18-000467 v. Aviva Insurance, 2018 CanLII 112135

Licence Appeal Tribunal

Date: 2018-09-06

Tribunal File Number: 18-000467/AABS

Case Name: 18-000467 v Aviva 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.

Applicant

Applicant

and

Aviva Insurance

Respondent

DECISION

ADJUDICATOR: Dawn J. Kershaw

APPEARANCES:

For the Applicant: Sylvia Guirguis, Counsel/Representative

For the Respondent: Laura Meschino, Counsel

HEARD: In Writing on August 7, 2018

OVERVIEW

1On January 15, 2015, the applicant was in a vehicle that was rear-ended and pushed into the vehicle in front of her. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").

2On September 17, 2017 the applicant sought payment for a mental health assessment, recommended by Dr. Waxer in a treatment plan. Dr. Waxer appended the results of a pre-assessment discussion with the applicant in which the applicant reported ongoing vehicular anxiety and pain that triggered irritability. He believed her complaints would fall within the DSM-V categories of Persisent Somatic Symptom Disorder with Predominant Pain and Specific Phobia: Situational Type. The respondent denied payment and stated that, because the proposed type of treatment did not appear consistent with the patient's diagnosis, it required a section 44 insurer's examination ("IE") with Dr. Syed.

3In response, the applicant's lawyers asked for further details of how the proposed assessment was inconsistent with Dr. Waxer's comments in the treatment plan. The respondent replied that it was "simply asking [the applicant] to comply with and attend an in person examination in accordance with s. 44 of the Statutory Accident Benefits Schedule [...]" The applicant's lawyers, in turn, replied that the applicant only had to attend IE's that were reasonable and necessary.

4Despite this, the applicant attended Dr. Syed's offices for the scheduled IE. However, because the applicant wished to record the session, Dr. Syed did not proceed with it.

5As a result, the respondent refused to pay for the psychological assessment, alleging the applicant failed to attend the IE. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

6A preliminary hearing was scheduled to decide the preliminary issue of whether the applicant can proceed with her application.

PRELIMINARY ISSUE IN DISPUTE

7The preliminary issue to be determined is:

i. whether pursuant to section 55 of the Schedule the applicant is precluded from commencing her appeal of the respondent's refusal to pay for the psychological assessment because she did not attend the IE as required by section 44 of the Schedule?

PARTIES' POSITIONS

8The respondent takes the position that the applicant did not attend the IE because she did not submit to the examination when the IE assessor told her she could not record the session, and this was not a reasonable explanation for her non-attendance. In addition, recording was not warranted and should not be permitted in this case.

9The applicant takes the position that:

i. the respondent's notice of IE was deficient because it did not provide the medical reasons for the IE, pursuant to section 38(8) of the Schedule;

ii. the respondent cannot rely on section 55(1)2 of the Schedule because it did not provide the applicant with notice of the IE "in accordance with" the Schedule; and

iii. in the alternative, the applicant made herself reasonably available for the IE.

RESULT

10Based on the evidence and submissions before me, I find that the applicant is not precluded from commencing her appeal of the respondent's refusal to pay for the psychological assessment.

THE LAW

11Section 38(8) states that, upon receiving a treatment plan, the insurer shall give the insured a notice that, among other things, identifies the service the insurer does not agree to pay for as well as the "medical reasons and all of the other reasons" why the insurer considers the proposed service not to be necessary or reasonable. The notice may also tell the insured that it requires an examination under section 44.

12Section 44 of the Schedule permits an insurer to have an insured examined by a regulated health professional for the purposes of helping it determine if the insured is or continues to be entitled to a benefit. It cannot do so more often than is reasonably necessary. Section 44(5) of the Schedule sets out what the insurer is required to include in the notice to the insured that it requires an insurer's examination, which includes the medical and other reasons for the examination.

13Section 55 states that if an insurer gives an insured a notice, in accordance with the Schedule, that requires an insurer's examination and the insured does not comply with that notice, then the insured shall not apply to the Tribunal, although section 55(2) permits the Tribunal to allow an insured to apply despite the non-compliance.

REASONS FOR DECISION

Deficient Notice

14I first address the applicant's position that the notice of IE was deficient.

15After receiving the Explanation of Benefits ("EoB") and in advance of the IE, the applicant's lawyers asked for reasons why the applicant had to attend the IE. In response, the insurer said it was "simply asking [the applicant] to comply with and attend an in person examination in accordance with s. 44 of the Statutory Accident Benefits Schedule [...]".

16On October 27, 2017, two days after the IE did not proceed because of the recording issue, the applicant's lawyers wrote to the respondent and, in addition to advising the respondent what had occurred, also advised that the applicant attended the IE under protest because the respondent did not provide a medical or any other reason why the IE was reasonable and necessary.

17The issue before me, as set out in the Tribunal order scheduling this preliminary hearing, identifies the issue as being whether pursuant to section 55 of the Schedule, the applicant is precluded from applying to the Tribunal with respect to the respondent's refusal to pay for the psychological assessment because she did not attend the IE as required by section 44 of the Schedule in light of the IE not going ahead because of the recording issue.

18The applicant argues that even though the sufficiency of the notice issue is not specifically included in the order, she is nonetheless entitled to raise the issue in this preliminary hearing.

19The respondent conversely argues that it is difficult to understand why the applicant showed up for the IE if the notice was deficient. It submits that by doing so, she made a clear and informed choice to pursue her claim and waived her right to raise the deficiency of the notice issue.

20I must determine two things:

i. Is the applicant permitted to raise the deficient notice issue in this preliminary hearing?

ii. If so, was the notice deficient?

Can the applicant raise the deficient notice issue?

21Both parties provided submissions with respect to 16-002325 v Aviva Insurance Canada¹ and the subsequent reconsideration decision² ("M.B."). In that case, the applicant and respondent were never able to find a mutually agreeable time for the applicant to attend the IE. When she did not attend, the respondent asked that the Tribunal find that the applicant was barred from applying to the Tribunal. The applicant then raised the issue of the sufficiency of the notice the respondent gave her, alleging it lacked a valid medical reason for the IE. The Tribunal agreed that a valid medical reason was lacking, but found that the applicant had not raised the sufficiency of the notice in the case conference and was barred from doing so at the preliminary hearing.

22In her reconsideration decision, the Executive Chair ("EC") found that the Tribunal erred because not only was the issue raised in the case conference, but even if it was not, it was never too late to raise that issue. This is because the sufficiency of the notice is always in issue by reason of section 55(1)2, which requires an insurer to give the insured "notice in accordance with" the Schedule. That section requires that the medical and other reasons are included in an explanation of benefits.

23The applicant relied on M.B. and submitted that one must determine whether the IE was properly scheduled in accordance with section 44 of the Schedule because section 55(1)2 requires that the notice is given in accordance with the Schedule. To satisfy the requirement of being given in accordance with the Schedule, the notice must contain medical and other reasons to support the decision the insurer made. In addition, in accordance with M.B., the insurer's denial must be accompanied by meaningful and accurate reasons based on the insured's medical condition. Because the insured in M.B. did not provide those reasons, the insurer could not rely on section 55(1)2 to prohibit the insured from applying to the Tribunal.

24The respondent argued that the EC emphasized in M.B. that the purpose behind the notice requirements is fairness. In particular, the reasons must give the insured the chance to make an informed decision about whether he or she wishes to pursue his or her claims. It argues that because the applicant attended the IE, she obviously made an informed decision to attend and pursue her claim, and cannot now argue that the notice was deficient.

25The EC in M.B. stated that an insurer's medical and other reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. I disagree that because the applicant attended the IE, she is precluded from relying on the insufficiency of the notice. The mere fact that she attended the IE is not sufficient for me to conclude that she was able to make an informed decision based on the information she had, or that she accepted the insurer's only reasons for the IE, which were first, that the proposed assessment was inconsistent with Dr. Waxer's comments in the treatment plan and second that she was simply being asked to comply.

26I find that the applicant was entitled to raise the issue of the sufficiency of the notice in this preliminary hearing. I must now determine if in fact the respondent's notice was deficient.

Sufficiency of the Notice

27In this case, the respondent's EoB advised the applicant that the type of treatment did not appear consistent with the diagnosis, but gave no further information. When the applicant's lawyers asked for further details, the respondent told her it was simply asking her to comply with the requirement of attending the IE.

28As I have already stated, the sufficiency of the notice was discussed in M.B. It also was addressed in 16-003316/AABS v. Peel Mutual Insurance Company.³ In M.B., the EC stated that, at the very least, the insurer's reasons should include specific details about the insured's condition that form the basis for the insurer's decision.

29I find that the respondent's EoB was not sufficient. It gave no details with respect to why the proposed treatment was not consistent with the diagnosis. It provided no specific details about the insured's condition that formed the basis for its decision. Not only that, but when the respondent was given a chance to remedy the lack of particularity in response to the applicant's lawyers' inquiry, it responded by providing no further information, but instead simply telling her to comply.

30As a result, I find that the applicant is not precluded from applying to the Tribunal for failing to attend the IE.

CONCLUSION

31The respondent's motion is dismissed.

Footnotes

1. 12017 CanLII 33661 (ON LAT)
2. 2M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)
3. 32018 CanLII 39373 (ON LAT).