K. R. v. Gore Mutual Insurance Company, 2018 CanLII 139518

Tribunal File: 17-005722/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

K. R.

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Respondent

REASONS FOR DECISION AND ORDER

VICE CHAIR: D. Gregory Flude

APPEARANCES

For the Applicant: DAVID DONNELLY, Counsel

For the Respondent: PHILIPPA SAMWORTH, Counsel

Heard in Writing: August 1, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on November 9, 2012 and sustained impairments. She has had ongoing treatment for her impairments funded by the respondent pursuant to the Statutory Accident Benefits Schedule – Effective on September 1, 2010 (the “Schedule”). She seeks further treatments, but having exhausted the $50,000 of medical and rehabilitation benefits in the Schedule, she is only entitled to those benefits if she is found to have been catastrophically impaired (“CAT”) as a result of the accident. She has applied to the respondent, with medical evidence, for a CAT determination. The respondent disputes that she is CAT and the applicant has applied to this Tribunal to resolve the dispute.

2There has been an exchange of medical documentation between the parties. To support her claim for a CAT determination, the applicant has submitted reports prepared by Omega Medical Associates (“Omega”). Omega determined that the applicant met the definition of CAT under s. 3.1 of the Schedule. Pursuant to its rights under s. 44 of the Schedule, the respondent scheduled medical examinations with assessors of its choosing, Makos Health Associates (“Makos”). Makos determined that she did not meet the CAT definition. The applicant sent the Makos report to Omega which then prepared an addendum report reaffirming its original position.

3The respondent has asked Makos to prepare an addendum report responding to the Omega addendum report on the basis that the Omega addendum reports contained new opinion and comment. The Makos addendum report will not require the attendance of the applicant. Makos will limit itself to a review of the existing medical file, and, in particular, the Omega addendum. In the respondent’s view, the Omega addendum contains new medical information to which its assessors should respond to determine if a change regarding the catastrophic determination is warranted. Makos has declined to provide an addendum report without either the applicant’s consent or an order from the Tribunal upholding the respondent’s right to have Makos prepare an addendum. In previous dealings with the applicant, she reported one of Makos assessors to the professional governing body alleging that the assessor had covered areas in the assessment that the applicant had not consented to.

4The respondent has brought this motion to the Tribunal to determine if it has the right to have Makos prepare an addendum report without the applicant’s consent. It initially brought the motion in February 2018, but, in an order released on June 1, 2018, I ruled that the motion was premature as the respondent had not served notices of examination on the applicant. I adjourned the motion to permit the respondent to serve the notices and allow time for the applicant to either consent or object to the form or substance of the notices. I invited the parties to make further written submissions, if necessary, after the notices had been served. The applicant having taken the position that the notices do not comply with the Schedule, the parties made further submissions. I have now reviewed those further written submissions.

ISSUES AND RESULT:

5The respondent, in its motion materials, identifies four issues that may be grouped into two broader areas: an area addressing procedures before this Tribunal and an area address the application of s. 44 of the Schedule:

i. Can Makos conduct a review of the applicant’s medical history, and in particular the Omega addendum reports, and issue its own addendum reports because:

a. There is nothing in the Tribunal’s Rules that prohibit a party from getting further expert reports to prepare for the hearing; and/or

b. Procedural fairness requires that its experts be able to respond to new opinion and comment in the Omega addendum reports?

ii. Has the respondent complied with s. 44 of the Schedule, thereby permitting Makos to prepare addendum reports because:

a. It served proper notices of examination for a Makos assessment in the past and the current reports do not require the attendance of the applicant and represent no more than an update of the past reports in light of the Omega addendum report; or

b. It has now served notices of examination on the applicant that are in compliance with s. 44.

6Having reviewed the evidence and submissions filed by the parties, I dismiss the respondent’s motion. Contrary to the assertion of the respondent, a review of the evidence shows that the Omega addendum reports do not contain any new opinion or comment. In each case the assessors review the Makos reports and reaffirm their original positions on the extent of the impairments suffered by the applicant.

ANALYSIS

7In approaching my analysis of the issues, I am of the view that if, in fact, the applicant has raised new issues in the Omega addendum report, procedural fairness dictates that the respondent should be permitted to review the appellant’s medical file together with those reports with its expert witnesses and have its experts prepare rebuttal reports. In this regard, I do not consider the first branch of the respondent’s position regarding the lack of rules prohibiting further expert reports to be separate from the overall issue of procedural fairness. The purpose of the Tribunal’s rules is to ensure that each party to a proceeding has a full opportunity to present its case and know the case it has to face. In achieving this end, the Licence Appeal Tribunal Act, 1999, S.O. 1990 chap. C. 12, Sched. G. gives the Tribunal all of the powers necessary to carry its mandate. In my view, this power includes permitting a party to file further documents, including further expert reports, where it would be unfair not to permit it to do so.

8The first two issues, then, turn on whether the Omega addendum reports raised new issues. I must consider if the Makos assessors had the full opinion of the Omega assessors when they completed their assessments of the applicant and prepared their reports. If they did not, and the Omega assessors added new grounds, referred to as new opinion and comment in the affidavit evidence, then the respondent may prepare responding addendum reports. If they did, then I would need to address the application of s. 44 and whether the further reports are reasonably and supported by medical and other reasons.

9The facts the respondent relies on in support of its position that the Omega addendum reports raise new issues are set out in the affidavit of David Raposo sworn January 24, 2018 and subsequently amended on consent of the parties. After setting out the history of the dealings between the parties up to the point when Omega issued its addendum reports, at paragraph 23 of his amended affidavit, Mr. Raposo identifies those areas where he alleges the applicant has raised new opinions and comments:

a. Dr. Fortin, physiatrist, assigned a 2-3% WPI for the use of various medications;

b. Dr. Fortin assigned a rating of 5% WPI for cervicothoracic spine impairment based on DRE Cervicothoracic Category II;

c. Dr. Fortin, physiatrist, assigned a rating of 5% WPI for lumbosacral spine impairment based on DRE Lumbosacral Category II;

d. Dr. Fortin, physiatrist, assigned a 5% WPI for upper extremity impairment;

e. Dr. Robinson, neurologist, assigned a rating of 1-14% WPI for mental status impairment based on Chapter 4, Table 2, Mental Status Impairment;

f. Dr. Robinson, neurologist, assigned a rating of 1-9% WPI for impairment of sleep and arousal based on Chapter 4, Table 6;

g. Dr. Robinson, neurologist, provided a rating of 4% WPI for headache by analogy to occipital neuralgia; and,

h. Dr. Browne, psychologist, chose a mid-point rating of 40% WPI for mental and behavioural impairment from the identified rating of 30 to 49% for a mental behavioral impairment per Chapter 4, Table 3 of the AMA Guides.

10Based on Mr. Raposo’s affidavit, the respondent asserts that it needs responses to address new information from a neurologist, a physiatrist and a psychologist. At paragraph 19 of his affidavit, Mr. Raposo identifies the need for responding reports from Dr. Paitich, an orthopaedic surgeon, Dr. Mendis, a neurologist and Dr. Eisen, a psychiatrist.

11In response to this motion, the applicant filed the undated affidavit of Patricia Grubb. That affidavit focussed solely on the correspondence between the parties, in which correspondence the applicant sets out her legal position, inter alia, that there is no mechanism in the Schedule to permit the respondent to prepare addenda to the Omega addendum reports. In supplementary submissions on the motion, the applicant took the position that the Omega addenda do not add any new information.

12Between the swearing of the affidavit and the preparation of the notices of examination following the release of my June 1, 2018 order, it would appear that the respondent has reconsidered the doctors from which it needs addendum reports. The notices of examination appear to drop Dr. Mendis in favour of Dr. Korman, an otolaryngologist. They state:

a. [The respondent] needs an addendum report from Dr. Paitich because Omega’s addendum report by Dr. Fortin assigns a number of Whole Person Impairment (WPI) ratings and concludes that there may be a higher rating as a result of restricted shoulder range of motion and an undisplaced patellar fracture from 2016;

b. Its needs an Ear Nose and Throat (ENT) addendum from Dr. Korman, an ENT specialist, because the applicant’s neurologist, Dr. Robinson, has rated her impairments using the neurological provisions of the applicable guidelines to address vestibular dysfunction rather than the ENT provisions, but recommends a report by an ENT specialist; and

c. It needs a psychiatric addendum report from Dr. Eisen because the applicant’s psychiatrist, Dr. Browne, alleges in her addendum report that synergistic effects from the applicants impairments may result in a higher WPI rating than the accepted range of 15-29%.

Dr. Fortin/Dr. Paitich

13The new information the respondent alleges is contained in the addendum report of Dr. Fortin appears to me to arise out of his acceptance that the applicant suffered a more limited range of motion in her right shoulder when examined by Dr. Paitich than when originally examined by him. In his original assessment he assigned a Whole Person Impairment rating (“WPI”) of 5% for upper extremity impairment. Dr. Paitich assessed the impairment as 7%. In his response, Dr. Fortin commented on Dr. Paitich’s report as follows:

Dr. Paitich's measurements demonstrated more severe range of motion restriction compared to my measurements. His measurements yielded an upper extremity impairment rating of 12%, which corresponded to a whole person impairment rating of 7% under Section 3.lj.

I maintain my position of a 5% whole person impairment rating as it corresponds to my physical examination, but acknowledge that range of motion restriction could have progressed in the interval between mine and Dr. Paitich's evaluation.

14I do not consider these comments in Dr. Fortin’s addendum to constitute a new opinion or comment. While re-asserting Dr. Fortin’s original assessment, the addendum simply acknowledges that the higher 7% rating found by Dr. Paitich are likely based on the condition of the applicant as she presented to Dr. Paitich. These grounds are insufficient to ground a further medical report from the respondent as there is no denial of procedural fairness.

Dr. Robinson/Dr. Mendis

15There are three grounds in the Raposo affidavit on which the respondent asserts that Dr. Robinson provided new opinions and comments and one ground in the notice of examination:

a. Dr. Robinson assigned a rating of 1-14% WPI for mental status impairment based on Chapter 4, Table 2, Mental Status Impairment;

b. Dr. Robinson assigned a rating of 1-9% WPI for impairment of sleep and arousal based on Chapter 4, Table 6; and

c. Dr. Robinson neurologist provided a rating of 4% WPI for headache by analogy to occipital neuralgia.

d. Dr. Robinson, has rated her impairments using the neurological provisions of the applicable guidelines to address vestibular dysfunction rather than the ENT provisions, but recommends a report by an ENT specialist.

16Similarly with Dr. Fortin, Dr. Robinson provided all of the WPI assessments and reasons in support in his original Omega report. In his addendum he limited his responses to explaining why he thought his approach on assessing impairment was preferable to the approach taken by Dr. Mendis. This explanation does not constitute new opinion or comment. It remains squarely within the parameters of his original report.

17With respect to the question of an assessment by an otolaryngologist, Dr. Robinson notes that the respondent had had a report prepared by Dr. Korman, an otolaryngologist. He suggested that the applicant may wish to consider an otolaryngologist’s report to respond to Dr. Korman’s report. He is not introducing any new opinion or discussion, simply responding. In any event, the applicant has not sought an otolaryngologist’s report, so there is nothing for the respondent to address.

Dr. Browne/Dr. Eisen

18The new opinion or comment alleged with respect to Dr. Browne’s report is that she chose a mid-point in the impairment range. The Notice of Examination states that an IE is needed because “Dr. Browne, alleges in her addendum report that synergistic effects from the applicants impairments may result in a higher WPI rating than the accepted range of 15-29%.” In her original assessment dated August 12, 2016, Dr. Browne stated:

Further, while at this time given the information provided, K.R.’s. impairment ratings fall within the moderate range, I believe the synergistic effect of her psychological symptoms contribute to overall serious impairments in functioning, This is based on not only the self-reports of K.R.’s in my evaluation, but also her reports to Mr. Justin Moy, occupational therapist and co-assessor.

19Dr. Browne reasserts the above statement in her addendum report. It is clear that the addendum report of Dr. Browne did not raise any new opinion or comment. In fact, she did not use the synergistic effects in her rating as in both her original report and her addendum she states that a multi-day focussed occupation therapy assessment is necessary to explore this issue further.

Overall Impact

20It is clear for my review of the reports in question that they do not raise new opinions or comments. Each impugned report reasserts the position taken in the original while taking into account the Makos reports. Thus, from a procedural fairness point of view, the applicant has not put forward information to which the respondent has not had the opportunity to reply. Accordingly on this ground, I would not order the production of addendum reports by Makos.

Section 44

21The above finding that the Omega addendum reports do not raise new opinions or comments informs the analysis of the s. 44 issue. The respondent makes two submissions with respect to s. 44. The respondent submits that, where the respondent’s assessors are not conducting new physical examinations but are simply reviewing the file to respond to new opinions and comments, it does not need to issue new notices of examination. On this interpretation, the new reports represent a continuation of the earlier examinations. The respondent also submits that, in this case, it has issued compliant notices of examination and, therefore, has a right to prepare the addendum reports it seeks. I would not give effect to either of these grounds.

22Section 44(1) permits an insurer to conduct inspections “no more often than is reasonably necessary.” To justify an examination, an insurer must give “medical and other reasons.” The wording of s. 44(5) defines the required content of the notices and 44(5)(b) includes examinations where the attendance of the insured is not required. The clear policy of the section, and the interplay between s. 44(1) and s. 44(5) is to limit insurers to exercising their rights to review an insured’s medical status to circumstances where such a review is reasonably justified, even where the review does not subject the insured to the invasiveness of an in-person examination.

23To accept the respondent’s position that notice is not necessary for a medical review where the insured need not attend is, in my view, problematical on two grounds. The first ground is that it would eliminate the frequency provision for examinations. If each review is simply an update of an earlier review, the restrictions incorporated in s. 44 become meaningless. It would also render the requirement to give medical and other reasons ineffective. The respondent could take the position that it is simply updating the file. In my view, the type of review the respondent seeks to do in this case is subject to the provisions of s. 44.

24Given that the justification set out in the notices of examination is based on new opinion and comment in the Omega addendum reports, and given that I have found that there is no new opinion and comment in the Omega addendum reports, it follows that there is no medical or other reason to conduct s. 44 examinations. Accordingly I would dismiss the s. 44 motion.

ORDER

25I find that the respondent has failed to show that the Omega addendum reports contain new opinion or comments. The respondent’s motion to permit Makos to prepare further medical reports in response to the Omega addendum reports is dismissed.