Tribunal File Number: 16-000693/AABS
Case Name: 16-000693 v Aviva Insurance
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:
W. P.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Deborah Neilson
APPEARANCES:
Counsel for the Applicant: Matthew Caldwell
Counsel for the Respondent: Stephen Newell
HEARD: Written Hearing: November 16, 2016
OVERVIEW
The applicant, W.P., a self-employed dog walker, was injured in an automobile accident on December 19, 2015. She applied to the respondent, Aviva Insurance Company of Canada (“Aviva”), for benefits, including income replacement benefits (“IRBs”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''),
Aviva sought a number of insurer’s medical examinations and the applicant attended at some, but not all of the assessments. Aviva also sought to conduct an examination under oath of the applicant, which the applicant did not attend. The applicant’s income replacement benefits were suspended for her failure to attend at the assessments.
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) claiming entitlement to income replacement benefits (“IRBs”) in addition to other statutory accident benefits pursuant to the Schedule.
Aviva takes the position the applicant is barred from pursuing her claim for IRBs at the Tribunal until she attends an insurer’s functional ability examination and is barred from claiming IRBs for the period from May 3, 2016 to date for her failure to attend at the examination under oath. The insurer has waived its rights at this time with respect to the applicant’s non-attendance at an insurer’s psychiatric assessment.
The applicant takes the position that the respondent agreed that the applicant was not required to attend the functional ability examination requested by Aviva or the examination under oath.
ISSUES
- The parties agreed that the issues to be decided at the preliminary hearing are as follows:
a. Is the applicant precluded from proceeding to a hearing on entitlement to income replacement benefits in the amount of $388.65 per week for the period from June 6, 2016 to date because she failed to attend an insurer’s functional ability examination conducted by an occupational therapist?
b. Is the applicant precluded from proceeding to a hearing on entitlement to income replacement benefits for the period from May 3, 2016 to date because she failed to provide information pursuant to s.33 of the Schedule requested by the insurer to quantify the income replacement benefit?
RESULT
- I find on all of the evidence that:
a. The applicant is precluded from proceeding to a hearing on entitlement to income replacement benefits for the period from June 16, 2016 to date as she failed to attend an insurer’s examination.
b. The applicant is not otherwise precluded from proceeding to a hearing on the issue of entitlement to income replacement benefits for the period from May 3, 2016 to date for failure to provide information or attend at an examination under oath.
THE FACTS
- The respondent relied on the affidavit evidence of Lynn Highley, a Senior Litigation Specialist with Aviva. The applicant relied on the affidavit evidence of Jessica King, an employee of the law firm retained by the applicant. The following facts are not in dispute and are set out in affidavits or the exhibits attached to the affidavits.
a. At the time of the December 19, 2015 accident, the applicant was self-employed.
b. On January 16, 2016, Aviva sent the applicant an Accident Benefits Package of forms.
c. On February 1, 2016, Aviva received an OCF-3 Disability Certificate dated January 14, 2016 and a signed OCF-1 to Aviva on March 7, 2016. After Aviva made a few requests, the applicant submitted her election of benefits on April 25, 2016, at which time she elected to receive income replacement benefits.
d. On April 22, 2016, prior to the applicant making the election referred to in c. above, Aviva sent a request to the applicant to attend at a series of in-person insurer’s examinations for the purpose of reviewing the applicant’s initial entitlement to a non-earner benefit, which the applicant asked Aviva to cancel on April 25, 2016.
e. Aviva sent out another request on May 2, 2016 for the applicant to attend insurer’s examinations for the purpose of determining initial entitlement to income replacement benefits pursuant to s.36(4)(b) and s.44 of the Schedule. The applicant’s lawyer wrote to Aviva on May 2, 2016, advising that the applicant objected to attending at the insurer’s examinations claiming Aviva had not provided a valid medical reason for the assessments and that the proposed set of assessments was excessive.
f. On May 4, 2016, Aviva sent a third request for the applicant to attend multidisciplinary assessments with an orthopaedic surgeon, a neurologist, a psychiatrist and an occupational therapist to determine the applicant's “continuing entitlement” to an income replacement benefit pursuant to s.37(1)(b) of the Schedule. The occupational therapist was to conduct a Functional Ability Evaluation (“FAE”) on June 6, 2016 at an office. The medical reason given for the examinations stated "The disability period appears to be inconsistent with the diagnosis or mechanism of injury."
g. The applicant’s lawyer wrote to Aviva on May 6, 2016, seeking clarification on the assessments before the applicant would attend the insurer’s examinations. An exchange of emails and a phone discussion between Aviva and the applicant’s lawyer occurred on May 13, 2016. After the call, the applicant’s lawyer wrote to Aviva, advising the applicant objected to Aviva’s insistence that she attend all of the insurer’s examinations. The applicant requested that all of the insurer’s examinations, except the orthopaedic assessment, be cancelled.
h. On May 14, 2016, the applicant’s occupational therapist, Navneet Dhillon, sent a copy of her in-home assessment report to Aviva. On page two of her report, Ms. Dhillon noted that the applicant had requested the occupational therapy assessment in order to review her needs for attendant care, devices, housekeeping and treatment.
i. On May 25, 2016, the applicant’s lawyer emailed Aviva’s Senior Frontline Claims Manager stating:
I am willing to recommend that she attend the neurology assessment currently scheduled for tomorrow, May 26, 2016. This is on the condition that the other IRB examinations (psychiatry June 10, 2016 and FAE June 16, 2016) are cancelled, and the OCF-18 of Storrie, Velikonja & Associates dated April 27, 2016 is approved.
I am hopeful that you will agree to the above, as the remaining IRB examinations are more than two weeks away. I will need to hear from you before I can recommend that C… attend tomorrow's neurology examination. Her transportation is currently scheduled to pick her up at noon.
j. Aviva responded at 10:21 on May 26, 2016 as follows:
I obviously don't think it's unreasonable for us to request our assessments at this time, I agreed with not proceeding with the FAE and neuropsych, we will require …(W.P.) to attend neuro and psychiatric as discussed.
k. The applicant’s lawyer responded about 20 minutes later with:
Do I understand correctly that you are agreeing to approve SVA's OCF-18 regarding a neuropsychological assessment? If that is the case….
l. The applicant attended the insurer’s neurological assessment before hearing back from Aviva. On May 27, 2016, Aviva again emailed the applicant’s lawyer about the neuropsychological and psychiatric assessments and suggested a compromise for a neuropsychological assessment Aviva concluded the email stating: “Please let me know your thoughts and if you're agreeable to this.”
m. On May 27, 2016, the applicant’s lawyer responded, noting the orthopaedic and neurological portions of the disability IEs had been completed and stated:
Despite the fact that you had not confirmed your answer regarding the psychiatry assessment, on a good faith basis we advised Ms. P… to attend the neurology assessment. …
…I am hopeful that on review of the above, and the medical documentation provided, you will agree with my suggestion to cancel the remaining assessments… (emphasis added)
n. Aviva replied on May 30, 2016 by email stating:
When we spoke, I said I would cancel the functional but we still needed her to attend the neurological and psychiatric and I would get back to you about the neuropsych…
o. The applicant’s lawyer responded the same day advising that was not how he recalled the conversation. He again emailed Aviva on June 7, 2016 stating he had received no response and was “…advising (the applicant) not to attend any of the currently scheduled medical examinations until we resolve these issues. Unfortunately it seems we have no choice but to proceed via the LAT.”
p. Aviva responded on June 7, 2016, advising that a neuropsychological assessment, of which there had been some discussion between the parties, was added to the multidisciplinary disability IE and that Aviva’s position was that it would approve a neuropsychological assessment requested by the applicant if the test results were forwarded to Aviva’s neuropsychologist.
q. The applicant mailed her application to the LAT on June 9, 2016.
r. Aviva wrote to the applicant on June 16, 2016, advising that because she failed to attend the psychiatric assessment scheduled for June 10, 2016, her IRBs would remain suspended pending her attendance at the requested IE. The letter further advised that before the applicant exercised her right to dispute Aviva’s decision, she would need to undergo the insurer's examination.
s. Aviva retained an accounting firm, BDO Canada LLP, to assist it in quantifying the amount of IRB to which the applicant may be entitled. Aviva and BDO requested a number of records in order to determine quantum of income replacement benefits. The applicant did not provide substantial financial documentation to Aviva until June 28, 2016.
t. Aviva's counsel provided notice to the Applicant’s lawyer on July 22, 2016 that an examination under oath of the applicant was booked for August 17, 2016. The applicant’s lawyer spoke with Aviva’s lawyer on August 12, 2016, at which time they discussed the pending examination under oath and the income/business documents that had been requested and produced. Following that conversation, the applicant’s lawyer sent an email to Aviva’s lawyer on August 12, 2016 requesting that the examination under oath be cancelled. Aviva’s lawyer responded advising that:
…my assistant will cancel the EUO on the 17th. In future, if an EUO is required in this matter (regarding IRBs) we shall canvass dates with your office.
FAILURE TO ATTEND AT AN INSURER’S EXAMINATION
The Parties’ Positions
Aviva submits that it requires an FAE, with an assessor of its choosing, that will focus on the applicant's ability to complete her usual vocational duties and that it would be unfair to force it to proceed to a hearing without the assessment.
The applicant initially notified the insurer that she took issue with the number of assessments requested, the type of assessments, and the adequacy of the notice, but did not make any submissions on the adequacy of the May 4, 2016 notice. It is the applicant`s position that the respondent determined the applicant was not required to attend at the FAE and no subsequent notice requiring the applicant to attend was submitted. The applicant submits that the insurer had enough medical information, together with the two assessments the applicant did attend, to render attendance at the FAE unreasonable and unnecessary.
Analysis
Waiver
I do not agree with the applicant’s submission that Aviva agreed to forgo the applicant’s attendance at the functional ability examination. Ms. Jessica King’s evidence was that she was advised that Aviva agreed to forgo the insurer’s examination, but that is only half of the story. The communications between the parties indicate that Aviva’s statements about withdrawing the FAE assessment were part of an offer with respect to negotiations with the applicant’s lawyer. The applicant’s lawyer was trying to negotiate with Aviva to cover the cost of a treatment plan for a neuropsychological assessment in exchange for the applicant to attend at some, but not all of the insurer’s assessments. The negotiations broke down without reaching an agreement as is evident by the emails and letters exchanged and the conduct of the parties.
I find that Aviva’s offer to forgo the FAE assessment was not a stand-alone offer, but was part of the negotiations that were not accepted by the applicant via her lawyer, as evidenced when the applicant filed her appeal with the Tribunal. Accordingly, I do not accept the applicant’s submission that the insurer agreed she was no longer required to attend at the FAE.
The applicant submits that the FAE examination was raised again only after she filed an application at the Tribunal, but no subsequent formal notice was ever provided. While there has been no further formal notice, Ms. Lynn Highley’s evidence is that she indicated to the applicant’s lawyer that Aviva is willing to reschedule the FAE assessment, but has not done so as she believes the applicant will not attend an assessment. Ms. Highley’s evidence lends further support to my finding that the statement made to the applicant’s lawyer that Aviva would cancel the FAE was part of the negotiations and not a stand-alone agreement as there never was a meeting of the minds between the parties as to which assessments the applicant would or would not attend, or which treatment plans Aviva would or would not approve.
Reasonable and Necessary Assessments
By the time Aviva sent the May 4, 2016 notice of the assessments to the applicant, Aviva had accepted that she was initially entitled to income replacement benefits. The proposed insurer’s examinations were for the purpose of determining whether the applicant continued to be entitled to income replacement benefits. Income replacement benefits are a specified benefit and s.37 of the Schedule governs the procedure for determining continued entitlement to a specified benefit. Section 37(1)(b) states that 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, notify the insured person that the insurer requires an examination under s.44 of the Schedule.
Section 44 (1) of the Schedule states that an insurer, for the purposes of determining if an insured person is or continues to be entitled to a benefit, may require an insured person to be examined by one or more regulated health professionals chosen by the insurer, but not more often than is reasonably necessary.
The Schedule clearly allows for multiple assessments by more than one health professional when an insurer is seeking to determine whether an insured person continues to be entitled to a benefit. But the insurer is not allowed to request more assessments than are reasonable. The criteria for determining what is reasonable was discussed in the FSCO decision of Deschambault and Wawanesa Mutual Insurance Company (FSCO A14-005855, October 8, 2015), the Arbitrator noted:
Mr. Deschambault has not taken issue with the validity of the notices Wawanesa gave. He has refused to attend unless Wawanesa agreed to terms of his attendance. He argues that his seeking to impose terms of attendance is not a refusal to attend. I find that it is. Section 44 gives the insurer the prima facie right to the examination it seeks. There is no explicit or implied limit to the number of examinations. Mr. Deschambault has not suggested that Wawanesa is seeking an excessive number of examinations. Terms can only be imposed if the insurer’s prima facie section 44 rights are eroded in the particular circumstances. In the decision in Al-Shimasawi v. Wawanesa[2] the Arbitrator set out the following considerations in assessing the reasonableness of a proposed insurer examination:
The timing of the insurer’s request;
The possible prejudice to both sides;
The number and nature of previous insurer’s examinations;
The nature of the examination(s) being requested;
Whether there are any new issues being raised in the applicant’s claim that require evaluation;
Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
I find the list of considerations in Al-Shimasawi v. Wawanesa a compelling tool for guidance in assessing the reasonableness of the frequency of requests for insurer’s examinations, the necessity of the requests and the number of assessments. In this case, according to the OCF-3 disability certificate of her family physician dated April 28, 2016, the applicant was diagnosed with neck pain, dizziness, concussion, depression, soft tissue muscular, and low back pain sciatica. It is clear, based on the applicant’s occupational therapy assessment by her own occupational therapist on April 15, 2016, that there is a more than reasonable nexus between a functional abilities evaluation by an occupational therapist and the applicant’s injuries.
While the applicant had attended two other assessments requested by the insurer, those assessments were by physicians with specialties in orthopaedics and neurology and were part of the multidisciplinary assessments requested by the insurer. The applicant had not undergone a previous FAE by an occupational therapist at the request of Aviva.
The applicant refused to attend the FAE, claiming that it was unnecessary because she had recently attended an assessment with an occupational therapist. However, the occupational therapy assessment that the applicant attended a couple of months before the scheduled FAE was with an occupational therapist of the applicant's choosing. Moreover, the assessment primarily addressed the applicant’s ability to complete her housekeeping and self-care, not her employment tasks.
Ms. Dhillon, the applicant’s occupational therapist, stated in her May 14, 2016 report that the applicant “…has been unable to work in any capacity in her dog-walking or pet-sitting business.” The comment was contained in a paragraph summarizing the applicant’s pre-accident and post-accident activities. When read in context with the remainder of the paragraph, the comment was a summary of applicant’s work history as related by the applicant to Ms. Dhillon and was not Ms. Dhillon’s opinion on the applicant’s abilities. This finding is supported by the fact that Ms. Dhillon did not provide an opinion on the applicant’s ability to return to work in the section of her report where she summarized her findings and how they impacted on the applicant’s daily activities, self-care and housekeeping and home maintenance tasks. I also note that Ms. Dhillon was not retained to provide an opinion on the applicant’s ability to work. If the comment is an opinion offered by Ms. Dhillon, it would prejudice the respondent not to be able to have its own occupational therapist test that opinion.
I do not accept that because the applicant already obtained a report by an occupational therapist, that a request for a similar assessment by the insurer was unreasonable. Section 44(1) of the Schedule allows for the insurer to choose its own assessors. If the legislators meant for the insurer to only rely on the opinions and findings of an insured person’s treatment providers or choice of assessors, the Schedule would say so. This does not mean that an insurer may go doctor shopping if it does not like the opinion of its assessor. However, it is not up to the applicant to choose who the insurer’s assessors will be or the type of assessments that are required, as long as there is some nexus between the specialty of the assessor and the injuries claimed.
The applicant submits that the respondent would not be prejudiced by proceeding to a hearing without having had its choice of occupational therapist examine the applicant. The applicant submits that because the insurer has the applicant’s medical documentation from her treating practitioners and the insurer has had her assessed by an orthopaedic specialist and a neurologist, the respondent does not need an occupational therapist to respond to Ms. Dhillon’s opinions.
I disagree with the applicant’s submissions and refer to the Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 decision of the Divisional Court, relied on by the respondent. In that case, the Divisional Court upheld the FSCO Arbitrator’s stay of an arbitration to allow the insurer to obtain a further orthopaedic assessment after Ms. Gonsalves served two orthopaedic reports on the insurer 30 days prior to the arbitration hearing. The Divisional Court found that it would be procedurally unfair to force the insurer to proceed to arbitration without having its own orthopaedic assessment as without it, the only opinions on the issues would be those of Ms. Gonsalves’ orthopaedic specialists.
I was provided with no evidence that Aviva’s neurologist and orthopaedic specialist have similar training in the types of assessments conducted by occupational therapists or conduct Functional Abilities Evaluations. Nor have I been provided with any evidence to indicate that Aviva’s orthopaedic specialist and neurologist engage in the types of assessments conducted by Ms. Dhillon as mentioned in her report. In this case, Aviva’s occupational therapist would be able to address the type of tests administered by the applicant’s occupational therapist. Accordingly, I agree with the respondent’s submissions that it would be procedurally unfair for Aviva to proceed to a hearing without the benefit of its own occupational therapist’s assessment.
Based on my review of the evidence and for the forgoing reasons, keeping in mind the request by the insurer for an FAE by an occupational therapist was made before the applicant applied to the Tribunal, I find the insurer’s request for an FAE by an occupational therapist was reasonably necessary.
Adequate Notice
The applicant initially objected to attending at the IEs on the basis the notice was not adequate. It is not clear whether the applicant was pursuing the issue at the hearing. Under the circumstances of this case, I felt it necessary to address the issue of the adequacy of the notice
There is a consequence to not attending a section 44 insurer examination when proper notice is given as set out in s.55 of the Schedule. Section 55 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280 (2) of the Insurance Act if the insurer provided the insured person with proper notice in accordance with the Schedule that it requires an examination under section 44, but the insured person fails to submit to the examination.
Section 55 of the Schedule contains mandatory language and operates as a bar to an applicant applying to the Tribunal if the applicant does not attend a section 44 examination when given notice that complies with the requirements set out in the Schedule. This means that if Aviva’s request to W.P. to attend the insurer’s examinations complied with the notice provisions in the Schedule, the consequence of the applicant’s failure to attend the insurer’s examination is that the applicant does not have the right to commence a hearing at the Tribunal. Unless the insurer complied with the notice provisions in s.44(5) of the Schedule, there was no requirement for the applicant to attend the assessments.
Section 44(5) of the Schedule requires the insurer to provide the following information in the notice requesting the assessments:
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
The requirement to advise whether the applicant in this case was supposed to attend the assessments is partially satisfied by way of a blanket provision in the May 4, 2016 notice stating that it was necessary for the applicant to make herself available to attend the assessments. The provision, combined with the address of the location of each assessment or the advice, in place of an address, that attendance was not required, adds enough that the notice, taken in its entire context, meets the requirement in s.44(5)(b) of the Schedule.
The dates, times and even duration of the assessments are provided in the May 4, 2016 notice. The names, titles and designations of the assessors indicating their specializations are also listed as required by the Schedule. It is clear from the information provided in the notice what regulated health profession each assessor belongs to, with the exception of Dr. Ian Derby. The notice indicates he was going to conduct a neurology assessment and his specialization was “Other Medical/Surgeon.” However, the applicant took no issue with this aspect of the notice as she attended the assessment.
As previously mentioned, the applicant took issue with whether the notice met the requirement in the Schedule to provide “the medical and any other reasons for the examination.” The question of what wording might satisfy the requirement to give “medical and other reasons” was considered by Arbitrator Sapin in the Financial Services Commission of Ontario decision of Augustin v Unifund Insurance Company, (FSCO A12-000452, November 13, 2013). Arbitrator Sapin stated:
Given the serious consequences to an insured person of refusing to attend an IE for which proper notice has been given – barred from commencing a mediation proceeding to dispute an insurer’s denial of medical treatment – 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. The requirements are mandatory. They are there to balance the naturally intrusive nature of an IE and to ensure fairness. The insured person is entitled to make an informed decision about whether they wish to pursue their claims and attend the IE, or not. The legislature has determined that, in fairness, an insured person is entitled to specific information, including medical reasons, about why they are being required to attend an IE. I find it would be unreasonable and unfair to require them to attend without first being in possession of that information.
Arbitrator Sapin concluded that Unifund’s notice fell short of the legislative requirements. I find Arbitrator Sapin’s reasons in Augustin persuasive in that the notice requirements in the Schedule are mandatory and must be strictly construed. However, the notice requirement discussed in Augustin is different than in the present case as Aviva is seeking to assess W.P.’s ongoing entitlement to IRBs. Augustine dealt with whether the Minor Injury Guideline applied. This required the insurer to advise of its belief about the insured person’s entitlement to the medical benefit. The notice of an insurer’s examination for determining whether there is continued entitlement to a specified benefit does not require any comment about the insurer’s belief.
I find that Aviva’s May 4, 2016 notice to W.P. stating that “…the disability period appears to be inconsistent with the diagnosis or mechanism of injury..." satisfies the requirement for providing medical reasons. One cannot expect adjusters to have a medical background, which is why the Schedule allows insurers to request assessments by health practitioners. As indicated by Arbitrator Sapin in Augustin:
I do not agree with Ms. Augustin’s suggestion that the term “medical reasons” in s. 38(8) (or in s. 44(5), for that matter, discussed below), means reasons based on the opinion of a health practitioner, or that insurers should hire in-house medical staff to conduct an initial paper review. A medical reason is not the same thing as a medical opinion. A medical opinion, such as that required of the health practitioner who submits the Treatment and Assessment Plan, is based on facts obtained from an assessment of the insured person’s medical condition, in person or otherwise. As stated above, an insurer does not have the benefit of its own medical opinion at the time it receives the initial treatment plan, and can only obtain one by exercising its right to an IE, founded in s. 38(10), and for which rules are set out in s. 44(5).
Aviva’s explanation indicates that it reviewed the medical documents it had on file for W.P. and questioned the duration of her disability in light of the type of injuries she sustained. It does so in simple and plain language. The insurer would only be speculating if it tried to determine the reason for the duration of the applicant’s disability without the assistance of a health professional. Therefore, I can think of no clearer explanation for a medical reason for conducting the insurer’s examinations.
I also find that Aviva provided “any other reasons” for conducting insurer’s examinations when it stated in the notice “We are requesting you to attend for the following Insurer Examination(s) to review your ongoing entitlement to INCOME REPLACEMENT BENEFIT - EMPLOYED benefit(s). “ The notice to W.P. is clearly for the purpose of determining whether the applicant continued to be entitled to weekly income replacement benefits. The reason is given in plain language that the reasonable insured person would understand. Accordingly, I find that Aviva’s May 4, 2016 notice of the functional abilities assessment by an occupational therapist met the notice requirements in s.44 of the Schedule.
For all of these reasons, I find that the applicant, W.P., failed to attend the FAE assessment requested by the insurer and is prohibited from proceeding with a hearing on her entitlement to income replacement benefits from June 6, 2016 until she attends at an FAE with an occupational therapist of Aviva’s choosing.
Sections 55(2) and (3) of the Schedule allow an insured person to apply to the LAT despite a failure to attend at an insurer’s examination, but under conditions and terms. There is no case law that provides guidance as to what terms or conditions should be imposed or under what circumstances. I find that motive or a reasonable excuse is not necessarily a factor I need to consider, otherwise the Schedule would state that was the case as it does in s. 37(8)(b)(ii) of the Schedule. Section 37(8)(b)(ii) states that, after an insured person attends an insurer’s examination, an insurer is required to pay the benefits withheld during the insured person’s failure to submit to the examination if the person has a reasonable excuse for his or her non-compliance. Unless I impose the condition that the applicant attend at an FAE by a qualified occupational therapist of the insurer’s own choosing at a date, time and location convenient to the applicant if the appeal is to proceed, the applicant would remain barred from proceeding with her claim. This means without any conditions imposed, I would have no recourse but to dismiss the applicant’s claim, which is a harsh result.
It would be unfair to dismiss the applicant’s claim for income replacement benefits without first providing her with notice that would allow her to rectify the barrier to proceeding with her claim, namely attending at the insurer’s examination with an occupational therapist. I therefore impose the following term that the proceedings are adjourned for a period of 30 days from the date of this decision to allow the applicant to attend at an FAE by a qualified occupational therapist of the insurer’s own choosing. If the applicant fails to submit to the insurer’s examination without valid reason by an occupational therapist of the insurer’s choosing scheduled by the respondent at a date, time and place convenient to the applicant within 30 days of the date of this decision, the respondent may request that the Tribunal dismiss the applicant’s claim for income replacement benefits from June 6, 2016 to date.
FAILURE TO ATTEND AN EXAMINATION UNDER OATH and FAILURE TO PROVIDE INFORMATION
The Parties’ Positions
Aviva submits that the income information that has been provided to it and/or its accountant with respect to the applicant’s self-employment has raised further questions that can only be answered by conducting an examination under oath (or “EUO”) of the applicant. Aviva submits that the documents that the applicant filed with the Canada Revenue Agency before the accident showed that the applicant’s dog walking business generated fairly consistent gross revenue for the years 2012, 2013 and 2014 ($18,736, $22,795 and $17,650 respectively). The applicant's tax return for 2015, filed after the accident, declared gross revenue of $50,063.72. Because the applicant’s net profit increased 52 fold in 2015 versus 2014 ($18,906.97 vs. $364.07), Aviva submits an examination under oath to determine the reason for the discrepancy is required. Aviva asserts the applicant is precluded from proceeding to a hearing for her failure to submit to an examination under oath.
The applicant submits that she was not required to attend an examination under oath and that the notice was defective. The applicant submits that her accountant, ADS, has provided an explanation for the discrepancy in the 2014 income compared to 2015 income.
Aviva also submits that the applicant has failed to provide most of the records that are required in order to accurately determine the quantum of IRBs and that were requested by Aviva or its accountants, BDO Canada LLP. The respondent submits that the failure to provide the requested information should preclude the applicant from proceeding to a hearing.
The applicant claims most of the information requested by Aviva has been provided. The applicant submits that she was late in providing information because she sustained a head injury in the accident. Further, the applicant submits that the more recent request by Aviva’s accountants to explain the discrepancies in the income documents produced was answered. The applicant has requested that if any further documents are required, they should be listed by the Tribunal within an order setting out time line for their production.
Analysis
I need not decide whether the applicant was required to submit to an examination under oath or whether the notice to the applicant in this case was adequate as I find that Aviva, through its lawyer, cancelled the examination under oath scheduled for August 17, 2016 as set out in his email dated August 12, 2016. There was no evidence before me that the examination under oath was ever rescheduled.
The respondent has not provided me with any authority that allows me to preclude the applicant from applying to the Tribunal for failing to submit to an examination under oath or failing to provide information requested by an insurer that is reasonably required for the adjustment of a claim. The only authority the respondent has referred me to is s.33 of the Schedule. Section 33 does not preclude an applicant from making an application to LAT but merely refers to a potential suspension of benefits.
Section 33 of the Schedule indicates that an insurer may stop the payment of a benefit for the period of time the insured person is in non-compliance, but there is no reference to the insured person being prohibited from applying to the Tribunal for the benefit. In fact, s.33(8)(b) contemplates that the benefit is payable for the period of time the insured person appeared to be in non-compliance if the insured person has a reasonable excuse.
The section in the Schedule (a regulation made under the Insurance Act) that indicates an insured person may be precluded from proceeding to a hearing is s.55. Section 55 lists four possible instances of when a proceeding may be prohibited, none of which include the failure of an insured person to attend at an examination under oath or to provide information when properly requested by an insurer. This means I do not have the authority to order the applicant to attend an examination under oath, nor to order her attendance as a condition for her application to the Tribunal to proceed.
The only consequence I am able to discern in the Regulations for a failure to attend an examination under oath or to provide information is that benefits may not be payable for the period of noncompliance. The noncompliance may be utilized by the insurer as a defence to the applicant’s claim of entitlement to income replacement benefits, in which case the determination of whether there was adequate notice of the examination under oath or whether there was a reasonable excuse for the failure to provide income information is within the scope of the decision of the hearing adjudicator. For me to decide on the issues at this point would be to usurp the decision making power of the hearing adjudicator. Accordingly, I do not need to consider whether the applicant has a reasonable excuse for the late provision of income information or whether further income information is required for the insurer to calculate an income replacement benefit.
With respect to the applicant’s request that any documents required from her should be listed by the Tribunal within an order setting out a time line for their production, if Aviva still requires document productions from the applicant, a motion may be filed ahead of the resumption of the case conference in accordance with the LAT Rules of Practice and Procedure.
DECISION AND ORDER:
- In light of the foregoing, I find that:
a) W.P. failed to submit to the functional ability examination requested by the respondent and is precluded from proceeding to a hearing for her claim for entitlement to income replacement benefits from June 6, 2016 to date;
b) If W.P fails to submit to a functional ability examination conducted by an occupational therapist of the respondent’s choice scheduled by the respondent for a date, time and place convenient to the applicant within 30 days of the date of this decision; , without valid reason or as agreed to by the parties, the respondent may move to dismiss the applicant’s claim for IRBs from June 6, 2016 to date;
c) W.P. is not precluded from proceeding to a hearing on entitlement to income replacement benefits for failure to provide information or attend at an examination under oath pursuant to s.33 of the Schedule; and
d) The parties shall be contacted by the Tribunal to schedule a resumption of the case conference by teleconference no earlier than 30 days from the date of this decision in order to schedule a hearing on the substantive issues.
Released: March 23, 2017
___________________________
Deborah Neilson,
Adjudicator