Financial Services
Commission
of Ontario
Commission des
services financiers
de l’Ontario
FSCO A11-003314
BETWEEN:
ANDREW TAILLEUR
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY
OF CANADA
Insurer
REASONS FOR DECISION
ATTENDANCE AT AN INSURER EXAMINATION (IE)
Before:
Deborah Pressman
Heard:
By final written submission received May 10, 2013
Appearances:
Daniel Roncari for Mr. Tailleur
Arthur R. Camporese for Royal & SunAlliance Insurance Company of
Canada
Overview:
The Applicant, Andrew Tailleur, was injured in a single motor vehicle accident on May 11,
2003, when he was 18 years of age. As a result of the accident, he sustained injuries and was
deemed catastrophically impaired due to his GCS score. He applied for and received various
statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”),
payable under the Schedule.1 At some point, disputes arose between the parties which they were
unable to resolve through mediation and Mr. Tailleur applied for arbitration at the Financial
Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
1
The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation
403/96, as amended.
TAILLEUR AND ROYAL & SUNALLIANCE
FSCO A11-003314
One of the issues in dispute in this arbitration is Mr. Tailleur’s entitlement to ongoing attendant
care benefits. Royal could not complete its Assessment of Attendant Care Needs (Form 1)
without considering Mr. Tailleur’s current psychological difficulties, as they have an impact on
his attendant care needs. Royal then set up a neuropsychological examination pursuant to section
44 of the Schedule.2 Mr. Tailleur refused to attend the neuropsychological assessment and Royal
brought this motion.
Issues:
The issues in this motion are:
1. Is it reasonably necessary for Mr. Tailleur to attend a neuropsychological IE, pursuant to
s. 44 of the Schedule?
2. In the event that the IE is determined to be reasonable, is Royal Entitled to a stay of these
Arbitration proceedings until Mr. Tailleur has attended?
Result:
1. It is reasonably necessary for Mr. Tailleur to attend a neuropsychological IE, pursuant to
s. 44 of the Schedule.
2. The arbitration is stayed until Mr. Tailleur attends the IE.
Is Mr. Tailleur’s attendance at a neuropsychological assessment reasonably
necessary and required for a fair hearing?
I find that Royal’s request that Mr. Tailleur attend a neuropsychological assessment is reasonably
necessary and required for a fair hearing. Therefore, I order the arbitration stayed until
Mr. Tailleur attends the assessment. My reasons are as follows.
2
Section 44 was section 42 under a previous Schedule
2
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Subsection 44(1) of the Schedule provides that, as often as is reasonably necessary, an insurer
may require an insured person to be examined by one or more regulated health professionals to
assist the insurer to determine if the insured person is or continues to be entitled to a benefit.3
More recently, judges and arbitrators have defined an insurer’s right to examinations in the
context of fairness, on the basis that fairness is fundamental to any administrative process and
that an assessment may be required for a fair hearing.4
In addition, there are several important considerations that arbitrators take into account in
determining whether an IE is reasonably necessary. These are outlined in the case of
Al-Shimasawi and Wawanesa Mutual Insurance Company and include the timing of the request,
whether new issues have been raised in the claim that require evaluation, the number and nature
of previous insurer’s examinations and the nature of the proposed examination, whether there is
a reasonable nexus between the examination requested and the injuries, and possible prejudice to
the parties.5
The question is then whether an assessment is reasonably necessary. In addition, an arbitrator
must consider whether it is fair for the insurer to have an opportunity to assess its insured and for
the insured to attend an examination. Overall, based on the legal principles noted above and the
evidence, I find that the requested neuropsychological assessment is reasonably necessary and
fair.
3
Supra at 1
4
TD Home and Auto Insurance Company and Anthonypillai (FSCO P11-00005, March 5, 2012), Appeal;
Albanese and State Farm Mutual Automobile Insurance Company (FSCO A10-000464, October 25, 2011); State
Farm Mutual Automobile Insurance Company and Ramalingam (FSCO P05-00026, August 13, 2007) Appeal;
upheld on appeal to the Divisional Court [2009] ONSC 44115; Certas Direct Insurance Company v. Gonsalves
[2011 ONSC 3986], affirmed by the Court of Appeal.
5
Al-Shimasawi and Wawanesa Insurance Company (FSCO A05-002737, May 11, 2007)
3
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Since his accident, Mr. Tailleur has completed post-secondary college programs and a work
placement and lived on his own, as well as with his fiancée.6 In November 2010, seven years
after the accident, Royal determined that Mr. Tailleur was independent in his self-care and only
required assistance with stretching/exercises and his financial affairs.7 Mr. Tailleur disagreed
with Royal’s determination and applied for arbitration.
Prior to the pre-hearing, which took place in June 2012, Royal requested an updated Attendant
Care Needs Assessment in order to determine whether Mr. Tailleur’s needs have changed since
the previous assessment.8 Mr. Tailleur did not submit an updated assessment nor the Form 1 and
Royal arranged an Insurer’s in-home OT assessment on September 4, 2012, which Mr. Tailleur
attended. Royal’s assessor concluded that physically, Mr. Tailleur does not require any help with
his self-care.9 However, she could not complete her assessment or the Form 1 without taking into
consideration his current psychological injuries, as they have an impact on his attendant care
needs. She then recommended that Mr. Tailleur undergo a neuropsychological assessment
because his last neuropsychological assessment was in 2006. Royal promptly sent out notice for
the requested assessment, but Mr. Tailleur refused to attend the neuropsychological assessment.10
In my view, the facts support Royal’s position that it is not engaged in “trial brinkmanship”
because the timing of Royal’s request is reasonable.11 When Royal requested the assessment
(October 2012), it was well in advance of the hearing originally set for April 2013.12 In fact,
Mr. Tailleur agreed to attend the in-home assessment that Royal had set up. It was only after the
assessor could not complete her Form 1 and Royal requested that Mr. Tailleur undergo a further
6
Letters and Reports at Tabs 9, 10, 11, 12, 13, 14 of Royal’s brief.
7
In-Home Occupational Therapy Assessment and Form 1 of Ms. Lee dated November 17, 2010 at Tab 15 of
Royal’s brief.
8
Letter from Royal to Mr. Tailleur dated January 13, 2012 at Tab 18 of Royal’s brief.
9
Ms. Wilson’s report of the In-Home Occupational Therapy Functional Assessment, at Tab 19 of Royal’s brief.
10
Letter and Explanation of Benefits dated September 25, 2012 at tab 20 of Royal’s brief and Letter and Notice
of Examination dated October 4, 2012, at Tab 21 of Royal’s brief.
11
Fraser and Echelon General Insurance Company (FSCO A04-000181, April 19, 2005), also see AlShimasawi supra at footnote 10.
12
Later adjourned to December 2, 3, 4, and 5, 2013 to allow for the motion as per my letter dated April 5, 2013.
4
TAILLEUR AND ROYAL & SUNALLIANCE
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neuropsychological examination that Mr. Tailleur refused to attend. Therefore, I find that Royal
is not trying to bolster its case for the arbitration hearing, but legitimately attempting to assess
Mr. Tailleur‘s ongoing entitlement to attendant care benefits.
One of the considerations in this type of motion is the number and nature of previous IEs. As one
would expect in a catastrophic claim, Mr. Tailleur has undergone numerous examinations in the
last 10 years. However, his last neuropsychological assessment took place seven years ago.13
That alone might be a reason for Royal to update its assessment in Mr. Tailleur’s case.
Therefore, I find it reasonable that Royal requires an updated neuropsychological assessment.
Another consideration is the nexus between the examination requested and the insured’s injuries.
Royal provided direct medical evidence that a neuropsychological assessment is required to
assess Mr. Tailleur’s current attendant care needs because it is directly related to Mr. Tailleur’s
injuries, specifically his cognitive problems, which are better measured by such an assessment,
as evident in Ms. Wilson’s report.14
Mr. Tailleur submitted that Ms. Wilson, as an occupational therapist, is not qualified to
recommend a neuropsychological assessment, and that this new assessment would not likely
reveal results that significantly differ from the last neuropsychological assessment in 2006.
However, several assessors agreed that Ms. Wilson’s in-home assessment cannot encompass Mr.
Tailleur’s cognitive problems and that a neuropsychological assessment is required. Shortly after
Royal advised that it would be arranging for a neuropsychological assessment, Mr. Tailleur sent
Royal a request to allow his own treating psychologist, Dr. Velikonja, to conduct the same
assessment.15 And in February, 2013, Ms. Dyk, also Mr. Tailleur’s assessor, supported Ms.
Wilson’s request for a neuropsychological assessment. In her medical legal assessment, Ms. Dyk
recommended “…that an updated neuropsychological test be performed to obtain a baseline of
13
Dr. Alyman’s evaluation of April 27, 2006 (Mr. Tailleur’s assessor) at Tab 8 of Royal’s brief.
14
Ms. Wilson stated that she is “…unable to determine his need for cueing related to personal care tasks, or his
need for assistance with financial affairs, given that formal cognitive testing was not completed during this Insurer
Examination and the most recent Neuropsychological Assessment provided for review dates back to April 2006.”
See footnote 9 supra, at page 49.
15
Dr. Velikonja’s OCF-18 dated October 3, 2012 at Tab 23 of Royal’s brief.
5
TAILLEUR AND ROYAL & SUNALLIANCE
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Mr. Tailleur’s neuropsychological functioning at present… .”16 Therefore, I also find that the
neuropsychological assessment is reasonably necessary because of its nexus to Mr. Tailleur’s
injuries.
Generally, Mr. Tailleur’s submissions did not address the kinds of considerations an arbitrator
takes into account in determining this type of motion. For example, he submitted that Royal does
not have the right to choose the neuropsychological assessor because Mr. Tailleur’s own treating
psychologist is the most appropriate assessor to conduct the neuropsychological examination.
I disagree because the Schedule and the case law are quite clear; an insurer is entitled to choose
its evaluating medical specialist.17
Mr. Tailleur also submitted that attending the neuropsychological examination by an assessor of
Royal’s choosing would be detrimental to his health. However, in the lifetime of this claim,
Mr. Tailleur was able to participate in numerous examinations with different assessors, and I was
not provided with evidence that these examinations caused any harm.18 Notably, Mr. Tailleur’s
own treating psychologist noted that Mr. Tailleur would “likely react better to a brief assessment
that was conducted by a clinician familiar to him… .”19 I also find it telling that as recently as
January 2013, Mr. Tailleur was capable and willing to undergo his own medical legal assessment
with Ms. Dyk, in order to support his claim for the arbitration.
In all the circumstances of this case, I find that Royal’s right to examine Mr. Tailleur is required
to ensure a fair hearing. Royal has a right to fully evaluate the attendant care claim. With the
hearing scheduled for December 2013, there should not be any prejudice or delay to Mr. Tailleur,
16
Ms. Dyk’s report dated February 25, 2013 at Tab 38 of Royal’s brief, at page 7.
17
Corbin and Personal Insurance Company (FSCO A10-001560, September 20, 2011) at p 9, Scott and TTC
Insurance Company (Markel Insurance) (OIC A-001116, September 4, 1992), Al-Shimasawi, supra
18
For example, a neuropsychological assessment in 2004, two in 2005 and a re-evaluation in 2006 at Paragraph
4 of Royal’s reply submissions.
19
Dr. Velikonja’s letter dated November 8, 2012 at Tab 3 of Mr. Tailleur’s brief.
6
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FSCO A11-003314
if the parties promptly schedule the examination. In fact, Mr. Tailleur has already obtained the
necessary rebuttals and evidence to assert his claim in the arbitration.20
After considering all the evidence and the appropriate legal principles, I conclude that the
proposed assessment is both fair and reasonably necessary, and that Royal has discharged its
onus of establishing such.
Should the arbitration be stayed until Mr. Tailleur attends the neuropsychological
assessment?
As the criteria set out in the case law favour conducting the assessment because it is reasonably
necessary and fair, and as Royal is not seeking to conduct this assessment for the dominant
purpose of the arbitration, Mr. Tailleur should attend the neuropsychological assessment before
proceeding with his arbitration.
The arbitration is stayed until Mr. Tailleur attends the IE, unless the parties agree otherwise.
EXPENSES:
The parties did not address the issue of expenses. The matter of expenses is more appropriately
considered by the hearing arbitrator in the context of the case as a whole.
June 27, 2013
Date
Deborah Pressman
Arbitrator
20
Supra at 13
7
Financial Services
Commission
of Ontario
Commission des
services financiers
de l’Ontario
FSCO A11-003314
BETWEEN:
ANDREW TAILLEUR
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY
OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
1. It is reasonably necessary for Mr. Tailleur to attend a neuropsychological IE, pursuant to
s. 44 of the Schedule.
2. The arbitration is stayed until Mr. Tailleur attends the IE.
Deborah Pressman
Arbitrator
June 27, 2013
Date