S.R. v. Aviva Insurance Canada, 2018 CanLII 141022

Licence Appeal Tribunal

Tribunal File Number: 17-008249/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

S.R.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

For the Applicant: Adam Somogyi, Counsel

For the Respondent: Michal Baura, Counsel

Held by In-Person Hearing: May 28, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on September 15, 2015. He applied for accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010¹ (the “Schedule”). Specifically, the applicant is requesting an income replacement benefit in the amount of $400.00 per week for the period of December 3, 2015 to October 11, 2016.

2The respondent contends that the applicant failed to attend three medical and vocational examinations in accordance with s. 44 of the Schedule. Therefore, according to the respondent, until he attends an orthopaedic assessment, a functional abilities evaluation, and a job site evaluation, the applicant should be barred from applying to this Tribunal (in accordance with s. 55 of the Schedule).

3In response, the applicant raises a number of procedural concerns about the examination notices the respondent provided him on November 17 and 24, 2015.

4The applicant is also requesting an award under Regulation 664² and costs, due to the respondent’s decision to withhold the full payment of income replacement benefits for the period of September 22 to December 3, 2015. This shortfall was rectified with an additional payment from the respondent on May 25, 2018.

5After considering the parties’ submissions, I find that applicant was provided with sufficient notice for one of the three proposed examinations, i.e., the orthopaedic assessment. As such, he is barred from disputing entitlement to income replacement benefits for the period of December 3, 2015 to October 11, 2016.

6Additionally, in light of the “unreasonably… delayed payments” of the full amount owing during the period of September 22 to December 3, 2015, I find that the applicant is entitled to an award under s. 10 of Regulation 664. However, I also find that the applicant is not entitled to costs.

INSURER’S EXAMINATIONS

7Section 55(1) of the Schedule states that an insured person cannot apply to the Tribunal for resolution of a dispute over accident benefits if: “[t]he insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.” Since the applicant has not attended the examinations laid out in the notices from November 17 and 24, 2015, he is now attempting to demonstrate that these notices were not compliant with the Schedule in the following ways.

Choosing Medical Practitioners

8Section 44(1) of the Schedule details the insurer’s ability to request an examination as follows:

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]

9The adjuster testified that her employer has a standard practice of ordering an orthopaedic assessment and functional abilities evaluation when an insured person requests an income replacement benefit (with the possibility of a job site evaluation). Therefore, when a request for this benefit is received, an adjuster will make a request to a special team within the insurer who will, in turn, reach out to a third party assessment organization, HVE Healthcare Assessments (“HVE”).

10In addition to providing advice about what kind of assessments should be requested in light of the available medical information, HVE will provide the names and availabilities of potential assessors. A letter (with a list of these assessors) is then sent back to the respondent’s staff, who will sign and deliver it to the insured person.

11The applicant submits that this decision-making process is flawed, since s. 44(1) states that assessments must be conducted “by one or more persons chosen by the insurer”. Therefore, the applicant argues that the respondent’s reliance on HVE runs afoul of this provision. The respondent contends that there is no issue with its selection process.

12I am satisfied that the final decision about what assessments and assessors will be ordered rests with the respondent. Specifically, while HVE may provide a list of assessors that would be available to the respondent, the adjuster’s testimony—and the notices from November 2015—establish that a member of the respondent’s staff will, ultimately, review and approve these suggestions before sending an examination notice to an insured person. Therefore, I do not find that there has been a violation of s. 44(1).

Medical and Any Other Reasons

13Section 44(5)(a) of the Schedule states that an examination notice must provide an insured person with “the medical and any other reasons for the examination”. In M.B. v. Aviva Insurance Canada (“M.B.”), the Executive Chair stated that a notice must include the following elements to satisfy this requirement:³

(a) “specific details about the insured’s condition” or information that the insurer does not have but requires about an insured’s condition;

(b) the benefit(s) or determination(s) at issue; and,

(c) the section(s) of the Schedule being relied on.

14This framework preserves the “consumer protection goal” of the Schedule by ensuring that an insured person can make an informed decision about whether to participate in an insurer’s examination.⁴

15The notices in question included the following information under the heading “Medical Reason”: “The disability period appears to be inconsistent with the diagnosis or mechanism of injury.” The notices also include a reference to a “Disability Certificate (OCF-3) completed by Dr. J. Gonzalez, DC on Nov 6, 2015.” In this certificate, the health practitioner found that the applicant suffered from soft tissue injuries, and that he would be substantially unable to perform the essential tasks of his employment for 9 to 12 weeks.

16The applicant submits that the respondent’s notices did not include a valid medical reason. By alleging that the stated reason relies on “boilerplate” language, the applicant argues that the adjuster’s analysis did not turn on the unique facts of his case. This contention is supported by the respondent’s admitted practice of providing its staff with a list of possible medical reasons to use in these notices.

17The respondent contends that the November 2015 notices highlighted an inconsistency in the applicant’s disability certificate, i.e., between the expected length of recovery and the “diagnosis or mechanism of injury” listed in the certificate. Therefore, since the notices cited the disability certificate and then implied that soft tissue injuries do not correspond with an inability to work for several months, it is clear why the examinations were being requested.

18With the framework and principles underpinning M.B. in mind, I find that the respondent provided the applicant with a valid medical reason in the November 2015 notices. Though a clearer link could have been made between the reference to the disability certificate and the section in the notice listed as the “Medical Reason”, the notice—when read as whole—should have alerted the applicant to how the respondent was seeking information about what it believed to be an inconsistency in his medical records.

19Further, I do not fault the respondent for providing its staff with a set of possible medical reasons to rely on. While medical reasons must have some connection to the particular facts at hand, the respondent rightly noted that adjusters may not have a medical background. Therefore, lists of possible medical reasons are a means of assisting adjusters to make these determinations in a consistent and efficient manner.

Medical Designations

20Section 44(5)(c) of the Schedule then requires insurers to provide an insured person with the following information about the professionals who will complete an examination: “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”.

21The respondent’s notices from November 2015 provide the following information about the three proposed assessments and the individuals assigned to complete them: “Type of Examination: Orthopaedic Assessment… Regulated Health Professional: Dr. Gilbert Yu Ming Yee”; “Type of Examination: Functional Abilities Evaluation… Regulated Health Professional: Mr. Michael Drinkwater”; and, “Type of Examination: Job Site Evaluation… Regulated Health Professional: Ms. Lori Stephens”.

22The applicant argues that the respondent failed to provide sufficient information about its assessors, namely their designations. The respondent denies this allegation by stating that its notices provided sufficient information.

23Guided by the principle that a valid notice must provide sufficient information to allow for an informed decision about participation, I find that the respondent’s notices do not fully comply with s. 44(5)(c). Specifically, while the notices suggest that all of the assessors are regulated health professionals, they lack details about what profession, if any, Mr. Drinkwater and Ms. Stephens belong to.

24The respondent submitted during the in-person portion of the hearing that Mr. Drinkwater does not possess qualifications that are necessary for inclusion in an examination notice. I would then interpret the respondent’s written submissions to imply that Ms. Stephens also does not possess qualifications necessary for inclusion.

25Regardless, the use of the term “Regulated Health Professional” in the respondent’s notices would have reasonably led the applicant to believe that the assessors are all, in fact, regulated health professionals. Therefore, the lack of information about Mr. Drinkwater’s and Ms. Stephens’ supposed status as regulated health professionals would have left the applicant wondering what kind of health practitioners would be conducting these assessments.

26Without this information, I find that the applicant did not have sufficient information to make an informed decision about his participation in the functional abilities evaluation and the job site evaluation. However, I find that the applicant was provided with sufficient information about the orthopaedic assessment, as Dr. Yee’s designation could have been reasonably ascertained by both his title and the type of assessment he was assigned to conduct.

Section 36(4)

27Finally, the applicant alleges that the respondent breached the procedural requirements of s. 36(4) of the Schedule. After receiving an application for accident benefits and a completed disability certificate, s. 36(4) requires insurers to take one of the following actions: pay the requested benefit; provide reasons why an insured is not entitled to a benefit (with the possibility of ordering an insurer’s examination); or request additional information from the insured person. Since the respondent decided to both pay the benefit and request an insurer’s examination, the applicant argues that the respondent breached s. 36(4) by choosing more than one of these three options.

28The respondent submits that it made a good faith decision to pay the disputed benefits. That is, as opposed to withholding all payments until the applicant attended the examinations, the respondent decided to rely on the available information to pay these benefits on an interim basis.

29I do not find the applicant’s interpretation of s. 36(4) to be persuasive, as I accept the respondent’s argument that this strict reading would mean that an insurer’s good faith decision to pay a benefit while awaiting further information would be a violation of the Schedule. This narrow interpretation is at odds with the aforementioned consumer protection goal of the Schedule.

Requests for Additional Information

30As a general comment about all of the applicant’s concerns with its notices, the respondent argues that the applicant did not provide it with sufficient details about how the November 2015 notices were not in compliance with the Schedule. That is, even if there is validity to any of the applicant’s arguments, he had an obligation to work with the respondent to clearly identify these concerns prior to bringing an application to the Tribunal.

31Once again, I would cite the consumer protection mandate that these notices are meant to protect. While a more collaborative approach could have provided the applicant with the information he claimed to have been missing from the notices, it is not incumbent upon an insured person to guarantee that an insurer is following the rules set out in the Schedule. As such, I do not place any weight on this argument from the respondent.

AWARD UNDER REGULATION 664

32Section 10 of Regulation 664 permits the Tribunal to “award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”.

33I find that the respondent unreasonably delayed payment of the outstanding income replacement benefit from September 22 to December 3, 2015. Though the respondent informed me during the hearing that the missing amount was sent to the applicant on May 25, 2018, the adjuster’s log notes demonstrate that the respondent was alerted to this underpayment no later than November 24, 2017. Therefore, regardless of the reason for this delay, the applicant was still denied full payment of this benefit for six months.

34This delay is not on the extreme end of unreasonable behaviour, and I have not been provided with evidence of any prejudice that this delay may have caused the applicant. However, once the respondent became aware that it had failed to fully pay out the applicant’s benefits, it was unreasonable to then delay payment. Therefore, I find that an award equal to 25 per cent of the delayed payment is justified in these circumstances. The applicant is also entitled to interest on this award, in accordance with s. 10 of Regulation 664.

35The applicant also argued that the respondent violated his privacy in the handling of his case. I do not see how this potential violation could have affected the determination and disbursement of the disputed payments. As such, I do not find it necessary to address this argument in determining an appropriate award.

COSTS

36Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure (October 2, 2017) states that costs may be awarded when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

37The applicant states that the respondent’s decision to withhold the payment of income replacement benefits demonstrates bad faith. Additionally, the applicant claims that the respondent withheld this payment until the eve of the in-person portion of the hearing as a means of forcing settlement. The respondent contends that there is a clear difference between the purpose for an award and the purpose for costs, i.e., the former focuses on how an insurer adjusted the file, while the latter focuses on a party’s conduct during a proceeding, respectively.

38With this difference in mind, I do not find that this present case is an appropriate matter to award costs. Namely, the behaviours remedied by an award are the actions of an insurer while adjusting a claim; while costs address a party’s actions during a proceeding before the Tribunal. Even if I were to accept the applicant’s allegation that withholding the payment was part of an aggressive litigation strategy, I would still be satisfied that an award sufficiently addresses the unreasonable behaviour at issue, i.e., the respondent’s decision to delay payment. There is no need to remedy the same action twice.

CONCLUSION

39Pursuant to s. 55 of the Schedule, I order that—until the applicant attends the orthopaedic assessment described in the November 17 and 24, 2015 notices—the applicant may not proceed with his claim for income replacement benefits for the period of December 3, 2015 to October 11, 2016.

40Further, I order that the applicant is entitled to an award amounting to 25 per cent of the withheld income replacement benefits from the period of September 22 to December 3, 2015 (with interest in accordance with s. 10 of Regulation 664).

41The applicant is not entitled to costs.

Released: August 1, 2018

Craig Mazerolle

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2R.R.O. 1990, Reg. 664.
3. 32017 CanLII 87160 (ON LAT), at para. 26.
4. 4Ibid.