Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: January 24, 2018

File: 17-000465/AABS

Case Name: I.P. v. Aviva Canada Insurance

Written Submissions By:

For the Applicant: Chris Rizzo

For the Respondent: Petros Yannakis

Overview

1. This request for reconsideration involves a dispute between I.P. and Aviva General Insurance (“Aviva”) over an income replacement benefit (“IRB”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). More specifically, it deals with I.P.’s non-attendance at an insurer’s examination (“IE”) and the resulting effect on her ability to claim that benefit.

2. After I.P. failed to attend the IE, Aviva denied her the IRB. She then applied to the Licence Appeal Tribunal (“Tribunal”). As part of its response, Aviva raised multiple preliminary issues that the parties then argued by way of written hearing. One of those issues raised the applicability of s. 37(7) of the Schedule, which permits an insurer to refuse to pay a benefit after an insured’s non-attendance at an IE. However, the Tribunal did not determine whether Aviva could rely on that provision. As a result, Aviva asks that I reconsider the Tribunal’s decision on this specific point.

3. For the following reasons, I agree that the Tribunal erred by failing to determine the issue. I therefore amend the Tribunal’s order to clarify Aviva’s ability to rely on s. 37(7). Aviva is not required to pay I.P. an IRB between September 29, 2016 and the date upon which she actually attends the physiatric IE.

The Facts

4. The facts are somewhat complicated but can be appropriately summarized as follows.

The accident and OCF-1

5. I.P. was involved in a motor vehicle accident on January 21, 2016. (Unless specified otherwise, all relevant dates are in 2016.) Shortly after, she submitted an Application for Accident Benefits (OCF-1) to Aviva that indicated she was employed and still working. Accordingly, Aviva advised her that she was not entitled to receive an IRB.

6. Her circumstances then appeared to change. In early March, she informed Aviva that she had been without income since February 22. Around the same time, Dr. Marco Chiodo, a psychologist, submitted a Treatment and Assessment Plan (OCF-18) on her behalf, recommending that she receive a psychological assessment.

Aviva tries unsuccessfully to schedule IEs then terminates the IRB

7. Aviva denied the OCF-18 and scheduled IEs in mid-April for both a psychological and physiatric assessment. Aviva’s Notice of Insurer’s Examination explained that the IEs were necessary to determine I.P.’s entitlement to an IRB, as well as to determine her entitlement to medical and rehabilitation benefits, including the cost of the psychological assessment that Dr. Chiodo recommended.

8. I.P. objected, in particular to Aviva’s lack of medical reasons for requiring the IEs. She also refused to attend the IEs until the IRB was paid to date. Aviva agreed to pay the IRB up to date. However, as it outlined in an Explanation of Benefits (“EOB”) dated March 23, it also reiterated its request for the IEs to determine her ongoing entitlement to the IRB.

9. I.P. still objected. She informed Aviva that she would not attend the IE for the psychological assessment but, instead, would have Dr. Chiodo conduct the assessment. She also informed Aviva that she would only attend the physiatric assessment if her IRB continued to be paid up to date.

10. Aviva sent her another Notice of Insurer’s Examination, dated March 28, scheduling IEs for both a psychological and physiatric assessment. This Notice repeated that the IEs were necessary to determine her entitlement to an IRB, as well as to determine her entitlement to medical and rehabilitation benefits, including the cost of the psychological assessment that Dr. Chiodo recommended.

11. Again, I.P. objected. She refused to attend the IEs until Aviva clarified whether its position was that the Minor Injury Guideline (“MIG”) applied. She also refused to attend the psychological assessment given that Aviva had denied Dr. Chiodo’s OCF-18 recommending the very same assessment.

12. In response, Aviva clarified that it was not treating her within the MIG, and informed her that it had cancelled the IEs to allow her to reconsider her position on whether to attend. Aviva also informed her that her failure to attend the IEs would result in the termination of her IRB.

13. I.P. confirmed that she would have a psychological report produced by Dr. Chiodo, but that she would agree to an IE for a psychological assessment “if any further treatment was recommended,” presumably by Dr. Chiodo. She then saw Dr. Chiodo, who conducted a psychological assessment.

14. By EOB dated June 4, Aviva terminated I.P.’s IRB as of June 5 given her non-attendance at the IEs.

Aviva schedules further examinations and I.P. attends

15. Soon after, I.P. agreed to attend the IEs and, in fact, explained that she had been trying to contact Aviva to arrange examination dates. Thus, by EOB dated June 16, Aviva informed her that it would schedule IEs to determiner her ongoing entitlement to IRBs and medical benefits, including two OCF-18s.

16. As it said it would, Aviva scheduled a psychological examination for July 12. In response, I.P. informed Aviva that she would attend. She also requested that her IRB be paid up to date. Once again, Aviva continued to pay the benefit.

17. While Aviva did not immediately arrange a physiatric examination, it scheduled an Examination Under Oath (“EUO”) under s. 33 of the Schedule for August 15. I.P. advised that she would attend the EUO to answer questions related to her IRB “so long as they are paid up to date,” and that she would not answer questions related to any unclaimed benefits.

18. I.P. attended the psychological IE, where Dr. Terra Seon saw her. She also attended the EUO, during which she refused to answer several questions and, according to Aviva, “numerous reasonable requests for information.” As it would later explain, Aviva’s view was that I.P.’s failure to answer its questions and satisfy her disclosure obligations arising from the EUO meant that I.P. was in breach of s. 33.

19. Eventually, Aviva issued an EOB explaining that Dr. Seon found that I.P. did not qualify for an IRB.

The physiatric examination and I.P.’s non-attendance

20. Around the same time, Aviva sent I.P. a Notice of Insurer’s Examination dated September 15 scheduling a physiatric assessment on September 29 to determine her ongoing entitlement to IRBs. I.P. asked that the assessment be rescheduled to October. However, she did not explain why she would be unavailable. Aviva did not reschedule the examination, and I.P. did not attend on September 29.

21. Thus, by letter dated November 23, Aviva explained that it was denying her the IRB. The basis for this decision, it explained, was I.P.’s failure without explanation to attend the physiatric IE, along with her refusal to answer several questions at, and requests for disclosure after, the EUO. Aviva’s letter did not include an effective termination date.

22. I.P. disputed each of Aviva’s grounds for terminating the IRB. Perhaps for that reason, Aviva sent her further Notices of Examination for both a psychological and physiatric IE on December 14, explaining that they were necessary to determine her ongoing entitlement to IRBs. I.P. attended neither. Thus, by EOB dated December 19, Aviva explained that it would no longer consider her entitlement to IRBs.

The application and preliminary motion

23. The following month, I.P. commenced an application with the Tribunal. Her application disputes her entitlement to the IRB as well as to certain medical benefits.

24. As part of its response to the application, Aviva raised two preliminary issues that the parties then agued by way of written hearing. In its submissions arguing its preliminary motion, Aviva framed the issues and its corresponding argument as follows:

• Whether I.P.’s claim is “barred by virtue of s. 55 of the [Schedule]?” Aviva argued that I.P.’s non-attendance at the IEs triggered the bar in s. 55(1)2. In short, that section prohibits an insured from applying to the Tribunal after failing to attend an appropriately scheduled IE.

• Whether I.P.’s IRB was “properly denied on the basis of her failure to comply with [Aviva’s] requests for examinations and s. 33 requests”? [emphasis added]. Aviva argued that its requests for information during and after the EUO related to I.P.’s entitlement to IRBs, and that I.P.’s failure to provide this information gave it the right under s. 33(6) of the Schedule to deny the benefit for any period of non-compliance. Aviva also invoked s. 37(7), which, as mentioned above, permits an insurer to refuse to pay a benefit after an insured’s failure to attend an IE. On a fair reading, Aviva’s submissions put forward the submission that, given I.P.’s non-attendance at the IEs, it should be allowed to rely on s. 37(7) to refuse paying I.P. the IRB after her non-attendance.

The Tribunal’s decision

25. In its decision of September 14, 2017, the Tribunal addressed Aviva’s argument concerning s. 55(1)2. Specifically, it held that I.P. was required to attend the physiatric IE before she could bring her application: see para. 19. The Tribunal also dealt with Aviva’s argument concerning s. 33. It held that Aviva had “all the information that it reasonable required to make a determination about the applicant’s entitlement to IRBs” and, thus, concluded that “a section 33 bar is not justified:” see para. 28. However, the Tribunal did not refer to s. 37(7).

This request for reconsideration

26. Aviva asks that I reconsider the Tribunal’s decision to address the applicability of s. 37(7).

Decision and Reasons

27. In short, Aviva asks that the Tribunal’s order be amended to clarify that it is not required to pay I.P. an IRB between September 29, 2016 (i.e., the date of the missed physiatric IE) and the date upon which she actually attends the physiatric IE as required by the Tribunal’s order. For her part, I.P. responds with two main points, both of which I reject.

28. First, she suggests that Aviva’s focus on s. 37(7) is a “fresh” or “novel issue”, one that it is trying to sneak in the “backdoor” through this reconsideration process. I agree with her that, in a certain light, Aviva’s submissions before the Tribunal appear to identify only the applicability of s. 33 and 55: see Part II of Aviva’s submissions. However, the context and remainder of Aviva’s submissions suggests otherwise.

29. In its letter of November 23, Aviva explained that it was denying I.P. the IRB given her non-attendance at the physiatric IE and, in so doing, explicitly relied on “s. 37.” Likewise, elsewhere in its submissions on the preliminary issues, Aviva explicitly referenced s. 37(7) and qualified its earlier explanation of the issues by posing whether I.P.’s IRB was “properly denied on the basis of her failure to comply with [Aviva’s] requests for examinations.” Aviva certainly could have said more to advocate its position. Nevertheless, I read its submissions before the Tribunal as raising with sufficient, albeit minimal, clarity the point in dispute: that is, whether Aviva is entitled to rely on s. 37(7) in order to refuse to pay IRBs given I.P.’s non-attendance at IEs. Further, the Tribunal concluded that I.P. was required to attend the physiatric IE before advancing her application. In my view, that same determination necessarily entitles Aviva to rely on s. 37(7)(b) until such time as I.P. actually attends the required IE, particularly given its earlier reliance on s. 37 in its November 23 letter.

30. Second, I.P. offers a variety of reasons why, in short, she should not be required to attend the physiatric IE. The short answer to line of argument is that the Tribunal has already determined that she is required to attend the IE, a determination that I.P. does not ask me to reconsider. Thus, her invitation to second-guess the Tribunal’s findings is, at this stage, improper. At any rate, I see no reason to question the Tribunal’s underlying findings.

Conclusion

31. This request for reconsideration is therefore granted. The Tribunal’s order of September 14, 2017 is amended to provide that Aviva is entitled to rely on s. 37(7)(b) of the Schedule. Aviva is not required to pay I.P. an IRB between September 29, 2016 and the date upon which she actually attends the physiatric IE.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: January 24, 2018