In that decision, Arbitrator Sapin stated: “The legislature has determined that, in fairness, an insured person is entitled to specific information, including medical reasons, about why they are being required to attend an IE.”

The Applicant’s also takes the position that the psychiatric examination being requested by the Insurer is not reasonable or necessary. The Applicant further submits that the Insurer is requesting the proposed follow-up IE psychiatric assessment not for the purpose of ongoing adjustment of the Applicant’s claim, but rather to bolster its position for the Hearing. The Applicant relies on the decisions of Arbitrator Allen in Swanson and Wellington Insurance Company¹⁹ and Arbitrator Blackman in M.S.D. and Citadel General Assurance Company.²⁰ Both of those decisions concluded that the purpose of the IE should be to adjust the Applicant’s claim and not for the purpose of the Insurer bolstering its position for an Arbitration Hearing.

It was further submitted that if the Applicant were to attend a follow-up IE psychiatric assessment at this point, it would jeopardize the Hearing currently scheduled as the Applicant would have little time to respond to the Insurer’s Report and comply with the Dispute Resolution Practice Code regarding its service and filing of the documents. The Applicant further notes that a significant amount of time passed between when Dr. Eisen submitted his request for a further assessment on November 20, 2015 and when the Applicant received a copy of his report, dated March 2, 2016, following the file review.

The Applicant states that if required to attend the follow-up psychiatric assessment, this would have an adverse effect on his health, as the Applicant suffers from anxiety and experiences difficulty with attending assessments. The Applicant notes that the initial catastrophic impairment assessments took nine months to complete due to his psychological state. The decision of Arbitrator Mongeon, in Macho and Unifund Assurance Company,²¹ was provided to support the Applicant’s position. In that case, Arbitrator Mongeon denied a request made by the Insurer that the Applicant attend a follow-up IE, as it would pose a risk that the Applicant would suffer a further cognitive decline.

The Applicant submits there would be no prejudice to the Insurer in proceeding to a Hearing with the current Assessment Reports it has. The Insurer has a copy of a Psychiatric Report from its own assessor. The Insurer has conducted a paper review through Dr. Eisen on Dr. Voorneveld’s Neuropsychological Assessment Report²² and Dr. Rosenblat’s Catastrophic Psychiatric Addendum Report.²³ The Applicant submits the Insurer has failed to note any changes in the Applicant’s psychological assessment since Dr. Eisen’s assessment of 2014. The Insurer has conducted multiple assessments on the Applicant to date, and Dr. Eisen stated in his March 2, 2016 report that he was not sure if a further in-person assessment of the Applicant would be productive. Lastly, the Applicant submits that an assessment is not reasonable if no new issues are being raised with respect to the Applicant’s claim. The Applicant noted there have been 15 IEs completed on him to date, plus Dr. Eisen’s March 2016 paper review. However, the Applicant acknowledged that there is a reasonable nexus between the examination requested and his injuries.

Insurer’s Reply

The Insurer states that its November 20, 2015 letter to schedule the assessments was in compliance with section 44 of the Schedule as it provided the medical and other reasons for the assessment. The letter stated the following:²⁴

Subsequent to our catastrophic impairment assessment, we received an addendum report from Dr. Margaret Voorneveld, Dr. Henry Rosenblat and Cora Moncada. In light of this we have requested an insurer’s examination…

This notice also advised the Applicant his attendance was not required. The Insurer submitted that the assessments would address catastrophic impairment and the receipt of additional medical documents.

The Applicant was served with the further notice letter, dated March 7, 2016, requesting the Applicant attend an in-person psychiatric assessment with Dr. Eisen. The Applicant continues to be treated by a Psychiatrist, and the treating Psychiatrist’s records were not provided to the Insurer until late 2015, after Dr. Eisen completed his March 27, 2014 psychiatric assessment and issued his Catastrophic Impairment Determination Psychiatry Report, dated March 19, 2015.

It is the Insurer’s position that it should have the ability to respond to a position taken against it in the interests of procedural fairness. The Insurer submits the request for the assessment would not be prejudicial to the Applicant.

The Insurer notes that a number of the 15 prior IEs were conducted earlier on in the claim and addressed treatment plans and income replacement benefits. The Insurer maintains many of these assessments cannot be relied upon by the Insurer to address catastrophic impairment.

Lastly, the Insurer submits that the in-person assessment by Dr. Eisen is necessary as his paper review of the medical information provided by the Applicant was inconclusive.

The Law

Section 44 (5) of the Schedule states:

(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days. O. Reg. 34/10, s. 44 (5).

Analysis and Decision

The Applicant alleged that the Insurer did not comply with the notice requirements in section 44 of the Schedule when the Insurer advised the Applicant of follow-up assessments it requested through its November 20, 2015 notice letter.

The Applicant maintains that the Insurer did not provide necessary reasons for the proposed psychiatric assessment. The Insurer asserted its November 20, 2015 letter identified that the assessments proposed would address catastrophic impairment, and the reason for the assessment was the receipt of additional medical information.

The Insurer did not advise of the date and time of the assessment in its November 20, 2015 notice letter to the Applicant because it was noted in bold that the Applicant’s attendance was not required. However, an in-person assessment has not taken place due to the Applicant’s refusal to attend such, so no notice regarding the date, time, and place of the assessment has been provided, as the Insurer has not scheduled it.

I find that the reasons provided in the Insurer’s letter are sufficient in accordance with the Schedule.

The Insurer has requested the in-person psychiatric assessment with Dr. Eisen on the basis that additional medical information submitted by the Applicant included updated clinical notes and records of his treating Psychologist and Psychiatrist. This information was submitted by the Applicant almost 19 months after Dr. Eisen completed his catastrophic assessment on March 27, 2014. At the time of Dr. Eisen’s March 2014 assessment; psychological and psychiatric records of the Applicant had not been provided. State Farm and Ramalingam²⁵ noted objective factors to be considered by an Insurer when considering if an Applicant should be required to attend an IE. These factors include the timing of when relevant information is disclosed and information already available to the Insurer. The medical information sent to Dr. Eisen for a paper review was updated medical information which would be appropriate for the Insurer to forward to its relevant assessors for further comment.

In Al-Shimasawi and Wawanesa,²⁶ Arbitrator Feldman noted relevant criteria which needs to be considered prior to determining the reasonableness of an Insurer’s request that an Applicant undergo an IE. The Insurer’s request that the Applicant attend an in-person assessment with Dr. Eisen was made in early March 2016, prior to the June 9, 2016 Pre-Hearing.

I have considered the possible prejudice to both sides and have determined the Applicant would not be prejudiced with regards to the timing of the Hearing scheduled to commence August 14, 2017. There would be enough time for the Applicant to attend the in-person assessment, a report to be issued, the Applicant have an opportunity to review the Insurer’s report, provide a rebuttal report if necessary, and serve their report to the Insurer within the timelines provided by the Dispute Resolution Practice Code. However, I find there would be prejudice to the Insurer if it were to proceed to a Hearing based upon Dr. Eisen’s inconclusive March 2016 report, the Psychiatry Assessment completed on March 27, 2014 (report issued March 19, 2015), and the Insurer having to respond to the updated medical information provided more than 18 months after Dr. Eisen’s in-person assessment of the Applicant. This would be procedurally unfair to the Insurer.

The Applicant has relied on Macho and Unifund,²⁷ where the Applicant’s own Psychiatrist, who was confirmed to be an expert witness, advised against the Applicant attending any further assessments. The Applicant’s position is that if he is required to attend another in person psychiatric assessment with Dr. Eisen, it has the potential to negatively impact his overall health. I note the situation with this Applicant is different as compared to the case of Macho and Unifund. There has been no medical information presented that the Applicant will suffer a further decline cognitively, psychologically or mentally if he undergoes the further in-person psychiatric assessment with Dr. Eisen. It is noted that the Applicant may experience further anxiety if required to attend a follow-up assessment where the Applicant is physically touched. Information conveyed by the Applicant’s Psychologist, Dr. Challis, in a letter dated April 14, 2014,²⁸ notes that the Applicant’s anxiety level is significantly increased when others touch him. But I do not find that the psychiatric assessment necessitates that the Applicant be touched by the assessor. Therefore, I do not accept that there is a preponderance of evidence supporting the claim that it would be detrimental to the Applicant’s health should he be required to attend a further insurer psychiatric assessment.

It has been raised by the Applicant, and acknowledged by the Insurer, that the Applicant has had 15 prior assessments. The Insurer notes that many of the assessments were performed to assess treatment plans and the claim for an income replacement benefit. Additionally, the Insurer notes many of the assessments were performed early on in this claim, prior to the determination of catastrophic impairment being brought forward by the Applicant through an OCF-19. The Insurer maintains many of these prior assessments cannot be relied upon to address catastrophic impairment.

The additional medical documentation received by the Insurer in 2015 prompted it to request a further in-person assessment and respond to the information which had been presented. The Insurer has an ongoing obligation to adjust the Applicant’s claim based upon new information it receives and then make a determination if this changes its prior position

The Applicant continues to be treated by a Psychologist and a Psychiatrist, and claims to be suffering from impairments resulting from the subject motor vehicle accident. I find the Insurer has demonstrated that its request for a follow-up in-person psychiatric assessment is both reasonable and necessary. As per Stanley and Pilot,²⁹ I find the burden of proof has been met by the Insurer. Conversely, I do not find the Applicant has provided a reasonable explanation for not attending a follow-up IE psychiatric assessment.

New medical information was provided including the clinical notes and records of the Applicant’s treating Psychologist and Psychiatrist, a Neuropsychological Assessment Report, a Catastrophic Psychiatric Addendum Report and an Occupational Therapy Progress Report. All were supplied to the Insurer in 2015, several months after the initial IE psychiatric assessment was completed. Dr. Eisen stated an in-person assessment is necessary to try and determine causality and impairments as it relates to catastrophic impairment determination. While Dr. Eisen noted that he was unable to determine if a further assessment would be more productive, I do not find this conclusive in determining the issue. I do not agree that the requested insurer psychiatric assessment is clearly for the purpose of bolstering the Insurer’s position at the Hearing.

The parties agree that there is a reasonable nexus between the examination requested by the Insurer and the Applicant’s injuries.

The Arbitration Hearing in this matter will be stayed pending the Applicant’s attendance at the proposed insurer psychiatric assessment with Dr. Eisen. ADR Chambers is required to complete all of its Hearings by the end of December 2017.

EXPENSES:

The issue of costs is deferred to the Hearing Arbitrator.

January 3, 2017

Kimberly Parish Arbitrator

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario