16-003144 v. Cumis General Insurance Company, 2017 CanLII 43881

Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

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Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile

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RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair Date: June 27, 2017 File: 16-003144/AABS Case Name: 16-003144 v. Cumis General Insurance Company

Written Submissions By: For the Applicant: Natalie Shykula-Clarke For the Respondent: Sharla Bandoquillo

Overview

1This matter involves a preliminary decision by the Licence Appeal Tribunal (“Tribunal”) on an application for dispute resolution under the Statutory Accident Benefits Schedule – Effective after September 1, 2010¹ (the “Schedule”). The issue: whether this application is precluded under s. 55(1)2 of the Schedule from being adjudicated given the applicant’s non-attendance at an insurer’s examination. The Tribunal held that the application should proceed to a hearing. Accordingly, this application, along with a second related application concerning a number of benefits the applicant claims under the Schedule, are scheduled for a four-day in-person hearing commencing on September 5, 2017.

2The respondent now asks me to reconsider the Tribunal’s decision. I deny that request. While the examination may be an examination that Cumis wants, it is not one that, given the wording of s. 44(1) of the Schedule and the facts at hand, it is entitled to have.

The Facts

3The applicant, G.P., was injured in a motor vehicle accident in November 2013. As a result, she sought certain medical benefits under the Schedule from the vehicle’s insurer, Cumis General Insurance Company (“Cumis”), which Cumis denied. G.P. then applied to the Tribunal to dispute Cumis’s position.

4Shortly before making that application to the Tribunal, G.P. also applied to Cumis for a determination that, as a result of the November 2013 accident, she suffered a “catastrophic impairment” as that term is used in the Schedule. G.P.’s application for determination of catastrophic determination (OCF-19) was based on an assessment completed by Dr. Z. Marciniak, who opined that G.P. suffers from an impairment or combination of impairments that results in 55 per cent or more impairment of the whole person (“WPI”) and, thus, meets the test for catastrophic impairment under Criteria 7 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”). In its response to the OCF-19, Cumis informed G.P. that it required more information in order to determine if she suffered a “catastrophic impairment” and, later, provided her with notice of the following five insurer examinations:

• a psychiatry examination by Dr. H. Rosenblat;
• an in-home activities of daily living assessment by M. Lee, occupational therapist;
• a community functional assessment by M. Lee;
• a physiatry examination by Dr. A. Oshidari; and
• a cardiology examination by Dr. B. Lubelsky.

5G.P. agreed to participate in the first three. However, she thought the last two were excessive and unreasonable. On that basis, she repeatedly refused to attend the physiatry examination, following which Cumis took the position that her injuries were non-catastrophic. G.P. then commenced this second application with the Tribunal to dispute Cumis’s refusal to accept that she was catastrophically impaired.

6Eventually, both of G.P.’s applications were the subject of a case conference before the Tribunal. During the case conference, Cumis raised the preliminary issue at the centre of this reconsideration: relying on s. 55(1)2 of the Schedule, Cumis argued that G.P. was precluded from advancing this second application as a result of her non-attendance at the physiatry and cardiology examinations. The Tribunal scheduled an in-person hearing for February 6, 2017 to adjudicate the issue.

7At the hearing, the parties agreed that the cardiology examination would take place through a paper review. Thus, the only question left for the Tribunal was whether G.P. was required to attend the physiatry examination before this application can proceed to a hearing on its merits.

8In its decision of April 7, 2017, the Tribunal determined that the physiatry examination was not “reasonably necessary” as required by s. 44(1) of the Schedule and, therefore, that this application can proceed to a final hearing. In reaching its conclusion, the Tribunal appropriately balanced, on one hand, Cumis’s right under s. 44(1) of the Schedule to obtain any number of “reasonably necessary” insurer’s examinations against, on the other hand, G.P.’s right to privacy. As part of this analysis, it also considered a number of other factors that the Financial Services Commission of Ontario and this Tribunal have routinely considered as part of determining whether an insurer’s examination is “reasonably necessary.” Ultimately, the Tribunal based its decision on the following key findings:

• an in-person physiatry examination is not necessary in order to prepare a WPI rating, the impairment rating that Cumis wants to conduct. Rather, all that is required is expertise in the rating system. In preparing this rating, the assessor can rely on the reports of other professionals, such as an occupational therapist, who have carried out physical examinations. In this case, this could have been done by Cumis’s examiners, who had the benefit of two in-person assessments completed by an occupational therapist, M. Lee: see paras. 27-31 and 33;
• based on G.P.’s attendance at the first three examinations mentioned in paragraph 3 above, Cumis carried out its own catastrophic impairment assessment. This assessment involved an Integrated Impairment Analysis report prepared by Dr. B. Miekle, who reviewed the findings of those who conducted the three examinations. Dr. Miekle recommended the in-person physiatry assessment as the “most optimal” means of assessing the applicant’s impairments since it would be an assessment that could “stand up in court.” However, the language of s. 44(1) makes clear that the operative question is what is “reasonably necessary,” not what is “optimal”: see paras. 31-3;
• insurer examinations should not be chosen or required, as Cumis did, “on the basis of ensuring that the insurer has a stronger case.” Such an approach may lead to the unnecessary escalation or complication of proceedings, which, in turn, may add to the length and cost of a dispute resolution process that is supposed to be expeditious: see paras. 34-5;
• G.P. had already agreed to participate in three in-person examinations, an amount that is “significantly intrusive.” Although the physiatry examination was ordered because it was “optimal,” a paper review would have been equally possible. The further intrusiveness of an in-person physiatry examination is not outweighed by its necessity or reasonableness: see paras. 36-8;
• Dr. Mielke’s approach to determining the type and number of examinations was based on invalid considerations rather than on what would be the “most appropriate and least intrusive” means of assessing G.P.’s impairments: see paras. 39-41; and
• given that G.P. attended two in-person physical assessments with an occupational therapist, and that these assessments provided “more than enough information for a physiatrist or other health professional to complete a WPI analysis through a paper review,” Cumis would not be prejudiced by the inability to require G.P. to attend an in-person physiatry examination: see paras. 42-3.

9Cumis asks me to reconsider the Tribunal’s decision. It continues to maintain that G.P.’s attendance at an in-person physiatry assessment is reasonably necessary in order to determine the extent of her physical impairment. In support of its request, Cumis raises a number of arguments taking issue with the Tribunal’s reasoning. These arguments, along with my responses rejecting them, are set out below.

Discussion and Reasons

The Tribunal’s finding concerning an occupational therapist’s role

10First, Cumis argues that the Tribunal erred in “determining that an occupational therapist is equipped to assign an impairment rating on [G.P.’s] alleged physical impairments.” Cumis supports this argument by offering detailed submissions concerning the relatively limited professional role that occupational therapists are permitted to play, specifically that they are prohibited from rendering a diagnosis. In short, these submissions are designed to illustrate why, in Cumis’s view, it is necessary for a health professional trained in physical medicine to examine G.P. in order to assess her physical impairment.

11This argument misconstrues the Tribunal’s findings. Contrary to Cumis’s suggestion, the Tribunal did not determine that an occupational therapist was qualified to render any type of diagnosis relevant to this case. Instead, the Tribunal found, based in part on the evidence provided by Cumis’s own expert witness, Dr. Miekle, that the two physical assessments conducted by the occupational therapist who examined G.P. provided “more than enough” information for a physiatrist or any other health professional with an expertise in the WPI rating system to complete the very WPI analysis that Cumis wants produced: see para. 44. Dr. Miekle conceded, “a physiatrist would be able to conduct a paper assessment by using the occupational therapist results as well as other medical documentation”: see paras. 33 and 42. Dr. Miekle recommended an in-person as opposed to a paper assessment, however, on the basis that the former was “optimal.” And, as the Tribunal noted, neither expert testified that an in-person physiatry examination was “necessary:” see para. 42. For these reasons, along with the others mentioned above, the Tribunal correctly held that an in-person physiatry examination was not “reasonably necessary,” the standard required by s. 44 of the Schedule.

There is no breach of procedural fairness

12Next, Cumis asserts that, without the ability to have the requested in-person examination conducted, it will be denied the right to mount a full response to G.P.’s case.

13The right in s. 44(1) of the Schedule assists an insurer to determine if an insured person is or continues to be entitled to a benefit under the Schedule. However, in considering this right, the Tribunal also acknowledged that this procedural avenue is also designed “to ensure that insurers are able to assess reports provided by a claimant and to adequately respond:” see para. 12. That does not mean that an insurer is entitled to any examination that it feels is necessary to respond to an insured person’s claim. The central inquiry is whether, based on all of the circumstances, including the insurer’s ability to mount a full response to an injured person’s claim, an examination is “reasonably necessary.” In this case, based on the expert evidence tendered by both parties, the Tribunal found that an in-person physiatry examination was not “reasonably necessary” given, in large part, that Cumis had the benefit of three in-person examinations providing Cumis with “more than enough” information to complete a WPI analysis and thus present or defend its response at a hearing. For that reason, the Tribunal held that Cumis would not be prejudiced by G.P.’s non-attendance: see paras. 42-3. I see no error in the Tribunal’s reasoning.

The lack of prejudice to Cumis

14Cumis also argues the Tribunal’s decision leaves it prejudiced in several respects. In particular, Cumis argues that the Tribunal’s decision prevents it from being able to examine G.P. in a manner contemplated by the AMA Guides or, likewise, leaves it with incomplete evidence to answer G.P.’s claim. Cumis further suggests that it will be prejudiced at the hearing of this matter since G.P.’s evidence will “clearly be favoured over that of an occupational therapist whose role is not recognized in the AMA Guides as far as identifying and rating physical impairments are concerned and who at law is not permitted to diagnose.”

15As Cumis does elsewhere, its argument fundamentally misconstrues the Tribunal’s decision. The answer to these arguments is the same as explained above. Based on the evidence offered by both parties’ experts, the Tribunal held that the two physical assessments conducted by the occupational therapist who examined G.P. provided the information necessary for a physiatrist or another health professional to complete a WPI analysis through a paper review and, thus, respond to G.P.’s claim.

16Lastly, Cumis takes issue with the fact that, while G.P.’s evidence is based on a physical examination by a physician, its own evidence will be based on a paper review, creating an unequal playing field or, worse, stacking the evidentiary deck in G.P.’s favour. I disagree. Again, as the Tribunal found, Cumis has had the benefit of multiple in-person examinations upon which its evidence may be based. Moreover, not only does this argument assume how the Tribunal will weigh the parties’ evidence, it forecloses Cumis’s ability at the hearing to argue what weight the parties’ evidence should receive. Any consequence that Cumis fears is, at this time, speculative.

The applicant’s offer to attend an examination with a general practitioner

17Lastly, Cumis underscores the fact that G.P. was willing to attend an in-person examination with a general practitioner. Cumis highlights this fact because, as Cumis argues, it suggests that G.P. did not refuse to attend an in-person physiatry examination because it was invasive but rather because it allowed her to secure a favourable litigation position, something that the Tribunal ignored.

18Like many of its other arguments, Cumis’s position overlooks the Tribunal’s findings. The Tribunal found that G.P.’s refusal to attend a physiatry examination was not an attempt to secure a more favourable litigation position but to avoid an “escalation of the process” by requiring her to provide her own physiatry rebuttal report: para. 34. At any rate, the Tribunal found that, given her age and mental health diagnosis, G.P.’s attendance at an in-person physiatry examination would likely cause “at least some form of discomfort or distress:” see para. 38. That finding was but one of many detailed reasons supporting the Tribunal’s decision.

Conclusion

1. I therefore deny the request for reconsideration. The hearing should proceed as scheduled.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1O. Reg. 34/10.