Tribunal File Number: 16-001652/AABS
Case Name: 16-001652 v Primmum 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:
I. K.
Applicant
and
Primmum Insurance Company
Respondent
DECISION
Adjudicator: Lori Marzinotto
Appearances:
Counsel for the Applicant: Gula Essipov
Counsel for the Insurance Company: Jennifer Sweitzer
HEARD in writing on: January 5, 2017
OVERVIEW:
1This is a preliminary hearing brought by Primmum Insurance Company (the respondent) to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”):
i) Requesting that the application be dismissed pursuant to s.55 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) as a result of the applicant failing to attend all scheduled insurer’s examination (“IE”); and,
ii) for reimbursement of $3,733.95 to the respondent in non-attendance fees paid to medical examiners as a result of the applicant’s failure to attend the IEs.
RESULT
2I find that the applicant is in non-compliance with s.44(9)(2)(iii) of the Schedule and is therefore barred from proceeding with this application. Pursuant to s.55 of the Schedule, the application is dismissed as he has not attended the IEs. I decline to order reimbursement of the non-attendance fees. My reasons are as follows.
BACKGROUND
3The applicant was involved in a motor vehicle accident on October 1, 2014 and sought benefits pursuant to the Schedule by submitting an Application for Accident Benefits to the respondent dated October 8, 2014.
4On October 15, 2014, the respondent advised the applicant that his injuries were within the Minor Injury Guideline (“MIG”) and requested that the applicant submit a Disability Certificate (OCF-3) and an Employer’s Confirmation (OCF-2).
5On October 22, 2014, the applicant submitted a Disability Certificate dated October 8, 2014, completed by Dr. Hefford (Chiropractor), indicating that he was substantially unable to perform the essential tasks of his employment and suffered a complete inability to carry on a normal life as a result of the accident. The Disability Certificate also indicated that the applicant fractured his right hand three years before the accident, and that he has chronic pain in his right hand and chronic low back pain.
6Over the course of eleven (11) months, the applicant submitted several Treatment and Assessment Plans (OCF-18s).1 The respondent requested that the applicant attend IEs to assess entitlement to these medical benefits. Over a period of twelve (12) months the respondent scheduled and/or re-scheduled 10 IEs but the applicant did not attend any of them.
ANALYSIS
7Relevant to this hearing are section 44 of the Schedule which governs IEs, as well as section 55 that bars applications to LAT in circumstances such as non-attendance of IEs.
8The respondent submits that the applicant is in non-compliance with s.44 of the Schedule by failing to attend the IEs and should be barred from proceeding with this claim. It submits that the notices of the IEs complied with all the requirements of s.44 of the Schedule and that it has been denied its rights to assess entitlement to benefits by conducting in-person assessments while the applicant obtained his own assessments. From the respondent’s perspective this is trial by ambush.
The applicant submits that the denial letters from the respondent did not provide “proper reasons, medical or otherwise to request IEs.” The applicant further takes the position (para 15,14 factum) that as a result of the respondent’s failure to provide medically supported reasons for the denials, effectively, the respondent never denied the treatment plans nor did it ever provide the applicant with proper notice of IEs. I disagree for the following reasons.
9Section 44 (5) of the Schedule requires the insurer to provide “medical and any other reasons” when requesting an IE. The issue of what wording might satisfy the requirement of “medical and any other reasons” was considered in the Financial Services Commission of Ontario (“FSCO”) decision of Kadian Augustin v. Unifund Insurance Company, FSCO A12-0004522 (“Augustin”).
10Augustin lists the minimum requirements that satisfy the obligation to provide medical and other reasons for an IE. The insurer must state that it has reviewed the MIG and the treating health practitioner’s medical opinion and concluded that the health practitioner has not provided compelling evidence that the person’s injuries are outside of the MIG, or that the treatment claimed is reasonable or necessary. The decision in Augustin goes on to state that the “medical and other reasons for the examination” in the Notice of Examination under s.44(5) should contain substantially similar information.
11Although I am not bound by FSCO decisions, I find the Augustin decision persuasive and applicable to this case.
12I find that all of the IE notices complied with the “medical and other reasons” requirements and that the non-attendance was not justified.
IE Notices Dated October 24, 2014 – Med rehab, MIG
13The following are the first notices of IEs the respondent sent to the applicant:
Date of Notice
Appointment
Assessor
Purpose of Assessment
October 24, 2014
November 13, 2015
Dr. Moshiri, Psychologist
Med & Rehab, MIG
October 24, 2014
November 28, 2015
Dr. Millard, Physiatrist
Med & Rehab, MIG
14These notices were sent after the applicant submitted a Treatment and Assessment Plan (OCF-18) dated October 6, 2014 (Tab E) from Prime Healthcare Inc. (Dr. Hefford) in the amount of $3,371.32.3
15The October 6, 2014 OCF-18 indicates that the Applicant’s impairment is not a minor injury as referred to in the MIG and repeats the prior condition listed on the OCF-1; fractured right hand 3 years ago; chronic low back and chronic right hand pain.
16The OCF-18 provided additional comments, including but not limited to, the applicant has “…multiple barriers to recovery, pre-existing conditions, psychological/emotional and sleep disturbances. Therefore,… it is my opinion that there is compelling evidence that [the Applicant] will unlikely achieve medical recovery if he is subject to the goods and services authorized under the Minor Injury Guideline or the $3500 limit.” The Chiropractor noted that further diagnostic testing and imaging is required to determine the extent of the injuries and that psychological consultation was recommended and psychological interventions will likely follow.
17On October 24, 2014, the respondent denied the October 6, 2016 OCF-18 on the basis that the Applicant “may have an impairment” that entitled the Applicant to goods and services under the MIG. The respondent further indicated that in order to determine if the applicant suffered from an impairment that comes within the MIG, the treatment plan would be reviewed by its chosen assessors. Details of a psychologist IE and physiatrist IE were provided to the applicant.
18In addition, the respondent indicated that based on its initial contact with the applicant on October 10, 2014, they were advised that he did not have any pre-existing conditions and that as per s.38(3)(i)(B) the applicant came within the MIG. The respondent indicated it had not received any medical evidence which was documented prior to the date of the accident for the pre-existing condition noted by Dr. Hefford.
19Augustin and the more recent FSCO decision in Zhang v. Security National, [2015] OFSCD No.167 (“Zhang”), are persuasive and applicable to this case.
20At paragraph 24 in Zhang, arbitrator Kelly reasoned that by the insurer asserting that it believed that the MIG applies, the insurer, in effect gave a medical reason. “Minor injury” as defined in the Schedule, includes a list of several medical terms. Arbitrator Kelly found that the medical reason provided by the insurer was, in essence, “your injuries fall within that medical definition”.
21Applying the analysis of Augustin and Zhang, I find that the notices set out the required information and are in compliance with the Schedule.
22Even if the applicant could argue that a medical reason was absent from the notices, which I find was not, the respondent met the notice requirements by indicating that there was a lack of compelling medical evidence provided by his health practitioner to indicate that he had not sustained a minor injury.
23The applicant failed to attend both the psychological assessment and the physiatry assessment and no-show fees were incurred. The respondent advised that they would be pleased to reschedule the examinations if the applicant agreed to attend and asked that the applicant provide dates and times or availability. I find that by requesting the applicant’s availability, it was trying to be accommodating to the applicant.
Notices Dated May 13, 2015 and September 11, 2015 - Non Earner (“NEB”) and Medical Benefits
24On May 6, 2015, the respondent acknowledged receiving the applicant’s election to receive NEBs and requested an updated Disability Certificate and updated clinical notes and records from the applicant’s family physician in order to determine his entitlement. The respondent further advised that it required the applicant to attend IEs to determine his entitlement to NEBs.
25On May 12, 2015, the applicant submitted an updated Disability Certificate.
26On May 13, 2015, the respondent provided notice of the required IEs in order to determine the applicant’s entitlement to NEBs as follows.
Date of Notice
Appointment
Assessor
Purpose of Assessment
May 13, 2015
June 3, 2015
Dr. Lang, Physiatrist
NEB
May 13, 2015
June 19, 2015
Dr. Zakzanis, Psychologist
NEB
27The respondent indicated that based on the medical information it had, it did not have sufficient medical information to assist them in making a determination on eligibility for NEB.
28The notice provided the details of the IEs and further indicated if the applicant could not attend he was to contact them to make other arrangements.
29The purpose of the IEs was clear; to assist the respondent in making a determination on the applicant’s entitlement for NEB. I find that the respondent complied with the notice requirements.
30On May 28, 2015, the applicant sent a letter to the respondent indicating that once the respondent confirms the applicant’s entitlement to NEB and provides proof of payment of NEBs, the applicant may be contacted regarding scheduling of IEs with respect to NEBs. There is no requirement in the Schedule to confirm an applicant’s entitlement to NEBs before requesting an IE. Section 36(4)(b) specifically allows the respondent the opportunity to given notice that it requires a s.44 IE. The applicant did not indicate that the notice of IEs were not compliant with the Schedule.
31Based on the applicant’s May 28, 2015 letter, the respondent cancelled the IEs. The respondent reiterated that in order to determine initial entitlement to NEB, it requested that the applicant contact them to arrange convenient dates and times for the IEs. I find that this request was reasonable given the applicant’s suggestion in his May 28, 2015 letter that the IE was unilaterally scheduled.
32After refusing to attend the NEB IEs, the applicant sent the respondent new medical documentation. On June 3, 2016 the applicant provided the clinical notes and records of Prime Health Care, a decoded OHIP summary and the clinical notes and records of Credit Valley Hospital. On July 21, 2015, the applicant provided Dr. Shaul’s Psychological report dated June 19, 2015.
33On September 4, 2015, the respondent advised the applicant that based on the report and subsequent full assessment of Dr. Shaul, the respondent determined that it was unlikely that the applicant would achieve maximum medical recovery within the $3,500 limit allotted for minor injuries and determined he was no longer under the MIG.
34Given that the applicant’s injuries were no longer considered to be within the MIG, the respondent required IEs in order to make a determination on the applicant’s previously denied treatment plans and further treatment. I find this to be a reasonable request.
35On September 11, 2015, the respondent, referencing its September 4, 2015 correspondence, provided notice of IEs to assess the medical and rehabilitation benefits and the NEB as follows.
Date of Notice
Appointment
Assessor
Purpose of Assessment
September 11, 2015
September 28, 2015
Jag Dhirayain, Occ. Therapy
Med & Rehab, NEB
September 11, 2015
October 6, 2015
Dr. West, Psychologist
Med & Rehab, NEB
September 11, 2015
October 16, 2015
Dr. Dr. Zabieliaskas, Physiatrist
Med & Rehab, NEB
36On September 24, 2015, the applicant advised the respondent that it was not entitled to schedule IEs for medical/rehabilitation benefits but did not indicate why.
37I find that by refusing to attend the IEs with respect to the medical benefits, the applicant was in non-compliance with the Schedule. In addition, the applicant was denying the respondent the opportunity to make a fair assessment on the proposed treatment plans.
38The applicant indicated again that further to the respondent confirming and agreeing to pay NEB, he was agreeable to attend IEs that were reasonably required. The applicant further requested to “Please send us proper notice with respect to the proposed assessments along with the questions to be posed to the assessor. Once we are in receipt of same, along with all other information required by the SABS, we may be contacted for scheduling purposes”.
39In his submissions, the applicant fails to point out that on September 4, 2015, the respondent advised the applicant that he was entitled to NEB from April 1, 2015 to June 2, 2015 but that the NEB would be stopped effective June 2, 2015 because the applicant failed to attend previously scheduled IEs.
40The applicant’s demands listed in the September 24, 2015 letter with respect to scheduling IEs and the request to send him the “questions posed to the assessor” were unreasonable, nor is this a requirement under the Schedule. In addition, the applicant did not indicate that the previous notices were improper or why they may have been improper.
41The applicant’s September 24, 2015 letter concludes by indicating that the respondent may contact the applicant with respect to rescheduling IEs for the medical/rehabilitation benefit after the applicant is in receipt of the assessments related to the NEB. In essence, the applicant is trying to dictate an adjusting process contrary to the Schedule.
IE Notices Dated September 30, 2015 – NEB
42The respondent rescheduled the IEs for the NEB and sent notice to the applicant as follows:
Date of Notice
Appointment
Assessor
Purpose of Assessment
September 30, 2015
October 6, 2015
Dr. West, Psychology Assessment
NEB
September 30, 2015
October 15, 2015
Dr. Zabieliaskas, Physiatry Assessment
NEB
September 30, 2015
October 26, 2015
Jag Dhirayain, Occupational Therapy
NEB
43Despite the respondent re-scheduling the IEs for NEBs (on Oct 6, 2015, Oct 15, 2015 & Oct 26, 2015), the applicant again failed to attend the IEs.
44The applicant indicates that he received the respondent’s correspondence dated September 30, 2015 on October 5, 2015 and points to the date stamp. In his factum, the applicant indicates that assuming the “notice” for the Psychology IE scheduled for October 6, 2015 was sufficient, the applicant was not provided with the required 5 business days’ notice of the IE.
45The applicant’s factum was the first indication that the applicant had not received the requisite 5 days’ notice. This argument fails. I find that the requisite 5 business days’ notice was provided to the applicant. The applicant fails to mention that the September 30, 2015 notice of the October 6, 2015 psychology IE was previously provided to him on September 11, 2015. The September 11 and 30, 2015 notices were for the same psychology IE scheduled for October 6, 2015 before the same doctor, time and location. Therefore, the applicant was provided with much more than the requisite notice time.
46On October 7, 2015 the respondent wrote the applicant confirming that he did not attend the October 6, 2015 IE. The respondent also stated that it makes every effort possible to schedule IEs at convenient times for the applicant but “it is possible only if the legal representative and/or the insured person are actively participating in the process”. The respondent reminded the applicant of the IEs that were scheduled for October 15, 2015 and October 26, 2015. The respondent requested that applicant’s counsel, or the applicant himself, call respondent’s counsel or “at least return their calls to schedule directly at the claimant’s convenience”.
47On the same day the respondent sent a second notice for the IEs that were scheduled for October 15, 2015 and October 26, 2015. This would have been the third separate communication to the applicant of the October 15, 2015 IE and the second separate communication of the October 26, 2015 IE over and above the letter referred to in the previous paragraph. Again, the applicant failed to attend every scheduled IE.
Applicant’s Reason for Non-attendance Unreasonable
48It was not until November 4, 2015, approximately 13 months after the respondent’s first notice of IE dated October 24, 2014, that the applicant wrote to the respondent indicating that the reason for the previous non-attendances was that the notices of denial and notices of assessment were not compliant with the Schedule.
49I note that none of the documents submitted for this written hearing, prior to this November 4, 2015 letter, mentions that the applicant thought the denial letters were not compliant with the Schedule. The applicant did not indicate why he thought the notices and denials were not compliant with the Schedule.
50I find that the applicant’s did not have a reasonable explanation for his non-attendance at the IEs that were scheduled and re-scheduled. I also find that the explanation he provided on November 4, 2015, indicating that the notices of denial and notices of assessments were not compliant with the Schedule is unreasonable and does not cure all of the numerous non-attendances.
51Further on November 4, 2015, the applicant indicated that he was now prepared to attend IEs in this matter but included a list of demands before the IEs could be scheduled including: providing a list of proposed assessments, assessors, proposed dates, proposed time and proposed locations as well as benefits/exams to be assessed and further suggested that the respondent propose three different dates and times for each proposed IEs and that once they agreed on the time, date and location, the respondent could send the appropriate notices as required by the SABS, and schedule the IEs.
52Pursuant to s.44 of the Schedule, the insurer is permitted to choose the health professionals that will conduct the IEs. I find that overall, the respondent was more than accommodating to this applicant.
53After failing to attend all of the previously scheduled IEs, and after a year had passed since the respondent had been trying to conduct IEs, the applicant was now prepared to attend IEs. No reasons were provided by the applicant for why he was finally agreeable to attend the IEs. Significantly, by this time however, the applicant had already attended 3 of its own assessments and had served his last report on the respondent on October 13, 2015.
54In paragraph 32 of his factum, the applicant states that he “time and time again requested that the insurer comply with the SABS in providing proper notice of the requested IEs.” I find this statement disingenuous. In the applicant’s letter dated May 28, 2015, he states “please refrain from scheduling examinations unilaterally, or examinations which are not set up in accordance with the SABS…”, and in his letter dated September 24, 2015 he states, “Please send us a proper notice with respect to the proposed assessments…” At no time does the applicant indicate how the respondent is not compliant with the Schedule nor does he indicate that the notices were improper.
55If the applicant thought the notices were improper, it would have been prudent for him to indicate why. From the respondent’s perspective, the notices were compliant with the Schedule. I have also found that they were compliant.
56On November 6, 2015, the respondent advised the applicant to contact the respondent’s counsel directly in order to schedule the IEs at the applicant’s convenience. By this point, the respondent had incurred numerous non-attendance fees and had re-scheduled the IEs multiple times. The respondent was trying to ensure that the IEs were scheduled at the applicant’s convenience.
57In the hearing record, what follows the respondent’s November 6, 2015 letter is the applicant’s application to the Tribunal which was signed by the applicant on May 30, 2016 (six months later) and signed by applicant’s counsel almost two months after that on July 26, 2016.
58The applicant relies on Hashi and Security National (FSCO A05-001275, June 14, 2006) and submits that the applicant’s willingness to now attend IEs cures any non-compliance. Even if the Hashi case was binding on the Tribunal, which it is not, it is easily distinguishable on the facts as they do not compare to this case. In Hashi, the insurer refused to reschedule the assessment, which is not the case here.
59I agree with the respondent’s submission that this is trial by ambush. To quote The Honourable Justice Lederer from Certas Direct Insurance Co. v. Gonsalves:
Fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.
…if this arbitration is allowed to proceed in the absence of further orthopedic examination by a doctor of the insurer’s choosing, the insurer will have no practical ability to respond to the opinions with which it was provided…
In our view, the insurer would be denied the right to make a full response and would not be heard as the dictates of procedural fairness require…This is trial by ambush4
60The applicant submits that he “did not simply fail to attend IEs without prior notice…” The applicant points to his initial letter to the respondent dated October 10, 2014 where he indicated that he would not attend any IEs unless otherwise confirmed in writing by his representative.
61The applicant was provided multiple notices of the scheduled IEs. The applicant neither confirmed that he would attend nor confirmed that he would not attend. In fact, with respect to the IEs for NEBs, it appeared that he was willing to attend and despite the rescheduling of the IEs for this purpose, the applicant yet again, failed to attend.
62While the Schedule does state that the respondent has “to make reasonable efforts to schedule examinations for a day, time and location that are convenient for the insured person” that does not place an obligation on the respondent to provide several dates and times for each IE. There is no legislative requirement to comply with the applicant’s demands in his November 4, 2015 correspondence.
63I find that the respondent has complied with all of its obligations under the Schedule including its obligation to make reasonable efforts to schedule the IEs.
64The evidence clearly demonstrates that the applicant did not make himself reasonably available. In addition, the applicant has not provided me with evidence to demonstrate that the respondent’s notices were not compliant with the Schedule. The applicant was required to attend the IEs and failed to do so. Section 55 of the Schedule indicates that an insured shall not apply to the Tribunal if the insurer has provided the insured person with notice under s.44 and the insured has not complied. Pursuant to s.55 of the Schedule, I find that the current application should be dismissed.
Reimbursement of Non-attendance fees
65The respondent seeks reimbursement of fees paid to the examiners for the applicant’s failure to attend the IEs in the amount of $3,733.95.
66I have not been provided with any authority or provision of the Schedule or Insurance Act confirming that I have jurisdiction to order payment of such fees and therefore decline to order reimbursement to the Respondent.
67Previous versions of the Statutory Accident Benefits Schedule included provisions which specifically addressed re-imbursement of fees paid by an insurer for an IE where the insured person fails to attend.5 However, the current version of the Schedule does not include such a provision.
Costs
68Although not listed as an issue in dispute for the hearing, the respondent requested costs in its factum.
69Pursuant to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”), a party may request costs at any time before a decision or order is released where they believe a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
70Proceeding in Rules 19 means the Tribunal’s process from the start of the appeal until the matter is resolved.
71The respondent has not provided sufficient evidence of the applicant’s conduct during the proceeding that meets the threshold for me to award costs set out in Rule 19 and therefore no costs will be awarded.
Post Hearing
72On April 7, 2017, the respondent wrote to the Tribunal bringing the Volpe v. Co-operates General Insurance Company6 case to its attention as the decision relates to the non-attendance of IEs pursuant to s. 44 of the Schedule.
73On April 10, 2017, the applicant objected to the respondent’s letter to the Tribunal; however, if the Tribunal allowed the letter, the applicant sought to clarify the decision in Volpe and did so in his correspondence. Given that the applicant provided his clarification, I allowed both letters; however, the submissions did not affect my decision.7
Order
74Pursuant to s. 280(2) of the Act, and for the reasons outlined above, I order that this application be dismissed.
Released: September 1, 2017
Lori Marzinotto,
Adjudicator
Issue #
Date / Tab
2
Oct 8, 2014/Tab G
Attendant Care Assessment
3
Oct 6, 2014/Tab E
Physiotherapy services
4
Feb 5, 2015/Tab P
Physiotherapy services
5
June 3, 2015/Tab Y
Physiotherapy services
6
Sept 9, 2015/Tab HH
Chronic Pain Assessment
Footnotes
- The following were listed as issues in dispute in the case conference Order dated October 27, 2016:
- released on November 13, 2013
- This treatment plan, originally denied, appear to have been subsequently partially approved in the amount of $2200.00 leaving an outstanding balance of $1,171.32 and appears as issue #3 in the case conference Order dated October 27, 2016.
- Certas Direct Insurance Co. v. Gonsalves, 2011 ONSC 3986, [2011] O.J. No 3290 (S.C.J. – Div. Crt) at para. 8, 9, 10
- Ontario Regulation 403/96, Statutory Accident Benefits Scheduled – Accident on or after November 1, 1996, s.47(1)(e)
- Released by the Ontario Superior Court of Justice, January 13, 2017.
- I need not rely on the Volpe case in order to render my decision. There are ample facts in the matter at hand which support my decision to find the applicant is in non-compliance with s.44 of the Schedule and therefore not entitled to proceed with his application.