October 17, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Almasouwi and TD General
Date of Decision: August 29, 2017
Heard Before: Adjudicator Alan Mervin
REQUEST FOR FURTHER EXAMINATION: Examination notice given does not comply with section 44(5); Insurer does not make case the examinations are medically necessary; proximity to hearing date means further IEs and potential IEs will cause further adjournments and delays
Mr. Almasouwi was injured in a car accident on December 22, 2009. He applied for SABs however when TD terminated certain benefits Mr. Almousawi applied for arbitration at the FSCO. Mr. Almasouwi has undergone a multidisciplinary assessment at the request of TD General to determine if Mr. Almasouwi is catastrophically impaired (CAT assessment), as well as his own CAT assessment.
Three years had passed between TD General’s initial CAT assessment and Mr. Almasouwi’s CAT assessment, and TD General has requested that Mr. Almasouwi undergo a further CAT assessment. Mr. Almasouwi has refused to attend these assessments and TD General now brings this motion requesting a stay of the arbitration until Mr. Almasouwi attends the assessments.
- Is it reasonably necessary for Mr. Almasouwi to attend further assessments with respect to catastrophic impairment determination? and
- Should the arbitration be stayed pending attendance at these assessments?
- The further assessments to determine catastrophic impairment are not reasonably necessary.
- The arbitration is not stayed. The arbitration will proceed as scheduled.
EVIDENCE AND ANALYSIS:
Mr. Almasouwi filed an Application for Arbitration or about January 26, 2012, claiming entitlement to IRBs and interest. In July 2012, Mr. Almasouwi completed an Application for Determination of Catastrophic Impairment (OCF 19), which was received by TD General on or about October 19, 2012. This issue, as well as entitlement to funding for the over and above the amount cost of catastrophic rebuttal reports (which TD General was ordered to pay as a result of a motion brought by Mr. Almasouwi for funding of rebuttal reports), were added to the arbitration at a subsequent resumption of pre-hearing.
TD General then scheduled a multidisciplinary CAT assessment by a team consisting of an orthopedic surgeon who had already expressed his opinion in an earlier paper review, a psychiatrist, a neurologist, and an OT. Mr. Almasouwi received it March 14, 2013. The assessors concluded that Mr. Almasouwi did not meet the threshold for catastrophic impairment. TD General’s assessors found no marked impairment in any of the four spheres of functioning, and an only 15% Whole Person Impairment (WPI). Based on this report, TD General denied CAT entitlement.
Mr. Almasouwi then requested funding for his own multidisciplinary assessment to obtain rebuttal reports, which request was denied by TD General. Mr. Almasouwi brought a motion for funding of these assessments and on July 9, 2015, the Arbitrator made the decision allowing partial funding of these reports as an interim expense. Mr. Almasouwi was assessed over a period of several months. The assessments began on September 25, 2015, but were not completed until on May 11, 2016. At least some of the delay in completion was apparently due to difficulties with assessor availability.
The resulting report concluded that Mr. Almasouwi met the CAT threshold with a finding of three class 4 marked impairments and one class 3 to 4 marked impairment, and a WPI of 57%. There was a significant difference of opinion between the conclusions reached by each party’s assessors, and consequently, since receipt of Mr. Almasouwi’s CAT reports TD General has requested that Mr. Almasouwi undergo a further set of CAT assessments, due to the passage of time and receipt of additional medical evidence.
TD General arranged a further multidisciplinary assessment. Mr. Almasouwi did not attend the first assessment, and TD General has been advised that Mr. Almasouwi would not attend any subsequent CAT assessments. TD General has now brought this motion, seeking an Order that the upcoming arbitration be stayed until Mr. Almasouwi attends further IE assessments to determine whether he has sustained a catastrophic impairment.
The Arbitrator reviewed previous FSCO cases and the law, noting that Section 44 (1) of the Schedule authorizes insurer examinations. While there is no specified limit to the number of IE’s allowed, the section specifies they may not be held more often than is reasonably necessary, for the purpose of determining whether an insured person is or continues to be entitled to a benefit. Arbitrators have consistently held that the purpose of an insurer examination is to determine whether an insured person is entitled to a benefit claimed and that TD General bears the onus of proving that the requested examination is authorized by the Schedule.
Rather than focusing on TD General's motivations or other subjective factors, the prevailing arbitral authority is that the enquiry should focus mainly on the objective factors identified in numerous decisions and more recently, again set out by Director’s Delegate Makepeace in State Farm Mutual Automobile Insurance Company and Ramalingam, including:
- the timing of the request, especially whether it will require the hearing to be adjourned;
- whether the claimant disclosed relevant materials as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether TD General made its IE request as soon as it reasonably determined the need for the examination;
- what other information is available to TD General, including information provided by the claimant and the number, nature and date of previous insurer examinations;
- whether information provided by the claimant since TD General's last insurer examination suggests a new diagnosis, a change in the claimant's condition or a new direction in medical investigation of it;
- whether there is a reasonable nexus between the requested examination and the insured person's injuries;
- whether TD General accepts the claim and continues to pay benefits; and
- generally, whether the request is reasonable considering the balance between the insured person's right to privacy and TD General's ongoing right and obligation to assess the claim
There is no authority for an arbitrator to order a claimant to attend an insurer examination, but arbitrators have broad implicit powers to control their process to ensure a fair hearing.
TD General requests that Mr. Almasouwi undergo a further set of Multidisciplinary CAT assessments. The reasons for this can be summarized as follows:
- The notice for the requested examinations complies with the requirements of s 44(5), particularly that it contains all necessary information required by s 44(5), including the medical and any other reasons for the assessments;
- Section 44 does not limit the number of Insurer Assessments, providing they are reasonable and necessary;
- It has been over 3 years since the last set of Insurer assessments. The passage of time and new medical evidence require new updated assessments in order to properly assess the claim and ensure procedural fairness, so that TD General can respond to the very different conclusions of Mr. Almasouwi’s assessors;
- TD General has suggested that most of the delay was caused by Mr. Almasouwi;
- The assessments requested in light of the above are reasonable and necessary;
- TD General requires these assessments in order to fulfill its obligation to adjust the claim of Mr. Almasouwi;
- As the arbitration is scheduled to take place in October 2017, TD General submits that the assessments can be completed without the necessity of a further adjournment, which, if granted, might prejudice Mr. Almasouwi.
Mr. Almasouwi’s position can be summarized as follows:
- The notice for the examinations is deficient, and does not comply with section 44, particularly as it does not adequately set out the medical and any other reasons for the examinations.
- Mr. Almasouwi’s claim for a determination of catastrophic impairment is not a benefit.
- Although section 44 does not limit the number of IE’s, Mr. Almasouwi has already undergone a full set of CAT IE’s as well as his own CAT examinations and a further set of examinations are not reasonable nor are they necessary.
- TD General chose not to request written addendum reports after receiving Mr. Almasouwi’s CAT assessments (which Mr. Almasouwi suggests that TD General originally requested, and for which an adjournment was granted), which would not require Mr. Almasouwi to undergo a further set of in- person IE’s which are, by their nature, inherently intrusive and an invasion of privacy.
- Mr. Almasouwi submits that, had TD General not denied funding for Mr. Almasouwi’s CAT assessments, which required a motion resulting in the previously scheduled hearing being adjourned, the assessments would have been completed in a timely matter and the matter could have proceeded without requiring the adjournments.
- There has been no significant change in the diagnosis of Mr. Almasouwi’s condition since TD General’s first CAT assessments and there is sufficient other medical evidence on which TD General can rely. Mr. Almasouwi argues that there is no significant change in Mr. Almasouwi’s condition, and suggests TD General is requesting the assessments because there is a difference of opinion between his assessors and TD General’s assessors
- Mr. Almasouwi submits that TD General has taken an adversarial role, has not agreed to attend a global mediation which was originally discussed, and had generally taken a litigious approach to this claim. Mr. Almasouwi submits that the main reason for this request is to bolster its position at arbitration, and not to assess the claim.
The Arbitrator reviewed the facts and noted that the Notice of Examination of August 6, 2016 was deficient, because, in the absence of medical or any other reasons within it, it did not comply with the requirements of section 44(5) of the Schedule. A Notice of Examination on the letterhead of TD General’s chosen assessors, was addressed to Mr. Paul Barrafato, Mr. Almasouwi’s solicitor, and dated August 5, 2016. The document, with the heading, “Notification”, stated the following:
“Please be advised that at the request of TD General Insurance Company –Burlington, the above individual has been scheduled for the following impartial assessment(s):…”
This was followed by charts containing the dates, times, location, names of the assessors, duration of each assessment, and the type of exam. Below the charts, the Notice concluded with the following paragraph:
“Please note that your client has received notification of the same and should you request any changes to any of the above scheduled appointments, you must directly contact…” .
A plain reading of this paragraph would lead one to believe that a copy of this notice was sent directly to Mr. Almasouwi as well as Mr. Barrafato, containing the same information. A week later, following the notice, a further letter from TD Insurance dated August 12, 2016 was addressed to Mr. Al-Moussawi, and copied to Mr. Barrafato, Mr. Almasouwi’s solicitor, containing further details of the upcoming scheduled examinations.
Section 44(5) of the Schedule sets out the information that is required to be contained within the notice itself, with the first requirement being the “medical and any other reasons for the examination”. Mr. Almasouwi submits the notice given does not comply with section 44(5), as it lists no reason at all.
Having reviewed the Notice the Arbitrator agreed that no “medical or any other reason” was contained in the notice. Stating the type of examination is not a medical reason. There have been several cases that have held that when a notice is deficient, an insurer is not entitled to an order that the proposed insurer examination is reasonable and necessary.
Although it could be argued that the letter from TD dated August 12, 2016 sent a week after the notice, does contain the required information that information must be contained within the notice itself and clearly, that was not within the notice sent.
It is the Arbitrator’s view that the notice requirements must be strictly construed because of the serious consequences to an insured person of refusing to attend an IE for which proper notice has been given, and the inherent invasive nature of IE’s. In absence of a medical or any other reason within it, the Arbitrator found that the notice did not comply with the requirements of section 44(5) of the Schedule. As the Notice was deficient, Mr. Almasouwi was not required to attend the examinations, and therefore, there is no reason to stay the arbitration.
At this point in time, to order another full set of CAT reports in my view would be patently unfair. Although over 3 years has passed since TD General’s CAT reports were done, Mr. Almasouwi has submitted that there has been no new medical diagnosis. Mr. Almasouwi has submitted that had TD General funded the rebuttal reports when requested, the matter could have proceeded, the adjournments would not have been required and the delay was caused by TD General’s refusal to fund the reports in the first place.
The Arbitrator agreed that had TD General initially funded the requested reports, the matter may not have been delayed to the extent that it has. The new Schedule specifically eliminated funding for rebuttal reports, and prima facie, Mr. Almasouwi would not be entitled to the requested funding. The awarding of funding as an interim expense is an extraordinary remedy that was found to be merited under the circumstances, and, although funding was ultimately ordered, TD General did not act improperly in its denial of funding and should not be blamed for doing so.
Under the circumstances of this case, even taking into account the period of time between the assessments, the Arbitrator determined the delay has not resulted in any new medical diagnoses. No medical documents were produced at the hearing of the motion to support any findings of a new diagnosis, or significant change in Mr. Almasouwi’s condition since the first set of CAT assessments that might justify a further set of in- person assessments.
The Arbitrator disagrees with TD General’s suggestion that there is sufficient time to complete the assessments without adjourning the hearing. Even if the assessments can be completed reasonably promptly, without complications due to scheduling difficulties of assessors or Mr. Almasouwi, Mr. Almasouwi would require time to review the new assessment reports with its own experts, and may or may not require its own rebuttal reports, which then might necessitate yet a further adjournment. Because of the proximity to the hearing, it is more likely that the matter will not be ready to proceed at the scheduled time.
IE’s by their nature, are inherently invasive, intrusive and an invasion of privacy. Nevertheless, Insurers are entitled to require them if they are reasonable and necessary, In each case, when deciding if the IE’s should be allowed, one must consider the balance between the insured’s rights to privacy and TD General’s ongoing obligation and right to adjust the claim.
Considering the timing of the requests, which might ultimately result in a further adjournment request, the proximity to the hearing, the number of proposed assessments, the amount of other available medical information already available, the balance between Mr. Almasouwi’s right to privacy and TD General’s ongoing right and obligation to adjust the claim, under the circumstances of this case, I find that a further set of in-person CAT IE’s is neither reasonable nor necessary.