Adjournment Decision
Date: 2017-05-02
Tribunal File Number: 16-002061/AABS
Case Name: 16-002061 v Intact 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
Between:
A. V. de V.
Applicant
and
Intact Insurance Company
Respondent
Adjudicator: D. Gregory Flude
Appearances:
Counsel for the Applicant: David Payne
Counsel for the Respondent: Tripta Sood
Held by Teleconference: March 10, 2017
A telephone case conference in this case was held on March 10, 2017. In addition to counsel, Justine Robertson, adjuster, participated on behalf of the respondent. The sole purpose for the case conference was to address the applicant’s request for an adjournment of the hearing scheduled for March 14 and 15, 2017 on the basis that the respondent had only recently produced a number of reports. I have decided to adjourn the hearing to September 25 and 26, 2017 peremptory on the applicant. The respondent asked me to provide written reasons for granting the adjournment. These are those reasons.
The applicant was injured in an automobile accident on May 13, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She is seeking, among other things, a determination that she has suffered a catastrophic impairment as that term is defined in the Schedule. The matter went to a case conference on November 17, 2016 and a case conference report and order were issued shortly thereafter setting the hearing date as March 14 and 15, 2017.
By letter dated March 3, 2017 the applicant filed a request for an adjournment form with the Tribunal. The basis of the request was that the applicant had only recently received a number of medical reports from the respondent on March 1, 2017. The applicant sought to have her medical assessors conduct further assessments in response to these reports, with appointments set for March 13 through 15 and an undertaking to provide reports by mid-April.
The respondent did not consent to the adjournment so I held a case conference today to address the issue. The respondent’s submissions focussed on two major points: first, late disclosure by the applicant of a number of reports that were in her possession for some time and second, the underlying reason for seeking such extensive assessments, when the respondent’s assessments were paper reviews.
The original case conference in this matter was in November 2016. The respondent takes issue with the fact that it was unaware of two of the applicant’s medical assessments until late January 2017, notwithstanding that at least one of those reports was dated August 2016. The effect of the late disclosure was that the respondent’s medical assessors could not prepare reports before the end of February. These reports were delivered on March 1, the earliest possible date that they were available.
The respondent also argued that, since its reports did not involve a physical examination of the applicant, there is no need for the applicant to now undergo a three day catastrophic impairment assessment. In the respondent’s view, the only reason for such an extensive assessment is to strengthen the applicant’s case in light of the fact that her earlier assessments were not as supportive of her position as she would like.
The applicant argues that she is entitled to reply to the reports prepared by the respondent. In preparing that reply, her medical assessors need to conduct in-person assessments. She has made efforts to have those assessments expedited and requires only a short adjournment, until late May or early June.
I accept the applicant’s position that she is entitled to prepare medical reports to reply to the reports of the respondent’s medical assessors. It is unfortunate that the respondent was put into the position of having to deliver those reports on March 1, but, in the present circumstances, nothing is served by focussing on events that brought that situation about. The focus of the Tribunal is to ensure that the hearing into the applicant’s catastrophic determination proceed in a timely manner with a full hearing on the merits. The issue is a serious one.
Notwithstanding that the applicant was seeking a short adjournment, following further discussions with the parties, the first available time slot in the Tribunal’s calendar is in mid-September. Accordingly, I adjourn the hearing of this matter to September 25 and 26, 2017, in person in Toronto. The Tribunal will send a notice of the hearing dates and location in due course.
An issue also arose about the disclosure of documents in the possession of third parties. In its order of December 1, 2016, the Tribunal ordered the insurer’s independent examination assessor, Viewpoint Health, to disclose its complete file and records in relation to the Applicant’s catastrophic impairment assessment. There seems to be some concern that Viewpoint has not made this disclosure despite the order. On consent, applicant’s counsel has undertaken to contact Viewpoint and provide it with a copy of the Tribunal’s December 1, 2016 order and to obtain the documents pursuant to that order.
The applicant has undertaken to produce any reports relating to the new assessments by April 30, 2017. On receipt of the reports, the respondent will make arrangements for any further in-person assessments it may reasonably require and the applicant shall make herself available for these assessments. The respondent shall make these assessment reports available to the applicant as soon as they have been finalized and forwarded to it.
Not part of the December 1, 2016 order, but apparently undertaken by the applicant at the time, was the disclosure of the complete file and records from the applicant’s assessors, Omega Medical Associates. These documents have not yet been disclosed. In light of the undertaking, I order disclosure of these documents by April 30, 2017.
Except as expressly addressed herein, with necessary modifications, nothing in this decision amends the December 1, 2016 order.
The parties discussed the possibility of a resumption of the case conference to deal with any disclosure or timing issues that may arise. Either party may contact the Tribunal to request a resumption of the case conference at any time after May 15, 2017.
Released: June 5, 2017
___________________________
D. Gregory Flude, Vice-Chair