T.S. v. Unifund Assurance Company, 2019 CanLII 110117

Licence Appeal Tribunal

Citation: T.S. vs. Unifund Assurance Company, 2019 ONLAT 19-000666/AABS

Tribunal File Number: 19-000666/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:

T.S.

Appellant

and

Unifund Assurance Company

Respondent

PRELIMINARY ISSUE DECISION

PANEL:

Jesse A. Boyce, Adjudicator

APPEARANCES:

For the Appellant:

Aurora T. Mancuso, Counsel

For the Respondent:

Dave Dhillon, Counsel

HEARD:

In Writing on: October 24, 2019

OVERVIEW

1The applicant, T.S., was injured in a motor vehicle accident on October 14, 2016 and sought benefits from the respondent, Unifund, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (Schedule).

2Unifund paid medical benefits and an income replacement benefit (IRB) to T.S. but denied the chronic pain programme on the grounds that T.S. did not attend four s. 44 Insurer’s Examinations (IE). T.S. disagreed with Unifund’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. The parties participated in a case conference but were unable to resolve the issues in dispute and, thus, proceeded to this preliminary issue hearing.

ISSUES TO BE DECIDED

3The issue to be decided, as per the Case Conference Order dated May 14, 2019:

i Is the applicant precluded from proceeding with this application under section 55 of the Schedule on the basis of failing to attend for assessments? Or, is the applicant precluded from moving forward with the OCF-18 in the amount of $11,692.22 for a chronic pain programme, submitted December 19, 2017 and denied January 5, 2018?

RESULT

4I find T.S. is precluded by s. 55(2)1 from proceeding with the OCF-18 in the amount of $11,692.22 for a chronic pain programme.

ANALYSIS

Is T.S. precluded from moving forward with the OCF-18 in the amount of $11,692.22 for a chronic pain programme?

5Yes. I find that Unifund’s request for a s. 44 IE was reasonably necessary in order for it to determine whether the OCF-18 was reasonable and necessary for impairments she sustained in the accident and that T.S. has not provided a reasonable excuse for her non-attendance.

6Section 44 indicates that an insurer may require and request an examination to determine if an insured is entitled to a specified benefit, but that IEs cannot be scheduled for more often than is reasonably necessary. Section 44(5) sets out the requirements for notice, being the medical reasons for the IE, whether the applicant is required to attend, the name and specialization of the assessors and the date, time and location of the assessment. The onus is on the applicant to establish a reasonable explanation for any non-attendance at a properly scheduled IE. Section 55(1)2 then acts as a bar to an insured’s application in the event of non-attendance at a properly scheduled IE.

7Unifund argues its initial notice and reasons for the IE satisfy the requirements outlined in the Schedule and the Tribunal’s jurisprudence.² On January 5, 2018, Unifund provided notice that the IEs had been scheduled in order to determine if the treatment identified in the OCF-18 was reasonably required as a result of the accident. The notice also provided the date and time of the IEs, the names of the assessors and that T.S. was required. Additionally, Unifund’s letter of January 24, 2018 in response to T.S.’s concerns from the previous day, provided further reasons for the IE (that her impairments appear to pre-date the accident) and explained why a new assessor was being used (the previous assessor was not available). Further, Unifund also conceded that the treatment plan was only payable under s. 38 for treatment incurred after the 11th day and until the denial notice was cured and that its denial notice was only one hour late.

8In response, T.S.’s refusal to attend was seemingly centred on the belief that another IE was not reasonably necessary as she had undergone nine IEs in total (a combination of in-person, paper review and addendums, including a few only eight months earlier), that the OCF-18 was payable under s. 38 because Unifund had not responded to the treatment plan within 10 days, that Unifund was using a different assessor and because it had not provided adequate medical reasons for the denial. Further, T.S. argues that the date range for her chronic pain specified in the OCF-18, which was one of Unifund’s reasons to schedule an IE, was a clerical error (the passage of time was actually 14 months and not 39 months) and was corrected shortly after.

9On review of the evidence, I agree with Unifund. I find the request for an IE to be reasonable, as a chronic pain programme represents a new benefit that was not previously addressed. As T.S. was represented by counsel, I find she was on notice of the potential consequences of her non-compliance and mistakenly chose not to attend the IE and has not provided a compelling reason for her non-attendance. Further, Unifund is correct that it is only required to pay for benefits that are incurred on or after the 11th business day. As Unifund cured the defect one hour late on the 11th business day, it is required to cover any incurred treatment during this period under s. 38(11) but may still deny an OCF-18 on the basis that it is not reasonable and necessary. T.S. has not provided evidence that the OCF-18 was incurred, so it is not payable.

10I also find the medical reasons provided by Unifund in its initial denial of the OCF-18 on January 5, 2018 to be compliant with s. 38(8), albeit somewhat underwhelming. After it received the chronic pain report from T.S., Unifund indicated that based on that report and all of the medical information and treatment made available to date, that further assessment was needed to determine if the chronic pain programme was reasonable and necessary. On its face, I find this denial to be perfectly valid. Unifund also provided further detail after T.S. requested it. While T.S. argues that Unifund should have been well-aware of the presence of chronic pain based on the totality of the evidence, I agree with Unifund that there is no reference to, or a diagnosis of, chronic pain prior to the chronic pain report.

11While not binding on this Tribunal, the parties agree that the factors outlined in the FSCO case Al-Shimasawi and Wawanesa Mutual³ are instructive in determining whether an IE is reasonably necessary. These factors include: the timing of the request, prejudice to the parties, the number and nature of previous IEs, the nature of the IEs, whether there are new issues requiring evaluation and whether there is a reasonable nexus between the examination and the applicant’s injuries.

12On the facts, I find these factors weigh in favour of Unifund. First, the timing of the request was not unreasonable, as the denial and IE notice were sent following receipt of an OCF-18 requesting new treatment and well before T.S.’s Tribunal application was filed. On prejudice, while T.S.’s privacy rights are certainly a consideration based on the number of examinations to date—with a slate as recent as eight months earlier—I reiterate that the chronic pain programme constitutes a new benefit and Unifund also has a right to secure updated and relevant opinions when new claims are made. While there is almost always greater prejudice to an insured when a delay occurs, denying Unifund the opportunity to conduct an assessment would result in some prejudice to it as well. For example, if this matter proceeded to a hearing where T.S. is the only party with an opinion on chronic pain because the insurer was not permitted same, Unifund would be at a procedural and substantive disadvantage.

13T.S. cites the Superior Court case Poersch v. Aetna⁴ to support her argument that the number of IEs is excessive, and an insured should be prepared to submit to an IE “no more than annually.” However, I note the holding in Poersch was qualified by language stating, “or on the occurrence of circumstances which reasonably give rise to the real possibility that the nature or extent of the insured’s disability has changed.” I find T.S.’s claim for a chronic pain programme falls within this circumstance. Further, while I agree with T.S. that her privacy rights must be balanced with the insurer’s need to conduct IE’s, I find justice requires that the parties at least be on equal footing when it comes to medical opinions, especially when new issues or claims arise and where there is a reasonable nexus between the IEs requested and T.S.’s impairments, as I find there is here. Finally, while I also agree with T.S. that having assessors with knowledge of an applicant’s file conduct subsequent assessments would be ideal, the reality is that sometimes assessors are not available for various reasons. In my view, substituting one medical professional for another, equally qualified medical professional does not unreasonably infringe on T.S.’s privacy rights.

14By requesting the IEs, Unifund was within its rights under the Schedule and I find that its request to have T.S. attend the additional IEs was based on its receipt of a new treatment plan alleging new, long-term impairments, which, in my view, constitute new information in a file that Unifund has been continuously adjusting in good faith. Ultimately, T.S. refused to attend and has not provided a reasonable explanation as to why or provided compelling evidence that Unifund’s notice or reasons were not in compliance with the Schedule or jurisprudence. Accordingly, I find that she is statute-barred from applying to the Tribunal for this benefit until such time that she attends the s. 44 IE for same.

15I note that s. 55(2) permits the Tribunal to allow an insured to apply despite being statute-barred under s. 55(1)2. As I find that T.S.’s reasons for non-compliance with Unifund’s s. 44 IE request on this benefit were not reasonable, I decline to exercise the discretion afforded by s. 55(2).

Costs

16In submissions, Unifund sought its costs, arguing that T.S.’s application in the face of s. 55(2)1 was unreasonable and frivolous. I disagree. Rule 19 of the Tribunal’s Common Rules of Practice and Procedure states costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Here, T.S. made submissions in good faith on a genuine dispute between the parties. She was within her rights under the Schedule to seek a determination from the Tribunal. While the Tribunal has not found in her favour, I find no basis to award costs to Unifund on these facts.

CONCLUSION

17I find that T.S. is statute-barred from appealing the denial of the OCF-18 for the chronic pain programme before the Tribunal, pursuant to s. 55(2)1, until such time that she attends the s. 44 IE for same.

18The parties are directed to contact the Tribunal on receipt of this decision to schedule a case conference resumption in order to determine how to proceed.

Footnotes

1. 1O. Reg. 34/10.
2. 2See, for e.g., the Tribunal’s Reconsideration in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).
3. 32007 O.F.S.C.D. No. 82.
4. 42000 CanLII 22613 (ON SC), 2000 19 CCLI (3d) 92 (ONSC).```