LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Date: November 14, 2016
Tribunal File Number: 16-000248/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. W.
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
Adjudicator: J.R. Richards
Written Submissions By:
For the Applicant: Joelle Briggs-Sears, counsel
For the Respondent: David Raposo, counsel
HEARD: In Writing: September 14, 2016
REASONS FOR DECISION AND ORDER
Overview:
The applicant, J. W. was involved in a motorcycle accident on July 10, 2015. He applied to the respondent, The Co-Operators General Insurance Company, for income replacement benefits. The respondent paid the benefits at the rate of $400.00 per week from July 17, 2015 to March 25, 2016.
The respondent stopped paying the benefit from March 25, 2016 to July 7, 2016, because it alleges that the applicant did not comply with the Schedule1 when he refused to attend an insurer examination. The applicant asserts that he refused to attend the requested examination because the respondent failed to provide a "medical and any other reasons" for the examination, as required under the Schedule.
I find that the applicant is precluded from receiving income replacement benefits for the period March 25, 2016 to July 7, 2016 because he failed to attend an insurer's examination.
Facts:
The applicant submitted an Application for Accident Benefits to the Respondent on July 15, 2015.2 The respondent sent an Explanation of Benefits (OCF-9), dated August 17, 20153 to the applicant confirming that it would pay income replacement benefits from the date of entitlement onward.
By Notice, dated February 3, 2016,4 the respondent requested that the applicant attend an insurer examination by an orthopedic surgeon on March 22, 2016. The notice stated that the reasons for the examination were:
To determine if you continue to meet the disability test for the Income Replacement Benefit which is a substantial inability to perform the essential tasks of your employment within 104 weeks after the accident. Also to determine the timelines for recovery and future prognosis in relation to your injuries.
It is this paragraph of the Notice that is in issue. The applicant says the Notice does not give any "medical and any other reasons" for the examination as required. The respondent says it does.
Taking issue with the Notice, the applicant responded that he would not attend the assessment.5 The respondent advised the applicant by email on March 2, 2016, that he would be in non-compliance with the Schedule if he did not attend the assessment. The respondent further advised the applicant by Explanation of Benefits dated March 16, 20166 that it would stop paying income replacement benefits effective March 25, 2016.
The applicant had surgery on his left foot on July 8, 2016. The respondent advised the applicant that he continued to remain non-compliant. However, because he was at the time physically unable to attend a s. 44 assessment, the respondent reinstated the income replacement benefit as of the surgery date until such time as the applicant could attend an assessment.
Law and Analysis:
The Schedule requires an insurer to provide "medical and any other reasons" when requesting that an insured person attend an assessment.7
The applicant asserts that the respondent has not given him "medical and any other reasons" justifying why he should be assessed. He argues that all of his treating practitioners' records have been provided to the respondent. The applicant also submits that there is no ambiguity in the records which indicate that, as a long distance truck driver, he is unable to return to work due to the injuries sustained in the motor vehicle accident. In the applicant's view, the respondent simply wants to go on a "fishing expedition", which flies in the face of legislative objective and intent.
According to the applicant, the "medical and any other reasons" that could be extracted from the respondent's notice of examination are: i. To determine if our client continues to meet the disability test for the Income Replacement Benefit; ii. Their right to assess his ongoing entitlement to benefits.
I agree with the applicant that these are not valid medical and other reasons as required by the Schedule. Requiring medical reasons makes insurers accountable for their decisions and prevents them from acting arbitrarily. Insured persons must provide valid, factual medical information from health practitioners to support their claims. Likewise, insurers must provide reasons encompassing more than a desire to determine ongoing entitlement. There must be something in the medical records that leads to questions and warrants investigation.
I find, however, that the respondent's Notice to the applicant goes further than as characterized by the applicant. In addition to determining ongoing entitlement, the Notice also states that the assessment is to determine "the timelines for recovery and future prognosis in relation to your injuries."
Medical reasons will be unique to each case. I find that in the applicant's case, timelines for recovery and future prognosis are valid medical and other reasons that support the respondent's request for an assessment. Even though the applicant had sent the respondent a wealth of medical information, the information did not give a complete picture of the applicant's condition.
The applicant had sent to the Respondent, two Disability Certificates from his family physician, Dr. Cooke8. Both certificates listed multiple fractures to the applicant's foot, abrasions and a sore back. The second Disability Certificate, sent to the respondent in November 2015, noted that the applicant's back symptoms were only resolving minimally.
An occupational therapy report by Kim Lamont & Associates, dated November 23, 20159 speaks extensively about the applicant's condition. The report notes that the applicant had met with an occupational therapist on six separate occasions. It also notes that the applicant had been diagnosed with a T12 vertebral fracture, which had been missed in earlier diagnoses and explained his ongoing back pain. The occupational therapist noted that the extensive damage in the applicant's left foot could require further surgery. The applicant was to meet with a surgeon on December 10, 2016 to discuss the surgery.
The occupational therapy report is critical, because it presents the greatest amount of information to the Respondent. The report states that the applicant was "demonstrating function required to look after most of his own self-care tasks". However, the applicant's ability to look after himself could change if surgery were required. The therapist stated that he would wait for the results of the applicant's upcoming medical appointments and possible surgeries to see if his self-care needs would increase. The therapist, importantly, also said that the plan was to continue to assist the applicant in a gradual return to an Activities of Daily Living program. However, the therapist noted that the program may need to be put on hold should further surgery be required.
I have no evidence that the applicant presented any information to the respondent about his December 10, 2016 meeting with the surgeon. I have no evidence that prior to the suspension of benefits he provided an answer to the respondent about whether he required surgery. Furthermore, the applicant provided no information on how long he would be in recovery if he did require surgery.
It is clear that the applicant took the opportunity to continue to be assessed by medical professionals of his own choosing, which indicates that his condition had not stabilized. It is reasonable for the respondent to desire its own view of the extent of the injuries and the prognosis for recovery.
A prognosis is an integral component in the consideration of any injury. A prognosis would need to take into account the history of the injury, an assessment of the injured person's current situation, and any factors that would affect recovery.
I agree with the applicant that insurer assessments are, by their nature, invasive and that an insurer does not have an automatic right to them under the Schedule. However, "[f]undamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it."10
The accident benefits system differs from the tort system in that an insurer does not have an automatic right to generate rebuttal reports in support of its case. An insurer does have an obligation to continually adjust a file, even in the face of a dispute with an insured person. Within this ongoing obligation to adjust the file, and where medical reasons warrant, an insurer is permitted to gather evidence to respond to the position taken by an insured person.
As the respondent states, there is no requirement to invent a medical reason, or point to disqualifying medicals to justify requiring an insured person to attend an assessment. The medical and other reasons are the reasons that are unique to each case and that justify the insurer's request for further investigation. Accordingly, I find that the respondent's request to determine the timelines for the applicant's recovery and future prognosis in relation to his injuries, were valid "medical and any other other reasons."
Section 37 of the Schedule permits an insurer to refuse to pay specified benefits to an insured person if that person does not comply with a valid request for an assessment. I find that the respondent's Notice was valid in this case, and the applicant did not comply with s. 44 of the Schedule. Consequently, I find that the applicant is precluded from receiving income replacement benefits for the period March 25, 2016 to July 7, 2016 because he failed to attend an insurer's examination.
The applicant alleges that the respondent unreasonably withheld his benefits and he is therefore entitled to an award under s. 10 of Regulation 664.11
I find that the applicant is not entitled to an award under s. 10 of Regulation 664 as he did not comply with the Schedule and the respondent's consequent withholding of benefits was reasonable.
Order
- Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that the applicant is precluded from receiving income replacement benefits for the period March 25, 2016 to July 7, 2016. The applicant is also not entitled to an award under s. 10 of Regulation 664.
Released: 15/11/2016
______________________________
J.R. Richards,
Vice Chair
Footnotes
- Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 1.
- Respondent Submissions Tab 1
- Respondent Submissions Tab 2
- Respondent Submissions Tab 3
- Respondent Submissions Tab 4
- Respondent Submissions Tab 8
- Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, Section 44
- Applicant Submissions, Tabs A1, A2
- Applicant Submissions, Tab A5
- Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986,
- Insurance Act, R.R.O. 1990, Regulation 664