K. S. Y. v. Aviva Insurance Canada, 2018 CanLII 139516

Tribunal File Number: 16-003903/AABS

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:

K. S. Y.

Applicant

and

Aviva Insurance Canada

Respondent

AMENDED DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

Counsel for the applicant: Joshua Goldberg

Counsel for the respondent: Angela Broccolini

Held in writing on: April 26, 2017

Overview and Background:

1The applicant was injured in an automobile accident on October 7, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). She applied for a number of treatment plans for medical and rehabilitation benefits that were denied by the respondent. As a result, she submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2In her application to the Tribunal, the applicant seeks payment for three treatment plans and interest; she also seeks to be placed outside of the Minor Injury Guideline. Specifically, the issues in dispute are:

i. Is the Applicant entitled to a medical benefit in the amount of $3,440 for physical rehabilitation from New Age Recovery Rehabilitation Services, dated October 27, 2014 and denied on November 21, 2014?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,395 for physical rehabilitation from New Age Recovery Rehabilitation Services, dated December 8, 2014 and denied on December 12, 2014?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,000 for a psychological assessment from New Age Recovery Rehabilitation Services, dated April 21, 2015 and denied on April 30, 2015?

3The respondent raised a preliminary issue, claiming that the applicant is precluded from adjudicating these issues because she did not attend the requested insurer’s examinations.

4The applicant submits that the respondent’s notices of examination were deficient and did not comply with the requirements of s. 44 of the Schedule; she was, therefore, not required to attend the insurer’s examinations.

5The respondent submits that the notices of examination met all of the requirements under s. 44. As the applicant is non-compliant with s. 44 when she did not attend the insurer’s examinations, under s. 55(2) she is precluded from adjudicating her claim.

Preliminary Issue

6Is the Applicant prevented from proceeding with her application to the Tribunal, pursuant to s. 55 of the Schedule, as she failed to attend the requested s. 44 insurer’s examinations?

Decision:

7The applicant is not precluded from proceeding with issues i and ii of her application to the Tribunal.

8The applicant is precluded from proceeding with issue iii, as she is not compliant with s. 44 of the Schedule.

Facts:

9The applicant submitted a treatment plan dated October 27, 2014 completed by Dr. Sean Kerr, requesting approval for physical rehabilitation in the amount of $3,440.00.

10The respondent notified the applicant by letter dated November 14, 2017 that it could not consider the above treatment plan without supporting medical evidence. It also advised the applicant that she was pre-approved for treatment within the Minor Injury Guideline (MIG) in the amount of $2,200.00.

11The applicant submitted another treatment plan dated December 8, 2014, completed by Dr. Sean Kerr, requesting approval for physical rehabilitation in the amount of $2,395.00. This was similar to the treatment plan of October 27.

12The respondent sent notices on December 16, 19 and 22, 2014, notifying the applicant that it had received two treatment plans, and that she was required to attend an insurer’s examination with a General Practitioner to confirm her diagnosis and address entitlements beyond the MIG limits. The examination was scheduled for January 19, 2015 at 2:00 p.m., for 1.5 hrs.

13According to the respondent, on or about December 29, 2014, it was notified by the applicant’s legal representative that the applicant would not attend the insurer’s examination scheduled for January 19, but no reason was provided.

14On January 20, 2015, the respondent sent a notice to the applicant, notifying her that an insurer’s examination by way of paper review was scheduled for January 27, 2015. The applicant’s attendance was not required.

15The paper review was conducted by Dr. Greg Gelman. It was Dr. Gelman’s opinion that the applicant sustained a predominantly minor injury and that there was no evidence of a pre-existing condition in her medical history that would require treatment outside of the MIG limit. In his view, the two proposed treatment plans submitted for physical rehabilitation were not reasonable or necessary.

16Subsequently, the applicant submitted a treatment plan for approval of a psychological assessment, completed by Cheryl Miller, psychologist, dated April 22, 2015, in the amount of $2,000.00.

17By letter dated May 7, 2015, the respondent notified the applicant that it received the treatment plan and that it required her to attend a s. 44 mental health assessment by Dr. Zakzanis, psychologist, scheduled for May 26, 2015. There was another letter dated May 11, 2015, notifying the applicant of the same information. The applicant did not attend this examination, nor did she or her legal representative notify the respondent that she would not attend.

18The respondent rescheduled the s. 44 mental health assessment for June 18, 2015. It notified the applicant of the same by letter dated June 1, 2015. The applicant did not attend this examination, nor did she or her legal representative notify the respondent that she would not attend. A number of months later she submitted an application to the Licence Appeal Tribunal.

19To date the respondent has not had the opportunity to assess the applicant’s claims with an in-person examination.

Analysis and reasons:

20The parties made written submissions which included the treatment plans that are in dispute, the notices of examination and case law.

21The applicant argues that the respondent did not provide proper notice under s. 44 on three grounds; the notices were not written in straight forward and clear language; they were generic; and, they were absent of more than one reason.

22The respondent submits that its notices met the requirements of s. 44. In particular, the wording complies with the case law concerning notice requirements as set out in the Financial Services Commission of Ontario decisions in Kadian Augustin v. Unifund Insurance Company, FSCO A12-000452 (“Augustin v. Unifund”), a leading case, and Suzanne Clancy v. Aviva Canada, FSCO A15-00110 (“Clancy v. Aviva”). These cases provide that the insurer must advise the claimant that it: reviewed the minor injury guideline; reviewed the treating health practitioner’s medical opinion; and the health practitioner has not provided compelling evidence that the person’s injuries are not predominantly minor.

The legal framework:

23The respondent can require an insurer’s examination under s. 44(1) of the Schedule. This section provides that for the purposes of assisting an insurer to determine if an insured is entitled to a benefit, an insurer may require an insurer’s examination “by one or more persons chosen by the insurer” but not more often than is “reasonably necessary”.

24If the respondent wishes to send an insured for an insurer’s examination, there are certain notice requirements that must be met. These are set out in s. 44(5) of the Schedule as follows:

a. the medical and any other reasons for the examination;

b. whether the attendance of the insured person is required at the examination;

c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

d. if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

25Section 55(2) of the Schedule states that an insured person shall not apply to the Licence Appeal Tribunal if the insurer has provided notice of an insurer’s examination under s. 44, but the insured person has not complied with the request for an examination.

26The applicant is not precluded from adjudicating these two treatment plans. There is no dispute that she did not attend the in-person s. 44 examination that was initially scheduled. However, the respondent did send out a subsequent notice and did conduct an examination by way paper review at a later date.

27In notifying the applicant of the insurer’s examination by way of paper review, the respondent specifically advised the applicant that her attendance was not required. As the applicant’s attendance was not required, and the s. 44 examination was conducted, I do not need to determine whether the respondent’s notices of the in-person examinations, which preceded the paper review, were sufficient. The applicant is not precluded from adjudicating these issues based on non-attendance at the requested insurer’s examinations as the examinations took place.

Notices of examination for treatment plan iii: psychological assessment

28There are two notices relating to a psychological assessment. These are dated May 7 and June 1, 2017. There was a letter dated May 11, 2015 wherein the respondent repeated the details of the appointment that appeared in its first notice of May 7.

29In the notices of May 7 and June 1, in addition to providing details of the health professional conducting the examination and the scheduled appointment, the respondent provided the following:

i. “We have received the following OCF-18 Treatment and Assessment plan on your behalf…

ii. …Upon review of the treatment and assessment plan, we are unable to determine whether the recommendations are reasonably required for the injuries you received in this motor vehicle accident.

iii. The following insurer’s examination(s) have been scheduled to review the recommendations for mental health assessment.”

30Under the headings of medical reason and reasons for examination, the respondent provided the following:

i. “Medical reason: The type(s) of treatment does not appear consistent with the patient’s diagnosis.

ii. Reasons for the examination: OCF-18 for assessment.”

31In reviewing the notices, I find that they are sufficient and that the requirements under s. 44(5) were met: the respondent indicated that it had reviewed the treatment plan, and, as it was not consistent with the applicant’s diagnosis, an insurer’s examination was required; the respondent’s notice provided both a medical reason and the need for an assessment of the treatment plan. This is consistent with the FSCO decisions in Augustin v. Unifund and Clancy v. Aviva. And while FSCO decisions are not binding on this Tribunal, the analysis the arbitrators provided are persuasive.

32Further, consistent with s. 44(5), the notices provided the details of the assessor as well as the scheduled appointment.

33I do not accept the applicant’s submissions. I find that the cases she relied upon are distinguishable. This is not to say that the broad principles are not relevant, in particular that consumer protection legislation should be given a broad and liberal interpretation. However, the facts of the case before the Tribunal are distinguishable from those in the decisions the applicant raised.

34First, the applicant relies on the principles set out in Smith v Co-operators General insurance Company 2002 S.C.R. 2 (“Smith”), to submit that the notices were not worded in a straight forward and clear language, directed towards an unsophisticated person, or in a consumer friendly manner. I note that in Smith the Court dealt with a specified benefit (income replacement benefits) and whether the notice was sufficient to trigger a limitation period, a scenario distinguishable from the case before the Tribunal.

35Second, the applicant relies on cases dealing with notice requirements for the purposes of conducting an Examination Under Oath under s. 33(4)3, to submit that the respondent provided generic, boilerplate notices of examination, that lack sufficient reasons and do not meet the notice requirements under s. 44(5). Again, distinguishable from the case before the Tribunal.

36Third, citing Larry Ward v State Farm Mutual Automobile Insurance Company, FSCO A14-010161 (“Ward v State Farm”), the applicant submits that the notices were absent of more than one medical reason. However, in Ward v State Farm the arbitrator dealt with an insurer examination under s. 37 related to determination of continuing entitlement to specified benefits, again, distinguishable from the case before the Tribunal.

37Given my finding that the above notices of examination are sufficient, by virtue of s. 55(2) the applicant is precluded from proceeding with her application to the Tribunal as it relates to the issue of the psychological assessment.

38The Tribunal will proceed to schedule a case conference to take place within 45 days from the date of release of this decision. The case conference is to address the following issues:

i. Is the Applicant entitled to a medical benefit in the amount of $3,440 for physical rehabilitation from New Age Recovery Rehabilitation Services, dated October 27, 2014 and denied on November 21, 2014?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,395 for physical rehabilitation from New Age Recovery Rehabilitation Services, dated December 8, 2014 and denied on December 12, 2014?