[The Applicant] v. CAA Insurance, 2018 CanLII 76420

Licence Appeal Tribunal

Date: 2018-04-18

Tribunal File Number: 17-001138/AABS

Case Name: 17-001138 v CAA Insurance

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

CAA Insurance

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR: Anita Goela

APPEARANCES:

Counsel for the Applicant: David M. José

Counsel for the Respondent: Stacey Morrow

Written Hearing: January 29, 2018

OVERVIEW

1The applicant was injured in an automobile accident on May 21, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ – Effective September 1, 2010 ("Schedule").

2The applicant applied for various benefits. A dispute arose between the parties and the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). His application included a claim that he was catastrophically impaired.

3The parties participated in a case conference on October 16, 2017 and agreed to a preliminary written hearing to determine whether the applicant is barred from proceeding with his appeal.

4A resumption of the case conference is scheduled for April 17, 2018 with Adjudicator C. Ferguson to discuss case management of the hearing scheduled for June 4-7, 2018.

ISSUE

5The only issue to be decided at the preliminary hearing is as follows:

a. Is the applicant barred from proceeding with his appeal under s. 55(1)2 of the Schedule because he failed to comply with s.44 by refusing to attend insurance examinations scheduled by the respondent?

RESULT

6The applicant is barred from proceeding with his appeal until he attends the s.44 insurance examinations for physiatry, psychology and otolaryngology assessment.

7The respondent is required to provide an assessment date for the examinations above within thirty-five (35) days of the date of this Order.

8At the case conference resumption, scheduled for April 17, 2018 with Adjudicator C. Ferguson, the in-person hearing scheduled for June 4-7, 2018 may be adjourned.

ANALYSIS

9Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided notice that it requires an examination under section 44, but the insured person has not complied with that section.

10Section 44(1) provides that the insurance examination must be reasonably necessary.

11The Tribunal has applied the following guiding criteria² in assessing the reasonableness of a proposed insurer examination:

a. the timing of the insurer's request; b. the possible prejudice to both sides; c. the number and nature of the previous insurer's examinations; d. the nature of the examination(s) being requested; e. whether there are any new issues being raised in the applicant's claim that require evaluation; and f. whether there is a reasonable nexus between the examination requested and the applicant's injuries.

Timing of the insurer's request

12The applicant submitted an OCF-19 for a determination of catastrophic impairment to the respondent on December 1, 2016. The applicant filed his application with the Tribunal on February 27, 2017.

13With respect to the timing of the insurer's request, I find that the respondent made the request before the applicant applied to the Tribunal. I reviewed six letters from the respondent to the applicant. With the exception of one letter, the respondent notified the applicant that further s.44 examinations were required in five letters, three of which were before the application to the Tribunal and two letters after.

14The first three letters are summarized as follows:

1. On December 21, 2016, the respondent denied the catastrophic impairment determination, requested further s.44 insurance examinations and included a reference to the June 16, 2016 insurance examination report of Dr. B. Clark, who opined that the applicant is treatable within the Minor Injury Guideline.
2. On January 9, 2017, the respondent reiterated that the impairment was not determined to be catastrophic and that further s.44 examinations were required.
3. On February 2, 2017, the respondent included a CAT file review authored by Judy Phillips, OT. The letter and report indicated that the impairment is not catastrophic, the determination is premature as two years have not elapsed since the May 21, 2015 accident, and further s.44 assessments would be required after two years have elapsed.

15As indicated above, the applicant filed his application after receiving the February 2, 2017 correspondence. The three letters sent to the respondent after the application was filed are as follows:

1. On September 25, 2017, the respondent indicated that the applicant was determined not to be catastrophically impaired. The letter was silent regarding further s.44 examinations. However, included with the letter was the s.44 multidisciplinary CAT rating report of September 19, 2017. In that report, the assessor indicated on pages 6, 8 and 9 that additional assessments were needed to determine musculoskeletal and psychological impairment in order to determine whether the applicant is catastrophically impaired according to criteria 7 and 8.
2. On October 11, 2017, the respondent sent a letter to the applicant indicating that s.44 examinations were required by specialists in physiatry, psychology and otolaryngology.
3. On October 16, 2017, after receiving correspondence from the applicant that he would not attend further s.44 examinations as the respondent had already determined that the applicant was not catastrophically impaired, the respondent clarified the September 25, 2017 letter and indicated that the additional examinations were required to determine impairment under criteria 7 and 8³.

16Overall, with respect to timing, I find that the requests were made reasonably. The requests were made prior to the application being filed. Once the two years after the accident had elapsed, the respondent requested the applicant to attend catastrophic impairment assessments.

Possible prejudice to both sides and nature of examinations being requested

17I find that the requested s.44 examinations are relevant to the determination of whether the applicant has suffered a catastrophic impairment. The disputed assessments are to determine the extent of the applicant's musculoskeletal, psychological and physiatric impairment. I note that the applicant did submit a psychological assessment in support of his catastrophic impairment. I find that it would be unfair and prejudicial to the respondent if the applicant did not attend the disputed insurance examinations as they are material to the catastrophic determination.

18With respect to the applicant, I find that the prejudice would be increased delay. In reply, the applicant requested that if I did order the applicant to attend further insurance examinations, I should also order the respondent to schedule those examinations within 35 days. I agree with the applicant that the prejudice caused by the delay can be minimized if the parties proceed with the assessments promptly.

19Pursuant to s. 55(2) and (3), the Tribunal may permit an insured to apply despite the insured person's non-compliance with s.44 and may impose terms and conditions on the permission granted.

20I order that the applicant may proceed with his application to the Tribunal despite his non-compliance with s.44. I am sympathetic that the applicant may have been confused by some of the respondent's correspondence both before and after his application was filed. The respondent's correspondence includes an assessment by Dr. Clark that he was treatable within the Minor Injury Guideline. I also found that the September 25, 2017 letter was deficient even though the report was included that specified the need for further assessment.

21I agree with the applicant that the respondent should schedule the disputed assessments promptly to minimize the prejudice to the applicant. Therefore, I also order that the respondent is required to schedule the disputed examinations within 35 days of this Order.

Number and nature of previous examinations and whether any new information was being raised by the applicant

22There were no submissions whether the respondent required the applicant to be submit to an unreasonable number of insurance examinations.

23There were no submissions whether any new information was being raised by the applicant. The applicant had not attended any s.44 examinations for physiatry, psychology or otolaryngology in the past. It was not until the respondent received the multidisciplinary CAT rating report that the respondent requested those assessments.

Reasonable nexus

24I find that there is a reasonable nexus between the examinations requested and the applicant's injuries. The disputed examinations are reasonable because of what they are assessing – to determine the applicant's musculoskeletal, psychological, and physiatric impairment. I find that it was reasonable that the respondent waited to request the assessments until two years had elapsed from the date of the accident in order make a determination pursuant to criteria 7 and 8 for catastrophic impairment. The applicant did not make any submissions that the exceptions to the two-year accident anniversary should apply.

Other arguments raised by the applicant

25The applicant raises compliance with notice requirements as set out in s.45(3)(b)⁴. With the exception of the September 25, 2017 letter, I find that the respondent has complied with the language of the Schedule. I agree with the respondent that it followed the language in the Schedule, by indicating that the applicant has been determined not to be catastrophically impaired, the medical and other reasons for the decisions and that the insurer requires the applicant to attend further insurance examinations to determine whether he is catastrophically impaired.

26The applicant also raised compliance with the insurer's notice within 10 business days of receipt of the OCF-19 that the insurer has either deemed that the impairment is catastrophic, deemed that the impairment is not catastrophic and whether a s.44 assessment is required. The respondent provided a screenshot of its internal communication system that it complied with the 10-day requirement. As the screenshot is a partial log, I am unable to determine the exact date that the respondent received the application. The applicant raised evidentiary issues with the partial screenshot. In any event, the applicant submits that non-compliance with the notice requirement does not deem the applicant to be catastrophically-impaired⁵. As this issue is not material to my finding whether the applicant may proceed with his application, I have not analyzed it further.

CONCLUSION

27Overall, I find that the applicant is required to attend to the insurance examinations before his matter can proceed to a hearing. The respondent notified the applicant that insurance examinations were required, the respondent has not had the opportunity to assess relevant aspects of the applicant's impairment and the prejudice to the applicant can be minimized.

ORDER

28The applicant is barred from proceeding with his appeal until he attends the s.44 insurance examinations for physiatry, psychology, and otolaryngology assessment.

29The respondent is required to provide an assessment date for the examinations within thirty-five (35) days of the date of this Order.

30A case conference is scheduled for April 17, 2018 with Adjudicator C. Ferguson. If necessary, the in-person hearing scheduled for June 4-7, 2018 may be adjourned.

Released: April 18, 2018

Anita Goela, Adjudicator

(3) Within 10 business days after receiving an application under subsection (1) prepared and signed by the person who conducted the assessment or examination under subsection (2), the insurer shall give the insured person, [...] (b) a notice stating that the insurer has determined that the impairment is not a catastrophic impairment and specifying the medical and any other reasons for the insurer's decision and, if the insurer requires an examination under section 44 relating to whether the impairment is a catastrophic impairment, so advising the insured person. O. Reg. 34/10, s. 45 (3).

Footnotes

1. 1O. Reg. 34/10: STATUTORY ACCIDENT BENEFITS SCHEDULE - EFFECTIVE SEPTEMBER 1, 2010 under Insurance Act, R.S.O. 1990, c. I.8 https://www.ontario.ca/laws/regulation/100034#BK3
2. 217-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT), http://canlii.ca/t/hr1fc; referring to Al-Shimasawi v. Wawanesa Mutual Insurance Co., 2007 CarswellOnt 3747
3. 3Part 4 of OCF-19: Application for Determination of Catastrophic Impairment. The note to criteria 7 and 8 indicates that these criteria only apply if the insured person's physician states in writing that the condition is unlikely to cease to be a catastrophic impairment or two years have elapsed since the accident. https://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1229E.pdf
4. 4Determination of catastrophic impairment
5. 5Rojas and Coachman FSCO A16-000288