R.D. v. Aviva Insurance Canada, 2017 CanLII 81579

Licence Appeal Tribunal

Date: 2017-11-14

Tribunal File Numbers: 17-000851/AABS & 17-000911/AABS

Case Name: 17-000851 & 17-000911 v Aviva Insurance Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

R.D.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Robert Seredynski, Counsel

For the Respondent: Lauren Furukawa, Counsel

HEARD: In writing September 13, 2017

OVERVIEW:

1R.D. (the “applicant”) was involved in two motor vehicle accidents on October 21, 2014 and October 29, 2014, wherein he was injured. He applied for accident benefits to Aviva Insurance Canada (the “respondent”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

ISSUE IN DISPUTE:

2I have been asked to decide the following issue:

(i) Is the applicant precluded from proceeding with his application for two treatment plans due to the applicant’s non-attendance at an occupational therapy insurer examination (“IE”) pursuant to section 55(1) of the Schedule?

3Particulars regarding the two treatment plans which are the subject of this preliminary issue hearing are as follows:

(a) $1,496.75 for a treatment plan dated February 9, 2015 for an attendant care assessment recommended by Carol Bierbrier & Associates, denied by the respondent on February 23, 2015;

(b) $1,014.35 for a treatment plan dated March 9, 2015 for assistive devices recommended by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015.¹

THE PARTIES’ POSITIONS:

4The respondent argues that the applicant has a history of non-compliance with attending IEs which has prevented the respondent from properly assessing the applicant’s claim. Further, the applicant’s conduct has interfered with the respondent’s right to procedural fairness as he has incurred his own occupational therapy assessment and has a report to rely on depriving the respondent of the right to meet the case against it.²

5The applicant contends that he has cooperated with the respondent’s requests for his attendance at IEs. Further, the applicant argues the assessment being requested is redundant, serves an improper purpose and its timing is suspect. Therefore, he argues the occupational therapy IE is not reasonable and necessary.

RESULT:

6For the reasons that follow, the applicant cannot proceed with his appeal on the subject treatment plans until he attends an occupational therapy IE.

BACKGROUND:

7On February 12, 2015, the applicant submitted a treatment plan for an attendant care assessment to the respondent, recommended by Carol Bierbrier & Associates.

8On February 18, 2015, the applicant attended and incurred the cost of the assessment. Ms. Bierbrier recommended that the applicant receive occupational therapy and assistive devices.

9On February 23, 2015, the respondent sent the applicant a Notice of Examination (“NOE”) requesting that the applicant attend an IE with Dr. Frank Loritz, general practitioner. This was the first IE the respondent requested (four months post-accident) and the purpose was to assess whether the applicant’s injuries fell within the Minor Injury Guideline (“MIG”) in order to determine future entitlement to medical benefits and attendant care.

10On March 11, 2015, the applicant wrote to the respondent refusing to attend the occupational therapy IE because he disagreed with the respondent’s choice of assessor. The applicant requested that the assessment be with an occupational therapist and not a general practitioner. In his view, the purpose of the IE should have been to determine whether the attendant care assessment was reasonable – not analyze whether his impairments fell within the MIG.

11On March 9, 2015, the applicant submitted a treatment plan for assistive devices recommended by Ms. Bierbrier. The respondent sent a NOE requesting that the applicant attend an IE with a General Practitioner. On March 18 and 30, 2015, the applicant wrote to the respondent refusing to attend the IE for the same reasons outlined in his refusal letter dated March 11, 2015.

12The applicant did not attend an IE to address the subject treatment plans until July 24, 2017 following an agreement made at a case conference. Dr. Alborz Oshidari, physiatrist, found that the applicant did not require occupational therapy arising from his accident-related impairments. The applicant contends that a further examination is not reasonably required.

THE LAW:

13Section 44(1) of the Schedule provides the insurer with the following rights in order to assess whether an applicant is entitled to benefits:

“For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.”³

14Section 55(2) of the Schedule provides that an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act⁴ if any of the following circumstances exist:

“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.”⁵

ANALYSIS:

15The applicant is precluded from proceeding with his application on the treatment plans for the attendant care assessment and assistive devices until he attends an occupational therapy IE for the following reasons:

16First, I do not agree with the applicant that the IEs requested by the respondent were excessive. The applicant’s reason for refusing to attend the initial IE was because he felt that the IE should be conducted by an occupational therapist not a general practitioner. However, the Schedule and case law do not afford an applicant the option to pick the designation of their assessor. In addition, the respondent had the right to have the applicant assessed to determine whether the injuries he sustained were within the MIG. The applicant did not provide the respondent with clinical notes and records in support of his claim until after he refused to attend the assessment. The applicant’s refusal to attend IEs resulted in the delay in the respondent’s ability to properly adjust his file.

17The applicant argued that the insurer had already assessed the applicant’s entitlement to occupational therapy and that the assessment would be redundant. The purpose of the initial assessment was to assess the applicability of the MIG. In order to be entitled to attendant care benefits, the applicant’s injuries have to be outside of the MIG. Therefore, I find the respondent’s request for the applicant to be assessed for this purpose was a reasonable request.

18Following a case conference held on July 28, 2017, both parties agreed that the applicant would attend a multi-disciplinary assessment with a physiatrist and occupational therapist to allow the respondent an opportunity to assess the subject treatment plans. Dr. Oshidari, physiatrist, concluded that an occupational therapy assessment in relation to the motor vehicle accident was not reasonable and necessary. After attending the physiatry IE the applicant changed his mind about attending the occupational therapy IE. However, the respondent contends that a physiatrist is not the appropriate medical professional to assess occupational therapy. I agree with the respondent. It is well accepted in the industry that an occupational therapist is the appropriate examiner to assess attendant care benefits.

19Had the applicant complied with the earlier request to assess whether his injuries were minor, the logical next step would be to assess whether the attendant care assessment and assistive devices were reasonable and necessary. The applicant did not give the respondent the opportunity to do so.

20Second, the applicant incurred the attendant care assessment with Ms. Bierbrier before the respondent had a chance to deny it. I agree with the respondent that the fact the applicant incurred the assessment and refused to attend its IE prejudices the respondent because it was not able to test the medical opinion of the applicant’s assessor.

21The applicant states he has been cooperative in past requests for attending IEs since the date of the accident. However, out of the five IEs the applicant attended, one was in January 2017 and three were conducted on July 27, 2017, in response to an Order made by the Tribunal following a case conference. In my view this does not demonstrate that the applicant was cooperative in the past in attending IEs.

22The evidence submitted by the respondent demonstrated that the applicant had a history of non-compliance with attending past IEs. The applicant refused almost every request arguing that the requests were a duplication of the assessment that he was requesting or that he disagreed with the type of assessor. The records submitted show that the applicant did not start to cooperate until he filed an application with the Tribunal which resulted in the delay of the respondent’s ability to properly adjust the applicant’s entitlement to benefits. I do not fault the respondent with the timing of their request due to the applicant’s lack of cooperation.

23For the above-noted reasons, the applicant cannot proceed with his appeal on the subject treatment plans until he attends an occupational therapy IE.

Respondent’s Request for Costs

24The respondent requested costs on the basis that it prepared motion materials and attended two case conferences resulting in it incurring additional expenses. Further, the applicant’s failure to comply with the order of Adjudicator Kowal following the May 2017 case conference was unreasonable behavior which should attract costs under Rule 19.1 of the Licence Appeal Tribunal’s Rules of Practice. In addition, the fact that the applicant consented to an order to attend the occupational therapy IE and breached the terms of that order is unreasonable conduct.

25I was not persuaded by the respondent’s submissions with respect to its request for costs. While the applicant was not cooperative in attending the IEs, the respondent did not elaborate or provide any case law to support that the applicant’s conduct meets the high threshold for unreasonable conduct. Nor did the respondent expand on the specific impact that the applicant’s conduct had on them. Therefore, the respondent’s request for costs is dismissed.

Applicant’s Request for Costs

26The applicant requested costs on the basis that the respondent has acted in bad faith by requesting him to attend an occupational therapy IE to assess the subject treatment plans. I did not find the applicant’s submissions adequate in demonstrating that the respondent has acted in bad faith. The applicant failed to demonstrate that the respondent acted in bad faith in requesting that he attend an IE. Therefore, the applicant’s request for costs is dismissed.

Conclusion:

1For the above reasons, the applicant may not proceed with his application on the disputed treatment plans until he attends an occupational therapy IE.

2The respondent’s request for costs is dismissed.

3The applicant’s request for costs is dismissed.

Footnotes

1. 1The details regarding the treatment plans in dispute were incorrectly listed in the Order of Adjudicator Kowal dated August 15, 2017 as being for an occupational therapy assessment and a treatment plan for occupational therapy services.
2. 2The applicant raised a procedural issue regarding the respondent’s submissions being 11 days late in connection with his request for costs. The respondent had previously served the applicant with its submissions, affidavit and book of authorities prior to a case conference held in May 2017. The respondent had intended to use its initial submissions on this preliminary hearing but did not refile them in accordance with the deadlines in Adjudicator Kowal’s Order. The applicant indicated that he was prejudiced by the late submissions but did not indicate the remedy he is seeking to cure the alleged prejudice. Since the applicant had previously been served with the materials and did not request a specific remedy in conjunction with receiving the late materials I allow the filing of the respondent’s late submissions.
3. 3Statutory Accident Benefit Schedule, O Reg. 34/10 – Effective September 1, 2010, s. 44(1)
4. 4Insurance Act, R.S.O.1990,c.1.8
5. 5Statutory Accident Benefit Schedule, O Reg. 34/10 - Effective September 1, 2010, s. 55 (2)