L. K. v. Intact Insurance Company, 2018 CanLII 143514

Licence Appeal Tribunal

Tribunal File Number: 18-001761/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:

L. K.

Applicant

and

Intact Insurance Company

Respondent

DECISION

PANEL:

Brian Norris, Adjudicator

APPEARANCES:

For the Applicant:

Ondrej Sabo, Counsel

For the Respondent:

Janet Young, Counsel

HEARD:

In Writing on: August 10, 2018

OVERVIEW

1The applicant was injured in an automobile accident on October 6, 2013 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2In response to the application, the respondent raised a preliminary issue which is the subject of this hearing.

ISSUES

3The preliminary issue in dispute is:

1. Is the applicant required to attend an in-person s. 44 assessment in response to the Application for Catastrophic Impairment (“OCF-19”)?

RESULT

4The applicant is required to attend an in-person s. 44 assessment in response to the OCF-19. The application to dispute whether the applicant has sustained a catastrophic impairment as a result of the accident is dismissed.

5The remaining issue, whether the applicant is entitled to receive a certain medical benefit, may proceed and a case conference will be scheduled to address the remaining substantive issue.

BACKGROUND

6The applicant was injured in an accident on October 6, 2013 and initiated a claim for accident benefits. The injuries sustained as a result of the accident have led the applicant to make an application for a determination of catastrophic impairment as defined by the Schedule. The applicant made the determination application on October 22, 2017 through an OCF-19 dated September 22, 2017 submitted to the respondent (“the OCF-19”).

7On December 5, 2017, the respondent replied to the OCF-19 and sought to arrange Insurer’s Examinations to determine whether the applicant sustained a catastrophic impairment (“the CAT IEs”). The CAT IEs included in-person assessments in the following disciplines: neurology, occupational therapy, orthopaedics, and neuropsychology. There was also a physiatry assessment scheduled; however, the applicant was not required to attend in-person.

8The parties discussed the reasons for the CAT IEs by letters exchanged during the period from December 2017 to January 2018. Eventually, on January 17, 2018, the applicant wrote to the respondent and formally refused to attend the CAT IEs.

9On January 18, 2018, the respondent wrote to the applicant and advised it would be unable to determine whether the applicant is catastrophically injured until the applicant attends the CAT IEs.

10Following this, the applicant commenced an application with the Tribunal. The respondent raised the preliminary issue at the case conference.

SECTION 44 ASSESSMENTS

11I find the CAT IEs are reasonably necessary and the applicant is required to attend all four of the in-person s. 44 assessments in response to the OCF-19. My reasons are as follows.

12Section 44 of the Schedule provides the respondent with the ability to examine an insured, but not more than reasonably necessary, to determine entitlement to a benefit for which an application is made. At issue is whether the CAT IEs proposed by the respondent are reasonably necessary to determine whether the applicant has sustained a catastrophic impairment.

13The principles outlined in the LAT decision 17-005291/AABS v Travelers Canada, 2018 CanLII 13172 guide my analysis (“the Travelers decision”). According to the Travelers decision, the following are factors to consider when determining whether the respondent’s requested insurer examinations are reasonably necessary:

1. The timing of the respondent’s request;

2. The possible prejudice to either side;

3. The number and nature of previous examinations;

4. The nature of the examination being requested;

5. Whether there are any new issues being raised in the claim that require evaluation; and

6. Whether there is a reasonable connection between the examination requested and the applicant’s injuries.

14The respondent submits three arguments in support of the preliminary issue: 1) the applicant has never attended any assessments for the purposes of a catastrophic impairment; 2) the assessments are reasonably necessary to make the determination; and 3) there is no evidence from the applicant to show further assessments would have a detrimental impact on the applicant.

15The applicant’s position is there is no evidence to support the need for an in-person examination and the respondent should make a determination based on a review of the applicant’s medical record. The applicant submits there is enough evidence from previous assessments to make a determination on whether the applicant is catastrophically impaired as a result of the accident.

16I reject the applicant’s position because the determination of a catastrophic impairment is a new issue. The previous assessments upon which the applicant suggests that the respondent should make its determination were conducted to address entitlement to such things as medical benefits proposed in treatment and assessment plans and income replacement benefits, not catastrophic impairment. While I appreciate the applicant has attended previous assessments, those assessments and the medical information to-date address the applicant’s vocational functioning as well as whether certain medical benefits claimed are reasonable and necessary. The CAT IEs are to address whether the applicant’s mental and behavioural impairment meets the level of a catastrophic impairment.

17Likewise, the absence of any assessment reports specifically addressing whether the applicant is catastrophically impaired will have a prejudicial impact on both the applicant and the respondent during the adjudicative process, should it occur. The absence of such a perspective would leave the hearing adjudicator without vital information necessary to determine whether applicant is catastrophically impaired.

18The applicant submits the respondent has yet to provide specificity of what information it requires which is not already in the respondent’s possession. I find the respondent provided enough information. The respondent advised there was insufficient medical documentation on file indicating that (the applicant) would meet the criteria for a class 4 impairment. Within the notice, the respondent requested an examination to determine whether the applicant is catastrophically impaired under criteria 7 and 8, provided a list of the types of examinations requested, and the reasons from the assessment center’s managing physician as to why the in-person assessments are preferred.

19I recognize the applicant may have a reduced ability to tolerate sustained activity and, as a result, the requested assessments may be demanding. However, I see no evidence to support the claim that the CAT IEs will be detrimental to the applicant. There are no doctor’s recommendations to forgo the assessments and there is nothing in the medical record provided to corroborate this suggestion. Furthermore, the applicant may request accommodations in order to participate in the CAT IEs, though I see no evidence the applicant has done so. Instead, the applicant has outright refused to participate in the CAT IEs.

SECTION 55

20I find that the applicant was not entitled to apply to the Tribunal to adjudicate whether the applicant has sustained a catastrophic impairment pursuant to s. 55(1)2 of the Schedule for failure to attend the s. 44 assessments. I therefore dismiss the application.

21The dismissal is procedural and does not preclude the applicant from reapplying to the Tribunal in the event the applicant becomes compliant with s.44 and the parties continue to disagree on whether or not the applicant is catastrophically impaired.

22I choose not to exercise my discretion under s. 55(2) because there is no reason to maintain the application to dispute whether the applicant is catastrophically impaired as a result of the accident. The outcome of the respondent’s assessments, when conducted, may determine that the applicant is catastrophically impaired and further adjudication on this issue would be unnecessary. Likewise, in the event the applicant is found to not be catastrophically impaired, the applicant has available options such as commencing an application with the Tribunal following that determination or pursuing assessments under s. 25.

23Based on the information before me, I see no evidence the applicant has passed or may soon pass any time limitation which would bar another application to the Tribunal. If I am wrong and there is a pending limitation issue, the applicant may, upon participation in the requested CAT IEs, request an extension of the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act.

CONCLUSION AND ORDER

24Considering the totality of the case law and evidence before me, I find the applicant has failed to attend properly scheduled s. 44 assessments and is required to do so prior to making an application to the Tribunal to dispute the respondent’s determination of catastrophic impairment or lack thereof.

25The application to dispute whether the applicant is catastrophically impaired is dismissed.

26The remaining issue, whether the applicant is entitled to receive a certain medical benefit, may proceed. This issue will be addressed at the forthcoming case conference.