Safety, Licensing Appeals and
Standards Tribunals Ontario
Licence Appeal Tribunal
Automobile Accident Benefits
Service
Mailing Address: 77 Wellesley St. W.,
Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W.,
Suite 530, Toronto ON M5G 2C2
Tel.: 416-314-4260
1-800-255-2214
TTY: 416-916-0548
1-844-403-5906
Fax: 416-325-1060
1-844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest,
Boîte no 250, Toronto ON M7A 1N3
Adresse municipale : 20, rue Dundas Ouest,
Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260
1 800 255-2214
ATS : 416 916-0548
1 844 403-5906
Téléc. : 416 325-1060
1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 17-001088/AABS
Case Name: N.H. v. Aviva Insurance Company
Written Submissions By:
For the Applicant: Shahen Alexanian
For the Respondent: Candace Mak
Overview
- This request for reconsideration follows a preliminary issue hearing in this matter. The Licence Appeal Tribunal (the “Tribunal”) held that the applicant, N.H., failed to attend two insurer examinations and thus, exercising its discretion, required her to attend the IE before advancing her application. N.H. argues that the Tribunal erred in several respects. For the reasons below, I disagree.
Background
On February 23, 2015, N.H. was walking in a parking lot when a car ran over her right foot. Paramedics took her to North York General Hospital, where she was treated and discharged later that day.
After the accident, she applied to Aviva Insurance Company (“Aviva”) for certain benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. In response, Aviva requested that N.H. attend two insurer examinations (“IEs”), following which it determined that her injuries were predominately minor and, accordingly, should be treated within the Minor Injury Guideline (“MIG”).
N.H. also saw her family physician, Dr. Oda. N.H. explained to Dr. Oda that, as a result of the accident, she was depressed. Dr. Oda referred her to a psychiatrist, Dr. Azadian.
Eight months later, in February 2016, Dr. Azadian authored an Initial Psychiatric Intake report to Dr. Oda. In his report, Dr. Azadian noted that, since the accident, N.H. was “struggling with a combination of physical and emotional problems” and that she required “both physical and psychological interventions.” The record makes clear that N.H. also saw Dr. Azadian several times throughout 2016.
The plan at issue
Dr. Azadian eventually completed a Treatment and Assessment Plan (OCF-18) dated February 1, 2017. In the plan, Dr. Azadian indicated that N.H. was suffering from adjustment disorders, mixed anxiety and depressive disorders, and post-traumatic stress disorder. He recommended that N.H. receive a psychiatric assessment at a cost of $2,000. He offered no further comment or attachments to explain his opinion.
Aviva denied the plan. By letter dated February 13, 2017, Aviva explained that it was unable to determine whether the assessment was reasonable and necessary, and explained that Dr. Azadian had not provided compelling evidence that N.H.’s injuries were not predominantly minor. It also requested that N.H. attend an IE with a psychologist of its own choice on March 9, 2017.
N.H. took issue with Aviva’s position. Specifically, she claimed that Aviva failed to provide adequate reasons for denying the plan. She also questioned why Aviva denied the plan only to then schedule an IE for what she claimed was the very same assessment.
Aviva rescheduled the IE to April 5, 2017 with a psychiatrist, using the same explanation in its earlier correspondence. Again, N.H. objected, asserting that Aviva failed to provide adequate reasons for denying the plan. She therefore asked Aviva to cancel the IE.
Aviva did not cancel the IE. N.H. did not attend.
The Tribunal’s decision
Instead, well before the IE was even scheduled to take place, N.H. applied to the Tribunal to dispute her entitlement to the $2,000 cost of the assessment. The Tribunal eventually ordered a preliminary hearing to deal with the following two issues: whether Aviva complied with s. 44 of the Schedule in requesting the IE, and whether N.H. was barred under s. 55(1)2 of the Schedule from applying to the Tribunal.
The Tribunal held that Aviva indeed complied with s. 44 of the Schedule in requesting the IE. However, rather than bar N.H.’s application, the Tribunal adjourned the application for 60 days in order to allow the IE to take place.
N.H. requested this reconsideration, the substance of which is dealt with below. The parties have also confirmed that N.H. has not attended the IE.
Discussion and Reasons
- N.H. argues that the Tribunal erred in three respects.
The IE’s form
- Her first argument centres on the fact that she objects to an in-person IE. In her view, the IE should proceed as a paper review. The Tribunal deal with that objection, at para. 28, as follows:
The applicant argued that the respondent ought to have conducted a paper review based on the medical information to determine whether such an assessment is reasonable. The applicant did not point to any statutory authority or case law to support their [sic] argument in this regard. I do note that s. 44 of the Schedule does contemplate a paper review. However, the language used in the section is permissive, i.e., it allows the insurer to conduct a paper review, but it does not specify when a paper review – versus an in person examination - should be conducted
- N.H. argues that the Tribunal did not go far enough. As she puts it, the Tribunal abdicated its responsibility to formulate a test for determining when insurers can request an in-person assessment, and then apply that test to the facts. In her view, the applicable test as to whether an insurer may require an in-person IE is subject to the same “legal requirement of reasonableness” included in s. 44(1) of the Schedule:
Examination required by insurer
(1) 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. [emphasis added]
I see no error.
Assuming that an insurer’s choice as to the form of an IE is subject to the same “legal requirement of reasonableness” included in s. 44(1), I see nothing unreasonable about Aviva’s request for in-person IE. Other than the information contained in the plan at issue, Aviva had no information about N.H.’s psychological condition. Moreover, the plan itself offered no additional comments or attachments to justify the requested funding. Aviva was well within its rights under the Schedule to request an IE and, in the circumstances, its choice of an in-person IE as opposed to a paper review was entirely appropriate, if not optimal, to determine whether it was reasonable and necessary for N.H. to receive a psychological assessment.
I would add two further comments.
First, N.H. argued at various turns that it was irrational for Aviva to deny the plan only to then request the very same assessment. The two assessments, however, are different. On one hand, the plan recommends an extensive assessment that Dr. Azadian estimated would take one week to complete. On the other hand, the April 5, 2017 IE that N.H. missed was a one-hour appointment. I see nothing unreasonable about Aviva requesting a one-hour examination in order to determine whether N.H. should receive a much more extensive assessment.
Second, N.H. also argued before the Tribunal that, after receiving the OCF-18, Aviva was legally required to investigate the claim by asking N.H. for further medical information or documentation to justify the requested funding, and then conduct a paper review in order to determine whether it is reasonable and necessary for N.H. to receive a psychological assessment. I disagree. Even with the benefit of any relevant medical records informing the plan’s request, Aviva would not have been bound to opt for a paper-based assessment. The same question would have remained: whether it would have been reasonable for Aviva to request an in-person assessment. Aviva might have had any number of reasons for refusing to accept the observations or conclusion in those medical records. At any rate, I see nothing unreasonable about Aviva having the medical information included in the Tribunal’s record and nonetheless requesting a one-hour in-person examination in order to determine whether N.H. should receive a much more extensive assessment.
The alleged misapplication of a key case
Next, N.H. argues that the Tribunal misapplied its earlier decision in W.P. v. Aviva Insurance, 2017 CanLII 19192. In her view, the Tribunal’s earlier decision was distinguishable and, when taken out of context here, involved a misapplication of law.
I find no merit to this argument. The Tribunal noted that N.H. was “basically taking the position that the psychiatric examination” should be conducted “by a health professional of [her own] choosing.” The Tribunal then referred to W.P. v. Aviva Insurance for authority for the proposition that, pursuant to s. 44(1), insurers are allowed to require an insured person to be examined by one or more persons who are, in the Schedule’s words, “chosen by the insurer.” W.P. v. Aviva Insurance may be factually distinguishable. However, the Tribunal’s fundamental point remains: an insured cannot dictate the identity of those performing an IE.
The alleged errors or fact
Lastly, N.H. argues that the Tribunal erred by overlooking the fact she has already undergone two IEs, one with a practitioner, namely Dr. Naiman, who ultimately determined that her injuries were within the MIG. N.H. argues that the Tribunal erred in failing to determine whether Dr. Naiman was qualified to make a DSM diagnosis and whether, given Dr. Naiman’s IE, the requested assessment was reasonable and necessary. As I understand N.H.’s ultimate point, which she did not argue before the Tribunal, it is that there is something important – precisely what is left unsaid – to be drawn from the fact that Dr. Naiman did not identify any psychological issue and opined that N.H. should be treated within the MIG.
The point is irrelevant. The parties are agreed that N.H. has never received any psychological assessment, and the Tribunal acknowledged at para. 27 that N.H.’s previous IEs did not focus on mental health issues. Thus, I see nothing to be drawn from the previous IEs in addition to the Tribunal’s observations.
Conclusion
- This request for reconsideration is denied. However, given that N.H. should not be prejudiced as a result of availing herself of the Tribunal’s reconsideration process, I adjourn her application for 60 days from the date of this order in order to allow the IE to take place.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: February 26, 2018