Tribunal File Number: 16-004092/AABS
Case Name: 16-004092 v Certa Direct Insurance
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
Certa Direct Insurance
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for or the Applicant: Aline Avanessy
Counsel for the Respondent: Brian Pak
HEARD: Written Hearing: April 6, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
The applicant, [ ] was injured in an automobile accident on June 17, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
The parties attended a case conference and by an order dated February 21, 2017 resulting from the case conference, the Tribunal ordered a preliminary issues hearing, in a written format, be scheduled for April 6, 2017. At the time of the case conference, a number of preliminary as well as substantive issues were identified including that of the respondent’s liability to pay income replacement benefits to the applicant. By a letter dated February 28, 2017, the applicant advised the Tribunal of the withdrawal of his claim for income replacement benefits.
The remaining issues in dispute include whether the applicant is entitled to receive a medical benefit in the amount of $4,276.69 for physiotherapy services and $2,000 for a psychological assessment.
The respondent takes the position that the applicant is precluded from proceeding with this application due to his failure to attend at a s.44 assessment.
For reasons set out below, the Tribunal finds the applicant is not precluded from proceeding with this application due to his failure to attend at a s.44 assessment.
FACTS
The applicant, [ ] was injured in a motor vehicle accident (MVA) on June 17, 2015. As a result of the accident, the applicant began to experience pain in his neck, shoulders, back and headaches.
Claiming that he was also experiencing psychological impairments resulting from the MVA, the applicant submitted a Treatment and Assessment Plan (OCF-18) dated September 28, 2015 completed by a rehabilitation psychologist, Dr. J. Pilowsky of Procare Evaluations in the amount of $2,000.00 for a psychological assessment.
The respondent responded to the OCF-18 with a Notice of Examination dated October 21, 2015 in which the respondent notified the applicant that it would be conducting an Insurer Examination in accordance with section 44 of the Schedule.
On October 29, 2015, the applicant’s representative wrote to the respondent to advise that the applicant would not attend the s.44 assessment required by the respondent.
On November 6, 2015, the applicant was assessed by Dr. J. Pilowsky. Subsequent to the assessment, Dr. Pilowsky issued a report dated December 4, 2015, in which the psychologist diagnosed the applicant as suffering from post-traumatic stress disorder and major depressive disorder. The report was subsequently submitted to the respondent on July 15, 2016.
At some point, the applicant arranged for an assessment by Dr. Eugen Hewchuk, a psychologist and Natalia Nosova, a psychometrist. In their report, they diagnosed the applicant as having post-traumatic stress disorder as well as major depressive disorder, single episode, moderate.
THE LAW
- Section 44 of the Schedule states that an insurer may require an insured person to be examined by one or more persons who are regulated health professionals or who have expertise in vocational rehabilitation. However, such an examination must not be more often than is reasonably necessary. Section 44 also sets out the notice requirements for such an examination. The notice must include, “the medical and any other reasons for the examination”.
ANALYSIS
Preliminary Issue: Should the applicant be precluded from proceeding with his application to the Tribunal due to his failure to attend a s.44 assessment?
The applicant made several arguments as to why he should not be precluded from proceeding with his application even though he had not attended a s.44 assessment which I will summarize as follows:
First, the applicant argued that the requirement for an insured person to attend an examination does not apply with respect to a benefit payable in accordance with the Minor Injury Guideline (MIG)1, and because the respondent maintained the applicant’s injuries fall within the MIG, therefore the respondent was not entitled to direct the applicant to attend an assessment to determine whether his injuries fell within the MIG.
Second, the applicant argued that the respondent owed a duty of good faith to review and consider the medical evidence presented to it and to re-evaluate its position with respect to whether or not the applicant’s injuries fell within the MIG. The applicant argued that that respondent failed in its duty of good faith because it did not acknowledge or consider what they described as the “compelling medical evidence” submitted by the applicant.
Third, the applicant submitted that the notice issued by the respondent for an s.44 assessment did not meet the notice requirements under s.44(5) of the Schedule because it did not outline medical reasons for the proposed assessment.
Finally, the applicant submitted that it was amenable to the respondent conducting a paper review after reviewing the medical evidence submitted.
The respondent in their reply disputed the applicant’s arguments and for the reasons below, I accept the position put forward by the respondent.
With respect to the applicant’s argument that the applicant is not required to attend an examination with respect to a benefit payable pursuant to the MIG, I find this argument curious since the very purpose of the psychological examination was to determine if the applicant’s injuries fall under the MIG. This is made clear by the applicant’s own submission that his impairments clearly fall outside of the MIG.
The Schedule states that an insurer is not able to require a claimant to attend an IE for a benefit payable in accordance with the MIG.2 The Applicant asserts that his injuries do not fall under the MIG due to his psychological impairment. As such, s.44(3) does not advance or support the applicant’s position that the insurer is not entitled to request an assessment.
On the issue of whether the s.44 notice issued by the respondent met the requirements under the Schedule, the respondent argued firstly that the applicant was conflating a s.38 denial requirement and a s.44 notice requirement, and secondly, the applicant cannot raise this argument as the applicant has not brought his own motion or raised a preliminary issue seeking remedy for any deficiency in the denial. As such, the applicant cannot raise the deficiency of a denial as a defence against attending an s.44 examination. I disagree.
First, with respect to the timing of the applicant having raised the issue of a deficient notice. The issue was raised in the applicant’s submissions and the respondent had the opportunity to respond and in fact did.
In respect of the argument that the applicant is conflating the requirements of a denial versus notice, the respondent raised the case of Subramanian and Wawanesa.3 In Subramanian, Arbitrator Stramwasser explained the purpose of a s.44 examination and the insured person’s obligations to comply. The arbitrator in this case found that while section 55 of the Schedule refers to the sufficiency of notice, the notice and denial are distinct matters each is governed by its own rules under the Schedule. Consequently, whether the denial is deficient is not a defence to refusing to attend a section 44 examination. Again, I respectfully disagree.
I agree instead with the analysis in the decision of Arbitrator Sapin in Augustin and Unifund4 who finds that a plain reading of requires that an insurer’s notice to attend an IE must be made “in accordance with” the Schedule before the insurer can rely on this section to preclude an applicant from the dispute resolution process.
In this case, the notice for the s.44 assessment stated that its purpose was to assess whether the OCF 18 submitted by Dr. Pilowsky proposing a psychological assessment was reasonable. The respondent did not provide any medical reason for the examination. As such, I find the notice for the s.44 assessment fails to comply with the notice requirements as it fails to include medical and other reasons for the examination.
I therefore conclude that the applicant is not precluded from applying to the Tribunal by failing to attend the s.44 assessment.
ORDER
- The Tribunal will contact the parties to schedule a case conference in order to schedule a hearing for the remaining issues in dispute.
Released: October 13, 2017
___________________________
Avvy Go