DECISION
Tribunal File Number: 17-005447/AABS
Case Name: 17-005447/AABS v The Co-operators
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:
R.W.
Applicant
and
The Co-operators
Respondent
Adjudicator: Christopher A. Ferguson
Appearances:
Counsel for the applicant: Joelle Briggs-Sears
Counsel for the respondent: David Raposo
Written Hearing: February 20, 2018
OVERVIEW
1RW, (“the applicant”) was injured in an automobile accident on December 9, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for benefits from the respondent, and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.
3RW claimed income replacement benefits (“IRBs”), which the insurer ultimately approved, after a series of insurer’s examinations (“IEs”). Those IRBs are currently being paid. There is no dispute between the parties about the applicant’s entitlement to IRBs or the amount payable.
4The dispute at hand involves a period during which the respondent argues that the applicant was not complying with his obligation to participate in a neuropsychological IE. The respondent is invoking its right to refuse payment of benefits during any period of non-compliance with the Schedule’s requirements.
DISPUTED BENEFITS
5The issues before me are:
Is the applicant entitled to receive an income replacement benefit (“IRB”) in the amount of $400.00 per week for the period February 17, 2017 to April 5, 2017?
Is the respondent liable to pay an award under Regulation 664, Automobile Insurance2 (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
FINDINGS
6The applicant is entitled to IRB claimed for the period February 17, 2017 to April 5, 2017.
7The respondent is not liable to pay an award to the applicant.
8The applicant is entitled to interest on overdue payments from the respondent, for the amount owing on the suspended IRB, at the prescribed rate.
REASONS
9The sole dispute is whether the respondent may withhold IRB payments for a period during which it alleges the applicant failed to comply with his obligation under the Schedule to attend an insurer’s examination (IE).
10The parties agree that:
i. The applicant was scheduled for a neuropsychological IE on January 19, 2017, with Dr. Kumchy, and showed up for the appointment.
ii. At the IE venue, the applicant raised concerns when informed that his wife would not be allowed into the examination room during the IE, and that a transcriptionist would be present during the medical examination.
iii. The applicant contacted his legal representative by telephone to get advice on how to proceed. His legal representative made attempts to reach the insurer and also spoke with the “assessment company” to try to resolve the situation.
iv. The parties and the IE providers were unable to resolve the applicant’s concerns, and eventually departed the premises. The IE did not proceed.
v. The applicant attended a rescheduled neuropsychological IE on April 6, 2017 with Dr. Kumchy. His wife did not accompany him into the examination and a transcriptionist was present to record the examination.
Duty to Participate in the IE
11Section 44(1) of the Schedule governs IEs, and among other things prescribes as follows:
i. S. 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals determine whether the insured continues to be entitled to a specific benefit, as in this case.
ii. S.44(5) sets out the notice required for IEs, which includes the medical and other reasons for the examination and the name(s) of the person(s) who will conduct the examination, with their medical credentials.
iii. S.44(9) requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
12Section 37(7) of the Schedule prescribes the consequences to the insured person if he fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with s.44(9).
13Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if an insured person provides a reasonable explanation for not complying with s.44(9).
14The onus is on the insured person to establish a reasonable explanation.3
15The evidence from both sides is clear that the applicant did not fully submit to the IE on January 19, 2017. The applicant has offered no argument that there was anything unreasonable about Dr. Kumchy’s approach or methods in the examination itself.
16My decision in this case turns on whether or not the applicant had a reasonable excuse for not complying with s.44(9) of the Schedule.
How is it determined whether or not an explanation is “reasonable?
17I follow the reasoning in Horvath v Allstate4, in which the arbitrator provided a summary of the case law and outlined the following principles which govern the interpretation of the words "reasonable explanation" in the Schedule:
i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
ii. The onus is on the insured person to establish a "reasonable explanation." Ignorance of the law alone is not a "reasonable explanation."
iii. The test of "reasonable explanation" is both a subjective and objective test that should take account of both personal characteristics and a "reasonable person" standard.
iv. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
v. An assessment of reasonableness includes a balancing of the prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
Does the Applicant have a reasonable explanation for not submitting to the IE of January 19?
18The applicant argues that he has a reasonable explanation for not complying with s.44(9) of the Schedule:
i. The respondent did not notify him of Dr. Kumchy’s policies respecting the presence of family members in examinations or that a transcriptionist would be present. He indicates that he requested the presence of a family member in IEs in an e-mailed message dated November 29, 2016 and got no follow-up from the respondent. The resulting surprise, anxiety and confusion on his part contributed to the failure of the IE to proceed. He effectively argues that this failure to notify him makes his non-compliance reasonable under the circumstances.
ii. His stress, anxiety and other issues lead him to need the presence of a family member during medical examinations.
iii. He and his legal counsel made immediate, on-the-spot efforts to reach the respondent to resolve an apparent impasse with the IE physician, demonstrating a good-faith effort to comply with s.44(9).
iv. The IE physician left the premises first, and without telling him, effectively cancelling the examination: the applicant did not simply abandon the appointment.
v. The applicant also cites his attendance at a rescheduled IE with Dr. Kumchy on April 6, 2017 as evidence that he complied with his obligations under the Schedule.
19The respondent contends that the applicant did not have a reasonable explanation for his non-compliance with s.44(9) of the Schedule.
i. It has no obligation to notify an applicant of the procedures and policies that will be followed by medical practitioners in IEs nor does it have an obligation to seek the reasons behind any IE-related demands by applicants: the onus is on the applicant to provide reasons for any request or demand.
ii. The applicant does not produce any evidence, beyond an assertion of his personal feelings, of his need to have his spouse present during the examination. The respondent asserts that this is insufficient, and that the applicant needs medical evidence to corroborate his need to be accompanied by his spouse (or an aide or attendant) during the examination, citing Rodriguez v. Wawanesa.5
iii. The applicant’s attempt to insist on his spouse’s presence in the examination room is unreasonable and not an explanation for not cooperating with the IE, given that:
a. It is valid clinical procedure, supported by medical research, to conduct neuro-psychological examinations with patients unaccompanied by persons whose presence might influence answers to clinical questions. This is attested by Dr. Kumchy in the respondent’s submissions and is unchallenged by the applicant.
b. The Schedule does not support the applicant’s attempt to effectively set conditions on how IEs are conducted by insisting of pre-conditions for his cooperation.
iv. The applicant has no reasonable explanation for his objection to having a transcriptionist present during the examination, and does not deny that presence of transcriptionists, chaperones and other non-medical personnel at medical examinations is a common, accepted practice.
v. The applicant’s argument that Dr. Kumchy’s departure prevented the examination from proceeding and should be considered as part of his reasonable excuses is disingenuous. Dr. Kumchy engaged with the applicant, explained her policies and waited for the applicant to speak with his legal representatives and to determine his course of action. She left 40 minutes after the scheduled start time of the examination, having reasonably concluded that the examination was not going to happen.
vi. The respondent cites the applicant’s attendance at a rescheduled IE with Dr. Kumchy on April 6, 2017 – without his spouse in the examination and with a transcriptionist present -- as evidence that his behavior at the January appointment had no reasonable explanation.
20Applying the factors in Horvath v. Allstate, I find that the applicant has a reasonable explanation for his refusal to participate in the IE of January 19, because:
i. I find his explanation credible and worthy of belief.
ii. The applicant’s personal circumstances include diagnosed psychological difficulties that lend credence to his account of personal anxiety as a key factor in his reluctance to proceed with the exam on January 19, and which make the time he took to consult with his legal advisors and to explain his concerns to Dr. Kumchy reasonable.
iii. I also find that the applicant’s personal circumstances in this case involve a real and reasonable belief by him that he would be allowed by the IE assessor to have his wife present during the exam, based on:
a. The fact that he was allowed this courtesy at previous IEs; and,
b. the respondent did not advise him that his plans to be accompanied by his spouse or daughter during IEs might not be allowed.
iv. I find that this belief, to which the respondent contributed, was the source of surprise and discomfort that lead to his decision to consult his legal advisors and effectively delay the start of the IE. I am persuaded that this makes his explanation reasonable.
v. I am not persuaded that the applicant in this case should be required to provide medical substantiation for his assertion that needed the presence of a support person to undergo medical examination, or that surprise made his submitting to the examination more difficult, to be considered “reasonable”. I distinguish this case from Rodriguez v. Wawanesa because in that case, the applicant flatly refused to attend the IE unless pre-conditions he set were met, and the insurer declined to accept his pre-conditions. In this case:
a. The applicant attended the IE in good faith, and then raised his concerns when surprised that his expectations were not met.
b. His legal representative contacted both the respondent and the assessment company immediately to explain his position and seek resolution.
c. It is unclear from the evidence that the applicant actually aborted the IE appointment, because he was not the first to leave the premises.
d. The applicant complied with his obligations – with the same assessor and without insisting that his preferences be met – once he had the opportunity to think things over and prepare himself for the IE.
vi. Under the circumstances of this case, and my findings above, I find that it would be inequitable to impose on the applicant of the consequences associated with non-compliance with s.44(9). The seven-week delay in completing the IE did not prejudice the respondent’s ability to adjust the claim or defend its position, and the impact of losing seven weeks of IRBs would be disproportionate.
21As the result of my finding, I conclude that the applicant is entitled to the IRB claimed for the period of alleged non-compliance with s.44(9) of the Schedule.
Award
22Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.
23There is no evidence that the respondent acted in the manner prescribed by s.10 of the regulation. It reinstated the applicant’s IRBs promptly when its IEs confirmed his entitlement on medical bases. Its decision to deny payment during the seven weeks between IE dates was based on its interpretation of the Schedule in a difficult situation.
24The applicant’s request for an award is accordingly denied.
Interest
25Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
26Having found that the applicant is entitled to IRBs for the period in dispute, there are overdue payments on which the respondent is liable to pay interest at the prescribed rate.
CONCLUSIONS
27The applicant’s claim for IRBs denied by the insurer is allowed.
28The applicant’s request for an award is dismissed.
29The respondent is liable to pay interest on overdue payments.
Date of Issue: March 7, 2018
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- R.R.O. 1990, Reg. 664
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086 – submitted by the applicant
- Ibid.
- Rodriguez v. Wawanesa Insurance Co. (FSCO A98-000400)