Tribunal File Number: 17-001088/AABS
Case Name: 17-001088 v Aviva Insurance Canada
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:
Applicant
Applicant
And
Aviva Insurance Canada
Respondent
DECISION ON A PRELIMINARY ISSUE
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Shahen Alexanian, counsel
For the Respondent: Candace Mak, counsel
HEARD: Written Hearing: June 8, 2017
OVERVIEW
The applicant, [ ] was injured in a motor vehicle accident on February 22, 2015. She applied to the respondent, Aviva Insurance Company of Canada for benefits, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
The applicant was referred by her family physician to a psychiatrist, who submitted a Treatment Plan for a psychiatric examination in February, 2017. The respondent did not approve the Treatment Plan. The Respondent arranged for the applicant to attend two independent examinations (IE), one with a psychologist and one with a psychiatrist. The applicant did not attend either of the IE. The applicant seeks the payment of the cost of the psychiatric examination she has submitted and takes the position that the respondent had failed to provide medical or other reasons for the IE.
The respondent submits that the applicant should be precluded from proceeding with her application to the Tribunal because she did not attend either of the s.44 examinations requested by the respondent.
ISSUES
- The preliminary issues I must decide are:
a) Did the respondent’s IE comply with s.44 of the Schedule?
b) Is the applicant precluded under s. 55(1)2 of the Schedule from commencing an application with the Tribunal because she did not attend a section 44 insurer examination?
RESULT
I find that the respondent provided the applicant with notice in accordance with the Schedule that it required an insurer’s examination under s.44.
I also find that the applicant can be precluded from proceeding with her application if she does not attend the insurer’s examination within the timeline as set out in this decision.
I adjourn the application for 60 days from the date of this decision. Should the applicant fail to comply with a new IE by then, the applicant’s application to the Tribunal will be dismissed.
THE FACTS
The applicant was involved in a motor vehicle accident (MVA) while walking in a parking lot on February 22, 2015.
After being taken to North York General Hospital where she was treated and discharged, the applicant saw her family physician, Dr. Oda.
Several months after the MVA, Dr. Oda referred the applicant to Dr. Azadian, a psychiatrist on June 5, 2015. The applicant has seen Dr. Azadian since that time for complaints of depression and anxiety.
Dr. Azadian prepared a Treatment Plan dated February 1, 2017 for a psychiatric examination. The Treatment Plan was submitted to the respondent the same day. The respondent advised the applicant on February 7, 2017 that the Treatment Plan was not approved.
By a letter dated February 13, 2017, the respondent advised the applicant that she was scheduled to attend at an IE pursuant to section 44 of the Schedule, to take place on March 9, 2017 with Dr. Lubinsky, a psychologist.
By a letter dated February 13, 2017, counsel for the applicant asked that the scheduled IE be cancelled on the basis that the respondent had not provided reasons for the denial of Dr. Azadian’s Treatment Plan, as well as reasons requiring the applicant to attend an IE for the same assessment that she is seeking entitlement to.
By a letter dated March 10, 2017, the respondent advised the applicant that the previously scheduled IE pursuant to s.44, was rescheduled to April 5, 2017 with Dr. Waisman, a psychiatrist.
By a letter dated March 19, 2017, counsel for the applicant again advised the respondent that it had not complied with s.44 of the Schedule because it had not provided reasons for its denial and requested that the IE scheduled for April 5, 2017 be cancelled.
The applicant did not attend the IE scheduled for April 5, 2017.
ANALYSIS
Issue 1: Has the respondent provided “medical or other reasons” for the Psychiatric IE?
The respondent submitted that their two letters to the applicant advising of the IE for each of the scheduled appointments meet the requirements set out in in L.(S) v. Certas Home and Auto Insurance Co. (L.S.).1.
Further, the respondent submitted that the s.44 examination was reasonably necessary as it is consistent with the factors that have been considered by the Tribunal in past cases, including L.S.
The applicant argued that the respondent never requested the applicant to provide medical information, including clinical notes and reports from Dr. Oda and Dr. Azadian, and had not properly “investigated” the claim by neglecting to request the relevant medical document.
The applicant also questioned the purpose of the IE, as the respondent is purporting to conduct the very same examination, namely, the psychiatric assessment that it is denying.
To determine whether the respondent has provided “medical or other reasons” for requesting the psychiatric IE, I must first examine the request in question.
The letter dated February 13, 2017, and the letter dated March 10, 2017 from the respondent to the applicant requesting the latter to be examined adopted the same medical reason as follows:
Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.
- With respect to what constitutes proper “medical and any other reasons” for the examination under s.44(5)(a), both parties in this application adopt the test set out by Vice-Chair Flude in L.S. where he described the following requirements to satisfy the obligation to provide “medical and other reasons”:
Where there is a dispute whether the MIG applies, as in the current matter, the Insurance Company must state that it has reviewed the MIG and the treating health practitioners’ opinion and concluded that, in the view of the Insurance Company, they do not provide compelling evidence that the injuries fall outside the MIG or that the treatment is reasonable or necessary.2
In Augustin v. Unifund Insurance Company, FSCO A12-000452 discussed in L.(S) v. Certas Home and Auto Insurance Co. , the Tribunal finds that the notices in that case failed to set out adequate medical and other reasons for the IE. In Augustin, while each letter from the respondent identified the purpose of the IE, none of them detailed the reasoning behind the requirement for the IE. There was no review of the medical grounds asserted in the Treatment Plans or a statement of a belief by the respondent that medical grounds did not establish a case that the injuries fall outside the MIG.
Like Augustin and L.S. the dispute here also involves whether the MIG applies. I find the reasoning in both of these cases could guide me in determining whether the respondent has provided adequate medical and other reasons for the proposed psychiatric IE.
Applying the reasoning in Augustin and L.S., on its face, both letters met the requirements of the Schedule and as set out by Vice-Chair Flude in L.(S.) v. Certas Home and Auto Insurance Co. as the respondent did state in the letter that it has reviewed the MIG and the treating health practitioner’s opinion in concluding that the applicant has not provided compelling evidence that the injuries fall outside the MIG or that the treatment is reasonable or necessary.
More importantly, in applying the factors listed in L.S. and Augustin for determining the notice requirement for the IE, I also find they support the Respondent’s position. More specifically , I find:
a) There is reasonable nexus between the type of examination and claimed impairments: The claimed injuries in Dr. Azadian’s Treatment Plan suggested the applicant had adjustment disorders, mixed anxiety and depressive disorder, and post-traumatic stress disorder, all of which are psychological and/or psychiatric in nature. The IE scheduled by the respondent was with a psychologist initially and then with a psychiatrist, both of which assessments were aimed at evaluating the applicant’s psychological/psychiatric issues.
b) Purpose of Timing of the request: The purpose, as the Respondent has stated, was to review the recommendations in the Treatment Plan because the respondent was unable to determine whether they were reasonable and necessary. The respondent first advised the applicant of the scheduling of an IE with a psychologist on February 13, 2017. On the same day, the applicant asked the IE be cancelled, and on February 23, 2017, filed her application at the Tribunal. As the applicant filed her application after the initial request for attendance at the IE was made, there is insufficient basis to find that the IE was scheduled by the respondent to bolster their case before the Tribunal.
c) Number and nature of previous and requested examinations: The only examination in dispute is the third examination requested by the respondent. The previous two examinations involved one by Dr. Naiman and one by Ms. Au, an occupational therapist, and were not focused on the issues of mental health.
d) New conditions to be evaluated: There has not been any prior assessment of a psychiatric nature conducted, while the applicant’s claimed injuries as per the Treatment Plan are psychological or psychiatric in nature.
e) Prejudice to other party: I find that requiring the respondent to proceed without having its own assessment would be prejudicial to the respondent. Having said that, I am also cognizant of the potential prejudice to the applicant by requiring that she proceeds with the application without the benefit of her own expert’s assessment. I will address this issue further in my reasons below.
The applicant argued that the respondent ought to have conducted a paper review based on the medical information to determine whether such an assessment is reasonable. The applicant did not point to any statutory authority or case law to support their argument in this regard. I do note that s.44 of the Schedule does contemplate a paper review. However, the language used in the section is permissive, i.e., it allows the insurer to conduct a paper review, but it does not specify when a paper review – versus an in person examination - should be conducted.
The applicant submitted that allowing the respondent to conduct an IE of the applicant, without allowing the applicant to complete her assessment due to financial constraints, would prejudice the applicant by creating an uneven playing field. Further, the applicant submitted that the respondent’s request that the applicant attend an in-person psychiatric IE is inconsistent with its position that the Treatment Plan is not reasonably required.
The Treatment Plan as submitted by Dr. Azadian laid down the health services recommended for the applicant including:
Assessment, mental health and addictions ($400)
Test, mental health and addictions ($400)
Documentation, support activity ($400)
Preparation, service ($300)
Documentation, support activity for claims form ($100)
In other words, the plan is comprised mostly of an assessment and testing, just as the respondent’s psychiatric IE would examine.
By refusing to attend the IE, the applicant is basically taking the position that the psychiatric examination that both parties agree is necessary be conducted by a health professional of the applicant’s choosing. But as Adjudicator Neilson has noted in W.P. v. Aviva Insurance:3
Section 44(1) of the Schedule allows for the insurer to choose its own assessors. If the legislators meant for the insurer to only rely on the opinions and findings of an insured person’s treatment providers or choice of assessors, the Schedule would say so. This does not mean that an insurer may go doctor shopping if it does not like the opinion of its assessor. However, it is not up to the applicant to choose who the insurer’s assessors will be or the type of assessments that are required, as long as there is some nexus between the specialty of the assessor and the injuries claimed.
- For all the reasons set out above, and based on the case law setting out the notice requirement for IE, I find that the respondent has complied with s.44 of the Schedule when they provided the applicant with the notice to attend the psychiatric IE.
Issue 2: Is the applicant precluded under section s.55 (2) of the Schedule from commencing an application with the Tribunal because she did not attend the section 44 insurer examination?
On the basis that the applicant has not provided an acceptable reason for non-compliance with the request for the IE, the respondent asked for an order that the applicant be precluded from applying to the Tribunal regarding the Treatment Plan, and that the application regarding that the Treatment Plan be dismissed.
The applicant raised an argument submitting that the respondent owes a duty of good faith to the insured in handling the insured’s claim. Relying on case law, the applicant argued an insurer’s obligation to act in good faith includes the following obligations:
Conduct a reasonable investigation of information presented to it;
Carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner; and
Identify what additional information may exist that would assist in assessing the claim and notify the insured of any additional information the insurer reasonably requires to assess the claim4
I have found that the IE is reasonably necessary and in compliance with section 44 of the Schedule. As such, I find that pursuant to s.55, the applicant may be precluded from proceeding with the application. However, I also find that this is the kind of case that warrants the discretion permitting the insured person to apply to LAT despite its non-attendance with terms and conditions, as per sections 55(2) and (3).
I agree with the applicant’s argument that the respondent should not on the one hand, request a psychiatric IE on the basis of medical reason, yet on the other hand, deny the applicant’s proposed treatment plan for a psychiatric assessment stating that it is not medically necessary and then bar the applicant from proceeding to dispute the matter at LAT. That is not a fair outcome. To be fair to both parties, I adjourn the application for 60 days to allow the insurer to reschedule the IE and for the applicant to attend.
ORDER
- This application is adjourned for 60 days from the date of this decision to allow the insurer to reschedule the psychiatric IE and for the applicant to attend. Should the applicant fail to agree to attend a rescheduled psychiatric IE, this application may be dismissed.
Released: October 19, 2017
___________________________
Avvy Go, Adjudicator