M. B. v. RBC General Insurance Company
Tribunal File Number: 16-002963/AABS
Case Name: 16-002963 v RBC General Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
And in the matter of a motion brought by the respondent seeking to preclude the applicant from proceeding with her Application.
Between:
M. B.
Applicant
and
RBC General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
Order made by: Ruth Gottfried
Date of Order: February 12, 2017
Written Submissions from:
Cary N. Schneider, Counsel for the Respondent
Corina Anghel Bachmann, Counsel for the Applicant
OVERVIEW:
1The applicant was injured in a motor vehicle accident on June 9, 2013. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2The respondent approved several treatment plans and in addition sent notices of examination to the applicant to attend assessments under section 44 of the Schedule, which the applicant attended.
3On April 20, 2016 the applicant submitted a treatment plan (“OCF-18”) to the respondent in the amount of $15,669.401 for chronic pain management services recommended by Michael DeGroote Pain Clinic.
4By letter dated June 27, 2016, the respondent advised the applicant that it did not agree to fund the goods and services proposed in the OCF-18 and required the applicant to attend an Insurer’s Examination.
5The respondent followed this letter with a Notice of Insurer’s Examination (the “Notice”) dated July 4, 2016 requiring the applicant to attend a medical examination with a physiatrist in the morning of July 15, 2016 and with a psychologist in the afternoon of the same day (collectively referred to as the “examinations”).
6The applicant did not attend either examination. It is the applicant’s position that pursuant to Section 44(5)(a) of the Schedule, the Notice must set out “the medical and any other reasons for the examination”, which, she states, this Notice failed to do.
7The respondent’s position is that because of the substantive body of medical records that have been generated by both parties it is “pla[i]n and obvious” that an assessment must be conducted to determine whether the treatment plan was reasonable and necessary.
8A case conference was held on December 22, 2016. At that time, the respondent raised the issues below and the parties agreed to schedule a preliminary hearing in writing.
ISSUES:
9The following are the issues addressed in this Motion:
a. Did the Notice of Insurer’s Examination dated July 4, 2016 sent by the respondent to the applicant provide medical reasons for the examinations as required under section 44 of the Schedule?
b. Is the applicant precluded by section 55(1)(2) of the Schedule [current] from proceeding with her Application to the Tribunal because she failed to attend the insurer’s examinations under section 44?
c. Is the respondent entitled to costs under Rule 19 of the Rules?
RESULT:
10I find on all the evidence that:
a. The Notice of Insurer’s Examination dated July 4, 2016 did not provide medical reasons for the examinations as required under section 44 of the Schedule.
b. The applicant is not precluded from proceeding with her Application to the Tribunal pursuant to section 55(1)(2) of the Schedule.
c. The respondent is not entitled to costs under Rule 19 of the Rules.
LAW and ANALYSIS:
Proceeding under Section 44(5)(a):
a. Under section 44 of the Schedule, an insurer has the right to its own assessments by medical health professionals to help it determine if an insured person is entitled, or continues to be entitled to benefits.
11Section 44(5)(a) of the Schedule sets out the parameters of that right as follows:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) the medical and any other reasons for the examination
12The Notice stated that the reason for the request was as follows:
At this time we require you to attend an insurer's examination pursuant to section 44 of the Statutory Accident Benefits Schedule (SABS) to address a treatment plan (OCF-18) dated April 20, 2016. The injuries you sustained in the motor vehicle accident dated June 9, 2013 require an assessment to obtain a further opinion if this plan is reasonable and necessary. (emphasis added in the respondent’s submissions)
13The respondent’s position is that “in light of all of the medical reports I records submitted prior to the April 20, 2016 treatment plan there should not be any doubt as to the rationale and necessity for assessing the OCF-18 chronic pain management treatment plan. Moreover, by including the language ‘further opinion’ in the explanation provided, reference is thereby made to previous opinions obtained that address the claimant's health condition.”
14The respondent goes on to state that “the claimant has never articulated the position that she did not understand the justification for the assessments or the appropriateness of same.”
15The respondent further submits “that a review of the file in its entirety reflects that the insurer's request for an insurer examination for the chronic pain management program makes common sense and is consistent with the requirements as set out in the Schedule.”
16The onus is on the respondent to provide the medical reason(s) for the examinations. The applicant is not required to articulate a lack of understanding or provide wording that would constitute a medical reason. Nor is there a regulatory requirement, as the respondent suggests, that the request for an examination makes “common sense”.
17Further, I do not accept the respondent’s position that it is necessary for the applicant to dispute any other requirements regarding the scheduling of the examination. It is sufficient that they have disputed the Notice on the grounds that a medical reason is lacking.
18The respondent relies on Adjudicator Newland’s decision in Gao v State Farm2 (“Gao”) that an insurer is not required “to invent a medical or other reason, where it has not been provided with any medical documentation, but only the insured's report of impairments." (emphasis added in original submissions of respondent)
19I find that Gao is not applicable to the case before me. It is the respondent’s own submission that there was a “substantive” body of medical documentation in this case, such that it was “plain and obvious” why the examination should be conducted. The respondent clearly had documentation to provide a medical reason and failed to do so.
20It may be worthwhile to note that several times in its submission the respondent has referenced the wording of section 44(5)(a) as “medical and/or any other reason”. I wish to make clear that the wording of the statute does not include the word “or” and a medical reason is required. Other reasons, if any, would be in addition.
21As no medical reasons were provided in the Notice, I find that it did not meet the requirements set out in the Schedule under section 44(5)(a).
Proceeding under Section 55:
22The respondent seeks an order precluding the applicant from proceeding with her Application specifically referencing Section 55(1)2.3 of the Schedule.
23I have determined for the reasons above that the Notice did not provide medical reasons for the examination, and therefore was not in accordance with the Schedule.
24As the respondent has not provided a Notice in accordance with the Schedule, it follows that the applicant is not non-compliant.
25Therefore, the applicant is not precluded from proceeding with an Application before this Tribunal.
26In the alternative, under the current section 55(2)4, the applicant is not necessarily precluded from proceeding with her application by reason of non-attendance at an insurer’s examination. Although I have not relied on this section in my decision, I am noting that it is within my jurisdiction to allow the application to proceed even though there has been non-attendance at the examination.
Costs:
27The respondent’s position is that since it believes there was no legal or practical justification for the applicant refusing to attend the examination that she should be responsible for the costs of this preliminary issue hearing. The respondent made no further submissions with regard to costs.
28Rule 19.1 of the Rules states:
Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatious[ly] or in bad faith, the party may request to the Tribunal for costs.
29For the reasons already stated above, I believe that the applicant’s refusal to attend the examination was an issue that required a preliminary hearing and indeed my decision supports the applicant’s refusal.
30Therefore, I do not find that the applicant acted unreasonably, frivolously, vexatiously or in bad faith and determine that no costs should be awarded to the respondent.
SUMMARY:
31After a review of all of the evidence provided by both parties and for the reasons stated above, I have found that:
a. the Notice was not in accordance with the Schedule.
b. Section 55(1) does not apply and the applicant is not precluded from bringing an application to the Tribunal.
c. the respondent is not entitled to costs.
32The issue of the April 20, 2016 OCF-18 was the only one put forward in the applicant’s Application submitted to the Tribunal on September 29, 2016.
33In her written submissions for this hearing, the applicant suggested proposals for the respondent’s review regarding proceeding with the OCF-18 and examination. It is not within my jurisdiction to comment or adjudicate on the merits of those proposals. The parties may discuss them or any other proposals between themselves.
34The parties agreed to reconvene at a resumption case conference once my decision of the preliminary issue had been rendered, which is now the case.
ORDER:
35Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that the parties will be contacted with teleconference information for the case conference resumption.
36The issues at the case conference will be:
a. Is the applicant entitled to a medical benefit in the amount of $15,669.40 for the following: 20 days of treatment at a chronic pain management program - $11,900; Hotel costs - $2,689.40; Taxi service from the hotel to treatment - $480; and Meals - $600 as recommended by Michael DeGroote Pain Clinic in a treatment plan (“OCF-18”) submitted to the respondent on April 20, 2016?
b. Is the applicant entitled to interest on any overdue payment of benefits?
37If the parties reach an agreement on the issue(s) in dispute the applicant shall immediately advise the Tribunal.
Released: April 5, 2017
Ruth Gottfried, Adjudicator
- The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
Footnotes
- The treatment plan was comprised as follows: 20 days of treatment at a chronic pain management program - $11,900; Hotel costs - $2,689.40; Taxi service from the hotel to treatment - $480; and Meals - $600
- Gao v. State Farm (2015) FSCO AB-002281
- Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
- The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1)