M.B. v. Aviva Insurance Canada, 2017 CanLII 33661

Licence Appeal Tribunal

Date: 2017-05-16 Tribunal File Number: 16-002325/AABS Case Name: 16-002325 v Aviva Insurance Canada

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.

Between:

M.B. Applicant

and

Aviva Insurance Canada Respondent

Adjudicator: Nicole Treksler Appearances: Applicant: M.B. Counsel for the Applicant: Alex Voudouris Counsel for the Insurance Company: Shivani Mehta Written Hearing: February 2, 2017

I. Introduction

1The applicant, M.B., was injured in an automobile accident on November 21, 2013. She continued to work up until she underwent surgery on September 1, 2015, approximately 1 year and 9 months after the accident. After the surgery, the applicant was unable to work and applied and received income replacement benefits (IRBs) on February 17, 2016.

2After 104 weeks, the test to continue receiving IRBs becomes more stringent. The respondent informed the applicant that she had to attend insurer’s examinations (IEs) to determine her entitlement to post-104 IRBs.

3The respondent scheduled the insurer’s examinations in April 2016, but the applicant indicated that she was not available because she was in school full-time during the week and was only available on weekends.

4According to the respondent, the applicant indicated that if the examinations were scheduled in June, irrespective of the day and time, she could arrange her schedule to attend those examinations. The applicant denied that she provided the respondent with such open-ended availability. She maintained that she was only available on weekends and on June 10 and 17, 2016.

5The applicant did not attend the scheduled examinations and her benefits were suspended on June 15, 2016.

6The applicant applied to the Tribunal regarding her entitlement to IRBs from June 21, 2016 and ongoing.

7The respondent raised the following preliminary issue: According to the section 55 (2.) of the Schedule, the applicant is prohibited from applying to the Tribunal regarding her entitlement to IRBs because she failed to attend the scheduled June assessments.

8I find that the applicant shall not apply to the Tribunal regarding her entitlement to IRBs until such time she attends the insurer’s examinations for post 104 IRBs.

II. Preliminary issue raised in applicant’s submissions

9In the applicant’s written submissions, she identified another concern that was not in the December 7, 2016 order. The applicant submits that the respondent failed to provide proper notice of the assessments as there was no adequate “medical reason” for the denial listed as required by under subsection 44(5)(a). The applicant submits that, “impairment identified do not appear clearly or directly caused by the accident”, was not an adequate “medical reason.”

10The respondent’s position is that it has complied with section 44(5)(a), as it advised the applicant of the insurer’s belief that the impairment identified does not appear to be caused by the accident. Further, according to the respondent, the inadequacy of the notice was never mentioned in any of the applicant’s communications with them until the written hearing, depriving them of the ability to remedy the notice, if necessary.

11I find that the adequacy of notice should have been raised at the case conference or before, so that the respondent could have had the opportunity to either respond or remedy the notice, if necessary.

12Given that the applicant only raised the adequacy of the notice for the first time in their submissions, I am of the view that the respondent was not given the required notice to fully respond to this issue. As such, I will not consider the adequacy of the medical reason for this hearing.

13I will now turn to the preliminary issue.

III. Analysis

a) Is the applicant precluded from applying to the Tribunal regarding her entitlement to IRBs because she failed to attend insurer assessments?[^1]

14Section 55 2. of the Schedule states that an insured person shall not commence a proceeding if they have not attended scheduled IEs.

[15] In order to make a finding on this issue, I need to determine whether:

• The respondent made reasonable efforts to schedule assessments at a convenient time for the applicant; and
• The applicant’s failure to attend the June examinations was justified.

16Section 44 of the Schedule states that the respondent “shall make reasonable efforts to schedule the examination for a day, time and location that is convenient for the insured person.” The Schedule is silent on what constitutes reasonable efforts and the parties have only provided arguments in that regard.

17Initially, the respondent scheduled the IEs in April 2017. In a letter dated April 26, 2016, the applicant indicated she was only available on the weekends because she attends school Monday to Friday. I note that in the applicant’s affidavit, she indicated that she is willing to “attend properly scheduled insurer’s examinations, so long as they reasonably accommodate [her] schedule and time constraints.”

18The respondent’s position was that the applicant’s weekend only availability was not reasonable, as five assessments were required and most assessors were not available on the weekend. According to the respondent’s log notes, Simona Tenuta of the applicant’s law firm, Pace Law, indicated that the applicant would make herself available in June.

19In a letter dated May 17, 2016, the respondent scheduled the dates for the IEs on June 14, 23, 27, 28 and July 18, 2016. In response to that letter, the applicant sent a letter one week later dated May 24, 2016 advising that she was available only on the weekends and June 10 and June 17, 2016.

20The respondent responded to the applicant on the following day by letter dated May 25, 2016 and advised that the applicant’s Saturday only availability was not reasonable. This May 25th letter also noted that the applicant’s representative had advised that the applicant would in fact be available in June.²

21In my view, there was a miscommunication and/or misunderstanding between the applicant and respondent in terms of the applicant’s availability. It is clear to me that the applicant was willing to attend the IEs, as she had done so before for her initial entitlement to IRBs. There is no evidence before me that the applicant was trying to evade taking these assessments. The parties had been in continuous contact about the applicant’s schedule and availability, even though there was some miscommunication in that regard. Given this miscommunication, I find that the applicant’s failure to attend the IEs was justified.

22According to the respondent, most of the assessors are not available on weekends. As such, the respondent’s position is that weekend only availability is not reasonable. The applicant asserts that the respondent is a large insurance company and should have assessors available on weekends to accommodate applicants’ schedules. Furthermore, the applicant is requesting weekend assessments because she cannot miss classes because there is an 80% attendance policy in order to graduate.

23I am of the view that a reasonable effort on the part of the respondent would be to schedule the applicant on days that the assessors are available. The assessors are independent medical practitioners hired by Insurance Company to perform IEs. Most professionals work Monday to Friday, 9 a.m. to 5 p.m. and it is not unreasonable to expect the applicant to make herself available during those hours.

24In this matter, I am not persuaded that it is reasonable for the respondent to accommodate a weekend only availability, particularly when the applicant, as indicated in her affidavit, is also available in the mornings from Monday to Friday. I do recognize the challenge for the applicant to attend morning assessments—she will have to miss some class or will be late for class. However, even if the applicant has to miss some classes, she would still be able to achieve well above an 80% attendance record.

25Having said that, I think the respondent should also attempt to be more flexible in scheduling assessments. The respondent may need to organize shorter and more frequent assessments in the mornings.

26I find that the applicant should arrange her schedule to attend IEs during the day from Monday to Friday. The respondent should make reasonable efforts to accommodate the applicant’s preferences in terms of week days and times. The respondent indicated that one out of the five assessments that the applicant is required to attend was available on a Saturday, but with a 2 month waiting period. If available, the respondent should make all reasonable efforts to schedule the applicant for this weekend assessment.

27Section 55 2. of the Schedule states that the insured person shall not commence a proceeding if she has not attended the IEs. It is clear that the applicant has not attended the IEs, but this was due to a miscommunication between the parties about the applicant’s availability. However, I find that the applicant is still required to attend the IEs in order for the respondent to determine her entitlement to the benefit.

28Under section 55 2. of the Schedule, I find that the applicant shall not apply to the Tribunal regarding her post-104 claim for IRBs until she has attended the IEs.

V. Order:

I order the following:

• The applicant shall not apply to the Tribunal regarding her continued entitlement to IRBs from June 21, 2016 and ongoing until such time she attends the insurer’s examinations for post-104 IRBs.

Footnotes

1. 2Respondent’s evidence was that Simona Tenuta from Pace Law advised.
2. 1The case conference adjudicator issued an order dated December 7, 2016 and identified the preliminary issue as: Was the applicant in non-compliance with the Schedule for her failure to attend the scheduled insurer’s examination in June 2016?