Z. M. v. Aviva Insurance Company, 2018 CanLII 13184

Date: 2018-02-09

Tribunal File Number: 17-002894/AABS

Case Name: 17-002894 v Aviva 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:

Z. M.

Applicant

And

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Kimberley Tye, Counsel

HEARD: In writing on September 27, 2017

OVERVIEW

1The applicant was injured in an automobile accident on June 12, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).The respondent characterized the applicant’s injuries as falling within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits and costs of assessments because the applicant had reached the MIG funding limit of $3,500.00. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES:

2The disputed issues in this hearing are:

1. Is the applicant barred from commencing a proceeding because the applicant failed to comply with section 44 of the Schedule by not attending an orthopaedic insurer’s examination and an occupational therapy insurer’s examination?

2. Do the applicant’s injuries fall within the MIG?

3. Is the applicant entitled to receive a medical benefit in the amount of $300.00 for chiropractic treatments, recommended by PhysioMed Erin Mills in a treatment and assessment plan dated November 23, 2015?

4. Is the applicant entitled to payments for the cost of examinations in the amount of $1,522.54 for an attendant care needs assessment, recommended by Ashok Jain in a treatment plan dated September 17, 2015?

5. Is the applicant entitled to payment for the cost of examinations in the amount of $1,242.02 for an assessment of living space recommended by Pearson Medical Assessment Centre Inc. in a treatment plan dated December 22, 2015?

6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant did not comply with section 44 of the Schedule because the applicant did not attend the properly scheduled insurer’s examinations. As a result, the applicant is barred from commencing this application.

4Neither party, during the proceeding, acted in a manner which would warrant costs.

OVERVIEW:

5The applicant was involved in a collision in a parking lot on June 12, 2015. The applicant complained of back pain following the collision and was treated under the MIG. A few months later, the applicant sought approval for chiropractic treatment and two costs of assessments and now seeks payment for all three benefits claimed.

PRELIMINARY ISSUE

6The applicant made claims for medical benefits and the costs of examinations which would require funding outside of the MIG limit. The respondent wished to assess these claims and requested the applicant attend two insurer’s examinations pursuant to section 44: an orthopaedic examination and an occupational therapy examination. The respondent submits that the applicant did not attend the scheduled section 44 examinations and has raised a preliminary issue under section 55 of the Schedule. The respondent submits that, pursuant to section 55(1)2, the applicant cannot proceed with this application until the two section 44 insurer’s examinations are completed.

7The applicant submits that the notices of the two section 44 insurer’s examinations are improper. The applicant submits that the respondent must pay the benefits claimed because it did not respond to the treatment plan in accordance with the Schedule.

DID THE APPLICANT RECEIVE NOTICE UNDER SECTION 44?

8The respondent submits that notice of a section 44 insurer’s examination was provided on three occasions: December 4, 2015 for an occupational therapy examination; January 14, 2016, for an orthopaedic examination; and another notice of an occupational therapy examination on January 14, 2016.

9The applicant does not dispute receipt of the notices. The applicant submits that the notice provided is not proper because it did not include the information required in the Schedule.

WHAT MAKES A NOTICE PROPER?

10Section 44 of the Schedule provides an insurer with the ability to examine an insured person to determine entitlement to a benefit. The ability to medically examine an insured person is not absolute and requires the insurer to satisfy certain requirements before conducting the examination. The notice requirements for an examination are addressed in section 44(5), which states that the insurer must:

1. Set out the medical and any other reasons for the examination;

2. Whether the insured’s attendance is required at the examination;

3. The name of the person/people who will conduct the examination, their title/designation/specialty, and the regulated health profession to which they belong; and

4. The date, time, and location of the examination.

11Section 44(6) provides that an insurer shall give notice no less than five business days before the examination. Section 44(9)2(i-iii) provides that:

1. An insurer shall make reasonable efforts to schedule the examination for a day, time, and location that is convenient to the insured;

2. The insured and insurer shall provide relevant information and documents to the examiner no later than five business days before the examination; and

3. The insured shall attend the examination and submit to all reasonable examinations requested by the examiner.

12The insurer has additional obligations if it believes the MIG applies. Section 38(8) provides that an insurer must respond to a treatment and assessment plan within ten business days and Section 38(9) provides that the response under subsection (8) must include notice that the insurer believes the MIG applies.

WERE THE NOTICES PROPER?

13The respondent submits that notices were proper because the notices met the requirements listed above. The respondent’s position is that in the denials and notices provided to the applicant, the respondent noted that the applicant’s injuries were determined to be minor and that the $3,500.00 funding limit was reached.

14The applicant submits the notices were not proper because they failed to comply with Section 38 of the Schedule. The applicant submits that the notices did not include the medical or other reasons why the respondent denied payment of the proposed benefit. In the alternative, the applicant submits, the reasons for denial were too vague to satisfy the requirements under section 38(8). The applicant contends that the vague notices left the applicant with insufficient information to permit the applicant to decide whether or not to challenge the denials.¹

15Having reviewed the submissions, evidence, and case law, I find that the notices were proper as they addressed each of the eight section 44 factors and the two section 38 factors listed above.

16Each notice has two parts: the initial denial and the notice of examination. The initial denial dated December 4, 2015 advises that the applicant is within the MIG, that the MIG funding limit of $3,500.00 was exhausted, and that an examination is required to determine if the treatment plan in the amount of $1,522.54 is reasonable and necessary. The Notice of Insurer’s examination dated December 10, 2015 states that the applicant’s attendance is required for an occupational therapy examination with Ronald Findlay, occupational therapist, on December 23, 2015 at 10:00 a.m. at the home of the applicant, to determine if the treatment plan in the amount of $1,522.54 is reasonable and necessary.

17The applicant did not attend the December 23, 2015 examination. The respondent sent the applicant another Notice of Insurer’s examination dated January 14, 2016. The new notice stated that the applicant’s attendance is required for an occupational therapy examination with Sabrina Anand, occupational therapist, on January 26, 2016 at 9:00 a.m. at the home of the applicant. The applicant did not attend the January 26, 2016 Insurer’s examination.

18On January 7, 2016, the respondent denied the disputed Treatment and Assessment Plans dated November 23, 2015 and December 21, 2015. The letter advises that the applicant is within the MIG, that the MIG funding limit of $3,500.00 has been exhausted, and that an examination is required to determine if the treatment and assessment plans are reasonable and necessary. The Notice of Insurer’s examination dated January 14, 2016 states that the applicant’s attendance is required for an orthopaedic examination with Dr. L. Weisleder, orthopaedic surgeon, on February 1, 2016 at 8:00 a.m. The applicant did not attend the February 1, 2016 Insurer’s examination.

WAS THE EXAMINATION SCHEDULED FOR A CONVENIENT TIME AND PLACE?

19The applicant submits that, in addition to the improper notices, the respondent failed to schedule the examinations for times which are convenient to the applicant, pursuant to section 44(9)2(i). On March 14, 2017, the applicant wrote a letter to the respondent to request the insurer’s examinations be rescheduled. In the letter, the applicant requested the respondent propose three different examination dates for the applicant to choose from.

20The respondent submits that, pursuant to S.S. and Aviva Insurance Company,² arranging for three separate examinations for the applicant to choose from creates an unnecessary burden on the respondent and the examiners who would be obliged to keep the dates available until the applicant responded.

21I agree with Adjudicator Truong in S.S. and Aviva Insurance Company that there is no legislative obligation for the respondent to provide three different dates for the examination. I agree that this creates an unnecessary burden on the assessors to keep three separate dates open for the applicant. Considering my finding, I am not satisfied that the March 14, 2017 letter from the applicant constitutes compliance with section 44 and find that the applicant remains non-compliant and is barred from proceeding with this application pursuant to section 55(2).

COSTS

22The respondent submits that the applicant has acted unreasonably, frivolously, and vexatiously by pursuing this application. The basis for this position is that counsel for the applicant was also counsel for S.S. in S.S. and Aviva Insurance Company, and that counsel ought to have known that, based on nearly identical facts, the applicant would be barred from proceeding with the application pursuant to section 55(2).

23The applicant claims entitlement to costs associated with the application because, by denying funding for the assessments, the respondent denied the applicant the ability to access compelling evidence. The applicant submits that by denying the assessments and the applicant’s ability to access compelling evidence, the respondent has failed to investigate and adjust the applicant’s claim in a fair, judicious, and timely manner.

24Costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. For the following two reasons, I find that neither party is entitled to costs associated with this hearing.

25First, I reject the respondent’s argument that the applicant ought to have known that the applicant would be unsuccessful. Adjudicators at the Tribunal are not bound by peer decisions and it is not unreasonable, frivolous, vexatious, or an act of bad faith to appeal a denial with a similar fact scenario of an unsuccessful application.

26More importantly, I find that neither party has established that the alleged unreasonable, frivolous, vexatious, or bad faith behaviour of the opposing party has occurred during the proceeding. Any award of costs must be as a result of the behaviour during the proceeding and not before the proceeding. In this matter, the parties’ requests for costs are based on behaviour prior to filing the application, not after it.

WHAT ABOUT THE OTHER ISSUES IN DISPUTE?

27Having found that the applicant is barred from pursuing this application it is not necessary for me to render a decision on the disputed medical benefits and costs of examinations.

CONCLUSION

28The applicant has not complied with section 55(2) of the Schedule and is barred from bringing this application.

Released: February 9, 2018

___________________________

Brian Norris, Adjudicator

Footnotes

1. 1Klimitz and Allstate Insurance Company, 2015 ONCA 698.
2. 216-002772 v. Aviva Insurance Company, 2017 CarswellOnt 8392 (ON LAT).