Rajayokeswary Jeganathan v. Pafco Insurance Company, 2017 ONFSCDRS 67

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 67

FSCO A16-004797

BETWEEN:

RAJAYOKESWARY JEGANATHAN

Applicant

and

PAFCO INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Charles Matheson

Heard: By written submissions due January 17, 2017

Appearances: Mr. Miguel Maruszki, lawyer, particpated for Mrs. Rajayokeswary Jeganathan

Ms. Jennifer Griffiths, lawyer, participated for Pafco Insurance Company

Issues:

The Applicant, Mrs. Rajayokeswary Jeganathan, was injured in a motor vehicle accident on May 6, 2013. She applied for and received statutory accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Jeganathan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this Motion is:

Is the Applicant’s Arbitration Hearing stayed pending the completion of additional Insurer’s Examinations?

Result:

The Arbitration Hearing, scheduled to commence on September 25, 2017, is not stayed.

EVIDENCE AND ANALYSIS:

Case Law considered

Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986

F.S. and Belair Insurance Company Inc., FSCO Appeal P96-00039

State Farm Mutual Automobile Insurance Company and Ramalingam, FSCO Appeal P06-00026, upheld at Judicial Review 2009 CanLII 44115 (ON SCDC), [2009] O.J. No. 3491

Bast and Unifund Assurance Company, FSCO A10-003893

Allen and Security National Insurance Co./Monnex Insurance Mgmt. Inc., FSCO A12-003800

Jodoin and Gore Mutual Insurance Company, FSCO A11-002456

Valente and Primmum Insurance Co., FSCO A13-000614

Background

The Applicant is seeking, among other specified benefits, a catastrophic impairment determination. Upon completion and submission of an OCF-19 supporting the Applicant’s entitlement for the catastrophic impairment determination, under Criterion 7, the Insurer then completed its assessments under Criteria 7 and 8 of the AMA Guides to Evaluation of Permanent Impairments, 4th Edition.

The Applicant then prepared rebuttal reports to the Insurer’s assessments which are now under the marked impairment Criteria 7 and 8. The Insurer argues that these rebuttal reports show new material changes and it now requests a further battery of section 44 Insurer’s Examinations. The Applicant declines to attend the newly requested assessments as she argues that they are not reasonable or necessary.

During a teleconference with the parties on January 12, 2017, I required clarification of an issue prior to the Insurer’s final submissions. We discussed the second OCF-19 and its characterization.

Was the second OCF-19 directional in nature for the rebuttal assessors to address both marked impairment Criteria 7 and 8, or was the second OCF-19 a second Application for a catastrophic impairment determination?

The Insurer agreed that the purpose of the second OCF-19 was to be directional in nature for the rebuttal assessors to address both marked impairment Criteria 7 and 8. The Insurer chose not to make further submissions on January 17, 2017.

Decision

The parties agree that the “reasonable and necessary” test under the Schedule is the correct test and as such, the dispute is a factual one and not over interpretation of the statute.

The parties also agree that the Applicant has exhausted her non-catastrophic medical benefit limits as of November 2016.

The undisputed timeline shows the following:

April 21, 2015: Dr. Valithianathan submits the completed OCF-19;
June and August 2015: the Insurer completes three s. 44 examinations;
January 27, 2016: current Applicant’s law firm is hired;
March, 31, 2016: mediation is failed and an Application for Arbitration is filed;
July 4, 2016: the Applicant releases an amended OCF-19, this time citing Criteria 7 and 8;
June 29 to September 7, 2016: the Applicant produces rebuttal reports, with the executive summary showing the Applicant meets the threshold of a 55% whole person impairment;
October 3, 2016: the Insurer requests more s. 44 examinations;
October 17, 2016: the Insurer makes further requests for more s. 44 in-person examinations and paper reviews from its previous assessors;
November 2, 2016: the Applicant informs the Insurer that she will not participate in further s. 44 examinations;
November 21, 2016: all rebuttal reports are delivered to the Insurer; and
November 30, 2016: the Pre-Hearing took place.

The Insurer argues that its three assessors found that the Applicant was 43% whole person impaired which falls short of the threshold of a 55% whole person impairment.

However, with the receipt of the rebuttal reports, it now appears to the Insurer that a material change has occurred since the original assessments were completed and based on the finding of the Applicant’s occupational therapist’s assessment, which concludes that the Applicant requires 24-hour care. As such, further s. 44 examinations are required as the Insurer is trying to dispense its obligation to properly adjust the file.

The Insurer also argues that being provided the rebuttal reports in November 2016 amounts to or constitutes trial by ambush by the Applicant’s counsel.

The Applicant argues that her rebuttal of June 29, 2016, the occupational therapist in-home assessment, is an in-depth report that shows that the Applicant requires 24-hour supervision due to her emotional and cognitive defects, all of which were captured in the Insurer’s original assessor report.

The Insurer’s assessor, Mr. Kaplun, in his report, suggested that the Applicant had “significant delayed memory on the Cognitive Competency Test” but concluded that the Applicant fell into the mostly “independent with occasional assistance required level of the Cognitive Competency Test”.

The Applicant argues that different results do not necessarily mean any material changes have occurred; it is simply a different diagnosis and not evidence of a new medical condition, or a material change.

The Applicant contends there is no evidence or Affidavit to support a material change or a change for treatments and no evidence to suggest that both the Insurer’s and Applicant’s assessors did not have the same medical evidence before them when making their determinations.

The Applicant argues that she would be prejudiced if further delays for the Arbitration Hearing scheduled to take place on September 25-29, 2017 were allowed, as she has exhausted the non-catastrophic benefits limits.

The Applicant argues that before making my decision, I must also consider the following factors:

What other information is available to the Insurer, including information provided by the Applicant, and the number, nature and date of previous Insurer Examinations.
Whether information provided by the Applicant since the Insurer’s last Insurer Examination suggests a new diagnosis, a change in the Applicant’s condition, or a new direction in medical investigation of it.
Whether there is reasonable nexus between the requested examination and the Insured person's injuries.
Whether the Insurer has accepted the claim and continues to pay benefits.
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.

It is my view, on the balance of probabilities, that the parties had the same medical information before their assessors at the time of their respective catastrophic determination reports and rebuttal reports.

Also in my view there is an insignificant amount of time between the service of the rebuttal reports and the Insurer’s original s. 44 examinations considering that Applicant’s counsel was retained in January 2016 and moved quickly through the various stages of this process in less than 10 months.

The single pillar of the Insurer’s arguments is that there is a material change by virtue of a difference of opinions between two different occupational therapists. This is the fatal flaw in the Insurer’s argument. I am not persuaded that there is a material change in the Applicant as there is no direct evidence that the Applicant’s condition is declining or changed, in order to trigger a new round of Insurer’s Examinations.

I also do not view the late service of the rebuttal reports to support a trial by ambush argument when the Hearing is scheduled to commence in September 2017.

I must then conclude the most critical point in the list of factors from above is for me to preserve the Applicant’s significant right to privacy as the evidence shows the Insurer has already dispensed its due diligence under the Schedule. Therefore, for the reasons above, the Arbitration is not stayed.

EXPENSES:

I defer any decision on expenses to the final Hearing Arbitrator, based on Rule 79 of the Dispute Resolution Practice Code (“DRPC”), as he or she will be in a better position to make an award, if applicable. Should the parties settle the Arbitration without a final Hearing and become unable to resolve the expense of this Motion, they may request an Expense Hearing in accordance with the provisions of the Rule 79 of the DRPC, once they have settled all other Arbitration disputes between them.

March 6, 2017

Charles Matheson

Arbitrator

Date