Suzanne Clancy v. Aviva Canada Inc., 2017 ONFSCDRS 268

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 268

Appeal P17-00008

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SUZANNE CLANCY Appellant

and

AVIVA CANADA INC. Respondent

BEFORE: Delegate Jeffrey Rogers

REPRESENTATIVES: Mr. Ammar Hussein, solicitor for Ms. Clancy Ms. Frances Shapiro, solicitor for Munn for Aviva

HEARING DATE: September 11, 2017, by telephone conference call

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. This appeal is dismissed.

2. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

October 19, 2017

Jeffrey Rogers Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Clancy appeals the Arbitrator’s order of December 19, 2016. The Arbitrator ruled that she is precluded from proceeding to arbitration of her claims because she did not attend insurer examinations (IEs). Ms. Clancy submits that the Arbitrator erred in finding that Aviva gave her valid notices to attend the IEs, failed to consider relevant evidence, failed to consider her submissions and failed to afford her “due process”. Those submissions are rejected for the reasons that follow.

II. BACKGROUND

Ms. Clancy was injured in a motor vehicle accident on November 5, 2012. She applied for and was paid accident benefits by Aviva, payable under the Schedule.¹ She applied for arbitration after mediation did not resolve disputes regarding her entitlement to further claimed benefits. The issues in the arbitration are entitlement to payment of $1,378.68 for an In-Home Assessment and determination whether Ms. Clancy sustained a “minor injury” as a result of the accident. Aviva raised the preliminary issue of whether Ms. Clancy is precluded from proceeding to arbitration because she failed to attend IEs. This is the issue that came before the Arbitrator. He concluded that Ms. Clancy is precluded from proceeding. He therefore made an order dismissing the arbitration.

III. ANALYSIS

Preliminary Matters

(a) Fresh Evidence

I will address a couple of preliminary matters before dealing with the substance of the appeal. The first matter has to do with fresh evidence Ms. Clancy filed. After filing the appeal, the solicitors for Ms. Clancy sent me the affidavit of Alexandra Turney, sworn March 17, 2017. This was fresh evidence and Ms. Clancy did not seek leave to admit it. I rejected it by letter of March 21, 2017. Under s. 283(1) of the Insurance Act, appeals are limited to “a question of law”. Appeals are not re-hearings on the facts.

Although I had already excluded Ms. Turney’s affidavit, Ms. Clancy made extensive reference to it in the written submissions she later filed. At the hearing, counsel for Ms. Clancy advised that he was under the impression that the references were to evidence admitted at the arbitration hearing. Counsel for Aviva advised that she did not take issue with the references because the relevant facts are not in dispute.

(b) Allegation of Bias

The second preliminary matter is an allegation of bias. Counsel for Ms. Clancy made the allegation that I was biased, several times during the hearing. He claimed that my conduct of the hearing showed that I had pre-determined the outcome. I reject this allegation.

Oral hearings in appeals are held only after the parties have filed written submissions. Rule 56 of the Dispute Resolution Practice Code gives me the discretion to decide the appeal on the record, without an oral hearing. In my view, since the parties have already set out their positions in writing, one of the main reasons for holding an oral hearing is to clarify questions arising from the written submissions. An oral hearing serves no purpose if the parties simply reiterate the written submissions. My general practice is to tell the parties that I will start by asking them to address the questions I see arising from their written submissions, and I will then give them an opportunity to expand on their written submissions. I followed that practice here. In this case, the written submissions primarily raised questions that I wanted counsel for Ms. Clancy to address.

For instance, the Arbitrator’s decision does not address the question of whether the IEs were reasonably necessary. In her appeal submissions, Ms. Clancy alleged that the Arbitrator erred in failing to consider whether the IEs were reasonably necessary. The appeal record includes the written submissions that the Arbitrator received. I could not find reference to the issue of reasonable necessity in Ms. Clancy’s arbitration written submissions. In response to my question, counsel claimed to have specifically raised the issue before the Arbitrator. Counsel alleged bias when I indicated that there was little to show that he specifically raised the issue, in the sections of the arbitration written submissions that he referenced.

Similarly, Ms. Clancy claimed to have been surprised that she had to address the preclusion issue because Aviva raised it for the first time before the hearing Arbitrator. I pointed out to counsel that the issue was identified in Aviva’s Response to the Application for Arbitration. He then said that Aviva did not pursue the issue at the pre-hearing discussion. In fact, the issue was noted to be in dispute in the pre-hearing report. Counsel alleged bias when I noted that his position kept changing.

The pattern continued, with counsel refusing to address the questions I raised, alleging bias instead, making unrelated submissions, and refusing to stop when instructed to do so. I threatened to re-schedule the hearing to an in-person appearance, assuming that it would be easier to control counsel in that setting. I decided against this approach when counsel for Aviva pointed out that Aviva would be prejudiced by the additional cost of attending in person. I decided instead to depart from my usual practice and to allow counsel to make submissions as he saw fit. I informed him that what he saw as bias was my seeking clarification, the very purpose of the hearing. I asked him to tell me how much time he required. He refused. In the end, counsel for Ms. Clancy was allowed to make his oral submissions, with no time limit. He mostly read his written submissions. I stopped him only when he became overly repetitious.

After counsel for Ms. Clancy had completed his submissions in this way, counsel for Aviva was given similar latitude. Counsel for Ms. Clancy interrupted her by asking her questions, and I had to ask him to stop. When given an opportunity to reply to Aviva’s submissions, counsel for Ms. Clancy instead again alleged that I was biased because I did not ask Aviva’s counsel any questions about the submissions she made. I pointed out that he was now insisting on a process that he had refused to accept.

The Substance of the Appeal

(a) Overview

The substance of the appeal concerns the operation of s.55 of the Schedule. That section precludes an insured person from commencing mediation where the insurer has provided notice requiring attendance at an IE and the insured person has not complied. The section also operates to preclude arbitration in the same circumstances, because mediation is a necessary step before arbitration. It has long been established that an insured person is not required to attend an IE, unless given a valid notice. Aviva gave Ms. Clancy two notices for IEs. She did not attend and she has never attended an IE. The issue in dispute before the Arbitrator was whether the notices were valid.

As the Arbitrator saw it, two questions are at the heart of the dispute. First, is Aviva precluded from taking the position that Ms. Clancy sustained a “minor injury” as a result of the accident? Second, did the notices Aviva gave Ms. Clancy provide medical reasons for requiring her attendance the IEs? In his decision, the Arbitrator noted that Ms. Clancy made written submissions on two additional issues which were not before him: whether the minor injury guideline applied to her injuries and whether she was entitled to a special award. The Arbitrator therefore did not address these issues. Ms. Clancy raised these issues again in her appeal submissions. I agree with the Arbitrator that these issues were not the subject of the preliminary issue hearing. In any event, the questions they raise are moot, in view of the result in the appeal.

On appeal, Ms. Clancy raised two further questions that the Arbitrator did not address: Whether the Arbitrator breached procedural fairness and whether the IEs were reasonably necessary. I will address these two issues next, and then I will review the issues that the Arbitrator dealt with.

(b) Procedural Fairness

In her Notice of Appeal, Ms. Clancy alleged that the Arbitrator failed to afford her “due process”. She did not expand on this allegation in her written submissions. One of the questions I asked counsel at the beginning of the hearing was whether he intended to pursue this argument. He did. He explained that this was really an allegation of a breach of procedural fairness as follows: First, the Arbitrator’s decision shows that he did not consider the arguments Ms. Clancy made. Instead, he simply accepted Aviva’s position. Second, the Arbitrator applied the wrong test in deciding that Aviva gave valid notices to attend the IEs.

I reject these submissions. I find no breach of procedural fairness by the Arbitrator. Neither of these submissions is really about a breach of procedural fairness. There is no allegation that the Arbitrator denied Ms. Clancy an opportunity to state her position regarding the correct test. The allegation is that the Arbitrator simply applied the wrong test. That is not about procedural fairness. It is an alleged error of law which I will address later in this decision.

Similarly, the allegation of failure to consider Ms. Clancy’s submissions is really about the sufficiency of the Arbitrator’s reasons. It does not raise an issue of procedural fairness. I find no defect in the Arbitrator’s reasons. The Arbitrator set out Ms. Clancy’s position on page 8 of his decision:

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).

The Arbitrator then went on to agree with Aviva and he rejected Ms. Clancy’s submissions. It is not surprising that the decision repeats Aviva’s submissions in accepting them. I find no error.

Counsel did raise an issue that is properly described as one of procedural fairness, but he did not identify it as such. He claimed that the issue of preclusion for failure to attend IEs came as a surprise because Aviva did not raise it until the matter came for hearing. As I noted earlier, that allegation is false because Aviva identified the issue in its Response, and raised it again at the pre-hearing discussion. The pre-hearing Arbitrator could have scheduled a preliminary issue hearing on the issue, but she did not. That was within her discretion. Her other option was to leave the issue to be heard by the hearing Arbitrator, which she did. Aviva was not required to do anything else in order to pursue a hearing on the issue.

The hearing Arbitrator decided to conduct a preliminary issue hearing on the issue. That too was within his discretion. Counsel for Ms. Clancy should not have been taken by surprise. Further, the Arbitrator did not proceed immediately upon deciding to conduct the preliminary issue hearing. He conducted the hearing by way of written submissions. That provided Ms. Clancy with ample opportunity to be heard, thereby curing any breach of procedural fairness that might have occurred.

(c) Reasonably Necessary

Section 44(1) of the Schedule allows an insurer to require an insured person to be examined by one or more regulated health professionals for the purpose of assisting the insurer to determine if the insured person is or continues to be entitled to a benefit, but not more often than is reasonably necessary.

On appeal, Ms. Clancy submitted that she “takes issue with Arbitrator Smith’s decision that Aviva’s request for an IE was reasonably necessary.²” In fact, the Arbitrator made no such decision. He did not address the issue at all. However, I find no error. Ms. Clancy did not raise the issue before the Arbitrator. He could not have erred in failing to address it.

When I asked counsel to point out where he raised the issue before the Arbitrator, he referred me to paragraphs 53 and 65 of the arbitration written submissions. But those paragraphs do not refer to whether the IEs were reasonably necessary. They make passing reference to the entirely different question of whether the proposed services are reasonable and necessary.

If there is anything in Ms. Clancy’s arbitration written submissions that may be construed to be relevant to the reasonable necessity of the IEs, it is in paragraph 66. It states there that Aviva was not entitled to an IE because Ms. Clancy had already provided all of the information required to adjust the claim. Before the Arbitrator, there was no other reference to this argument. It is not surprising that the Arbitrator did not deduce that this might be Ms. Clancy’s submission that the IE was not reasonably necessary. I find no error.

Ms. Clancy expanded upon the argument on appeal. Her position is that Aviva was not entitled to an IE, even though she had never attended one. Instead, Aviva was required to accept the opinion of her service providers and her family doctor. I reject this submission.

There is no case that endorses the approach Ms. Clancy suggests. The very purpose of s. 44(1) is to allow insurers to obtain expert opinions that are independent of the ones the insured person provided. I agree with Ms. Clancy that there is no automatic right to an IE, but in my view, there is a prima facie right in her circumstances, and Aviva did nothing to suggest that its right should be restricted. Ms. Clancy has never attended an IE and, when she submitted the OCF-18 that led to the IEs in dispute, she had not sought any accident benefits for over a year. The lapse in time alone created a reasonable basis for requesting an IE. There was nothing arbitrary in Aviva’s request.

The two leading decisions on when IEs are available are State Farm Mutual Automobile Insurance Company v. Ramalingam³ and Certas Direct Insurance Company v. Gonsalves.⁴ These cases establish the principle that fairness of the process is an overriding consideration in deciding whether an insurer is entitled to an IE. It defies logic to suggest that it is fair to deny Aviva any opportunity to investigate the opinions on which Ms. Clancy relies.

In support of her position, Ms. Clancy cites the decision in Macho and Unifund Assurance Company⁵ where the Arbitrator stated that IEs are not automatic. But the facts in Macho were quite different. In Macho, Unifund sought an order staying the arbitration pending Ms. Macho’s attendance at IEs. The parties agreed that Ms. Macho lacked the cognitive ability to instruct counsel and therefore a litigation guardian would be appointed. Unlike Ms. Clancy, Ms. Macho had already attended two IEs, but they were not completed. The first was curtailed because Ms. Macho became too fatigued. The second did not proceed because the assessor became concerned that Ms. Macho was incapable of giving informed consent. In these circumstances, the Arbitrator was not satisfied that further IEs would produce any useful information. Having made that factual conclusion, the Arbitrator went on to state:

Section 44 examinations are not automatic. The Insurer has to be able to demonstrate reasons how the information to be obtained on such an examination will assist it in making a determination of an entitlement to benefits under the Schedule. Such reasons must be more than a general requirement for more information; they must be able to point to specific medical observations that may be disputed and how clarity on those observations will assist. The Insurer in this case has not done so.

I do not accept this statement to be of general application. Although it might have been fair to require the insurer to demonstrate the usefulness of more information, in the unique circumstances of Macho, applying that approach in circumstances where an insured person has never attended an IE would defeat the insurer’s right to respond. That would be the effect here. Aviva currently has no ability to respond to the opinions upon which Ms. Clancy relies. Despite the determination in Macho, the Arbitrator took steps to ensure that the denial of an IE could not be used to create a tactical advantage. He ordered that Ms. Macho could not rely on any expert opinions obtained after the date of his order. There is no similar ability to balance the competing interests in this case.

As I noted above, I reject Ms. Clancy’s submission that the proposed IEs are not reasonably necessary. I now turn to the issues that the Arbitrator addressed in his decision.

(d) Aviva not precluded from relying on “minor injury”

I will deal next with the “minor injury” issue, and then with the question of medical reasons. The “minor injury” issue is relevant to the validity of the notices to attend IEs because the reason Aviva gave for requiring the attendance was to determine whether Ms. Clancy sustained a “minor injury”. Ms. Clancy submits that Aviva is precluded from asserting that she sustained a “minor injury” and that the Arbitrator erred in finding otherwise.

Ms. Clancy’s claims for accident benefits occurred in two phases. The first phase was right after the accident. Then there was a pause, and the second phase was over a year later. The issues in dispute arise from the second phase. Ms. Clancy claims that, by that time, Aviva had conceded that she did not sustain a “minor injury”.

In the first phase, Ms. Clancy’s physiotherapist Mr. Cameron Burns, submitted a Treatment Confirmation Form (OCF-23) on February 12, 2013. He confirmed treatment costing $1,800 and that Ms. Clancy sustained a predominantly minor injury. Aviva approved the OCF-23 on March 13, 2013 and informed Ms. Clancy that her injuries fell within the Minor Injury Guideline (MIG). Aviva also informed Ms. Clancy that the $3,500.00 MIG limit for medical and rehabilitation benefits applied to her claim.

Mr. Burns next submitted a Minor Injury Treatment Discharge Report (OCF-24), dated May 6, 2013. The OCF-24 indicated that Ms. Clancy had not recovered from her injuries, and that additional required treatment would be submitted by way of a Treatment and Assessment Plan (OCF-18). He submitted an OCF-18, dated May 2, 2013, proposing services costing $889.74. In 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?” That answer prompted him to provide “compelling evidence why the applicant does not come within the Minor Injury Guideline”. Mr. Burns stated “Initial OCF-23 plan ending on May 7/13. There are still outstanding issues with neck/shoulder”. Mr. Burns also answered “Yes” to the question as to whether Ms. Clancy had a “disease, condition or injury that affected her response to treatment” for her injuries. He identified a “Prior MVA in 2010 with som (sic) (L) neck symptoms.”

On May 16, 2013, Aviva informed Ms. Clancy that it was approving the OCF-18 for $889.74, 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.

The Arbitrator rejected Ms. Clancy’s submission that Aviva is precluded from taking the position that Ms. Clancy sustained a “minor injury” because it approved treatment pursuant to the OCF-18 of May 1, 2013. He concluded that, despite the approval, Aviva did not waive its right to assert that Ms. Clancy sustained a “minor injury” because the total approved treatment was still within the $3,500 cap for minor injuries.

I agree with the Arbitrator and I endorse his reasons. As the Arbitrator stated, by definition in section 3 of the Schedule, the Minor Injury Guideline “establishes a treatment framework in respect of one or more minor injuries”. Section 3 also contains a definition of “minor injury” as “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”. Section 18(1) of the Schedule sets a limit of $3,500 in medical and rehabilitation benefits in respect of an insured person who sustains an impairment that is predominantly a minor injury. This section also makes it clear that there is treatment available within the $3,500 minor injury limit, after completing treatment under the Minor Injury Guideline.

Section 18(1) states:

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…, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.

Section 18(2) creates an exception to the $3,500 limit for predominantly minor injuries where the “health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit…”

The Guideline sets out the treatment framework. As the Arbitrator stated:

“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 $2,200.00⁶ 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… ⁷

The Guideline gives the option of submitting an OCF-18 with the OCF-24 after the completing the services available in the treatment phase. It states:

Additional intervention outside this Guideline is required

• Submit the OCF-24 with the relevant sections completed and include functional and employment status.

• Submit an OCF-21C to bill for the goods and services delivered during this phase.

• Inform the insurance company of the intervention outside of this Guideline that is recommended for the insured person via submission of an OCF-18 or refer the insured person to another health practitioner, as appropriate.⁸

The Arbitrator correctly concluded that Mr. Burns followed the procedure that the Guideline dictates when he submitted the OCF-18 along with the OCF-24. Aviva made no concessions in approving the treatment under the OCF-18 because the total cost of services provided was still less than $3,500. Further, it is doubtful that Mr. Burns could express an informed opinion, much less provide “compelling evidence” that Ms. Clancy would not achieve maximal recovery if subject to the $3,500 limit, when he only proposed treatment within the limit.

As I noted above, I agree with the Arbitrator. Since Aviva made no concessions in approving treatment under the OCF-18, it follows that Aviva had no obligation to challenge Mr. Burns’ opinion, as Ms. Clancy submits. The onus remained with Ms. Clancy to prove that she did not sustain a predominantly minor injury, or that she qualified for the section 18(2) exception. As noted above, this determination influences the next question: Whether Aviva gave “medical reasons” for requiring Ms. Clancy to attend the IEs.

(e) Notices for IEs valid

Ms. Clancy made no further claims for about a year. Then, on July 24, 2014, Kim Lamont, occupational therapist, submitted an OCF-18 for the In-Home Assessment in dispute in the arbitration, at a cost of $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?"

Aviva did not approve this OCF-18. By letter dated August 12, 2014, Aviva gave Ms. Clancy notice requiring her to attend an IE. The notice gave the following reasons:

“We have reviewed the minor injury guideline and the treating practitioner’s medical opinion. 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 or necessary.”⁹

On August 19, 2014, Ms. Clancy’s lawyer informed Aviva that she would not be attending the IE. Ms. Clancy did not attend.

Aviva subsequently received two treatment plans from Ms. Tracy Auld, physiotherapist. Ms. Auld submitted an OCF-18 on March 20, 2015, for $2,665.00 in physiotherapy treatment. On the OCF-18, she noted that Ms. Clancy sustained a predominantly minor injury. Ms. Auld submitted 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, Ms. Clancy did not sustain a minor injury.

Aviva did not approve these OCF-18s and again scheduled an IE. The medical reasons given were: “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”¹⁰. Ms. Clancy’s lawyer again advised Aviva that she would not attend the scheduled IE.

On February 10, 2016, Ms. Clancy’s lawyer advised Aviva that she 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 another IE. Counsel later changed his mind and told Aviva that his client will not attend. She did not attend and there have been no other scheduled IEs.

Section 44(5)(a) of the Schedule requires an insurer’s notice for an IE to include “the medical and any other reasons for the examination”. The Arbitrator rejected Ms. Clancy’s submission that Aviva’s notices did not provide medical reasons.

The Arbitrator applied the requirements for “medical reasons” as set out in Augustin and Unifund Assurance Company¹¹ and he found that Aviva’s notices complied with them. Other arbitration decisions impose less stringent requirements. Since the notices meet the higher Augustin standard, it is not necessary to determine the applicable standard for the purpose of this decision. The Augustin requirements are:

• A statement that the claims adjuster has reviewed the MIG;

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

• 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 Arbitrator’s finding of fact that the IE notices meet the Augustin requirements is clearly correct. I reject Ms. Clancy’s submission that Augustin does not go far enough.

Ms. Clancy submits that in order to comply with s. 44(5)(a), an insurer must also identify medical evidence supporting the necessity of an examination, and must identify facts to explain why the insured person has not provided compelling evidence. Again relying on Augustin, the Arbitrator noted that this approach would require the insurer to give the insured person a medical opinion, in order to obtain a medical opinion. The Arbitrator stated:

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.¹²

The Arbitrator also adopted the logic of Zhang and Security National Insurance Co./Monnex Insurance Mgmt. Inc..¹³ It is as follows: the Schedule defines “minor injury” in medical terms. Therefore, when an insurer states the belief that an insured person sustained a “minor injury”, that statement expresses the belief that the insured person falls within a specific medical definition, thereby complying with the requirement for a “medical reason”. I agree. The Arbitrator stated:

In Zhang and Security National, 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”¹⁴.

As noted above, I find no error by the Arbitrator.

(f) The Remedy

Having concluded that Ms. Clancy failed to attend IEs upon proper notice, the Arbitrator went on to consider whether preclusion is the appropriate remedy. He concluded that preclusion is appropriate because it would be unfair to require Aviva to rely on any IEs it might now schedule. Aviva supported this analysis in its written submissions. Ms. Clancy made no submissions on this issue. I agree with the Arbitrator’s conclusion, but not with his reasons. I find no discretion to allow arbitration to proceed. Preclusion is the remedy that s. 55 prescribes and I find no discretion in the Schedule to do otherwise. Therefore, the Arbitrator was not required to consider fairness, before deciding that the arbitration should be dismissed. Since I agree with the Arbitrator’s conclusion, this appeal is dismissed.

IV. EXPENSES

I received no submissions on expenses. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

October 19, 2017

Jeffrey Rogers Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule-Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Appellant’s Written Submissions, at paragraph 14
3. 32009 CanLII 44115 (ON S.C.D.C.)
4. 42011 ONSC 3986
5. 5(FSCO A13-014546, January 4, 2016)
6. 6I calculate the total at $2,400, if one includes the $200 charge for Monitoring by the Health Practitioner, found in section 8(c) of the Guideline. This makes no difference in the result, since the total is still below the $3,500 limit for predominantly minor injuries.
7. 7At Page 9
8. 8Guideline, at page 11
9. 9Exhibit T, Affidavit of Gillian Harris
10. 10Exhibit S, Affidavit of Christopher Viveiros
11. 11(FSCO A12-000452, November 13, 2013)
12. 12At page 12
13. 13(FSCO A13-003889 & A13-003890), April 23, 2015
14. 14At page 12