Tribunal File Number: 16-002963/AABS
Case Name: 16-002963 v RBC General 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:
Applicant
Applicant
and
RBC General Insurance Company
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
For the Applicant: Corina Anghel Bachmann, Counsel
For the Respondent: Cary N. Schneider, Counsel
HEARD: Written Hearing: September 25, 2017
Overview:
1The applicant, [applicant], was involved in an accident on June 9, 2013, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant’s claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
2By way history, a preliminary issue hearing in writing was heard on February 12, 2107 and Adjudicator Gottfried’s decision and order was released April 5, 2017.
3In adjudicator Gottfried’s decision, it was found that the Notice of Examination dated July 4th, 2016 did not provide medical reasons for the examination, as required under s. 44 of the Schedule. Further, Adjudicator Gottfried found that the applicant was not precluded from proceeding with her application to the LAT pursuant to s. 55(1)(2) of the Schedule.
4As a result of Adjudicator Gottfried’s Order, the respondent provided the applicant with a further Notice of Examination dated April 17, 2017.
5The applicant refused to attend the assessments set out in the notice dated April 17, 2017.
6The parties attended a second case conference on June 28, 2017, and the within preliminary issue hearing was scheduled.
Preliminary Issues:
7The issues to be decided at this hearing are:
Did the Notice of Examination dated April 17, 2017 sent by the respondent to the applicant comply with the requirements as set out in s.44 of the Schedule?
If the decision to (1) above is “yes”, is the applicant precluded from proceeding with her application until she attends the assessments requested under the Notice of Examination of April 17, 2017?
Is the respondent entitled to its costs of the second preliminary issue hearing under Rule 19 of the Rules?
Is the respondent entitled to any costs incurred as a result of cancelling the s. 44 assessments booked subsequent to the Notice of Examination of April 17, 2017?
Is the applicant entitled to her costs of the second preliminary issue hearing under Rule 19 of the Rules?
Result:
8The Notice of Examination dated April 17, 2017 met the requirements under s.44 of the Schedule.
9The applicant is precluded from proceeding with her application to the Tribunal, until she attends the assessments requested under the Notice of Examination of April 17, 2017.
10The respondent is not entitled to costs of the second preliminary issue hearing.
11No order will be made with respect to incurred costs of the cancelled s.44 assessments.
12The applicant is not entitled to costs of the second preliminary issue hearing.
ANALYSIS:
Notice of Examination & S.44 Requirements:
13Under section 44 of the Schedule, an insurer has the right to conduct its own assessments by medical health professionals to help it determine if an insured person is entitled, or continues to be entitled to benefits.
14Section 44(5)(a) of the Schedule sets out the following requirements for insurer assessments, as follows:
(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out:
(a) the medical and any other reasons for the examination
15The respondent sent a Notice of Examination dated April 17, 2017, to the applicant. The relevant section of the notice reads:
“Based on a review of your complete file, and the documentation we have received to date, we do not agree to fund the goods and services proposed on this Treatment and Assessment Plan at this time for the following reasons:
Some of your doctors including Dr. Mailis-Gagnon (physiatrist) have found that you suffer from a condition known as complex regional pain syndrome. Dr. Safir (orthopaedic surgeon) found that you do not suffer any objective evidence of any ongoing disability. Dr. Patterson (psychiatrist) found that you do not suffer from any psychiatric diagnosis. Multiple doctors have documented physical pain complaints but there is a question as to the substance and nature of the impairment. There is a question as to what would be the appropriate treatment (if any) in light of the nature of your injuries and the form of therapy received to date. It is not clear whether the treatment proposed would be beneficial and/or is essentially a duplication of the treatment received so far. Based on a review of your complete file and the documentation we have received to date, we do not agree to fund the goods and services proposed on this Treatment and Assessment Plan dated April 20, 2016 at a total cost of $15,669.40.
Therefore, an Insurer’s Examination is required at this time in order to determine whether the goods and services proposed on this Treatment and Assessment Plan are reasonable and necessary for the injuries you sustained in the accident”
16It is the applicant’s position that the Notice of Examination dated April 17, 2017 does not fulfill the requirement set out in S. 44(5)(a), as it did not explain why an insurer’s examination is reasonable or necessary. Specifically, the applicant states that the notice stated that Dr. Mailis-Gagnon found that [the applicant] was found to suffer from complex regional pain syndrome, submitting that this is merely restating information from Dr. Mailis-Gagnon’s report and does not provide a medical reason for the examination.
17The applicant also submits that in the notice, the insurer states that Dr. Safir found that there was no objective evidence of ongoing disability, and that this statement is incorrect. The applicant states that in Dr. Safir’s report, he notes that [the applicant] suffers from complex regional syndrome and impairments in her left foot and right shoulder.
18The applicant argues that the respondent states that there is a question as to the substance and nature of the applicant’s injuries, however shows no evidence, other than making a false statement, to support this.
19I do not agree with the applicant in that the respondent included a false statement within their notice, and are relying on it. The respondent has provided me with Dr. Safir’s assessment report, and indeed it is noted, more than once, that there were no significant objective findings of musculoskeletal impairment. Although other findings, in addition to this one, may have been present in this report, the statement made by the insurer within the notice is certainly not false and was indeed indicated within Dr. Safir’s report.
20The applicant relies on the case of Ward v. State Farm1, where Arbitrator Matheson states that the medical reasons provided to the applicant must tell the applicant why the tests are reasonable and necessary, in an unsophisticated way.
21The applicant further submits that the notice did not comply with this, but rather merely uses a diagnosis made by a health care professional and a false statement to conclude that there is a question as to the ongoing medical issues of the applicant.
22The respondent submits that it complied with the requirements under s.44(5)(a) to provide medical reasons for the examination.
23The respondent relies on the FSCO decision in Augustin v. Unifund2.
24Arbitrator Sapin in Augustin sets out that “medical reasons”, when the MIG is the issue, should evidence the following:
i. that the claims adjuster has reviewed the MIG;
ii. that the claims adjuster has reviewed the treating health practitioner’s medical opinion; and
iii. that the adjuster has concluded that the health practitioner has not provided compelling evidence that the person’s injuries are outside of the MIG, or that the treatment claimed is not reasonable or necessary.
25In Augustin, Arbitrator Sapin noted that a “medical reason” was not the same as a medical opinion and the insurer would not be able to obtain a medical opinion of its own without exercising its right to an insurer examination.
26Despite the fact that this case is not binding on this Tribunal, I do find it helpful. Although the MIG is not the issue before me in this hearing, the guidelines set out within Augustin provide a clear roadmap of what is necessary to suffice as “medical reasons”.
27In summary, it is necessary that the claims adjuster has (i) demonstrated they reviewed the treatment plan and the medical evidence submitted and (ii) stated that there is not sufficient compelling evidence to find the treatment plan reasonable or necessary.
28I find that the respondent has complied with these requirements within their notice dated April 17, 2017. It is noted more than once that the adjuster has reviewed the file and medical documentation and this is evidenced by the notice setting out some of the findings of the health practitioners, which do not support the presence of an ongoing disability.
29The notice also makes it clear that although multiple doctors have noted physical pain, “there is a question as to the substance and nature of the impairment” and “there is a question as to what would be the appropriate treatment (if any) in light of the nature of your injuries and the form of therapy received to date”.
30I also agree with the respondent’s submission, that the reasons provided for the denial and need for an assessment, prior to an IE is conducted, may ultimately be wrong, that is, if the results of the insurer’s examination prove this to be the case.
31The standard is to provide medical reasons based on the information before the insurer at the time of the denial. There cannot be an expectation that the insurer’s reasons be upheld after the insurer’s examination is conducted.
32The respondent also submits that it has provided a satisfactory explanation as to the basis for the examination and is not required to “invent” a reason as to why the treatment plan is required to be assessed. It relies on the FSCO decision in Gao v. State Farm (Gao)3
33I am not of the view that Gao is applicable to the case before me. In Gao, the insurer had no information with respect to the claimant’s impairments, other than the claimant’s self-reported impairments. The insurer had no further information, based on which it could provide medical reasons for the examination. Based on these circumstances, Adjudicator Newland concluded that the insurer is not required to “invent a medical or other reason, where it has not been provided with any medical documentation”
34Gao can be differentiated from the case before me in that the insurer in the present case was in possession of medical documentation relating to applicant’s impairments. There would be no reason for the respondent to “invent” a medical reason as the basis for the examination. Further, I do not find that to be the case here.
35Nevertheless, it is clear to me that the respondent provided medical reasons within the notice, citing findings from various doctors and the need to obtain an opinion on the nature of the injury and what appropriate treatment would be required.
36Therefore, I find that the Notice dated April 17, 2017 complied with the requirements under s.44 of the Schedule.
[The applicant]’s LAT Application and Section 55(1)(2):
37The respondent seeks an order precluding the applicant from proceeding with her application to the LAT until she attend the necessary insurer’s examinations set out in the April 17, 2017 notice. The respondent relies on Section 55(1)(2) of the Schedule.
38Section 55 (1)(2) of the Schedule states:
55(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist:
- The 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.
39The applicant, to date, has refused to attend the required insurer’s examinations requested by the respondent, based on the argument that the notice did not meet the notice requirements set out in s.44 of the Schedule.
40As noted above, I have found that the respondent has met the requirements, under s.44 of the Schedule, within the Notice of Examination dated April 17, 2017.
41As such, I order that the applicant is precluded from proceeding with her application to the LAT until she attend the assessments set out in the April 17, 2017 notice.
Cancellation Costs for s.44 Assessments:
42The respondent is seeking their costs incurred as a result of the cancelled s.44 assessments.
43The respondent has not directed me to any statutory authority for such an order. As such, no order shall be made by me with respect to this issue
Costs:
44In their submissions, both the applicant and the respondent sought their costs for this proceeding.
45The Tribunal has the authority to award costs to a party, under rule 19.1 of the LAT Rules as follows:
(19.1) Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatious[ly] or in bad faith, the party may request to the Tribunal for costs.
46The applicant submits that costs should be awarded to her, as the respondent acted in bad faith in handling her claim. She further submits that the respondent purposely made misleading statements and invented medical reasons to meet the requirements under s.44 and presented beliefs as if they were facts, while disregarding the surrounding circumstances.
47I do not agree with the applicant’s position. I do not see that the respondent’s statements were misleading nor were the medical reasons provided in the notice “invented”, as per my reasons above.
48The respondent submits that it is entitled to costs based on the applicant’s misunderstanding of the law which resulted in the applicant taking an offensive position that is unsubstantiated in the law. The respondent drew reference to multiple excerpts from the applicant’s submissions, which it viewed as offensive and inexcusable and not in line with the Rules of Professional Conduct.
49The bar for awarding costs is a high one. Although a party making harmful and false accusations towards the other would fit within the definition for costs, in the case before me, I do not find it sufficient enough to meet the test. The applicant’s behaviour, while not exemplary, is simply not enough to trigger an award for costs.
50Therefore, costs will not be awarded to either of the parties in this circumstance.
51I am, however, compelled to note that the parties’ tone and accusations, directed at each other within the submissions, were neither appropriate nor necessary. The dealings of the parties towards one another should done respectfully and this was certainly not the case before me.
Order:
52I find the following:
The Notice of Examination dated April 17, 2017 met the requirements under s.44 of the Schedule.
The applicant is precluded from proceeding with her application to the Tribunal, until she attends the assessments requested under the Notice of Examination of April 17, 2017.
The respondent is not entitled to costs of the second preliminary issue hearing.
No order will be made with respect to incurred costs of the cancelled s.44 assessments.
The applicant is not entitled to costs of the second preliminary issue hearing.
Released: March 6, 2018
Meray Daoud, Adjudicator