17-007683 v Aviva Insurance Canada, 2018 CanLII 81958

Date: 2018-05-24

Tribunal File Number: 17-007683/AABS

Case Name: 17-007683 v Aviva Insurance Canada

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

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Goerogiana Masgras, Counsel

For the Respondent: Michael J.L. White, Counsel

HEARD in Writing on: April 16, 2018

OVERVIEW

1[The applicant] was involved in an automobile accident on February 22, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied by Aviva.

3The benefits in dispute in this appeal are income replacement benefits (IRBs).

4[The applicant] failed to attend a number of IEs scheduled and rescheduled by Aviva for various reasons. The parties disagree as to whether she notified Aviva properly of her intention to cancel appointments.

PRELIMINARY ISSUE

5In a motion dated March 7, 2018, Aviva asked the Tribunal to determine the following issues:

1. Is [the applicant] barred from commencing this application because she failed to attend insurer’s examinations (IEs) requested by the respondent under s.44 of the Schedule?

2. In the alternative, should [the applicant]’s application be stayed pursuant to section 55 of the Schedule until the applicant attends IEs and pays the costs incurred by Aviva for cancelled IEs as the result of [the applicant]’s failure attend scheduled appointments?

6The Tribunal ordered Aviva’s motion to be heard in this preliminary issue hearing.

FINDINGS

7[The applicant] is not barred from commencing her application. Aviva’s motion is denied.

8[The applicant]’s application may not proceed until she attends IEs requested by Aviva to assess her claims for IRBs.

9The Tribunal has no jurisdiction to order the payment of Aviva’s IE cancellation or any other claim adjustment costs.

10Both parties’ requests for costs associated with this proceeding are dismissed.

REASONS

[The applicant]’s Duty to Participate in the IE

11Section 44(1) of the Schedule governs IEs and prescribes as follows:

i. S. 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals determine whether the insured continues to be entitled to a specific benefit, as in this case.

ii. S.44(9)2.ii. requires the insurer to make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured person.

iii. S.44(9)2.iii. requires the insured person to attend the examination and to submit to all reasonable examinations requested by the examiner(s).

12The onus is on the insured person to establish a reasonable explanation for not attending an IE.²

13Section 55(1)2. of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him that it requires an examination under s.44, but the insured person has not complied with that section.

14A plain reading of s.55 of the Schedule indicates that an insurer cannot raise a bar to a claimant’s appeal for non-attendance at an IE unless the notices of examination that it provided comply with the Schedule.³

15Aviva submits that [the applicant] failed to attend seven IEs that were required to assess IRB entitlement on the following dates:

Date

IE type

Assessor

November 2, 2016

medical

Mohamed Khaled, GP⁴

February 27, 2017

FAE⁵

Dawn Rodie, physiotherapist,

March 1, 2017

psychology

Rees Lewis, psychologist

March 27, 2017

physiatry

John Heitzner, physiatrist

April 17, 2017

physiatry

Seyed Hossein Hosseni, physiatrist

May 29, 2017

psychology

Rees Lewis, psychologist

February 1, 2018

physiatry

Seyed Hossein Hosseni, physiatrist

16Aviva asserts that in relation to the March 27, 2017 cancellation, [the applicant] advised the assessment service provider that she was unable to attend because she was working. It submits a letter from the service provider to that effect in its evidence.

17It is uncontested that [the applicant] did not attend any of the IEs requested and scheduled by Aviva in relation to the IRBs in dispute.

Did [the applicant] properly notify Aviva of her requests to reschedule IEs?

18The parties’ submissions indicate that both sides recognize that the requirements of s.44 allow for an applicant to postpone her attendance at an IE or request a rescheduling with reasonable advance notice and a reasonable explanation.

19Aviva indicates that [the applicant] canceled her attendance at IEs without notifying it, or with short notice. Aviva asserts that in relation to the March 27, 2017 cancellation, [the applicant] advised the assessment service provider that she was unable to attend because she was working. It submits a letter it got from the service provider to that effect in its evidence.

20[The applicant] submits that she did notify Aviva that she was not going to attend the scheduled IEs and provided reasonable excuses including a family emergency overseas and the need to travel to the funeral, severe headaches and, for IEs scheduled in February and March of 2017, notice that she was back at work and did not at that time require IRBs.

21[The applicant] provides no proof that she cancelled or requested rescheduling of several IEs by voice-mail or telephone calls as she claims. Her legal representatives, who claim to have made the calls, provide no notes or records in evidence, nor do they provide an affidavit.

22Aviva asserts its records indicate no evidence of a specific voice-mails claimed by [the applicant] to have been made on February 24, 2017. It is silent on what, if anything, its records state about the other voice-mails and telephone calls claimed by [the applicant]. Interestingly, its affiant is clear in his affidavit that he reviewed the [the applicant] claim files and doesn’t mention a search for evidence of the disputed voice-mails.

23[The applicant] does provide copies of e-mails dated October 25, 2016 and January 22, 2018, from her representatives to Aviva seeking postponement of scheduled IEs and providing both reasons and suggestions as to alternative dates. Both e-mails complied with the timelines for cancellation set out in Aviva’s notices of examination.

24Both parties spoke to the other’s conduct as evidence of whether or not [the applicant] properly postponed, cancelled or asked for rescheduling of the IEs. I find their evidence and arguments in this vein unpersuasive.

25I find that the evidence that [the applicant] simply failed to attend IEs without reasonable explanation is too weak to make a case that she be barred from proceeding with her appeal, which is a severe penalty in this case. My finding is because:

i. As noted, Aviva’s evidence as to what its records say about [the applicant]’s voice-mails regarding some cancellations is incomplete.

ii. I note that none of the explanations that [the applicant] says that she gave are questioned by Aviva on the basis of reasonableness or truthfulness. The explanations seem reasonable to me.

iii. Aviva provides no basis for me to decide that “short notice” is equivalent to “no-show” in terms of non-compliance with s.44(9) and its consequences.

iv. The evidence is that [the applicant]’s representatives simply failed to provide written, documented rescheduling and cancellation requests on a number of occasions, despite the clear indication that Aviva was, in some cases, not getting the message about her employment status as a reason for not attending some of the requested IEs. This is not evidence of wilful or obstructive non-compliance that in my view would warrant sanction.

v. Aviva’s evidence ignored the two cancellations for which written notice was provided. These events speak to [the applicant]’s intention to comply with the Schedule and against any wilful non-compliance on her part. I find this important because so many of the cases cited by Aviva involved applicants whose failure to attend IEs was deliberate and based on setting pre-conditions for attendance that were later found to be unreasonable.⁶

Did Aviva provide [the applicant] with adequate notice of its IE requests?

26Section 44(5) of the Schedule sets out the notice required when requiring IEs, which includes the medical and other reasons for the examination.

27[The applicant] raised arguments with respect the compliance of Aviva’s notices of insurer’s examination with the Schedule, arguing in effect that deficient notices prevent Aviva from raising her attendance as a bar to her appeal. [The applicant] argues specifically that the medical reasons given in the notices were inadequate.

28Aviva asserts that it gave adequate notice and explanation of these IEs to [the applicant], and includes its notice letters in its evidence.

29I reviewed Aviva’s IE notice letters and OCF-25s to [the applicant] against the following criteria:

i. Required content: all particulars required prescribed by s.44(5) must be provided in the notice.

ii. Clarity: the language in the notice must be straightforward and clear, explicit, unambiguous and understandable to an unsophisticated person; for example, it should be free of unexplained acronyms.

iii. “Medical and any other reasons” should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires in order to determine the claim.

iv. The notice must clearly state the claimant’s obligation to attend and consequences of non-compliance (at minimum on OCF-25s).

v. The notice must include contact information for the applicant to respond, seek explanation and ask questions.

vi. The information must be overall sufficient for the reader to decide if he or she wants to submit to the requested IE.

vii. A standard of perfection is not to be expected; the overall sufficiency of notice is what should be assessed.

30I reviewed six of Aviva’s IE notices to [the applicant] and summarize them as follows:

Notice # -- date

Reason for IE

Oct. 3, 2016

MIG⁷ determination [in relation to a medical benefit OCF-18]

Jan.10, 2017

“disability period appears inconsistent with diagnosis (“Dx”) or mechanism of injury”

Feb. 24, 2017

MIG determination [in relation to a medical benefit OCF-18]

Mar. 27, 2017

a. MIG determination [in relation to a medical benefit OCF-18]

b. Standard form/generic boilerplate⁸ [re: IRBs]

April 6, 2017

“disability period appears inconsistent with Dx or mechanism of injury”

Feb. 1, 2018

“disability period appears inconsistent with Dx or mechanism of injury”

31I note that:

i. The notices numbered 2, 4a., 5 and 6 in the chart above all state: “It's important to note that we won't be able to consider payment for the Income Replacement benefits until we receive the results of your examination.”

ii. Rescheduled IEs are clearly noted as such, and the cancellation process and consequences for no-shows are clearly marked.

iii. [The applicant]’s right to appeal and contact information for communicating concerns or questions is clearly set out.

32Based on my review of Aviva’s notices of IE against the above-noted principles, I find that Aviva provided adequate and compliant notice to [the applicant]. My reasons are:

i. Contrary to [the applicant]’s position, I find that the medical reasons set out by Aviva were sufficient to meet its s.44(5) obligations under s.44(5). [The applicant] provides no description of what she would have considered adequate medical reasons under the circumstances of this case.

ii. I am persuaded that for the purposes of the Schedule, Aviva’s statement that [the applicant]’s “disability period appears inconsistent with [her] diagnosis or mechanism of injury” is a valid medical reason for requiring an IE.⁹ References to MIG determination are clear and compliant.

iii. Medical reasons in all of the notices were clearly tied to specific benefits. While the boilerplate used in some notices would be, on its own, vague, I saw that Aviva made explicit reference to IRBs (where relevant) as noted above, with the link between the IE and payment of claimed IRBs clearly and starkly set out.

33I further find that [the applicant]’s objections to Aviva’s notices are unpersuasive because she affirms that, with advice from legal counsel, she acknowledged Aviva’s IE notices and had her legal representatives respond to them with rescheduling requests.

34As the result of my findings, I find [the applicant]’s submissions on the adequacy or compliance of Aviva’s notices to be without any merit. There is no justification on this basis for dismissing Aviva’s motion.

The Tribunal’s discretion with respect to non-compliance with s.44

35Under s.55(2) of the Schedule, the Tribunal may permit an insured person to proceed with an appeal despite his or her failure to comply with s.44.

36Section 55(3) of the Schedule permits the Tribunal to impose terms and conditions on a permission granted under s.55(2).

37Aviva argues that I should consider the length of time and number of missed IEs before using s.55(3). I find its argument unconvincing because:

i. Aviva fails to say how, in this case, it is prevented by the passage of time from getting a valid IE assessment of [the applicant] or how it is prevented from arguing about these factors in discussing the strength of its current IEs and other medical evidence for entitlements claimed for periods of time in the past.

ii. It doesn’t provide me with a suggested “time limit” or number of rescheduled IEs, which I would need to reconcile a suggested tolerance limit with the simple fact that the Schedule allows IEs to be conducted, as time passes, to determine ongoing eligibility for benefits.¹⁰

iii. The case Aviva cites, Zhang¹¹ provides little guidance on my concerns. The ruling in Zhang at paragraph 34 on “the substantial passage of time” and its effect on “the ability if the Insurer to effectively and properly assess the claims” is unsupported by any explanation or analysis of how or why the arbitrator reached his conclusion. I’m not bound by the decision and it is unpersuasive to me.

38I decided to consider s.55(2)(3) and to grant [the applicant] permission to proceed with her appeal because:

i. As I note above in paragraph 25, for the reasons set out there, I find that the evidence that [the applicant] simply failed to attend IEs without reasonable explanation is too weak to make a case that she be barred from proceeding with her appeal. Barring her appeal would be a disproportionate response to her conduct.

ii. I don’t believe that Aviva’s interests in this matter are unduly delayed by the delay in getting the IEs done.

iii. Both parties suggested s.55 as an “in the alternative” finding open to me in this case.

39The permission granted to [the applicant] to proceed with her appeal is subject to the following terms and conditions:

i. [The applicant] must attend IEs required by Aviva to assess her entitlement to IRBs. Specifically, she must attend IEs for medical, psychological, FAE and physiatry assessments. She must comply with s.44(9)iii. of the Schedule.

ii. Aviva must provide [the applicant] with new IE dates within 35 business days¹² of the date of this decision.

iii. Aviva will clearly set out the reasons for the rescheduled IEs in written notices, relating them expressly and only to the IRBs in dispute.

40I made my decision to invoke s.55(3) and impose the noted terms and conditions for the following reasons:

i. Aviva’s right to conduct IEs to assess [the applicant]’s entitlements to accident benefits should be respected and sustained. There is no suggestion from [the applicant] that Aviva’s IEs are unreasonable or unnecessary.

ii. [The applicant]’s prescribed right to clear, readily understandable notices that speak directly to her specific claim – in this case IRBs – should also be sustained.

iii. There is no evidence offered of any material prejudice to Aviva’s ability to adjust the [the applicant]’s IRB claims caused by the delay to date in getting IEs done.

iv. Notwithstanding my reason in subparagraph [50]iii. above, I agree with Aviva that prompt assessment of [the applicant]’s medical condition and ability to work is essential to its interests and I believe that are in [the applicant]’s interests, too.

v. Barring [the applicant]’s appeal strikes me as a disproportionate remedy or sanction for the poor management of some of her rescheduling requests by her legal advisers, unnecessary to preserve the integrity of the Schedule and unfairly prejudicial to her as an individual. This would be inconsistent with my understanding of the Insurance Act and the Schedule as consumer protection legislation.

vi. As noted above, cases in which arbitrators declined to use discretion in permitting a non-compliant applicant to proceed are distinguishable from this one because of some level of wilful non-compliance by the applicant in those cases. The non-compliance in this case appears to be the result of miscommunication.

vii. I believe that the conditions I have imposed on proceeding with this appeal balance the rights of the parties and the integrity of the Schedule.

Recovery of Aviva’s Cancellation and other Costs

41Aviva asserts that it incurred $5,621.75 in costs for the cancelled IEs, including failure to provide notice of cancellation.¹³ It includes copies of invoices for missed IEs in its evidence.

42Aviva requested that the Tribunal impose the costs it incurred for missed IEs as a precondition for allowing [the applicant]’s appeal to proceed under s.55(2)(3): it set this amount at $5,621.75.

43The Schedule does not include a provision that specifically addresses reimbursement of fees paid by an insurer for an IE where the insured person fails to attend.

44I have not been provided with any authority or provision of the Schedule or Insurance Act confirming that I have jurisdiction to order payment of such fees and therefore decline to order reimbursement to Aviva. [The applicant] contends that such authority does not exist – and I agree.¹⁴

Costs of Proceeding

45Rule 19.1¹⁵ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

46Both parties requested costs in this matter, but made no argument in support of their requests. I saw no basis for believing that any such proscribed behaviour occurred in this matter. Both cost requests are accordingly denied.

CONCLUSIONS

47[The applicant]’s appeal is not barred. [the applicant] is permitted to proceed by operation of s.55(2) of the Schedule. Aviva’s motion is denied.

48[The applicant] may not proceed with her appeal until she meets the conditions imposed by me pursuant to s.55(3) of the Schedule, set out above.

49Aviva’s request to recover costs of IE cancellation or no-show fees as a condition of continuing with the appeal is dismissed for lack of jurisdiction.

50Both parties’ requests for costs are denied.

Footnotes

1. 1O.Reg. 34/10
2. 2Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086 – submitted by the applicant
3. 3Augustin and Unifund Assurance Company, [2013] FSCO 12-000452, submitted by Aviva.
4. 4“GP” means “general practitioner”
5. 5“FAE” means “functional abilities evaluation”
6. 6See for example, Zhang and Security National Ins. Co. [2015] OFSCD No. 167, Luo and Unica Insurance Inc. [2015] OFSCD No. 29 and Lee and Yau v. State Farm Mutual Automobile Ins. Co. [2015] OFSCD No. 13, all led by Aviva.
7. 7“MIG” means Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. In this case, Aviva indicated the IE was needed because [the applicant]’s documentation was insufficient to establish that her injuries were not minor and hence not treatable within the $3,500.00 cap on medical benefits imposed by the MIG.
8. 8The exact wording is: “We're unable to determine whether the recommendations made on your Disability Certificate meet the disability requirement for the specified benefit you are claiming, and we're not able to pay your benefits at this time.”
9. 9Consistent with the reasoning in Augustin and Unifund Assurance Company, [2013] FSCO 12-000452, submitted by Aviva and in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160, adduced by [the applicant].
10. 10See section 37(1)(b) of the Schedule.
11. 11Zhang and Security National Ins. Co. [2015] OFSCD No. 167
12. 12Meaning that Saturdays, Sundays and statutory holidays are not to be counted.
13. 13Affidavit of Michael Silver, student-at-law, sworn March 20, 2018.
14. 14I agree with other adjudicators who have considered this point, see 16-001652 v. Primmum Ins. Co. 2017 CanLII 59511, para.65-66 submitted by the applicant.
15. 15All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)