[The Applicant] v. Security National Insurance Company, 2019 CanLII 101545

DECISION

Citation: [The Applicant] vs. Security National Insurance Company, 2019 ONLAT 18-008118/AABS

Tribunal File Number: 18-008118/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:

[The Applicant]

Applicant

and

Security National Insurance Company

Respondent

PANEL:

Kimberly Parish

APPEARANCES:

For the Applicant:

Deanna S. Gilbert, Counsel

For the Respondent:

Spencer Wong, Counsel

HEARD:

In Writing on: March 11, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on January 5, 2013 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). The applicant has exhausted her $50,000.00 policy limit for medical and rehabilitation benefits. The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The applicant is seeking a determination of catastrophic impairment. The respondent requested a motion hearing on a preliminary issue to determine if the Tribunal will grant a stay of the application pending the applicant attending an occupational therapy catastrophic impairment insurer’s examination (“OT CAT IE”).

3The applicant applied for CAT determination which was denied by the respondent. The respondent proceeded with scheduling several IEs - the applicant did not agree to attend all of them. The parties agreed that if after the neurocognitive psychological IE, it was determined that an OT IE was also required, then the applicant would attend. The respondent eventually requested an OT CAT IE. However, it was after some delay and not until after the applicant applied to the Tribunal. The applicant takes the position that the respondent’s IE notice did not comply with the Schedule and for this reason along with the significant scheduling delay of the OT CAT IE, the applicant is not required to attend the OT CAT IE.

PRELIMINARY ISSUE

4The following preliminary issue in dispute for this motion hearing and identified within case conference order dated January 30, 2019:

i. Should the proceedings before this Tribunal be stayed because the applicant has refused to attend a section 44 occupational therapy catastrophic impairment determination insurer’s examination (“OT CAT IE”) pursuant to section 55 of the Schedule?

5After reviewing the submissions filed by both parties the preliminary issue to be decided is more accurately described by addressing the following questions in addition to the preliminary issue noted above:

i. Did the respondent’s OT CAT IE notice comply with the requirements set out in 45(3)(b) of the Schedule?

ii. Is the CAT OT IE reasonable and necessary?

6In order for me to answer the above, I will need to determine whether the notice was compliant, and if not, what are the consequences of any non-compliance in this case. I will also need to determine if the OT CAT IE is reasonable and necessary as both parties have provided me with submissions on this.

RESULT

7The applicant is not precluded from proceeding with their application pursuant to section 55(1)2 of the Schedule. The respondent’s catastrophic impairment denial letter dated March 10, 2017 did not comply with the timeline and content requirements noted within s. 45(3)(b) of the Schedule. The OT CAT IE notice dated December 11, 2018 did not comply with the content requirement noted within s. 45(3)(b) of the Schedule. I find the CAT OT IE to be reasonable and necessary. A stay of the application is granted but with the following terms:

The applicant’s application is stayed for a period of four months to allow for the following:

(i) The respondent shall schedule the OT CAT IE forthwith and send out a new notice to the applicant that complies with the Schedule;

(ii) To allow the applicant to attend the OT CAT IE and;

(iii) The completion and disclosure of the CAT IE report, and to allow the applicant to obtain and produce a responding report if required.

8Upon receipt of this motion order, the parties shall canvas dates forthwith to schedule a case conference resumption for the purpose of scheduling the hearing. The parties shall contact the Tribunal within 30 days of the date of this order to request a case conference resumption be scheduled.

ANALYSIS

Has the Respondent’s Denial Letter Dated March 10, 2017 Complied with the Notice Requirements within Section 45(3)(b) of the Schedule?

9I find the respondent has not complied with the requirements pursuant to s. 45(3)(b) of the Schedule in its denial letter dated March 10, 2017 which denied that the applicant’s accident-related impairments met the definition of catastrophic.

10The respondent’s position is that the applicant failed to attend an OT CAT IE pursuant to s. 44 of the Schedule and as a result the applicant should be barred from proceeding with her application at the Tribunal pursuant to S. 55(1)2 of the Schedule. The respondent submitted the OT CAT IE is reasonable and necessary and requests the application be stayed pending the applicant attending an OT CAT IE.

11The applicant’s position is the opposite and submitted the OT CAT IE is not reasonable and necessary. The applicant raised that the respondent’s March 10, 2017 initial denial letter in response to the Application for Determination of Catastrophic Impairment (“OCF-19”) filed by the applicant did not comply with the requirements noted within s. 45(3)(b) of the Schedule. The applicant further submitted the respondent’s notice letter dated December 11, 2018 requiring the applicant attend an OT CAT IE did not comply with the content requirement noted within s. 45(3)(b) of the Schedule.

12Section 45(3)(b) reads as follows:

Within 10 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, 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.

13An OCF-19 dated February 10, 2017 was submitted by the applicant to the respondent. The respondent confirmed it was received February 11, 2017. The OCF-19 concluded the applicant met the catastrophic threshold under Criterion 8². Although the OCF-19 was signed by Dr. H. Becker, physician, the parties conceded the applicant had not signed the OCF-19 until February 26, 2017 and then the copy signed by the applicant was sent to the respondent on February 28, 2017.

14The respondent issued a letter to the applicant dated March 10, 2017 which responded to the OCF-19 submitted by the applicant. The respondent denied the applicant’s injuries met the definition of catastrophic and noted IEs would be scheduled to help the respondent determine if the applicant sustained a catastrophic impairment. The letter noted the following reasons: “Based on the medical information received to date your accident related impairments do not meet the definition of catastrophic. Details regarding your assessment dates / time / location will follow in a separate enclosure.” This was the extent of the medical reasons provided by the insurer for the denial.

15The respondent’s May 23, 2017 letter advised the applicant it would require the applicant to attend the following IE assessments: neurological, in-home occupational therapy, neurocognitive testing, and psychological. The dates and times were provided within the letter. The applicant did not agree to attend all of these assessments and the parties agreed the applicant would attend a neurocognitive psychological assessment to take place over two days on August 8, and September 1, 2017. The applicant agreed that if the IE assessor determined an OT CAT IE was required in order for the assessor to be able to formulate their opinion, the applicant would consent to attend an IE.

16Two IE neuropsychological reports dated September 25, 2017 were issued by Dr. C. Hope, neuropsychologist. Within one of his reports he noted that he deferred his analysis of a mental behavioural impairment pending a review of an OT report. The respondent sent the applicant a letter dated October 12, 2017 which provided the applicant with a copy of both of Dr. Hope’s reports and advised the applicant an OT CAT IE was required to provide catastrophic impairment determination. Dr Hope’s report noted: “Psychologically, an analysis of Mental and Behavioural impairment under Chapter 14 is deferred pending a review of the OT report”. The applicant had agreed to attend an OT CAT IE.

17The applicant followed up with the respondent by letter dated November 24, 2017 to address the OT CAT IE and noted the applicant requires notice from the respondent that if they require the applicant to attend an OT CAT IE, the applicant will need to receive this notice by December 8, 2017, or the applicant would be filing an appeal application with the Tribunal. The respondent submitted that it failed to schedule this IE and further submitted it is unclear why they did not schedule the OT CAT IE.

18The applicant submits the respondent should not be able to now request a CAT OT IE to determine whether the applicant has a catastrophic impairment as the respondent has not complied with s. 45(3)(b) of the Schedule and there has been a significant delay on the part of the respondent in issuing its notice. The applicant did not receive the request for this IE until 3 days before the scheduled case conference with the Tribunal which was four months after the applicant filed their appeal application with the Tribunal.

19The respondent submits they responded to the OCF-19 which was signed by the applicant within 8 business days of receiving it and therefore they have complied with s. 45(3) of the Schedule. The respondent relies on the decision issued by the Financial services Commission of Ontario (“FSCO”) Rojas v. Coachman Insurance Company.³ In that case the insurer responded to the applicant’s OCF-19 several months after receiving it. The applicant then refused to attend the scheduled IEs and took the position that the OCF-19 should prevail and the applicant should be deemed catastrophically impaired due to the respondent’s failure to respond to the OCF-19 within the prescribed 10 days noted within the Schedule. The arbitrator noted the there is no regulatory consequence set out within the Schedule when an insurer fails to comply with the timelines set out within s. 45 of the Schedule and as a result, the arbitrator noted he had no authority to insert new words and consequences into the Schedule by arbitral decision.

20While I agree with the applicant that the respondent failed to comply with s. 45(3)(b) of the Schedule, as the respondent’s letter dated March 10, 2017 in response to the initial OCF-19 was not sent to the applicant within 10 business days as prescribed by the Schedule. The language noted with s. 45(3)(b) of the Schedule is clear that after an insurer receives an application for catastrophic impairment determination, prepared and signed by the person who conducted the assessment or examination [emphasis mine], the insurer shall provide notice to the applicant within 10 business days notifying the applicant that the insured has determined the impairment is not catastrophic…I find the respondent was required to respond within 10 business days to the initial OCF-19 it received on February 11, 2017. There is nothing found within s. 45(3) that the OCF-19 must also be signed by the applicant. However, I find the Schedule remains silent with respect to consequences for non-compliance with the timelines noted within s. 45(3) of the Schedule. I find Rojas to be persuasive as it analogous with this case in relation to the insurer not responding to the OCF-19 within 10 business days. The reasons for which the denial was based does not constitute medical reasons as the letter provided no further details about the applicant’s condition, what medical information the respondent relied on to form the basis of its denial, or what further medical information it required. However, as a result of the Schedule remaining silent regarding the consequence of non-compliance, it does not mean the applicant is entitled to a designation of catastrophic impairment determination, nor that the applicant is not required to attend an OT CAT IE. The respondent has an ongoing requirement to continually adjust the applicant’s claim and I will address the reasonable and necessary component of the OT CAT IE further below.

Did the Respondent Provide Medical Reasons in its Notice dated December 11, 2018 that the Applicant Attend a CAT OT IE?

21I find the respondent has not provided medical reasons within its OT CAT IE notice letter dated December 11, 2018 and therefore their notice is defective as it does not satisfy the requirements within s. 45(3)(b) of the Schedule.

22The applicant submitted the respondent’s notice for the CAT OT IE is deficient and therefore the applicant’s appeal application with the Tribunal should be allowed to proceed. The applicant submitted the respondent failed to provide medical reasons and other reasons in its notice letter to the applicant dated December 11, 2018 that it required the applicant to attend a CAT OT IE in order to determine catastrophic impairment determination. The applicant relies on a FSCO motion decision Almousawi and TD General Insurance⁴ in which the arbitrator found the arbitration would not be stayed for the applicant’s non-attendance at an IE. The arbitrator found the insurer did not comply with s. 44(5) of the Schedule as it did not provide a medical, or other reasons within its notice it sent to the insured requiring the insured to attend an IE. The applicant further relied on the reconsideration decision of the Tribunal M.B. v. Aviva Insurance Canada⁵ in which Executive Chair L. Lamoreaux found that the medical and other reasons should at the very least include specific details about the insured’s condition which forms the basis for the insurer’s decision or identify information about the insured’s condition that the insurer does not have but requires. The conclusion reached within this reconsideration decision was that the insurer had not provided medical and other reasons and as a result the insured was not barred pursuant to s. 55(1)2 of the Schedule for failure to attend an IE.

23The respondent submitted that its letter dated March 10, 2017 notified the applicant that based upon the medical records received, the applicant’s accident related impairments do not meet the definition of catastrophic. Further, the respondent submitted the subsequent notices it sent clearly and unequivocally stated the reasons for the IEs, which were scheduled for the purpose of addressing catastrophic impairment pursuant to s. 44 of the Schedule. The respondent relies on the FSCO decision of Zhang and Wen and Security National Insurance Company⁶ in which the arbitrator concluded that the insurer had provided a medical reason in its notices for examinations by stating it believed the Minor Injury Guideline (“MIG”) applied. The arbitrator found this was a medical reason as the Schedule defines what a minor injury guideline is, and the medical reason provided was the applicant’s injuries fell within that medical definition.

24I agree with the applicant that the respondent has not provided medical reasons in its notice letter dated December 11, 2018 requiring the applicant to attend a CAT OT IE. The letter notes: “We have scheduled the Occupational Therapist assessment as recommended in order to provide catastrophic impairment determination.” I find there is a distinction between Zhang and Wen which noted the MIG applies as opposed to the applicant in the case before me being advised she does not meet the definition of catastrophic impairment. I am persuaded by the Tribunal’s reconsideration decision of M.B. I find in the case before me the respondent’s notice letter of December 11, 2018 lacked specific details regarding the applicant’s condition as evidenced within the medical records the respondent had received. Simply advising the applicant she has been scheduled for an OT CAT IE as recommended “in order to provide catastrophic impairment determination” does not equate to a medical reason in my view. It also lacks the specifics regarding who recommended the OT CAT IE.

25I have found the December 11, 2018 notice from the respondent to be defective as it has not satisfied the requirements noted within s. 45(3)(b) of the Schedule. However, Almousawi is not binding on me. As I have found this notice letter to be defective, it forms the basis that the applicant is not required to attend the OT CAT IE as stipulated within that letter, but it does not form the basis that the applicant is never required to attend another OT CAT IE should the respondent issue another notice letter which complies with s. 45(3)(b) of the Schedule.

Is the Respondent’s Request for an OT CAT OT Reasonable and Necessary?

26I find the respondent has proven on a balance of probabilities that the OT CAT IE is reasonable and necessary. The application is stayed pending the applicant attending an OT CAT IE as per the terms noted within my order below. The applicant had previously agreed she would attend an OT CAT IE if the neurocognitive psychological IE assessor required one to formulate their opinion. I therefore find the neurological assessment was conducted with the assumption that if required, the applicant would attend an OT CAT IE. I find the respondent’s neuro-psychological assessment is incomplete as Dr. Hope has noted within his report that he has deferred providing an opinion on mental behavioural impairment as it relates to chapter 14 of the AMA Guides pending a review of the OT CAT IE report. While I accept that there have been significant delays which have resulted from the respondent’s inaction in scheduling the OT CAT IE sooner and no explanation was provided by the respondent, this does not dissuade me from finding that the OT CAT IE is reasonable and necessary. I will provide my reasons in further detail below.

27Section 44(1) of the Schedule stipulates that an insurer has the right to send an insured to an IE by a health professional of its choice in order to assess whether an insured is entitled to certain benefits. However, that right is limited to those IEs that are “reasonably necessary.”

28Section 55 (1)2 of the Schedule provides that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act⁷ 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.

29Both parties submitted that the relevant circumstances to be considered when determining if an IE is reasonably necessary are defined within the FSCO decision Al-Shimasawi and Wawanesa Mutual Insurance Company⁸ and I have considered the following circumstances as noted within Al-Shimasawi in reaching my conclusion. The relevant circumstances included:

a) Timing of the insurer’s request;

b) The possible prejudice to both sides;

c) The number and nature of 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;

f) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

30There were significant delays which occurred with the respondent scheduling the OT CAT IE, despite the applicant following up with the respondent through written correspondence. There has been no explanation provided by the respondent for the delays.

31It is the applicant’s position that the respondent is requesting the OT CAT IE for the purpose of bolstering its position for the hearing. The applicant has not undergone an OT CAT assessment of its own. The CAT report completed by the applicant’s treating psychologist reached the conclusion that the applicant suffered from a class 4 (marked impairment) in 2 mental behavioural domains; concentration, persistence, and pace, and deterioration or decompensation in work or work-like settings without the reliance on an OT CAT report.

32The applicant submitted she would suffer significant prejudice if a stay is granted as this would further delay the hearing another 5-6 months. The respondent submitted a date for the hearing has not been scheduled and potential prejudice to the applicant could be minimized by scheduling the OT CAT IE promptly. The respondent submitted the CAT OT IE will assess the applicant’s functional abilities in relation to her activities of daily living for the purpose of evaluating mental and behavioural impairment and this will provide Dr. Hope with the necessary understanding of the applicant’s mental and behavioural functioning under Criterion 8. The respondent relies on 17-004109 v. Intact Insurance Company⁹ in which adjudicator Hines concluded it would be procedurally unfair to not allow the respondent to assess whether the applicant sustained a catastrophic impairment under criterion 8 if it were not allowed to submit evidence in a case where the stakes are high.

33While the applicant has attended only two CAT psychological IE’s, the applicant submitted she has attended only one psychological assessment of her own and this information should suffice with assisting the Tribunal in determining whether she sustained a catastrophic impairment.

34It is the respondent’s position that determining whether the applicant is catastrophically impaired is a new issue for the respondent and the OT CAT IE is required to be able to properly adjust the claim for catastrophic impairment. The applicant disagrees that catastrophic impairment is a new issue as the respondent was in receipt of the OCF-19 for 22 months prior to the respondent issuing its CAT OT IE notice December 11, 2018. The applicant submitted the notice which requested the applicant attend the OT CAT IE was sent by regular mail to the applicant mid December 2018, despite the applicant filing her application with the Tribunal on August 20, 2018.

35While the applicant conceded there is a reasonable nexus between the OT CAT IE and the applicant’s catastrophic impairment determination, the applicant submitted the IE would provide little value as an OT is not qualified to provide an opinion whether the applicant suffered a marked mental or behavioural impairment under the American Medical Association Guides (“AMA Guides”). The applicant further submitted that Dr. Hope reviewed an extensive amount of documentation (14 pages of listed records), conducted 11 hours of testing, and elicited much of the same information during his interview as an OT would, and this should be sufficient to provide a determination of catastrophic impairment.

36I have found the OT CAT IE is reasonable and necessary. I agree that there is a reasonable nexus between the OT CAT IE and the determination of catastrophic impairment, Further, it was in part the applicant’s agreement to undergo an OT CAT IE and in the absence of the OT CAT IE report it has resulted in Dr. Hope’s neurological assessment being incomplete. I recognize the applicant has been prejudiced as a result of the delays with regards to respondent’s failure to not schedule the OT CAT IE sooner. I do not accept that the issue of catastrophic impairment is a new issue. The respondent has known of this issue since the applicant applied for catastrophic impairment determination in February 2017. However, despite the significant delays to date, I recognize the respondent needs to properly adjust the claim and I find there would be significant prejudice in this case which would outweigh the prejudice to the applicant if the respondent was not provided with the opportunity to obtain an OT CAT IE. I find the analysis provided by Adjudicator Hines in 17-004109 v. Intact Insurance Company to be persuasive, recognizing there were some distinguishing factors in that case as the respondent in that case did not have its own neuropsychological and psychological IE reports to address the reports already obtained by the applicant.

37In this case, while I accept that the applicant’s own treating psychologist who issued a report on behalf of the applicant was able to provide an opinion on catastrophic impairment determination without an OT report, I do not find on this basis the OT CAT IE is not reasonable and necessary. As a result of Dr. Hope not providing an explanation within his report as to why he deferred providing an opinion regarding catastrophic impairment determination until he reviewed the OT report, or noting he could not provide an opinion without an OT report, I will not surmise that Dr. Hope can provide an opinion on catastrophic impairment determination without reviewing a report from an OT. This reinforces the reasonable nexus between the OT CAT IE and the applicant’s injuries. As the applicant has attended two prior CAT IE’s, I do not find the OT CAT IE to be excessive.

CONCLUSION

38The applicant is not precluded from proceeding with their application pursuant to section 55(1)2 of the Schedule. The respondent’s catastrophic impairment denial letter dated March 10, 2017 did not comply with the timeline requirement noted within s. 45(3)(b) of the Schedule. The OT CAT IE notice dated December 11, 2018 did not comply with s. 45(3)(b) of the Schedule. I find the OT CAT IE to be reasonable and necessary. A stay of the application is granted but with the following terms as noted within my order below:

ORDER

39The applicant’s application is stayed for a period of four months to allow for the following:

(i) The respondent shall schedule the OT CAT IE forthwith and send out a new notice to the applicant that complies with the Schedule;

(ii) For the applicant to attend the OT CAT IE and;

(iii) For the completion and disclosure of the CAT IE report, and to allow the applicant to obtain and produce a responding report if required.

40Upon receipt of this motion order, the parties shall canvas dates forthwith to schedule a case conference resumption for the purpose of scheduling a hearing date. Within 30 days of the date of this order, the parties shall contact the Tribunal to request a case conference resumption be scheduled.

Released: August 27, 2019

__________________________

Kimberly Parish

Adjudicator

Footnotes

1. 1O. Reg. 34/10
2. 2Criterion 8 is noted under part 4 on the Application for Catastrophic Impairment Determination (“OCF-19”) and it notes: an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder”.
3. 3Rojas v. Coachman Insurance Company, [2016], OFSCD, No. 261 (FSCO)
4. 4Almousawi and TD General Insurance, RE [2017], O.F.S.C.D. No. 219 (FSCO)
5. 5M.B. v. Aviva Insurance Canada (16-002325), 2017 CanLII 87160 (ONLAT)
6. 6Zhang and Wen and Security National Insurance Company [2015] OFSCD No. 167 (FSCO)
7. 7Insurance Act, R.S.O. 1990, C. 1.8
8. 8Al-Shimasawi and Wawanesa Mutual Insurance Company [2007] O.F.S.C.D. No. 82 (FSCO)
9. 917-004109 v. Intact Insurance Company, 2018 CanLII 112114 (ONLAT)