Tribunal File Number: 18-000725/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:
[The Applicant]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Counsel for the Applicant: Paul Wilkins
Counsel for the Respondent: Kevin Griffiths
HEARD: Written Hearing: July 26, 2018
OVERVIEW
1The applicant was injured in in a motor vehicle accident on December 17, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010.
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal-Automobile Benefits service (“the Tribunal”).
3The parties participated in a case conference but were unable to resolve the issues in dispute.
4A preliminary issue was ordered to be heard in writing on July 26, 2018.
5Depending on the decision on the preliminary issue, there are four other issues to be decided with two of the issues being attendant care benefits in the amount of $6000.00 per month from December 13, 2013 and ongoing, a rehabilitation benefit in the amount of $637,008.77 for home modification, and a housekeeping and home maintenance benefit in the amount of $100.00 per week from December 17, 2013, and ongoing.
6The respondent wants further independent examinations (IEs) on these issues.
PRELIMINARY ISSUE
7The preliminary issue ordered to be decided is:
(a) Is the applicant prevented from proceeding with an application to the Tribunal because he failed to attend a s. 44 examination? What is the Tribunal’s jurisdiction to adjudicate the issues in dispute that relate to (the applicant’s failure to attend) the s. 44 examination?
RESULT
8The applicant’s right to proceed with all issues, except the entitlement for housekeeping expense, is suspended until he attends the requested IEs.
9I find that the Tribunal has the jurisdiction to adjudicate the issue of housekeeping expenses at this time and all other issues, once the IEs requested by the respondent, have been completed by the applicant.
BACKGROUND AND ANALYSIS
10The applicant attended a section 44IE on September 5, 2016, to be assessed by Laura Yourn, occupational therapist (OT). The assessment could not be completed due to the applicant’s aggressive and disruptive behaviour.
11The applicant had attended a section 44 IE on October 3, 2016 and was assessed by Dr. Henry Rosenblat, psychiatrist, who found the applicant catastrophically impaired. The assessment by an occupational therapist OT and by a physiatrist were never completed as part of the CAT assessment.
12The applicant completed an attendant care assessment with Julian Amchislavsky, OT on June 26, 2017. The applicant attended seven assessments at his counsel’s request prior to March 27, 2018.
13On March 27, 2018, the applicant’s family physician indicated in a medical letter that it would be detrimental to the applicant’s mental and physical well-being, to attend non-therapeutic examinations. No detailed explanation was provided as to the mental and physical disabilities of the applicant.
14The respondent served on the applicant a request for IE on January 22, 2018 with Ronald Findlay, OT, on February 16, 2018, to address the recommendations for attendant care made by Mr. Amchislavsky. The applicant had a hernia so the assessment was adjourned.
15On February 21 2018, the respondent gave notice of IEs in order to address the recommendations for attendant care by Mr. Amchislavsky. The respondent served on the applicant on February 21, 2018, notice of IEs for March 21 2018 with Rodney Pritchett OT, March 23, 2018, IE with Dr. Farooq Ismail (physiatrist) and March 26, 2018, with a psychiatrist.
16The applicant served on the respondent an IE notice on February 21, 2018, that Dr. Farooq Ismail would also deal with the issues of home modifications, in the amount of $637,008.07, submitted in a treatment plan on January 10, 2018.
17The applicant’s position is that he is unable to attend further IEs because of his mental health and physical health, if the IEs are non-therapeutic examinations requested by the respondent.
18The applicant’s position is that the respondent can cross examine the applicant’s experts and perform paper based assessments of the applicant’s medical reports.
19The respondent’s position is that IE assessments are necessary to determine functional ability, physical impairment, and psychiatric impairment being the issues before the Tribunal. The applicant submits that these IEs are necessary to ensure a fair hearing. The respondent also takes the position that a paper review of the applicant’s experts’ reports relating to the issue of attendant care and home modifications, and having to rely on nearly two year old opinions from previous IE assessors, is not fair and unrealistic.
20The issues that remain to be resolved are the functional limitations of the applicant’s (Mr. Amchislavsky’s assessment) physical and psychological impairments (November 20 2017 home accessibility Report of John Groe), psychiatric diagnoses (Dr. Anthony Feinstein).
21The Schedule prevents the applicant from applying for benefits, if the applicant has not complied with the requirement to attend IEs1.
22The courts have made it clear that the administrative process has to be fair to all parties. Where a party wants further examinations to response to the other party’s medical report, that right should be given to the other party to meet the requirement of procedural fairness.2
23The LAT Rules also require a fair open and accessible process.3
24There is not enough medical evidence before me to assist me with understanding why the applicant cannot attend further IEs. The applicant attended seven previous examinations with his own medical doctors. There is also no evidence before me, setting out proposed options to accommodate the applicant and enable him to attend IEs.
25The Human Rights Code requires accommodation for any person with a disability, including providing services. The Tribunal asked the parties for proposals on accommodation for the applicant because of his medical conditions. Neither party was helpful in their submissions. The Tribunal cannot make any order for accommodation, due to the lack of specifics relating to what the applicant’s medical problems are. Both parties should work together to provide any required accommodation needed by the applicant to attend IEs.
26I find that the court decisions and LAT Rules require fairness in the process to both parties. The process is not fair, if the respondent cannot challenge the applicant’s medical documentation, with its own medical documentation. Section 44 of the Schedule permits the insurer to choose its own assessors, and not have to rely on the opinions and findings of an insured person’s treatment providers.
ORDER
27The applicant’s appeal for attendant care benefits, rehabilitation benefits, and interest on overdue payments of benefits, is suspended until the applicant attends the respondent’s requested IEs.
28The Tribunal has the jurisdiction to adjudicate the issue of housekeeping expense at this time, and all other issues, once the IE’s requested by the respondent have been completed by the applicant.
Released: December 19, 2018
Robert Watt
Adjudicator