Tribunal File Number: 17-001537/AABS

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:

S.C.

Applicant

and

Aviva Canada Inc.

Respondent

PRELIMINARY HEARING DECISION

Adjudicator: Ian Maedel

Appearances: Ammar Hussein, Counsel for the Applicant

James M. Brown, Counsel for the Respondent

Odessa O’Dell, Counsel for the Respondent

Heard in writing on: July 12, 2017

OVERVIEW

1The applicant was injured in rear-end collision on November 5, 2012. As a result of the accident, the applicant suffered neck, shoulder and back injuries. The insurer, Aviva, determined that she had sustained a predominantly “minor injury” and is subject to the $3,500 limit for medical benefits under the Minor Injury Guideline (“MIG”).

2The applicant submitted an application to the LAT on March 7, 2017 following denials of treatment plans submitted on her behalf for medical, rehabilitation benefits, medication expenses and massage therapy costs. The respondent denied these treatment plans based on the applicant’s non-attendance at insurer examinations in 2015 and 2016 and brought a motion for a determination that applicant is barred by s. 55 of the Schedule from disputing its denials because she failed to attend several insurer’s examinations (IE) required under s. 44.

ISSUES TO BE DECIDED

3The following are the issues to be decided:

a) Is the applicant precluded from proceeding to a hearing on the issues outlined in the application because she failed to attend the insurer examinations relevant to the issues in dispute?

b) Is the applicant precluded from proceeding to a hearing on the issues outlined in the application because the parties are bound by a previous FSCO decision which is currently being appealed?

RESULT

4Based on the totality of the evidence before me, I find that the applicant failed to attend IEs as required by section 44 of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“Schedule”). Therefore, the applicant is barred from proceeding with her application in respect of the treatment plans dated April 22, 2015, July 7, 2015, March 20, 2015, August 4, 2016 and the specified prescription expenses. Pursuant to section 55 of the Schedule, her current application with regard to these issues is dismissed.

5Given the dismissal on the substantive issues, there is no reason to address the previous FSCO decision or the arguments raised by the insurer with regard to res judicata, issue estoppel or abuse of process.

FACTS

6The applicant submitted the following treatment plans for medical, rehabilitation benefits, medication expenses and massage therapy costs to the respondent:

i. Treatment plan (OCF-18) in the amount of $1,596.00 completed by Tracy Auld, Physiotherapist,

ii. Treatment plan (OCF-18) in the amount of $2,712.00 completed by Dr. Harold Becker, Physician,

iii. Treatment plan (OCF-18) in the amount of $2,664.00 completed by Tracy Auld, Physiotherapist. This plan was partially approved by the insurer in the amount of $1,766.25, leaving $897.75 outstanding,

iv. Treatment plan (OCF-18) in the amount of $9,266.00 completed by Dr. Harold Becker, Physician,

v. Four Expenses Claim Forms (OCF-6) in the total amount of

$411.08 for medications and two massage therapy treatments.

7The insurer denied these claims on the basis that the applicant had sustained a predominantly “minor injury” as defined in section 3 of the Schedule, and was subject to the MIG and the $3,500.00 cap on medical and rehabilitation benefits and the expenses were deemed not reasonable or necessary. The insurer approved several treatment plans within the $3,500 cap.

8The insurer scheduled and rescheduled IE’s over a span of fifteen months, between June 2015 and September 2016 to determine whether the applicant’s injuries fell within the MIG and whether the treatment plans claimed were reasonable and necessary. These IE’s are outlined in the chart below:

Date of Notice	Scheduled Appointment	Assessor
May 25, 2015	June 9, 2015	Dr. Basil Johnson, Orthopaedic Surgeon
June 17, 2015	July 8, 2015	Dr. Basil Johnson, Orthopaedic Surgeon
August 31, 2015	September 22, 2015	Dr. Basil Johnson, Orthopaedic Surgeon
November 12, 2015	December 1, 2015	Dr. Basil Johnson, Orthopaedic Surgeon
February 25, 2016	March 29, 2016	Dr. Robert Fielden, Orthopaedic Surgeon
August 19, 2016	September 1, 2016	Dr. Greg Gelman, General Practitioner
August 19, 2016	September 15, 2016	Donna Boulton, Psychologist
August 19, 2016	September 22, 2016	Francois Paradis, Vocational Rehabilitation Counselor

9The applicant did not attend any of these IE’s as scheduled. Applicant’s counsel wrote to the insurer and indicated their client would not attend the IE’s as scheduled because the insurer’s Notices of Examination did not explain “medical and any other reason” for the denial of medical and rehabilitation benefits. They also stated there was ample medical evidence demonstrating that the applicant’s injuries did not fall within the MIG. They added that the applicant would not be attending any IE until the insurer specifically described the medical and any other reason for the denial of specific treatment plans.¹

10Section 44(5) of the Schedule specifies that medical and other reasons for the examination must be evident in the notice provided. It is well established law that if the Insurer’s section 44 notices of examination do not include medical reasons for denying a claim or an IE, the insurer cannot rely upon section 55 of the Schedule to prevent the insured person from disputing the denials.

11The applicant applied to FSCO to dispute whether she had sustained a “minor injury” as per the Schedule regarding different treatment plans denied following the same accident. In his preliminary issue decision dated December 19, 2016, Adjudicator Smith determined that the wording of the Notices of Examination provided by the insurer was sufficient and dismissed the proceeding due to the applicant’s failure to attend a number of IE’s. The applicant has since filed an appeal at FSCO which has yet to be heard.

12In the meantime, the applicant submitted an application to the LAT on March 7, 2017. The insurer submits that the application be dismissed as the applicant has failed to attend the IE’s pursuant to section 55 of the Schedule, the wording for each notice of examination was sufficient, and the insurer has been prejudiced by the passage of time. The insurer also relies on the doctrines of res judicata, issue estoppel and abuse of process in relation to the ongoing FSCO proceeding.

13The applicant submits that the notices of examination were deficient and failed to give a medical reason and any other reason for the examinations. She argues that res judicata and issue estoppel do not apply to this matter, as the previous FSCO application related to different issues and it is the applicant who has been prejudiced by the passage of time. As relief she seeks a ruling that the insurer cannot rely on the MIG, approval of the treatment plans at issue or a hearing on said issues and a cost award against the insurer.

ANALYSIS

Sufficiency of Notice

14Section 44 of the Schedule requires an insurer to provide “medical and any other reasons”, when requesting that an injured person attend an IE. This issue regarding the specific wording that would satisfy the requirement of “medical and any other reasons” was considered in the decision of Kadian Augustin v. Unifund Assurance Company (“Augustin”) rendered by Arbitrator Sapin of the Financial Services Commission of Ontario (FSCO), released November 12, 2013. Both parties provided copies of this decision with their submissions.

15Arbitrator Sapin conducted a thorough analysis of the regulatory scheme and came to the conclusion that the insurer’s notice did not satisfy the legislative requirements. Where there is a dispute and the MIG applies, as in this matter, the insurer must state that it has reviewed the MIG and that treating health practitioner’s opinion and concluded that, in the view of the insurer, they do not provide compelling evidence that the injuries fall outside of the MIG or that treatment is reasonable or necessary.² While I am not bound by decisions rendered by FSCO, I find Arbitrator Sapin’s reasons persuasive and I agree with her analysis.

16Applying the analysis in Augustin to the current case, I find that the notice provided by the insurer adequately sets out the medical and any other reasons for the IE. The wording in the insurer’s notices all state the following:

Medical Reason – 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.

17I find that the notices are clear that the treating health practitioner’s opinion and the MIG have been reviewed and compared, and the practitioner has not provided compelling evidence that the applicant has not sustained a minor injury. This follows the minimum requirements set out by Arbitrator Sapin in Augustin.

18Given the wording of the notice as set out above, I am not persuaded by the applicant’s submissions regarding the specificity of each notice and how it must make reference to each individual treatment plan and a medical reason for its denial. Nor do I consider the wording provided by the insurer in the notices to be “arbitrary” or demonstrative of a lack of good faith on behalf of the insurer.³

Prejudice

19Section 44 of the Schedule provides an insurer with the right to obtain examinations by health professionals of their choice. IE’s are the only way the insurer can obtain its own medical opinions. These examinations are central to the insurer’s ability to fairly and effectively assess a claim for benefits and adequately respond to the claim being made against it. Depriving the insurer of this right to examine, when reasonably necessary, does constitute a potential procedural unfairness.

20The accident in question occurred on November 5, 2012. In the four and a half years since, the insurer has not had any opportunity to conduct any IE’s. The insurer has not been able to verify the applicant’s injuries or even determine if her injuries are subject to the MIG and the $3,500.00 cap. Given the passage of time, the insurer has lost the opportunity to examine the applicant closer to the date of the accident, thus depriving it of the ability to assess the injuries the applicant sustained. I agree with the submissions of the insurer, that it is prejudiced by this delay and conducting IE’s at this later date would not remedy this prejudice.

Failure to Comply with Section 44

21Section 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.

22The applicant does not dispute that she failed to attend at least eight IE’s as scheduled. Counsel for the applicant made it clear that their client would not be attending any IE’s until Aviva provided sufficient medical reasons for said examination.

23I have already found that the wording of the notices was sufficient regarding the analysis in Augustin. The insurer was under no further duty to inform the applicant of the medical reason for the examination.

24The insurer, in good faith, rescheduled the IE’s several times even moving the location of the proposed examinations from Peterborough to Belleville, Ontario at the applicant’s request.⁴

25The applicant has failed to act reasonably and in good faith in regard to her non- attendance at the insurer examinations. She has breached her duty to attend the insurer examinations and is therefore in non-compliance with section 44 of the Schedule.

26Section 55 of the Schedule uses mandatory language that bars the applicant from making an application, which prevents her 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.

Res Judicata, Issue Estoppel, Abuse of Process and a Stay of Proceedings

27Both parties have provided submissions regarding the doctrine of res judicata, issue estoppel, abuse of process and a stay of proceedings. These submissions regard the ongoing application before FSCO. I understand that a decision was rendered December 19, 2016 and is currently under appeal before FSCO. FSCO decisions are not binding on the LAT. Given that I have already made a determination regarding the dismissal of the treatment plans at issue, I do not feel the need to address the ongoing FSCO matter or its potential effect on the preliminary hearing issues indexed herein.

Other Relief Sought

28At the close of submissions, the applicant sought a determination that the insurer is precluded from relying on the MIG; an approval of the benefits in dispute; or the approval that the matter proceed to hearing and a cost award.

29This is a preliminary issue hearing in regard to two specific issues. A determination regarding the MIG is not one of the preliminary issues. Therefore, I will not be addressing the applicability of the MIG as part of this decision.

30I agree with the submissions of the insurer, that this relief cannot be claimed outside of the preliminary issues in dispute. I have already made a decision in regard to the treatment plans at issue and the applicant’s non-attendance at the scheduled IE’s.

31The 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.

32The applicant has requested costs in this proceeding. However, she has not alleged the insurer’s conduct to be unreasonable, frivolous, vexatious, or in bad faith. Aside from a bare assertion for costs in the relief sought, the applicant has not set out the reasons for the request or the particulars of the insurer’s conduct. The applicant 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

33For the reasons outlined above, I find that:

i. Based on the totality of the evidence before me, I find that the applicant has failed to comply with section 44 of the Schedule. Therefore, the applicant is barred from proceeding with her application in respect of the treatment plans dated April 22, 2015, July 7, 2015, March 20, 2015, August 4, 2016 and the specified prescription expenses. Pursuant to section 55 of the Schedule, her current application with regard to these issues is dismissed.

ii. Given the dismissal on the substantive issues, there is no reason to address the previous FSCO decision or the arguments raised by the insurer with regard to res judicata, issue estoppel or abuse of process.

Released: October 18, 2017

_________________

Ian Maedel

Adjudicator

Footnotes

1. 1Written Submissions of Aviva Canada at Tab 22. Correspondence from Bonn Law Office dated June 2, 2015, June 30, 2015, September 14, 2015 and November 26, 2015.
2. 2Kadian Augustin v. Unifund Assurance Company, 2013 CarswellOnt 15809 (F.S.C.O. Arb.) FSCO A12-000452 at para. 49. See also L.(S.) v. Certas Home and Auto Insurance Co., 2016 CarswellOnt 14491 (L.A.T) LAT 16- 000213 at para. 13.
3. 3Written Submissions of the Applicant at paras. 9, 13-14.
4. 4Written Submissions of Aviva Canada at Tab 22. Correspondence from Bonn Law Office dated September 14, 2015 and November 26, 2015.