P. I. v. Aviva General Insurance
Case Name: 17-000465 v Aviva General Insurance
In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
P. I.
Applicant
and
Aviva General Insurance
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Counsel for the Applicant: Chris Rizzo
Counsel for the Insurance Company: Petros Yannakis
Written Hearing: May 9, 2016
I. Overview:
[1.] The applicant, P.I., was injured in an automobile accident on January 21, 2016, and sought income replacement benefits (IRBs) and a medical benefit pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
[2.] On February 21, 2017, the parties participated in a case conference to try to resolve the substantive issues, specifically whether the applicant is entitled to IRBs for $400 per week from September 4, 2016 to date and ongoing and whether the applicant is entitled to receive a medical benefit for $7080 for other goods of a medical nature, such as laser therapy.
[3.] The parties were not able to resolve the issues in dispute and the respondent raised preliminary issues, which are the subject of this written hearing.
II. Preliminary Issues
[4.] The respondent raised the following preliminary issues:
i. Is the applicant barred from proceeding with her claim at the Tribunal for an IRB under s. 55 of the Schedule, for failing to attend an insurer examination (“IE”)?
ii. Is the applicant’s claim for accident benefits barred due to a failure to provide information pursuant to s. 33 of the Schedule?
III. Additional Issues
[5.] The parties raised the following issues in their submissions:
i. Is the applicant entitled to costs?
ii. Is the respondent entitled to costs?
IV. Result:
[6.] Based on the evidence before me, I find that the applicant must attend the IE before she can bring this matter before the Tribunal.
[7.] I find that the applicant has provided sufficient information regarding her claims and, accordingly, she is not barred from payment of entitled benefits.
[8.] Neither party is entitled to costs.
V. Analysis:
i. Is the applicant barred from proceeding with her claim to the Tribunal for an IRB under s. 55 of the Schedule, for failing to attend an insurer examination?
Findings
[9.] I find that the applicant is barred from proceeding with her claim to the Tribunal for an IRB until she attends the physiatry IE.
[10.] Section 55, paragraph 2 of the Schedule states that the applicant cannot commence a proceeding with the Tribunal if she has failed to attend a section 44 Insurer’s examination (IE).
[11.] The applicant has failed to attend a physiatry IE.
[12.] On March 28, 2016, the respondent provided a notice of examination for psychological and physiatry IEs. Initially, the applicant indicated that she did not attend the IEs because the respondent failed to provide an adequate medical reason, did not take a position regarding the minor injury guideline (MIG) and did not consider medical records that the applicant had provided to them on March 15, 2016. The applicant asserts that if the respondent had considered the medical records, IEs would not be necessary.
[13.] On July 21, 2016, the applicant did attend a psychological IE conducted by Dr. Terra Seon. However, the applicant did not attend the physiatry IE, even though the respondent had rescheduled it for September 29, 2016.
[14.] The applicant argues that the respondent’s failure to schedule the physiatry IE in a timely manner between June and September 2016, and the respondent’s failure to reschedule the IE when she could not attend on September 29, 2016, delayed her access to benefits.
[15.] Even though the applicant was initially willing to attend the physiatry IE, she is now refusing to attend the physiatry IE at all because the respondent had barred her claims because she did not adhere to the respondent’s section 33 requests.
[16.] The applicant’s current position is that she is not required to attend the IE, because she provided sufficient medical evidence for the respondent to adjust her file without an IE.
[17.] Section 44 of the Schedule allows the respondent to request that the applicant attend IEs, but not more often than is reasonably necessary, to determine whether the applicant is entitled to continued IRBs.
[18.] The respondent can request an IE in order to make its determination of the applicant’s entitlement to benefits, irrespective of the medical evidence that the applicant provided to it. This is the respondent’s first request for a physiatry IE and the IE is related to the issue in dispute, so the respondent’s request cannot be said to have been more often than is reasonably necessary.
[19.] As such, I find that the applicant is required to attend the physiatry IE before she can commence a proceeding before the Tribunal regarding her claim for an IRB.
ii. Is the applicant’s claim for accident benefits barred due to a failure to provide information pursuant to s. 33 of the Schedule?
Findings
[16.] I find that the applicant’s claim for benefits is not barred because she provided sufficient evidence under section 33 of the Schedule.
[17.] Under section 33 of the Schedule the applicant must provide the respondent with “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.”
[18.] Under section 33 (2) and (5), the respondent can also require that the applicant attend an examination under oath (EUO), but the examination must be limited to matters relevant to the applicant’s entitlement to benefits.
[19.] On August 15, 2016, the applicant attended the EUO. The applicant did not answer all of the respondent’s questions as her counsel advised her that the questions had nothing to do with her entitlement to IRBs or was information that was already in the respondent’s possession.
[20.] The respondent submits that the applicant did not answer all of the questions in the EUO and therefore did not comply with section 33 of the Schedule. Specifically, the respondent submits that the applicant failed to answer all 107 questions.
[21.] The applicant submits that out of the 107 questions, only 25 questions were related to IRBs. The applicant argues that answers to those 25 questions were either not reasonably required or were provided in the various employment related documents and were related instead to the post-104 IRB test.
[22.] In addition to not answering questions at the EUO, the respondent also submits that the applicant failed to provide adequate documentation for her IRB claim.
[23.] According to the applicant she provided the following documents in relation to her IRB claim:
i. RBC employment file;
ii. Dr. Grubner’s clinical notes and records and updated notes (family doctor;
iii. Dr. Lee’s clinical notes and records (rheumatologist);
iv. Eglinton West Physiotherapy clinical notes and records (treating clinic);
v. Flex benefits package;
vi. Marlee Medical Clinic (walk in clinic);
vii. Prescription summary;
viii. Letter from Manulife advising they provide only disability coverage;
ix. OHIP summary;
x. MVA report;
xi. Centre for sleep disorder clinical notes and records;
xii. Income tax return from 2013 and 2014;
xiii. Sun life benefits file; and
xiv. Meditech Rehab file.
[24.] The applicant indicated that the respondent required CNR records from Asian Massage Therapy Clinic, and that they are forthcoming.
[25.] In addition to this information, the applicant informed the respondent in writing that there were no WSIB, Employment Insurance, Ontario Works, Canadian Pension Plan and Ontario Disability Support Program files; the applicant has not attended any hospitals in the one year pre-accident to date; and there are no other accident benefits files in the one year pre-accident to date.
[26.] The applicant submits that reasonably required records have been provided to the respondent to determine her continued entitlement to IRBs. I agree with the applicant.
[27.] Even though the applicant did not reply to all of the questions, I am of the view that the respondent was asking some questions that it already had the answers to. Further, the questions that the applicant decided not to answer has not prevented the respondent from making an informed decision regarding the applicant’s entitlement to IRBs. Under section 33, the applicant is required to provide “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.”
[28.] I find that the respondent had all the information that it reasonably required to make a determination about the applicant’s entitlement to IRBs. As such, a section 33 bar is not justified.
iii. Are the parties entitled to costs?
[29.] The parties request that the Tribunal order the opposing party to pay for its costs in this matter. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy.
[30.] In order for a party to be successful in receiving a cost award, there must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. This is a high threshold. During the proceeding, there is no evidence before me that either party has met the threshold behavior required to justify costs under Rule 19.1.
[31.] I find that neither party is entitled to costs in this matter.
V. Order:
I order the following:
[32.] The applicant is barred from starting a proceeding regarding her IRB claim until such time she attends the physiatry IE.
[33.] The applicant’s claim for accident benefits is not barred for failure to provide information under s. 33 of the Schedule.
[34.] A resumption of the case conference will be scheduled to address the issue of the medical benefit.
Released: September 14, 2017
Nicole Treksler, Adjudicator