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FSCO AOl B 001032
BETWEEN:
MARIA JULIA FERREIRA
Applicant
and
NATIONAL FRONTIER INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Suesan Alves
Heard : By telephone conference call on September 9, 2002.
Appearances : David Levy for Ms. Ferreira
J. Claude Blouin for National Frontier Insurance Company
Issues:
National Frontier Insurance Company (“National Frontier’), seeks to have Ms. Ferreira submit to two
insurer examinations under section 42 of the Schedule. [See note 1 below.] Ms. Ferreira disputes that
these examinations are reasonably necessary.
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Note 1: The Statutory Accident Benefits Schedule C Accidents on or after November 1, 1996, Ontario Regulation
403/96, as amended by Ontario Regulations 462 96, 505/96, 551/96, 303 98, 114/00 and 482/01.
The preliminary issue is:
1. Is it reasonably necessary for the Insurer to conduct psychiatric and neuropsychological assessments
of Ms. Ferreira pursuant to the provisions of section 42 of the Schedule?
Result:
I. The proposed psychiatric and neuropsychological assessments are not reasonably necessary for
purposes of section 42 of the Schedule.
2. If the parties are unable to agree on expenses of this hearing, that issue may now be addressed.
EVIDENCE AND ANALYSIS:
Background
Ms. Ferreira was injured in a motor vehicle accident on May 4, 1998. At the time of the motor vehicle
accident, Ms. Ferreira was aged 47, and worked at two jobs. By day, she cared for a family of four
children aged 5 through 14. She also helped with cleaning and housekeeping duties including laundry,
cooking and sweeping. In the evenings, she also worked for three hours cleaning offices and banks.
National Frontier paid Ms. Ferreira income replacement benefits for about two years. In this arbitration,
Ms. Ferreira claims entitlement to income replacement benefits on an ongoing basis.
Ms. Ferreira alleges that as a result of the accident, she sustained soft tissue injuries which prevent her
from doing her cleaning job. Ms. Ferreira also alleges that as a result of the injuries she sustained in the
motor vehicle accident, she developed memory and concentration problems, headaches, dizziness,
nausea, drowsiness, has low energy, sleeps excessively, and becomes easily confused. She alleges that
these symptoms cause her to be disabled. This latter group of symptoms provides the backdrop to the
insurer’s request for further psychiatric and neuropsychological evaluations.
Dr. K. Stokes, psychologist, conducted a neuropsychological evaluation of Ms. Ferreira in February and
March 2000. Dr. Stokes recommended a further psychiatric assessment to determine whether Ms.
Ferreira’s level of functioning had improved following psychiatric treatment. She also recommended a
further neuropsychological assessment to determine if Ms. Ferreira’s cognitive impairments continued to
deteriorate.
National Frontier seeks a psychiatric assessment on the basis of Dr. Stokes’ report and also on the basis
of a report prepared by Dr. M. Mammelak, psychiatrist. Shortly before the pre-hearing, in January 2002,
the Applicant served the Insurer with Dr. Mammelak’s report. National Frontier points to a sentence in
that report, which it submits is a new diagnosis and which it describes as “coming out of left field.” Dr.
Mammelak stated: “In my view Ms. Ferreira is suffering from the after-effects of a concussion and she
has gone to develop a mild dementing illness.”
In late June 2002, National Frontier arranged for Ms. Ferreira to attend insurer examinations by a
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psychiatrist, Dr. R. Notkin on July 3 and 8, 2002, and a neuropsychological assessment by Dr. L.
Freedman on July 25, 2002. The letters requesting these assessments were received by counsel for the
Applicant during July 2002, when he was away on vacation. Ms. Ferreira attended for one portion of the
assessment by Dr. Notkin on July 3, 2002. On his return, counsel for the Applicant objected to the short
notice and asserted that the assessments were not reasonably necessary under the Schedule , but were
being sought to bolster the Insurer’s case for the hearing.
Counsel for the Insurer requested a resumption of the pre-hearing. At that time, a hearing was scheduled
to determine whether the assessments were reasonably required. The hearing was held on September 9,
2002 by teleconference call. Each party’s document brief was made an exhibit. On September 16, 2002, I
advised the parties of my decision by letter, sent by facsimile, with reasons to follow. These are my
reasons.
Summary
In summary, I conclude that Dr. Stokes’ recommendation for psychiatric and neuropsychological
assessments was a reasonable basis for the Insurer to seek such assessments. However, the Insurer had
been aware of those recommendations for more than two years before it made the arrangements. The
timing of the assessments suggests brinkmanship. The Insurer’s delay in arranging the assessments was
unreasonable and prejudicial to the Applicant. Further, I conclude that Dr. Mammelak’s report does not
create a basis for a fresh assessment by the Insurer. If I am wrong with respect to Dr. Mammelak’s
report, the Insurer’s delay and the timing of the assessments is nevertheless unreasonable and prejudicial.
For these reasons, I have concluded that the assessments are unreasonable. The hearing will therefore
proceed as scheduled on September 23, 2002.
Law:
Section 42 of the Schedule permits an insurer on reasonable notice, to request examinations of an
insured person “as often as reasonably required” to determine whether he or she is entitled to a benefit.
The question of whether an insurer examination is “reasonably required” or “reasonably necessary,” has
been considered in a number of arbitration and appeal decisions. Although most cases are fact-driven,
principles have emerged with respect to the role of the arbitrator and the purposes of such assessments.
Factors such as the timing of the request and prejudice to the parties are important considerations in
determining whether the proposed examination is reasonable.
Role of the arbitrator
“Determining the appropriateness of a request for information or an examination requires a balancing of
the interests of the parties. The greater the consequence to the insured person in terms of delaying access
to the dispute resolution process, or denying entitlement to benefits, the more closely an arbitrator
should scrutinize the reasonableness of the insurer’s request for an examination.” [See note 2 below.]
Note 2: Belair Insurance Company Inc. and F S. (OIC P96-00039, June Il, 1996) dealt with the 1990 Schedule.
Arbitrator Joachim adopted that approach in relation to the 1996 Schedule in Tesfay andAlls/ate Insurance Company
ofCanada, (FSCO A97 B 001439, April 7, 1999). On appeal, Director’s Delegate Makepeace found no error of law in
applying that principle to the 1996 Schedule (FSCO P99-00023A, June 21, 1999).
The arbitrator’s focus should be on information available to the insurer at the time the request was made.
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The arbitrator’s role is to weigh all the circumstances to determine whether an insurer’s examination is
reasonably necessary for the insurer to effectively assess entitlement. [See note 3 below.] An insurer’s
request must be determined in light of the nature of the applicant’s injuries, the history of any treatment
or assessments and the relevance of the proposed examination to the issues in dispute in the arbitration.
[See note 4 below.]
3: Chafe -Moore and Prudential ofAmerica General Insurance Company of Canada, (FSCO A99-0000 16,
August 6, 1999), and confirmed on appeal Prudential ofAmerica General Insurance Company of Canada and Chafe
Moote, (FSCO P99-00044, September 8, 2000)
Note
Note 4: Vidinopulos and Liberty Mutual Insurance Company ofCanada, (FSCO A00-000977, December 5, 2001)
Purpose of the assessment
In Belair Insurance Company Inc. andFS. , Director’s Delegate Naylor held that the primary purpose of
the provisions in the Schedule which permit insurers’ examinations is to assist the insurer to assess
entitlement to the benefit claimed. However, this “does not mean that it cannot be applied to serve the
ends of fairness.
In the arbitration process, the insurer’s right to require an examination is subject to
the general discretion of the tribunal to control its own processes in the context of the overall objectives
of the system. These include adequate disclosure, settlement of cases and a fair, informed hearing of the
issues remaining in dispute. The objectives are generally served by permitting insurers to arrange timely
medical examinations, in appropriate cases.”
.
.
.
The purpose of an insurer’s examination is not to acquire evidence to bolster the case at the hearing, [See
note 5 below.] to provide a backdoor for examinations for discovery, [See note 6 below.] or to rework its
medical investigations. [See note 7 below.]
Note 5: Swanson and Wellington Insurance Company, (FSCO A98-000067, May 26, 1998)
Note 6: Hail andAllstate Insurance Company ofCanada, (FSCO A98-000988, July 6,2001)
Note 7: Maleshevich and Guardian Insurance Company ofCanada, (FSCO A96-001 699, January 21, 2000)
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Arbitrators have held that where the applicant raises a significant change in circumstances or where
treating practitioners provide opinions at odds with earlier opinions, an examination by the insurer is
reasonably required. [See note 8 below.] However, in the absence of new issues being raised, or
significant new symptoms or changes in condition, “at some point. the assessment process must
stop.” [See note 9 below.]
.
Note 8: Gutzke and Differin Mutual Insurance Company,
.
(FSCO A99-000640, November 27, 2000)
ttt*t****t
Note 9: Barreira and Allstate Insurance Company ofCanada, (FSCO A00-000079, June 30, 2000)
Dr. Stokes’ recommendation
Dr. Stokes recommended further neuropsychological and psychiatric assessments. Ordinarily I would
place a great deal of weight on such recommendations, particularly where, as in this case, Dr. Stokes
identified the reasons for further assessments. However, the question which begs to be answered in this
case is why National Frontier has waited for such a long time to arrange these assessments.
Dr. Stokes’ recommendations for these further assessments was made in a report dated March 2000.
National Frontier arranged the assessments in June 2002. The assessments were scheduled to take place
in July 2002. If the assessments proceeded on those dates, this would likely allow ample time for the
Insurer to serve reports 30 days before the hearing scheduled to commence in September 2002. 1 accept
that it is unlikely that the Applicant could provide a response to those assessments 30 days before the
date of the hearing.
In Belair and PS. (supra) and in Levey and Traders General Insurance Company, (FSCO P98-00035,
February 25, 1999), Director’s Delegate Naylor, and Director’s Delegate Draper, as he then was, held
that in balancing the parties’ interests, timing of the assessments was an important consideration.
Absent a clear explanation, examinations scheduled on the eve of the hearing suggest the kind of tactical
brinkmanship that arbitrators have properly rejected as part of this system.” In Jauhal and Canada Life
Casualty Insurance Company, (FSCO A99-000 155, January 31, 2000), Arbitrator Sapin concluded that
although an insurer’s examination would have been reasonable if requested earlier in the process, the
examination was unreasonable and prejudicial to the applicant because it was scheduled on the eve of
the Christmas holiday season and shortly before hearing. I agree with these reasons.
Counsel for the Insurer advised that the delay in this case was due to a change in adjusters, and the
heavy caseload assigned to the adjusters was such that the assessments were not arranged on a more
timely basis. National Frontier has made economic decisions as to the appropriate staff complement and
adjuster caseload. I am not persuaded that the Applicant should directly bear the cost of the Insurer’s
economic decisions. Further, given staffing and workload issues, I was provided with no explanation as
to why, having retained counsel, the Insurer could not have asked its counsel to make the necessary
arrangements on a timely basis.
The timing of these assessments suggests trial brinkmanship. Although insurers are not to be held to a
standard of perfection, in my view waiting to arrange these assessments until just before the hearing is
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simply not acceptable in these circumstances.
As of the time of hearing, National Frontier had not as yet confirmed new dates with the assessors.
Counsel for the Insurer advised that he had been in touch with the offices of the proposed assessors, and
had hoped to have confirmation of the new dates in time for the hearing. He did have tentative dates for
the assessments for the fall of 2002.
Ms. Ferreira has now been without income replacement benefits for more than two years. There is no
guarantee that she will succeed at arbitration. However, I am not persuaded that she should be delayed
from proceeding with the hearing on the scheduled date in the circumstances of this case.
Dr. MammeIak~s report
For the following reasons, I am not persuaded by the Insurer’s submission that Dr. Mammelak’s
diagnosis “comes out of left field” or provides a basis for a further assessment.
During the accident Ms. Ferreira struck her forehead against the windshield, causing the windshield to
break. I find that concerns that Ms. Ferreira may have sustained a head injury were first raised by the
ambulance attendants because of her lethargy and the bruise and swelling on her forehead. Ms. Ferreira
later developed a large bump on her forehead and periorbital hematomas. I find those concerns as to
whether Ms. Ferreira sustained a concussion, traumatic brain injury or mild head injury and its possible
sequellae continued to be reiterated throughout the history of this claim.
Since 1998, Ms. Ferreira has submitted to a number of insurer examinations to assess her physical and
cognitive impairments. At one point, Dr. Engels, the Insurer’s medical analyst, noted that the Applicant
had been assessed by a dozen qualified examiners, including neuropsychologists, physiatrists,
neurologists, psychologists, an orthopaedic surgeon, a behavioural neurologist, and investigated by
neuroradiological techniques including skull x-ray, 2 CT scans of her head and a SPECT scan of her
brain. She has had a series of diagnostic tests including a skull x-ray, 2 CT-Scans, EEG, SPECT scan of
brain, without any findings of obvious pathology. She has been treated with various anti-depressants, as
well as with medications such as Ritalin, Dexedrine, and Aricept, without any obvious improvement in
her memory and concentration.
Based on the medical reports filed by the parties, I find that between August 1998 and December 2001,
Ms. Ferreira’s complaints have been variously diagnosed as depression, possible concussion, possible
closed head injury, head injury with neurological sequellae, significant concussion with post-concussion
symptoms, anxious depression, severe depression, mild head injury, hysterical pseudodementia, [See
note 10 below.] traumatic brain injury with cognitive deficits, traumatic brain injury and a combined
neurological disorder of other etiology, a central nervous system disorder related to the accident, and a
closed head/brain injury which is not diagnosable by CT-Scan. Some examiners have questioned the
Applicant’s effort and motivation during testing and
Note 10: According to Dorland’s Illustrated Medical Dictionary, (28111 edition), pseudodementia is I. a disorder
resembling dementia that is not due to organic brain disease and can be reversed by treatment. 2. extreme apathy and
indifference to one’s surroundings in the absence of a mental disorder. Hysterical pseudodementia is a condition
marked by failure of memory, with seeming inability to answer simple questions, and by a psychotic-like state
accompanied by bizarre behaviour and episodes of excitement or stupor.
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considered whether it should be attributed to malingering, depression, the accident or other causes.
Others have found her test measures to be a valid reflection of her cognitive function. There have been
suggestions that Ms. Ferreira’s complaints of drowsiness could be attributed to the combination of
medication; her headaches could be attributed to tension, or to pre-accident high blood pressure.
Ms. Ferreira appears to present a puzzling picture to a number of the examiners. The experts appear to
have been challenged to make a differential diagnosis which best fit the history, test results and their
examinations. In this context, it seems to me that Dr. Mammelak’s report is yet another diagnosis of this
type. I find that the nature, cause of and effect of this group of symptoms of which the Applicant
complains has been a live issue for quite some time. Although Dr. Mammelak assigns a new label or
diagnosis, I am not persuaded that this is a case where circumstances have changed or where there are
fresh symptoms which warrant a fresh assessment to permit the Insurer to properly assess her claim. In
my view, both parties have had a reasonable opportunity to have Ms. Ferreira’s symptoms and
complaints assessed. If I am wrong, then I find that the Insurer’s delay in arranging the assessments and
the timing of the proposed assessments to be prejudicial and therefore unreasonable.
For these reasons I conclude that the psychiatric and neuropsychological assessments requested by the
Insurer are not reasonably necessary. The hearing will therefore proceed as scheduled on September 23,
2002.
My findings are for the purpose of this hearing and based on the selected materials presented by the
parties on this motion. At times, opinions or quotations from medical reports were provided, but not the
entire report. It is open to the hearing arbitrator to make different factual findings and draw different
inferences based on fuller evidence.’
EXPENSES
If the parties are unable to agree on the expenses of this hearing, that issue may now be addressed.
Suesan Alves
Arbitrator
ISeptember 20, 2002
Date
FSCO AOl B 001032
BETWEEN:
MARIA JULIA FERREIRA
Applicant
and
ATIONAL FRONTIER INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
1. The proposed psychiatric and neuropsychological assessments are not reasonably necessary for
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purposes of section 42 of the Schedule.
2. The arbitration hearing in this case remains scheduled to proceed on Monday, September 23, Tuesday,
September 24, Wednesday, September25 and Thursday, September 26, 2002, at 10:00 a.m., at the
offices of the Financial Services Commission of Ontario in North York.
3. If the parties are unable to agree on expenses of this hearing, that issue may now be addressed.
Suesan Alves
Arbitrator
ISeptember 20, 2002
Date
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