17-004109 v Intact Insurance Company, 2018 CanLII 112114

DECISION ON A PRELIMINARY ISSUE

Date: 2018-08-14 Tribunal File Number: 17-004109/AABS Case Name: 17-004109 v Intact Insurance Company

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

and

Intact Insurance Company

Respondent

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Michael Bennett, Counsel For the Respondent: Janet Young, Counsel

In Writing and Electronic Hearing: July 5, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on January 21, 2015. He applied for accident benefits to Intact Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied his claim. The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefit Services (“the Tribunal”).

2A hearing with respect to the dispute of various medical benefits and whether the applicant is catastrophically impaired is currently scheduled for August 20 to 24, 2018.

3This preliminary issue hearing was held in writing and by teleconference on July 5, 2018, in order to hear the testimony of Dr. Roy Raghunan, the applicant’s treating psychologist.

PRELIMINARY ISSUE

4I have been asked to decide the following preliminary issue:

(i) Is the applicant precluded from proceeding with his application with respect to the catastrophic (“CAT”) determination due to his non-compliance with attending a neuropsychological and psychological catastrophic insurer examination (IE) pursuant to section 55(1) of the Schedule?

RESULT

5The applicant is precluded from proceeding with his appeal on the CAT determination until the respondent has the opportunity to complete the neuropsychological and psychological IE.

THE PARTIES’ POSITIONS

6The applicant argues that since filing an application for accident benefits the respondent’s requests for him to attend IEs has been excessive, as he has attended thirteen IEs since January 2015. Further, he has already attended two lengthy psychological and neuropsychological IEs in November 2015 and February and March 2016, which were traumatic events for him. The applicant contends that if he is compelled to attend another IE, his health and psychological well-being will be placed in great jeopardy.

7The respondent submits that the IEs are reasonably necessary, as shortly after the applicant filed an application with the Tribunal, he submitted an application for a catastrophic determination (“OCF-19”) to the respondent. Further, the applicant has undergone his own psychological and neurological assessment which prejudices the respondent, as it has not had the ability to assess whether the applicant meets the test for a CAT determination to properly adjust its file and cannot meet the case against it.

8Furthermore, given that the OCF-19 seeks a CAT impairment determination under Criteria 8: mental and behavioural disorder, the psychological and neuropsychological catastrophic IEs are relevant. While the respondent agrees that it conducted two previous psychological and neuropsychological IEs, these were to assess treatment plans (OCF-18s) for medical benefits and a non-earner benefit, not a CAT determination. In addition, the first IE was incomplete as the applicant had to be rushed to the hospital before the assessment could be completed.

BACKGROUND

9The applicant came to Canada as a Chinese refugee in 2005 and has been unable to learn English as a second language. He has a grade 3 education and his native tongue is a dialect of Mandarin.

10On January 21, 2015, he was a pedestrian who was hit by a vehicle. A CT scan of his head revealed that he sustained a skull fracture which extended into the orbit of his eye.

11On June 13, 2017, the applicant filed an application with the Tribunal disputing the respondent’s denial of various benefits.

12On July 15, 2017, the applicant submitted an OCF-19 to the respondent seeking a CAT determination under Criteria 8: mental and behavioural disorder.

13On September 14, 2017, a case conference was held where the Tribunal added the CAT determination as an issue in dispute. The hearing was scheduled for February 12, 2018, but was adjourned as a result of late disclosure of documents.

14On September 29, 2017, the applicant attended his own neuropsychological assessment with Dr. Deborah Tang who conducted the assessment in Mandarin. Her neuropsychological report is dated November 14, 2017.

15Following the applicant’s submission of the OCF-19 the respondent requested that the applicant attend a neuropsychological/psychological IE with Dr. Zakzanis, neuropsychologist who had already assessed the applicant with respect to entitlement to some medical benefits and a non-earner benefit one year and three months prior to the submission of the OCF-19. The parties exchanged numerous correspondence over the preceding months. Applicant’s counsel took the position that the applicant would not attend another IE with Dr. Zakzanis, as the doctor had already concluded in the previous IE that the applicant was intentionally feigning his accident related symptoms.

16On January 22, 2018, the respondent wrote to the applicant to confirm that they had scheduled a psychological and neurological IE with two different assessors – not Dr. Zakzanis.

17On March 12, 2018, the applicant submitted to the respondent the report of Dr. Roy Raghunan, in which the doctor opined that it would not be safe for the applicant to attend any future IEs of a psychological or neuropsychological nature, as the applicant communicated that he would rather kill himself than attend another IE. Following this, the respondent raised the preliminary issue at a resumption case conference.

ANALYSIS

18The applicant is precluded from proceeding with his application on the CAT determination until the respondent completes a neuropsychological and psychological IE.

19Under Section 44(1) of the Schedule, an insurer has the right to send an insured to an IE by a health professional of its choice in order to assess whether an insured is entitled to certain benefits. However, that right is limited to those IEs that are “reasonably necessary.”

20Section 55(1) of the Schedule provides that an insured person shall not apply to the LAT under subsection 280(2) of the Act¹ 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.”²

21The respondent submitted the Tribunal’s decision of Adjudicator Paluch³ which sets out the criteria to consider when assessing whether an IE is reasonably necessary. Those factors are:

(i) The timing of the insurer’s request;

(ii) The possible prejudice to both sides;

(iii) The number and nature of the previous IEs;

(iv) Whether there are any new issues being raised in the applicant’s claim that require evaluation; and

(v) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

22I have considered all of the above criteria in my analysis. In addition, I have also considered the potential harm to the applicant of having to attend another IE. The hearing is currently scheduled to commence on August 20, 2018. I do not fault the respondent with respect to the timing of its request as the applicant did not submit an OCF-19 until after he filed the LAT application. In addition, it did not receive the report of Dr. Raghunan noting the applicant’s inability to attend the IEs until March 2018. In response to receiving this report, the respondent raised the preliminary issue at the case conference resumption held on May 11, 2018.

23In considering prejudice to both sides, the applicant will be prejudiced in that the hearing with respect to the CAT determination will be delayed as it is scheduled to take place in a week. First, there will be delays as the respondent will require time to complete its IE. In addition, the applicant may want to have rebuttal reports completed in response which may take additional time. One issue not addressed by either party is whether the dispute regarding the medical benefits can proceed to the hearing in the absence of a CAT determination. For example, if the applicant has reached the policy limit for medical and rehabilitation limits he will require a CAT determination in order for a hearing to proceed on the disputed medical benefits. If he has not reached the non-CAT limit he can still proceed to the hearing for a determination for entitlement to those benefits. This information would have been helpful in analyzing potential prejudice to the applicant.

24I find that it would be unfair to the respondent if it is not given the opportunity to assess whether the applicant has sustained a catastrophic impairment under Criteria 8, the central issue of the hearing. I find it reasonable that the respondent would need to have IEs completed to test the medical opinion of the applicant’s assessors. I agree that the respondent would be placed at a significant disadvantage as it has not been able to fairly adjust its file and it will not be able submit evidence on an issue where the stakes are high. If the applicant is successful at the hearing, the benefits available to him will increase from a maximum of fifty thousand to one million dollars in medical and rehabilitation benefits and open up entitlement to various other benefits. I agree that allowing the hearing to proceed on the issue of the CAT determination without allowing the respondent to complete IEs would not be in line with procedural fairness.

25With respect to the number and nature of past IEs, from January 2015 to present, the applicant has attended thirteen IEs to address attendant care, non-earner and medical rehabilitation benefits. Two of the thirteen IEs were to assess whether the applicant is catastrophically impaired and were conducted by an occupational therapist and an orthopaedic surgeon. I agree with the applicant that the respondent’s requests for past IEs have been excessive. For example, I do not understand why IEs with an occupational therapist and orthopaedic surgeon were necessary to assess the CAT determination when the applicant’s OCF-19 was made under Criteria 8 and not a physical disability.

26Dr. Raghunan testified regarding the nature in which the past psychological IEs were conducted and its impact on the applicant. In his view, if the applicant is forced to go to another IE of a neuropsychological/psychological nature it may result in him harming himself. Dr. Raghunan testified that the applicant reported to him that he prefers death over attending another IE. Further, while the applicant has improved, he is still too unwell to attend. Dr. Raghunan’s account of the assessments came from the applicant’s self-reports through a translator.

27Dr. Raghunan testified that Dr. Illaqua’s IE conducted in November 2015 involved a panel of four people. Dr. Illaqua sat on one side of the table with three other individuals (unidentified) and the applicant and his interpreter sat on the other side. The four people rapidly fired off questions in English leaving the translator struggling to communicate and the applicant frustrated and upset. In my view, this was an insensitive way to communicate with an unsophisticated applicant, who does not speak English who they are assessing for a potential psychological impairment. The applicant was unable to complete the assessment on that date due to fatigue. The applicant returned on February 6, 2016 and was unable to complete the assessment because he communicated to Dr. Illaqua that he wanted to kill himself and had a plan to do it. Dr. Illaqua considered this threat severe and the applicant was taken to the hospital and was discharged the same day to outpatient care with his treating psychologist.

28The applicant was also troubled by the psychological IE conducted by Dr. Zakzanis, as the doctor repeatedly told him not to be dishonest during the assessment. In his report dated March 16, 2016, Dr. Zakzanis states: “I, in fact, emphasized multiple times that if he was not going to be honest in his responses, we should end the assessment.” No context was provided in the report for why Dr. Zakzanis was communicating with the applicant in this manner. Dr. Raghunan explained that as a result the applicant answered the doctor’s questions in such a way to get out of the office as quickly as possible. In my view, this type of interaction would be upsetting. Dr. Zakzanis concluded that none of the applicant’s psychometric testing scores were valid and that the applicant did not suffer a psychological impairment as a result of the accident.

29Despite the fact that I find the IE requests were excessive and conducted in an insensitive and inappropriate manner, the IEs at the focus of this dispute are to address different issues. The respondent’s request for the neurological and psychological IE is in response to the new issue of whether or not the applicant sustained a CAT impairment under Criteria 8, which had not previously been assessed by the respondent. Therefore, I find that there is a reasonable nexus between the examination requested and the applicant’s injuries as he is claiming that he sustained a brain injury as a result of the accident.

30I find the respondent is entitled to complete a neuropsychological and psychological IE before the applicant can proceed with the hearing on the CAT determination. Section 55(3) of the Schedule provides me with the discretion to impose terms and conditions. To balance the right to procedural fairness of the respondent along with the potential harm to the applicant I am providing the following terms and conditions:

(i) The parties are to cooperate in the scheduling and arrangement of the IEs. This may include consideration of reasonable conditions to be approved by the applicant’s treating psychologist with respect to how the IE is to take place. For example, flexible timing, an agreement with respect to one assessor rather than a panel of assessors and whether a support person should attend with the applicant;

(ii) If the parties are unable to agree on the reasonable conditions of the IEs then at the least, the respondent is permitted to conduct the neuropsychological and psychological IEs by way of paper review in accordance with the Schedule.

31For the above-noted reasons, the applicant is precluded from proceeding with his appeal on the CAT determination to allow the respondent to have a neuropsychological and psychological IE completed as per the conditions outlined above.

CONCLUSION

32The applicant is precluded from proceeding with the hearing on the CAT determination until the respondent completes the neuropsychological and psychological IE on the CAT determination in accordance with the terms and conditions set out above.

33The Tribunal will schedule a resumption case conference to discuss whether the hearing scheduled for August will proceed with respect to the denied treatment plans.

Released: August 14, 2018

___________________________

Rebecca Hines, Adjudicator

Footnotes

1. 1Insurance Act, R.S.O.1990,c.1.8
2. 2Statutory Accident Benefit Schedule, O Reg. 34/10 - Effective September 1, 2010, s. 55 (2)
3. 317-005291/AABS Applicant v. Travelers Canada, 2018 CanLII 13172 (ON LAT)