Neutral Citation: 2016 ONFSCDRS 342 FSCO A15-001101

BETWEEN:

SUZANNE CLANCY Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Alan G. Smith Heard: By written submissions completed on October 12, 2016

Appearances: Ms. Suzanne Clancy participated Mr. Ammar Hussein participated for Ms. Suzanne Clancy Ms. Frances Shapiro Munn participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Suzanne Clancy, was injured in a motor vehicle accident on November 5, 2012 and sought accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Clancy, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8 as amended.

The issues in this Preliminary Issue Hearing are:

Is the Applicant precluded from proceeding to Arbitration for the determination of the issues raised in the Application for Arbitration and, if so, should the Application for Arbitration be dismissed?
Is either party entitled to its expenses of this Preliminary Issue Hearing?

Result:

The Applicant is precluded from proceeding to Arbitration for the determination of the issues raised in the Application for Arbitration, and the Application for Arbitration is dismissed.
Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days of this Order.

EVIDENCE AND ANALYSIS:

THE PRELIMINARY ISSUE

Is the Applicant precluded from proceeding to Arbitration for the determination of the issues raised in the Application, i.e., for the cost of an examination and determination whether her injuries are properly characterized as within the Minor Injury Guideline ("the MIG")?

The above is the sole issue before me in this Preliminary Issue Hearing. This was my clear understanding from the submissions that were made to me by the parties on August 25, 2016. Notwithstanding that understanding, the Applicant made written submissions to me regarding the applicability of the MIG and whether a Special Award should be made. Those issues, as I thought was understood by the parties, would be the subject of the Arbitration Hearing, should it proceed.

DECISION

Background

Ms. Clancy was involved in the motor vehicle accident (the "accident") on November 5, 2012. At the time of the collision, she was an Insured under a policy for insurance issued by Aviva that included payment of accident benefits in the event of an injury arising from an automotive accident. The Applicant suffered neck, shoulder and back injuries as a result of the November 5, 2012 collision. She began receiving treatment which was paid for by Aviva.

Chronology of Events

The Applicant's treating physiotherapist, Cameron Burns, completed an OCF-23 on February 21, 2013, which was submitted to Aviva. On that form, Mr. Burns indicated that the Applicant suffered a predominantly minor injury. Aviva approved the OCF-23 on March 13, 2013 and advised the Applicant that her injuries fell within the MIG. Aviva further advised that the $3,500.00 MIG limit for medical and rehabilitation benefits applied to her claim.

Mr. Burns completed a Minor Injury Treatment Discharge Report (OCF-24), dated May 6, 2013. Upon discharge, Mr. Burns submitted an OCF-18, dated May 1, 2013, with the Discharge Report for services costing $889.74 in additional treatment within the $3,500.00 MIG limit. In the Discharge Report, Mr. Burns checked the box for additional intervention outside the MIG. However, at Part 4 of the OCF-18, Mr. Burns checked the "YES" box next to the question: "Is this impairment predominantly a minor injury as referred to in the Minor Injury Guideline?". Mr. Burns also answered in the affirmative to the question as to whether the Applicant had a "disease, condition or injury that affected her response to treatment" for her injuries.

On May 16, 2013, Aviva informed Ms. Clancy that it was approving the $889.74 treatment plan dated May 1, 2013, submitted by Mr. Burns in accordance with s. 38 of the Schedule. No mention was made of the MIG issue in that correspondence.

The Applicant was discharged from treatment with Mr. Burns in July 2013. She did not submit any further treatment to Aviva for approximately one year.

On July 24, 2014, Kim Lamont, occupational therapist, completed an OCF-18 form for an in-home assessment that totaled $1,378.68. At Part 4 of the OCF-18, Ms. Lamont checked the "no" box next to the question: "Is this impairment predominantly a minor injury as referred to in the Minor Injury Guideline?". There was no additional information or supporting medical documentation attached to the OCF-18 to support Ms. Lamont's opinion or explain why she had reached a differing conclusion from Mr. Burns.

On August 7, 2014, Aviva denied Ms. Lamont's treatment plan on the following basis:

a. Upon review of the minor injury guideline and the treating practitioner's medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.

b. Multiple providers, specialists, consultations, or referrals occur without an apparent documented explanation in the clinical records of the medical necessity.²

In the section titled "Reason for our Decision", Aviva stated the following:

We received the treatment and assessment plan completed by Kim Lamont dated July 24, 2014. It recommends occupational therapist assessment in the amount of $1,378.68. We are not approving funding for the above noted treatment and assessment plan at this time.

On August 12, 2014, Aviva wrote to Ms. Clancy, requesting a s. 44 examination under the Schedule, commonly referred to as an "Independent Examination" ("IE"). The reason given by Aviva was as follows:

a. We are not approving funding for the above noted treatment and assessment plan at this time.

b. We believe the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury, or that the treatment claimed is reasonable and necessary.

On August 19, 2014, Applicant's counsel advised Aviva that the Applicant would not be attending the examination scheduled for August 24, 2014. Applicant's counsel took the position that Aviva's notice did not provide a "sufficient medical reason" for the denial of the Lamont OCF-18 and that the Applicant's injuries were not predominantly minor injuries. The Applicant did not attend the IE in question, and Aviva denied the Lamont OCF-18 on September 8, 2014.

Aviva subsequently received two treatment plans from Ms. Tracy Auld, physiotherapist, for physiotherapy treatment. Ms. Auld completed an OCF-18 on March 20, 2015, for $2,665.00 in physiotherapy treatment. On the OCF-18, she noted that the Applicant sustained predominantly a minor injury in the accident. Ms. Auld completed a second OCF-18 on April 22, 2015, for $1,596.00 in physiotherapy treatment. She indicated that this was a "correction" from her previously submitted OCF-18 and that in fact, the Applicant did not sustain minor injuries in the accident.

By way of Explanation of Benefits letter, dated May 25, 2015, Aviva acknowledged receipt of the Auld OCF-18 and advised the Applicant that it required an IE with Dr. Johnson, orthopaedic surgeon, to determine whether the Applicant's injuries continued to be minor in nature. In its medical reasons for the assessment, Aviva stated, "Upon review of the minor injury guideline and the treating practitioner 's medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury". In response, Applicant's counsel again advised Aviva that the Applicant would not attend the scheduled IE.

On February 10, 2016, by way of letter, Applicant's counsel advised Aviva that the Applicant would be agreeable to attending an IE to determine whether Ms. Auld's treatment plan was reasonable and necessary. In reliance on this letter, Aviva scheduled an IE for March 29, 2016 with Dr. Fielden, orthopaedic surgeon, to assess whether the MIG continued to apply to the Applicant's injuries.

On March 24, 2016, Applicant's counsel sent another letter to Aviva advising, "Further to the Insurer's Examination scheduled for March 29, 2016 with Dr. Fielden, please be advised that rather than attending under protest, my instructions are that Ms. Clancy not attend."

To date, Ms. Clancy has not attended any IEs.

The Jurisprudence

In Dela Cruz and TD Home and Auto Insurance Company,³ Arbitrator Tanaka provides an excellent summary of the jurisprudence regarding s. 55 of the Schedule:

The Applicant bears the burden of establishing that he fits within the scope of coverage. (Scarlett and Belair Insurance Company Inc., [2013] O.F.S.C.D. No. 227, at para. 6.)
The purpose of the independent examinations by assessors chosen by the Insurer is to enable the Insurer to fairly and effectively assess a claim for benefits. (F.S. and Belair Insurance Company Inc., [1996] O.I.C.D. No. 92, at para. 28.)
Denying the Insurer an opportunity to have an independent assessment, even if it is requested on the eve of the Hearing and requires an adjournment, may constitute a denial of the right to make a full response. (Gonsalves and Certas Direct Insurance Company, 2011 ONSC 3986, [2011] O.J. No. 3290, at para. 10.)
An Insurer can only obtain its own medical opinion by exercising its right to an independent examination. (Augustin and Unifund Assurance Company, [2013] O.F.S.C.D. No. 211, at para. 38.)
Where the passage of time between the accident and the proposed examinations is substantial, the prejudice to the Insurer to effectively and properly assess the claims cannot be relieved by examinations at a late date. (Zhang and Security National Insurance Co./Monnex Insurance Mgmt. Inc., [2015] O.F.S.C.D. No. 167, at para. 34.)
The Applicant must provide a reasonable excuse for not attending the examinations. Lack of an interpreter with specific credentials is not a reasonable excuse. (Luo and Unica Insurance Inc., [2015] O.F.S.C.D. No. 29; Chen and Personal Insurance Company of Canada [2015] O.F.S.C.D. No. 13; Lee and Yau and State Farm Mutual Automobile Insurance Company, [2015] O.F.S.C.D. No. 4550.)
The language of s. 55 is mandatory with no exceptions. (Maude and State Farm Mutual Automobile Insurance Company, [2014] O.F.S.C.D. No. 210, at para. 12.)

Submissions

The Insurer is seeking to preclude the Applicant from proceeding to Arbitration on this matter by virtue of section 55(2) of the Schedule, which reads as follows:

An insured person shall not commence a mediation proceeding under section 280 of the Act if any of the following circumstances exist:
The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation.
The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

The Applicant argues, in part, that the Insurer did not follow and satisfy sections 37(1)(b) and/or 44(5)(a) of the Schedule. Section 37(1) reads, in part, as follows:

(1) If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary,

(a) request that the insured person submit, within 15 business days, a new disability certificate completed as of a date on or after the date of the request;

(b) notify the insured person that the insurer requires an examination under section 44; or,

Section 44(5) reads, in part, as follows:

(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

The Applicant argues that, in approving the $889.74 treatment plan submitted by Mr. Burns in May 2013, Aviva was approving treatment beyond the $3,500.00 MIG limit and therefore could not argue that subsequent treatment plans should be denied because their cost exceeded the MIG limit. Concurrently, the Insurer is also prevented from using MIG determination as a "medical reason" in justifying a request for IEs pursuant to section 44(5)(a) of the Schedule.

The Applicant further argues that the Insurer has failed to give proper notice to the Applicant in that it failed to provide medical reasons for the IEs pursuant to section 44(5)(a) of the Schedule. The Applicant argues the notice failed to provide enough information to an unsophisticated Insured such as the Applicant to make a determination as to whether she should continue with the claim for benefits or not. In other words, the Applicant's non-attendance at the IEs is excused because the Insurer's notice is non-compliant with the mandatory components of section 44(5)(a).

Analysis

Regarding the first of the Applicant's arguments, that Aviva has lost its right to require the Applicant's attendance at the IEs in question, I agree with the Insurer that the Applicant is confusing the definition of "Minor Injury" as defined in the Schedule with treatment which is provided in accordance with the MIG. In my view, Aviva is correct in its analysis as stated in its written submissions:

The SABS defines the "Minor Injury Guideline" as a guideline:…

(b) that establishes a treatment framework in respect of one or more minor injuries;…

A "Minor Injury" means:

one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury

Aviva submits that a person who sustains a "Minor Injury" as defined in the SABS is subject to the following two treatment provisions:

a. The person is subject to a cap of $3,500.00 for medical and rehabilitation benefits for any one accident; and

b. The person is to receive treatment in accordance with the MIG.

In general, a person who has predominantly a minor injury will begin his or her claim for benefits by way of the Treatment Confirmation Form or OCF-23 proposing treatment in accordance with the MIG. The nature and cost of this treatment is set out in Superintendent's Guideline No. 01/14. The treating practitioner may charge the insurer for: an initial visit, three blocks of treatment, the cost of completing the Minor Injury Discharge Report (OCF- 24), and a further amount for supplementary goods and services. In total, this amounts to a maximum of $2,200.00 of treatment under the MIG but may be less if the treating practitioner does not complete all treatment blocks or does not recommend supplementary goods and services…

The MIG explains that following the completion of treatment, an insured person may require "additional intervention outside of this Guideline" i.e. the MIG. In this scenario, the treating practitioner is to recommend further treatment for "the insured person via submission of an OCF-18". The MIG expressly notes that the remaining funds left under the $3,500.00 cap would be available for "additional interventions if determined to be reasonably necessary in accordance with section 38 of the SABS."…

Notably, an insured person who has a Minor Injury usually still has approximately $1,300.00 in accessible medical and rehabilitation benefits left after completing the MIG. An insured person may have even more accessible benefits if he or she has access to collateral insurance benefits that covered treatment under the MIG.

This is also set out in s.18 of the SABS, which provides that an insured person who has a minor injury is limited to $3,500.00 in treatment, and that the MIG counts against this cap:

The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.00 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.

Based on the SABS and the MIG, Aviva states that the following procedure applies for a person who sustains predominantly a minor injury in a motor vehicle accident:

a. The person applies for and receives treatment [the treatment phase] in accordance with the Minor Injury Guideline - this treatment is to be automatically approved by the insurer up to a maximum of $2,200.00 - this is the "MIG" [minor injury treatment phase];

b. Once the insured person has completed treatment [the treatment phase] within the MIG, the insured person may submit for further treatment up to the $3,500.00 cap for minor injuries;

c. The person is to apply for this [further] treatment by way of an OCF-18 treatment plan;

d. The insurer is to assess and, if deemed reasonable and necessary, approve this [further] treatment plan by way of the procedure set out at s. 38 of the SABS.

In the Applicant's case, Mr. Burns applied for $1,800.00 in funding under the MIG by way of OCF-23 dated February 21, 2013. This amount was approved and paid for by Aviva….Mr. Burns proposed $889.74 in additional treatment for the Applicant, which was well within the Applicant's remaining limits under the $3,500.00 cap. Aviva states that it acted in good faith and in accordance with the SABS and the MIG by approving this treatment.

Aviva submits that an insured person who has completed treatment under the MIG continues to have an injury as defined by the MIG. The main consequence for the insured person upon completion of the MIG is that he or she is limited to a total of $3,500.00 in medical and rehabilitation treatment, and this additional treatment is to be applied for in the normal way by way of OCF-18 governed by s.38. This was exactly the procedure that Mr. Burns followed for the Applicant….

In the case at hand, the Applicant: (1) Applied for MIG treatment; (2) Received treatment under the [treatment phase] of the MIG; (3) Applied for and received additional treatment upon completion [of the treatment phase] and within the $3,500.00 cap for minor injuries. The Applicant did not even assert a claim for medical and rehabilitation benefits beyond the Minor Injury cap until almost two years had elapsed since her accident. At all times, Aviva's position with respect to the MIG [impairment was a minor injury] was clearly articulated by Aviva to the Applicant.

The Applicant's second argument must also fail. I agree with the Insurer that the medical reasons provided to the Applicant comply with case law concerning the Schedule notice provisions. In Augustin and Unifund,⁴ Arbitrator Sapin outlined that sections 38 and 44 of the Schedule must be read together, and that to comply with the notice requirements of each section, "medical reasons", when MIG is the issue, must at least include:

a. A statement that the claims adjuster has reviewed the MIG;

b. A statement that the claims adjuster has reviewed the treating health practitioner's medical opinion; and,

c. That the adjuster has concluded that the health practitioner has not provided compelling evidence that the person's injuries are outside the MIG, or that the treatment claimed is not reasonable or necessary.

The Augustin and Unifund decision also emphasized that an Insurer is not obligated to hire a medical practitioner to review every OCF-18 it receives or hire in-house medical staff to conduct an initial paper review. The Arbitrator noted that a medical reason was not the same as a medical opinion, and the Insurer would not be able to obtain a medical opinion of its own without exercising its right to an IE.

Aviva's IE notices to the Applicant followed the Augustin and Unifund framework. In its notices of August 7, 2014, August 12, 2014, May 25, 2015, June 17, 2015, August 31, 2015 and November 12, 2015, Aviva advised the Applicant that it:

a. Reviewed the minor injury guideline;

b. Reviewed the treating practitioner's medical opinion; and

c. The health practitioner had not provided compelling evidence the impairment sustained is not predominantly a minor injury.

The jurisprudence also notes that once the Insurer believes that the MIG applies, it is a sufficient "medical reason" for the Insurer to advise the Applicant in the request for an IE that it believes the Insured's injuries are minor in nature. In Zhang and Security National,⁵ Arbitrator Kelly reasoned as follows:

I am satisfied that the Insurer did provide sufficient medical reasons in its notices of examinations throughout. By asserting that it believed that the MIG applied, the Insurer, in effect, gave the medical reasons. The Schedule defines "minor injury" as follows: "minor injury" means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. These terms are medical terms, and are even individually defined, as such, in the Schedule. The medical reason provided by the Insurer was, in essence, "your injuries fall within that medical definition". [emphasis added]

Similarly, in Gao and State Farm,⁶ Arbitrator Newland similarly held that stating, "based on reported injuries it appears that the impairments were within the MIG" constitutes adequate notice.

In my view, Aviva is correct in the conclusion stated in its written submissions:

By stating its medical reason that it had reviewed the MIG and the treating practitioner's opinion and there was no compelling evidence the impairment sustained was not a predominant injury, Aviva was in effect stating that the evidence on the OCF-18s was that the claimant sustained the sort of impairments that would be expected to fall within the MIG per Gao. As noted by Arbitrator Kelly in Zhang, Aviva had the right to an IE to determine whether or not the MIG applied.

I conclude that Ms. Clancy has failed to provide a reasonable excuse for not attending the IEs.⁷

Remedy

Over four years has now elapsed since the accident. Given that passage of time, it would be unfair to the Insurer to conduct examinations now. This is in accordance with the decisions in Dela Cruz and TD⁸ and Zhang and Security National.⁹ I agree with Arbitrator Tanaka in Dela Cruz and TD, in analogous circumstances to the present case, when she opines:

If the conclusion of the assessors was not supportive of the Applicant, the Applicant would argue that those conclusions should be rejected because the examinations took place so long after the accident. In essence, the Applicant is seeking to weaken the potential that the Insurer could effectively respond to his case by the simple tactic of delay. TD Home submits that this is fundamentally unfair and I agree.

The Application for Arbitration is therefore dismissed pursuant to s. 55(2) of the Schedule.

EXPENSES:

Expenses shall be payable. I leave to the parties to mutually agree upon an appropriate quantum. Pursuant to the Arbitration Order accompanying this decision, I will remain seized regarding the quantum of the expenses payable if the parties are unable to agree.

December 19, 2016

Alan G. Smith Arbitrator

Date

Financial Services Commission of Ontario