Tribunal File Number: 16-004192/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:
Y.G.
Applicant
and
Primmum Insurance (also known as TD Insurance Meloch Monnex)
Respondent
DECISION
Adjudicator: Catherine Bickley
Written Submissions: Chris Rizzo, Paralegal for the Applicant Paul Girard, Counsel for the Respondent
Heard in writing: April 20, 2017
INTRODUCTION
The insured, Y.G., was injured in an automobile accident on May 24, 2015. She sought benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). In this application, Y.G. appeals the denial of various medical benefits and costs of examinations. The insurer, Primmum Insurance Company (“Primmum”) challenges Y.G.’s right to bring an application to the Tribunal due to her failure to attend any s. 44 assessments (“IEs”).
This decision decides whether Y.G. is barred by s.55 of the Schedule from proceeding to a hearing on the merits of her application. I find that she is barred as she is not in compliance with s.44 of the Schedule. This decision also deals with Primmum’s request for costs. I find that Primmum is not entitled to costs.
BACKGROUND
Y.G. submitted treatment plans to Primmum on February 20 and March 1, 2016. Primmum denied the treatment plans, stated that there was insufficient medical evidence to remove Y.G. from the Minor Injury Guideline (“MIG”), and gave Y.G. notice1 that it required her to attend IEs on April 5 and 12, 2016. Y.G. did not attend the IEs.
Primmum then arranged for paper file reviews. In reports dated May 5, 2016, Dr. Jaroszynski (orthopaedic surgeon) and Dr. Lubbers (psychologist) opined that they could not offer a definitive opinion based solely on a file review. Primmum maintained its position that Y.G. could be appropriately treated within the MIG.
Y.G. submitted another treatment plan on October 26, 2016 which Primmum also denied. On November 3, 2016, Primmum gave Y.G. notice that it required her to attend an IE scheduled for December 13, 2016. Y.G. did not attend the IE. On December 30, 2016, Primmum advised Y.G. that as a result of her non-attendance at the IE it had determined that her injuries “fall within the Minor Injury Definition” [emphasis in original].
As of the date of this hearing, Y.G. has not attended any IEs.
Y.G. filed this application on November 25, 2016. At a February 21, 2017 case conference, Primmum raised the preliminary issue that is the subject of this decision.
ISSUES
i. Is Y.G. barred by s.55 of the Schedule from proceeding to a hearing on the merits of her application?
ii. Is Primmum entitled to costs under Rule 19?
RESULT
i. Y.G. is barred by s.55 from proceeding to a hearing on the merits of her application.
ii. Primmum is not entitled to costs under Rule 19.
ANALYSIS AND DECISION
It is undisputed that Y.G. failed to attend the s.44 assessments (“IEs”) scheduled for April and December 2016. Primmum submits that Y.G. is therefore barred from bringing her application by s.55 (1)2. That section prohibits an insured person from applying to the Tribunal if an insurer has provided notice “in accordance with this Regulation that it requires an examination under s.44, but the insured person has not complied with that section.”
Y.G. responds that she was not required to attend the IEs because Primmum did not comply with the notice requirements of s.44.
Y.G. raises two other arguments. She submits that s.44 (3) (a) prevents Primmum from requiring IEs to assess whether her injuries fell within the MIG. As well, Y.G. submits that Primmum breached its duty of good faith to her in the manner in which it has handled her claim.
Primmum’s IE notices comply with s.44 (5)
The four mandatory components of an IE notice are listed in s.44 (5). At issue in this case is the requirement that the insurer set out “the medical and any other reasons for the examination.” Y.G. submits that Primmum’s notices did not include medical reasons for the proposed IEs.
Primmum’s IE notices state:
Upon a review of the documents2, we do not agree to pay for any of the goods, services and/or assessments described for the medical reasons and all other reasons known as of the date of this notice as follows:
- Upon a review of the above OCF-18s and your accident benefits claim file; compared them to the criteria in the Minor Injury Guideline (MIG) as published by the Financial Services Commission of Ontario (FSCO), we have made a determination that there is insufficient medical documentation to persuade that the accident injuries fall outside of the MIG.
Primmum’s IE notices also state that the purpose of the IEs is to determine the applicability of the MIG.
Y.G. did not raise the validity of the IE notices until faced with Primmum’s motion to dismiss her application. In response to the March 1, 2016 IE notice, her representative wrote “[o]ur office does not permit in-person examinations in response to an assessment request denial.”3 In response to the November 3, 2016 IE notice, her representative wrote that “my client will not attend any Insurer Examination relating to medical/rehab benefits as long as you maintain the position that her injuries fall within the Minor Injury Guideline.”4
Both parties have submitted decisions from the Financial Services Commission of Ontario in support of their respective positions. While FSCO decisions are not binding on this Tribunal, I find the analysis of Arbitrator Sapin in Augustin5 helpful. I agree with Arbitrator Sapin that given the serious consequences that potentially flow from failure to attend an IE -- an inability to dispute the denial of benefits -- “the notice requirements set out in s.44(5) should be strictly construed and the insurer’s notice should be closely examined to ensure it complies.” 6
Arbitrator Sapin states in Augustin that where an insurer believes that the MIG might apply, its IE notice must indicate, at a minimum, that it has:
i. reviewed the treating health practitioner’s opinion;
ii. reviewed the MIG and compared it to the treating health practitioner’s opinion; and,
iii. concluded that, in the view of the insurer, the applicant’s treating health practitioner has not provided compelling evidence that the applicant’s injuries fall outside the MIG.
- I find that the March 1, 2016 and November 3, 2016 IE notices comply with the notice requirements of s.44 (5) as interpreted in Augustin. The notices indicate that Primmum has reviewed the OCF-18s (which include a list of injuries and impairments) and the applicant’s accident benefits claim file, has compared that information to the criteria in the MIG and made a determination that there is insufficient medical evidence to persuade it that Y.G.’s injuries fall outside the MIG. I turn now to Y.G.’s other arguments.
Section s.44(3)(a)
- S.44(3)(a) states:
Subsection (1) does not apply with respect to … a benefit payable in accordance with the Minor Injury Guideline;
- Y.G. submits that Primmum is not entitled to an IE to determine whether her injuries fell within the MIG. However, she also submits that because Primmum did not remove her from the MIG she “was never provided with an opportunity to attend an Insurer Examination to determine whether her treatment provider’s proposed treatment was reasonable and necessary”7. It is inconsistent on the one hand to resist an IE that deals with the applicability of the MIG and on the other hand to complain that she did not have an opportunity to attend an IE.
Good Faith
Y.G. alleges that Primmum failed to review and consider compelling medical evidence and re-evaluate whether or not her injuries fall within the MIG8 and thus breached its duty of good faith.
I agree with Y.G. that the medical evidence she submitted to Primmum, which indicated that she had injuries and impairment that included neurological and psychological injuries, chronic pain syndrome, an annular tear, disc bulges, radiculopathy and paresthesia, raised questions about whether she could be appropriately treated within the MIG. I disagree, however, that Primmum was required to simply accept this medical documentation without seeking opinions from medical professionals of its choosing.
Y.G. criticizes Primmum for not putting some of the available medical evidence in front of its IE assessors, Dr. Jaroszynski and Dr. Lubber. This goes, however, to the validity and strength of the IE reports rather than the question of whether Y.G. was required to attend the IEs.
COSTS
Primmum seeks costs.
Rule 19 permits a party to request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
Primmum asks for costs on the basis that Y.G. brought her application without attending any of the scheduled IEs. However, Primmum has availed itself of the appropriate remedy in such circumstances, i.e., bringing this motion. Primmum has not pointed to any actions by Y.G. in this proceeding that are unreasonable, frivolous, vexatious or in bad faith. Accordingly, Primmum is not entitled to costs.
CONCLUSION
- For the reasons outlined above, I find that:
i. Y.G. is in non-compliance with section 44 of the Schedule. Therefore, she is barred from proceeding with her application. Pursuant to section 55 of the Schedule, her application is dismissed and the Tribunal file is closed.
ii. Primmum has not established entitlement to costs under the criteria set out in Rule 19.
Released: August 28, 2017
Catherine Bickley
Adjudicator
Footnotes
- By letters dated March 1, 10 and 11, 2016.
- This is the wording in Primmum’s March 1 and March 11, 2016 letters. The November 3, 2016 letter omitted the introductory phrase “upon a review of the documents”.
- March 15, 2016 letter from Chris Rizzo to Primmum (Applicant’s Document Brief, Tab 6; Respondent’s Document Brief, Tab 8)
- December 5, 2016 letter from Chris Rizzo to Primmum (Respondent’s Document Brief, Tab 16)
- Augustin v. Unifund Insurance Company, FSCO A12-000452 (2013-11-13)
- Augustin, page 10
- Applicant’s Submissions, para 62
- Applicant’s Submissions, para 42