Gogna v. State Farm Mutual Automobile Insurance Co. [2006] O.F.S.C.D. No. 115, Ontario Financial Services Commission

An insured does not have to undergo an independent medical examination, when the physician conducting the examination creates a tense atmosphere such that the examinee feels uncomfortable during the assessment.

Mr. Gogna was insured in a motor vehicle accident on January 9, 2004. He received first party accident benefits from his insurer, State Farm Mutual Automobile Insurance Co. ("State Farm"). At the request of State Farm, Mr. Gogna attended a multi-disciplinary insured’s medical assessment, a neurological assessment, a functional abilities evaluation, and a physiatry assessment. The neurological assessment was conducted by Dr. Myer, who recommended that Mr. Gogna undergo a psychological evaluation. Mr. Gogna attended the psychological examination with Dr. Nemeth on March 21, 2005. On March 30, 2005, Dr. Nemeth provided a detailed report of her assessment and noted that Mr. Gogna had abruptly left the assessment after one hour. State Farm terminated Mr. Gogna’s benefits until Mr. Gogna made himself fully compliant and cooperated with the psychological examination. Mr. Gogna volunteered to attend a psychological examination that was conducted by a different physician. Mr. Gogna asserted that Dr. Nemeth’s manner was impatient, harsh and unaccommodating and that he did not feel comfortable being assessed by her.

Mr. Gogna commenced an application before an arbitrator pursuant to subsection 50(1)(b) of Ontario Regulation 403/96 to have his insurance benefits reinstated. At the hearing, both Mr. Gogna and Dr. Nemeth were cross-examined on what occurred during the independent medical examination. Miller, J, the Arbitrator, based on Dr. Nemeth’s testimony and documentary evidence, determined that Dr. Nemeth created an insensitive, critical, impatient and intense atmosphere for the assessment. He determined it was more likely than not that Dr. Gogna felt Dr. Nemeth’s impatience and critical attitude toward him and for this reason was provoked into leaving the assessment. Therefore, the psychological assessment with Dr. Nemeth was not a reasonable examination to which Mr. Gogna should be required to continue to submit. Mr. Gogna’s insurance benefits should be reinstated. Noteworthy is the fact that Mr. Gogna agreed that a psychological assessment was a reasonable request and agreed to undergo a psychological assessment from a different physician.

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