R. L. v. State Farm Insurance Company, 2017 CanLII 46354

Date: 2017-06-28

Tribunal File Number: 17-000020/AABS

Case Name: 17-000020 v State Farm 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:

R. L.

Applicant

and

State Farm Insurance Company

Respondent

PRELIMINARY HEARING DECISION

Adjudicator: Ian Maedel

Appearances: Catherine Wilde, Counsel for the Applicant Benjamin Hutchinson, Counsel for the Respondent

Heard in writing on: May 11, 2017

OVERVIEW

1This is a preliminary hearing for a motion brought by the respondent to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“LAT”) to prohibit the applicant from bringing an application for statutory accident benefits, because he failed to attend an Insurer’s Examination (“IE”) pursuant to section 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2The applicant, R.L., was injured in a motor vehicle accident when his motorcycle collided with another vehicle on October 8, 2011 in the City of Sarnia, Ontario. As a result, he suffered a number of injuries including a fractured hand and injuries to his neck and back.

3The applicant applied to the LAT on January 3, 2017 following denials of treatment plans submitted on his behalf for a neuropsychological assessment, occupational and rehabilitation therapy. The respondent denied these treatment plans based on the applicant’s non-attendance at insurer examinations in the spring of 2015.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

a) Is the applicant precluded from a LAT adjudication of a treatment plan dated December 10, 2014 of Dr. Karen Shue (Psychologist) of Pursuit Health Management Inc. in the amount of $2181.70 for a neuropsychological assessment further to section 55(1) paragraph 2 of the Schedule?

b) Is the Applicant precluded from a LAT adjudication of a treatment plan dated December 15, 2014 of Kelly Smale (Occupational Therapist) and Cayley Flemington (Rehabilitation Therapist) of Rehab First Inc. in the amount of $1190.95 for occupational and rehabilitation therapy further to section 55(1) paragraph 2 of the Schedule?

c) Is the applicant precluded from a LAT adjudication of a treatment plan dated December 15, 2014 of Kelly Smale (Occupational Therapist) of Rehab First Inc. in the amount of $1190.95 for occupational therapy and a luminosity subscription further to section 55(1) paragraph 2 of the Schedule?

d) Should the treatment plans dated December 10, 14, and 15 be dismissed in their entirety?

e) Is the respondent entitled to costs of the proceeding?

RESULT

5Based on the totality of the evidence before me, I find that the applicant is in non-compliance with section 44 of the Schedule. Therefore, the applicant is barred from proceeding with his application in respect of the dated December 10, 14, and 15, 2014. Pursuant to section 55 of the Schedule, his current application with regard to these issues is dismissed.

6The respondent is not entitled to costs of the proceeding.

7The parties shall resume the Case Conference within a period of thirty days of the date of this decision to address the five remaining issues in dispute.¹

FACTS

8The applicant was involved in an automobile accident on October 8, 2011, and sought benefits pursuant to the Schedule. The applicant submitted several treatment plans for medical benefits dated December 10, 2014, December 14, 2014 and December 15, 2014.

9The applicant did receive medical and rehabilitation benefits. He was removed from the Minor Injury Guideline (“MIG”) due to the injuries he sustained.

10The respondent denied the December 10, 2014 treatment plan for a neuropsychological assessment stating that it was a duplication of a previous treatment plan dated October 1, 2014. The previous treatment plan for a neuropsychological assessment had been denied when the applicant failed to attend two section 44 neuropsychological insurer examinations.

11The respondent sent an OCF-9, Explanation of Benefits, to the applicant on December 31, 2014. The denial was clear that the December 10, 2014 treatment plan was a duplication of a previous treatment plan which was pending a section 44 assessment.

12The respondent denied the December 14, 2014 treatment plan for occupational and rehabilitation therapy when the applicant failed to attend two scheduled section 44 physiatry insurer examinations.

13The treatment plan dated December 15, 2014 for occupational therapy was denied by the respondent when the applicant failed to attend the scheduled neuropsychological assessments.

14The applicant was advised that no further treatment plans would be considered until he complied with the insurer’s examinations.²

15The respondent scheduled and rescheduled insurer examinations over the span of several months for the applicant to attend. This is outlined in the chart below:

Date of Notice	Scheduled Appointment	Assessor
November 24, 2014	January 5, 2015	Dr. Mark Watson, Neuropsychologist
March 26, 2015	May 21, 2015	Dr. Mark Watson, Neuropsychologist
January 23, 2015	March 3, 2015	Dr. Zeeshan Waseem, Physiatrist
March 26, 2015	April 15, 2015	Dr. Max Kleinman, Physiatrist

16The applicant did not attend any of the insurer examinations listed in the chart above. The respondent did not reschedule the insurer examinations and the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ANALYSIS

17The respondent submits that it has complied with the statutory requirements under section 44 and section 38 of the Schedule. The applicant has frustrated the process by not attending the section 44 insurer examinations as scheduled and rescheduled. The applicant has made no attempt to attend or reschedule the insurer examinations that were first set in early 2015.

18The applicant submits that the insurer examinations were not reasonable or necessary given the information available to the respondent prior to the treatment plans being submitted. The applicant has not argued that the notices of examination were insufficient or otherwise non-compliant with section 44 of the Schedule.

Reasonableness and Necessity of the Section 44 Assessment

19Section 44(1) of the Schedule provides insurers with the right to require parties to attend insurers’ examinations in order to determine initial or continuing entitlement to benefits. However, this right is limited to what is “reasonably necessary”, specifically;

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

20The applicant has argued that the insurer assessments were not reasonably necessary and has provided a copy of Arbitrator Feldman’s decision in Al-Shimasawi and Wawanesa.³ Although, the decisions by the Financial Services Commission of Ontario (“FSCO”) are not binding, this tribunal finds them persuasive and I have applied this analysis with regard to this matter.

21In assessing the reasonableness of the proposed insurer examination, Arbitrator Feldman identified several key criteria:

i. The timing of the insurer’s request; ii. The possible prejudice to both sides; iii. The number and nature of the previous insurer’s examinations; iv. The nature of the examination(s) being requested; v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

22According to these factors as set out in Shimasawi and Wawanesa, I can identify no issue with regard to the timing of the insurer assessment requests. Similarly, I cannot identify any potential prejudice to either side of the completion of further assessments to identify further potential neurological or cognitive issues and continuing issues with regard to physical therapy and rehabilitation.

23The applicant relies on an Occupational Therapy Assessment Report dated February 20, 2014 and the Occupational/Rehabilitation Therapy Progress Report dated November 1, 2014 to establish that there was a requirement for the neuropsychological assessment as requested by the applicant. The occupational therapist and physical therapist spoke to the applicant’s ongoing cognitive impairments interfering with home and work performance.⁴

24The applicant submitted a treatment plan for a neuropsych assessment. (In response, the insurer scheduled an insurer’s neuropsych exam on November 24, 2014 – he did not attend. The applicant subsequently sent in the December 10, 2014 treatment plan again requesting his own neuropsych assessment. The respondent was aware that the OCF-18 dated December 10, 2014 was a resubmission of an earlier OCF-18 that had been denied when the applicant failed to attend previous insurer examinations. Notice of the neuropsychological insurer’s examination was provided to the applicant dated November 24, 2014.

25I do not view the insurers’ examination as excessive, an attempt to frustrate the process or substitute one medical professional’s opinion with another. Rather, simply an attempt by the respondent to ensure that the applicant was assessed for the neurological or cognitive issues that had been suspected but not diagnosed prior.

26The applicant failed to attend both neuropsychological assessments as scheduled by the insurer, thus, preventing the insurer from properly assessing any cognitive or neurological issues in closer proximity to the date of the accident.

27A subsequent neuropsychological assessment was completed by Dr. Shue in a report dated September 20, 2016, nearly five years after the date of the accident.

28A previous physiatry insurer’s examination was completed by Dr. Muhlstock in a report dated April 16, 2014. This report stated that the wrist injury had healed and there were no ongoing accident related impairments. The respondent relied on the findings of the report and communicated the denial of benefits in an OCF-9 dated January 6, 2015.

29Instead of issuing a final denial of benefits based on this report, the respondent requested the applicant attend a second physiatry assessment almost a year later. I do not find this to be prejudicial to the applicant, nor do I find it excessive. Why? Was it reasonable given the amount of time that had passed?

30I am not persuaded by the applicant’s submission that he failed to attend the physiatry assessments to avoid a further aggravation of his accident-related injuries.

31Given the criteria established by Arbitrator Feldman in Shimasawi and Wawanesa, I find that the insurer examinations requested were reasonably necessary. I do not find that there were an excessive number of examinations requested, nor any new issues raised that require evaluation and I do find that there was a nexus between the applicants’ injuries and the insurer examinations requested.

32The applicant’s refusal to attend the insurer examinations certainly delayed his treatment and further prejudiced the respondent in their ability to assess the treatment plans provided.

Non-Compliance

33Section 55 of the Schedule is clear:

55. (1) 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:

56. 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.

34The applicant does not dispute that he failed to attend the examinations as scheduled. The respondent, in good faith, rescheduled the insurer examinations several times without receiving an explanation for the non-attendance.

35The applicant has failed to adduce any evidence that the notices were non-compliant or otherwise contrary to the Schedule.

36The applicant has failed to act reasonably and in good faith in regard to their non-attendance at the insurer examinations. He has breached his duty to attend the insurer examinations and is therefore in non-compliance with section 44 of the Schedule.

37The Schedule uses mandatory language that bars the applicant from making an application, which prevents him from proceeding on these issues in dispute. Therefore, pursuant to section 55 of the Schedule, I order that the application with regard to these issues be dismissed and a Case Conference reconvened on the remaining issues in dispute.

Costs

38The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) includes a provision in Rule 19.1 for parties to request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

39The respondent has asked for costs in this proceeding. However, it has not alleged the applicant’s conduct to be unreasonable, frivolous, vexatious, or in bad faith. Aside from asserting that the applicants’ position is “manifestly meritless” it has not set out the reasons for the request or the particulars of the applicant’s conduct.⁵ The respondent has failed to meet the threshold and requirements for costs set out in Rule 19. There is insufficient evidence of conduct that is unreasonable, frivolous, vexatious, or in bad faith before me, so I cannot make an order for costs in this matter. Therefore, no costs will be awarded.

CONCLUSION

40For the reasons outlined above, I find that:

i. The applicant is in non-compliance with section 44 of the Schedule. The applicant is barred from proceeding with his application pursuant to the treatment plans dated December 10, 14, and 15. Pursuant to section 55 of the Schedule, his current application with regard to these issues is dismissed.

ii. The respondent is not entitled to costs of the proceeding.

iii. The parties shall resume the Case Conference within a period of thirty days of the date of this decision to address the five remaining issues in dispute.

Released: June 28, 2017

Ian Maedel, Adjudicator

i. Is the applicant entitled to a medical benefit in the amount of $1,202.45 for physiotherapy services from Archway Health and Sports Services, as submitted on February 19, 2016 and denied on March 3, 2016? ii. Is the applicant entitled to a cost of examination in the amount of $2,459.50 for a physiatry assessment (part 1 of 2) by Isabel Gowdy of Rehab First, as submitted on June 23, 2016 and denied on June 30, 2016? iii. Is the applicant entitled to a cost of examination in the amount of $2,459.50 for a physiatry assessment (part 2 of 2) by Isabel Gowdy of Rehab First, as submitted on June 23, 2016 and denied on June 30, 2016? iv. Is the applicant entitled to a medical benefit in the amount of $80 for physiotherapy services from Archway Health and Sports Services, as submitted on November 14, 2016 and denied on November 16, 2016? v. Is the Applicant entitled to interest in the amount of $1,568.08 on the overdue payment of benefits?

Footnotes

1. 1The remaining five issues are;
2. 2Applicant was advised in OCF-9s, Explanation of Benefits, dated April 30, 2015 and June 3, 2015
3. 3Al-Shimasawi v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 3473, [2007] O.F.S.C.D. No. 82.
4. 4OCF-18 completed by Dr. Shue, December 10, 2014. Tab 6 of Applicant materials.
5. 5Respondent’s Submissions, Page 5, paragraph 23.