[Applicant] v. Travelers Canada, 2018 CanLII 13172

Date: 2018-03-14

Tribunal File Number: 17-005291/AABS

Case Name: 17-005291/AABS v Travelers Canada

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

Travelers Canada

Respondent

PRELIMINARY HEARING DECISION

Adjudicator: Cezary Paluch

Appearances: Jordan Moore, Paralegal for the Applicant

Erin Morgan, Counsel for the Respondent

Heard in writing on: March 13, 2018

OVERVIEW

1This is preliminary hearing in response to a motion brought by the respondent to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to prohibit the applicant from proceeding with her application for statutory accident benefits, because she failed to attend several Insurer’s Examination (“IEs”) pursuant to section 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2The applicant, [applicant], was injured in a motor vehicle accident on January 8, 2015. The applicant applied to the Tribunal requesting payment of non-earner benefits (“NEB”) for the period of August 12, 2015 to date and ongoing following a termination of this benefit effective August 20, 2015 based on a multi-disciplinary IEs.

3A case conference took place on October 31, 2017, and an Order was issued on November 1, 2017. An in-person hearing was scheduled for January 10 and 11, 2018, limited to the issue of non-earner benefits and interest.

4On November 30, 2017, the respondent sought an adjournment of the hearing date(s) which was approved and a new hearing was scheduled for March 15 and 16, 2018. The applicant did not consent to the adjournment.

5On December 15, 2017, the respondent brought a motion requesting that the applicant be compelled to attend s. 44 IEs and precluding the applicant from proceeding with the application pursuant to s. 55 of the Schedule because she refused to attend the examinations.

6In an Order released on January 9, 2018, Vice-Chair Hunter did not order the applicant to attend the s. 44 IEs. However, the Order set out that the preliminary issue of whether the applicant was precluded from proceeding with the application because she failed to attend the IEs would be decided in the context of a full hearing. Subsequently, on January 12, 2018, another case conference was held and an Order was issued on February 5, 2018, directing that the motion be argued at the outset of the in person hearing scheduled for March 15 and 16, 2018.

7On March 12, 2018, a further case conference took place before Vice-Chair Trojek and the parties agreed to have this motion heard by way of a preliminary issue hearing prior to the hearing on the substantive issues and change the format of the hearing from in-person to a teleconference hearing.

ISSUE TO BE DECIDED

8The following issue is to be decided:

a) Is the applicant barred from proceeding with her application to the Tribunal pursuant to s. 55 for non-compliance with s. 44 of the Schedule?

RESULT

9The respondent’s motion is dismissed. Based on the totality of the evidence before me, I find that the requested examinations are not reasonably necessary and the applicant can proceed to a hearing.

FACTS

10The applicant was involved in an automobile accident on January 8, 2015, and sought benefits pursuant to the Schedule.

11In 2015, the applicant attended three in-person IEs to assess her claim for IRBs with Dr. Bruce Cook, psychologist, Dr. Mohamed Khaled, GP, and Mr. Gord Hirano, OT, as part of a multi-disciplinary assessment. The reports dated July 24, 2015, concluded that the applicant did not suffer a complete inability to carry on a normal life.¹ Based on these opinions, the respondent determined that the applicant no longer suffered a substantial inability to carry on a normal life as a direct result of the accident and terminated the NEDs effective August 20, 2015.

12On November 13, 2017 (after the first case conference was held on October 31, 2017), the respondent wrote to the applicant indicating that they had received the Disability Certificate dated September 5, 2017 completed by Dr. R. Ghelani and updated clinical notes and records on October 31, 2017. The respondent was in the process of arranging Insurer Examinations to determine if the applicant suffered a complete inability to carry on a normal life as a direct result of the motor vehicle accident. This correspondence explained that although a prior insurer’s examination report was done with respect to this benefit and stoppage in place effective August 20, 2015, such additional Insurer’s Examinations are required to determine if this new information would change the findings of the previous report.

13As a result, the respondent proceeded to schedule the examinations with Direct IME as outlined in the chart below:

Date of Notice	Scheduled Appointment	Assessor	Type of the Assessment
December 1, 2017	December 18, 2017	Gord Hirano, OT	Occupational Therapy Assessment
December 1, 2017	December 22, 2017	Dr. M. Khaled, GP	General Practitioner Assessment
December 1, 2017	January 12, 2018	Dr. A. Marino, Psychologist	Psychology Assessment

14By email dated December 14, 2017, applicant’s counsel advised the respondent that the claimant would not attend the IEs for December 18, 22 and January 12.

15Subsequently, after the dates for the assessments had passed, on February 1, 2018, the respondent wrote to the applicant confirming that she did not attend the scheduled IEs and she was deemed non complaint with s. 44 of the Schedule and the insurer’s stoppage of NEBs remained in effect as of august 20, 2015.

RESPONDENT’S POSITION

16The respondent’s position is that the examinations are reasonable because the insurer received new medical documentation which could potentially affect the applicant’s entitlement to NEBs.

APPLICANT’S POSITION

17The applicant submits that the insurer examinations are not reasonable or necessary given that the applicant has already attended the assessments with respect to the non-earner benefit and she should not be subjected to a battery of continuous assessments which she finds intrusive and caused her harm because she was forced to relive the incident of the motor vehicle accident.

ANALYSIS – FAILURE TO ATTEND AT AN INSURER’S EXAMINATION

Reasonableness and necessity of s. 44 Assessment

18Under s.44 of the Schedule, an insurer may require insurer’s examinations by the health professionals of its choice, but this right is limited to those examinations that are “reasonably necessary”. This is in order to ensure that insurers are able to assess information provided by a claimant and to adequately respond.

19The Tribunal has applied the following guiding criteria in assessing the reasonableness of a proposed insurer examination:

i. the timing of the insurer’s request;

ii. the possible prejudice to both sides;

iii. the number and nature of the previous insurer’s examinations;

iv. the nature of the examination(s) being requested;

v. whether there are any new issues being raised in the applicant’s claim that require evaluation; and

vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries.²

20I have considered all of the factors. In particular, I have focussed my analysis on the timing of the request, number and nature of the previous and proposed examinations and whether there are any new issues being raised by the applicant’s claim requiring an evaluation. It is clear to me that there is a reasonable nexus between the examinations requested and the applicant’s injuries.

21It is well accepted that the insurer has an ongoing obligation to assess the condition of an insured person and assess the information it received concerning the person’s condition. Here, the respondent states that they received the new medical information at the case conference on October 31, 2017 and proceeded to schedule the IEs as soon as possible. They wrote to the applicant a few days later on November 13, 2017, indicating that they wished to schedule additional examinations.

22In my review of the new information provided to the respondent around the time of the first case conference on October 31, 2017, including the Disability Certificate of September 15, 2017 (which revealed a diagnosis of fibromyalgia),³ that prompted the insurer to request the IEs, I accept the position of the applicant that insurer already had notice of all alleged injuries and impairments prior to this date and this does not appear to be new information. I note that the log note of June 25, 2015,⁴ imputed at 10:54 am indicates the OCF-18 of Dr. Jhanvi Patel makes reference to the applicant having fibromyalgia consistent with what was noted in the Disability Certificate. Even more significant is the report of the respondent’s own assessor, Dr. Z. Bain, DC, dated June 23, 2017, that confirms that the applicant reported to him that her family doctor diagnosed her with fibromyalgia. In fact, on page 15 of his report, Dr. Bain concludes that he is in “agreement that there indications of fibromyalgia.” Therefore, the respondent had knowledge of the diagnosis of fibromyalgia at the latest by June 23, 2017 (several months prior to the case conference).

23I also find that the request to re-assess the applicant’s entitlement to NEBs at this late stage of the proceedings is especially concerning because it is duplicative. This is not a case where the applicant has refused to participate in any examinations. Here, the applicant had already agreed to participate in IE’s on three prior occasions. Dr. Khaled saw the applicant for 60 minutes in Burlington on June 30, 2015 when she attended the examination on her own. Mr. Hirano saw the applicant on July 2, 2015, at her home in Stoney Creek for the purpose of an In-home Occupational Therapy assessment which lasted 90 minutes. Also, Dr. Cook saw the applicant on July 14, 2015, in his office in Hamilton. Dr. Cook in his report noted that the applicant was driven to the appointment by a taxi.

24Three in-person examinations; one being at home, and two where the applicant had to travel to two different cities (Hamilton and Burlington), it appears by taxi, are significantly intrusive and insensitive to the applicant’s needs given her current mental state. I note that more recently the parties changed the format of the hearing in recognition of the medical needs of the applicant.

25There is indication that the applicant’s family doctor referred her to a psychiatrist for low mood and panic attacks. There appears to be no consideration of the impact on the applicant or perhaps whether a paper assessment would be more appropriate and sufficient (this is especially so given two of the assessors had already seen the applicant).

26Indeed, Dr. Cook, in his report dated July 24, 2015, noted that the applicant was tearful at times during the interview and demonstrated anxiety symptoms. At page 9 of his report, he described her as “desperately depressed individual who seems to be hypersensitive to shifts or alterations in her environment” and noted that “she may be experiencing some trauma symptoms at the present time.”

27In addition, denying the respondent further examinations does not prejudice the respondent. As noted, the applicant already participated in three in-person examinations to address the very issue in dispute in this application.⁵ There is no evidence before me from any of the assessors that further assessments would provide more information. These requested additional examinations (after a hearing date has already been set) should not be on the basis of ensuring that the respondent has a stronger case or an attempt to have further evidence for the hearing rather than for the adjusting process. The test is whether examinations are required when “reasonably necessary.” Given the wealth of information already gathered at the prior in-person assessments, I do not agree that further examinations are reasonably necessary in this case.

28This case can be distinguished from a number of the cases raised by the respondent in support of its position that the examination is reasonably necessary. In this case, there is no unfairness to the respondent, because they already had an opportunity to conduct a multi-disciplinary assessment on the very issue in dispute. This is not a case where the insurer did not have the benefit of any assessments or was limited to a paper review. This is not a case where the applicant has brought new issues in dispute for hearing. Moreover, from the insurer letters of November 13 and December 1, 2017, it appears that the applicant would have to again travel to Burlington and Hamilton to attend the proposed assessments. I find that given her current mental state, this would cause her more than the usual anxiety and distress and the insurer should be more cautious and vigilant when ordering multiple assessments in relation to a person such as the applicant. This is not the least intrusive approach and is not reasonably necessary on the facts of this case.

29Given the criteria established, I find that the insurer examinations requested are not reasonably necessary. I find that there were an excessive number of examinations requested, nor any new issues raised that require evaluation.

30The parties made submissions on compliance with the notice requirements of s. 44(5) of the Schedule, but because I have found that the insurer examinations requested are not reasonably necessary, I do not need to determine this issue.

CONCLUSION

31For the reasons set out above, I find that the proposed examinations are not reasonably necessary, and the application shall proceed to a hearing on March 15 and 16, 2018.

Footnotes

1. 1The Occupational Therapy opinion of Mr. Hirano concluded that the applicant did not sustain an impairment that continuously prevented her from engaging in substantially all of the activities which she was ordinarily engaged in before the accident.
2. 2See R.L v. State Farm Insurance 2017 CanLII 46354 (ON LAT) and 16-000693 v. Aviva Insurance, 2017 CarswellOnt 5085.
3. 3Further clinical notes and records were provided on November 23, 2017.
4. 4Tab 8 of Applicant’s Document Brief.
5. 5The applicant also attended a Chiropractic Assessment on June 15, 2017 conducted by Dr. Z. Bain to determine the reasonableness and necessity of a proposed treatment plan.