C.B. v. Allstate Insurance Company of Canada, 2019 CanLII 119732

Citation: C.B. vs. Allstate Insurance Company of Canada, 2019 ONLAT 18-009967/AABS

Tribunal File Number: 18-009967/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C.B.

Applicant

and

Allstate Insurance Company of Canada

Respondent

MOTION DECISION

Decision made by:

Cezary Paluch

Date of Decision:

October 25, 2019

APPEARANCES:

For the Applicant:

Brent McQuestion

For the Respondent:

Ryan Kirshenblatt

Motion Hearing Heard In Writing:

September 19, 2019

OVERVIEW:

1The applicant, CB, was injured in an automobile accident as a cyclist on June 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent, Allstate. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Several case conferences were held on April 12, 2019, May 17, 2019 and July 30, 2019 before Adjudicator D. Neilson, and an in-person hearing was scheduled to start on September 4, 2019.¹ The main issue in this case is whether the applicant is catastrophically impaired related to a traumatic brain injury.

3On May 31, 2019,² the applicant filed a motion³ requesting the following relief:

(i) the exclusion of Dr. L. Tuff’s evidence as it relates to the in-person clinical examination he conducted on September 28, 2017; and

(ii) a determination that any further s. 44 insurer examinations (IEs) are not reasonably necessary, and that the respondent be precluded from obtaining further IEs on the issues in dispute.

4This decision deals with the relief sought. I have considered the materials filed, including the materials for the respondent’s July 31, 2019 related motion for the extension of time to file their submissions.

RESULT:

5The applicant’s motion is granted in part.

6The applicant’s request to exclude the evidence of Dr. Tuff as it relates to the examination on September 28, 2017 is allowed, and that evidence is inadmissible at the in-person hearing.

7The applicant’s request that any further s. 44 IEs are not reasonably necessary, and that the respondent ought to be precluded from obtaining further medical examinations, is denied at this time as this request is premature. For the same reason, the respondent’s request⁴ to conduct further IEs is denied as no IEs have been scheduled.

POSITION OF THE PARTIES:

Applicant

8The applicant submits that the respondent did not comply with s. 44(5)-(9) of the Schedule when arranging for the assessment to take place by Dr. Tuff because the statutory notice provided was erroneous. As a result, he argues that any evidence arising from Dr. Tuff’s clinical interview of the applicant on that date, including any testing, ought to be excluded.

9Further, and in the event the Tribunal orders that the disputed evidence be inadmissible, the applicant also requests that the respondent be precluded from scheduling any further examination because they are not “reasonably necessary” pursuant to s. 44(1) of the Schedule.

Respondent

10The respondent submits that Dr. Tuff’s evidence should be admitted as it is relevant and affords the Tribunal the best evidence available to inform its decision. In the alternative, the respondent argues that, if Dr. Tuff’s reports are excluded, the hearing be adjourned⁵ so that the respondent can arrange further s. 44 examinations.

ANALYSIS and REASONS:

Compliance with sections 44(5)-(9) of the Schedule – Should Dr. Tuff’s evidence be excluded?

11Under s. 44(1) of the Schedule, an insurer has the right to require an insured person to attend IEs to be examined by a regulated health professional of its choice to determine entitlement to benefits. Prior to scheduling any such examination under this section, s. 44(5) requires that notice be provided to the insured person setting out: (a) the medical and any other reasons for the examination; (b) whether the attendance of the insured person is required; (c) the name of the person who will conduct the examination, their titles and designations indicating their specialization; and (d) if the attendance of the insured person is required at the examination, the day, time and location of the examination.

12Aside from these notice requirements, I also note that s. 44(9) of the Schedule governs the conduct of each examination and allows the insured person the opportunity to provide to the assessor information and documents as are relevant or necessary for the review of the individual’s medical condition. That right corresponds to one of the two types of assessments that is normally scheduled – i) s. 44(9)2(ii) applies to in person examinations (when attendance is required); and ii) s. 44(9)1 to what is commonly referred to as ‘paper review’ assessments (when attendance is not required). As I explain below, the applicant was denied the opportunity to avail himself of this right because the defective notice only referenced a ‘paper review’ and advised him that he did not have to attend.

13In this matter, the respondent scheduled an IE with Dr. Tuff, neuropsychologist, by forwarding to the applicant an enclosure letter dated September 11, 2017 (the “Enclosure Letter”) and a Notice of Examination by Insurer dated September 11, 2017, stating that the examination by Dr. Tuff was to be “a paper review” and CB was “not required to attend the examination” (the “Notice of Examination”) [emphasis added].

14However, because of what appears to be an administrative error or what the respondent describes as an “innocent mistake”,⁶ the applicant attended an in-person examination with Dr. Tuff (as opposed to Dr. Tuff merely doing a paper review which is what the Notice of Examination said he would do). As a result of this clinical assessment, Dr. Tuff produced a Neuropsychological Report dated November 17, 2017. Further, based on this same examination, Dr. Tuff also contributed to a multidisciplinary Catastrophic Impairment Determination report dated December 13, 2018.

15The Neuropsychological Report, at page 2, makes it clear that the applicant was referred to Dr. Tuff (or Benchmark Independent Medical Examination Inc., being the IE facility) by C. Chumney, Senior Claims Advisor at Allstate, for an in-person examination under s. 44 of the Schedule. The issues in dispute were listed as three treatment plans only with no reference to a catastrophic determination. The examination lasted 3 hours and 30 minutes and was conducted at 900-723 Rymal Road West in Hamilton.

16For this reason, due to the inaccurate notice that was provided to CB, applicant’s counsel is requesting that the evidence obtained by Dr. Tuff as a result of this in-person assessment be excluded.

17I agree. In my view, because the statutory notice provided to the applicant was erroneous, Dr. Tuff should have declined to conduct the examination and, by doing so, he infringed on the applicant’s s. 44 right to know the nature of the IE being requested. Moreover, because this was scheduled as a ‘paper review’, the applicant appears to have never been made aware, and as a result was denied the opportunity, pursuant to s. 44(9)2(ii), to provide to the assessor any relevant or necessary information or documents regarding his condition prior to the assessment which ultimately could have impacted Dr. Tuff’s assessment.

18My review of the Enclosure Letter and the Notice of Examination shows that there was no date and time included anywhere in either informing CB on which day he was being asked to attend the assessment. This was not surprising as the assessment was to be a ‘paper review’ and attendance details were not necessary. There was also no mention that CB could provide to the assessor any relevant or necessary information or documents. As well, under Part 4 of the Notice of Examination, the answer to the specific question: “Are you Required to Attend the Examination” was that CB was “Not Required to Attend – File Review.” The Enclosure Letter went on to thank CB for his anticipated cooperation and instructed him to “cooperate with the assessors if asked.”

19However, despite this clear language, the applicant somehow did attend and meet with Dr. Tuff in person for over 3 hours on September 28, 2017. I point out that the record before me regarding the events that transpired in scheduling the IE with Dr. Tuff is not entirely clear, as is how CB decided to attend at Dr. Tuff’s office on September 28 notwithstanding that there was no date in either the Enclosure Letter or the Notice of Examination. I do note that a car was sent by the respondent to pick up CB and take him to the in-person evaluation, so there must have been some communications between the parties in this respect.⁷ However, there is no evidence that a verbal notice was given pursuant to s. 44(7) which allows for verbal notices to the insured if written confirmation is given as soon as practicable (although no written confirmation was provided in any event).⁸

20My review of the correspondence is that applicant’s counsel was copied on the Enclosure Letter and Notice of Examination, so it appears he may have received those documents and been in a position to advise his client. Unfortunately, the affidavit of Ryan Finlay that the applicant filed in support of this motion does not in any way explain the series of events that transpired regarding the scheduling of the September 28, 2017 examination. There was no affidavit from the applicant himself explaining either the circumstances of his attendance with Dr. Tuff or his understanding of what was contained in the notice. However, I accept the applicant’s submission that his representative was not aware of the applicant’s attendance at Dr. Tuff’s office until receipt of the November 17, 2017 report on November 23, 2017.⁹ In support of my findings that applicant’s counsel was not aware that his client was attending for an in person assessment until afterwards, I note that only about a week later, a letter dated November 30, 2017, from applicant’s representative to the respondent raised the concern with the notice (that they had anticipated that the examination would be paper review) and this issue may be addressed in the future.

21On the other hand, the respondent did provide an affidavit from Carla Chumney, claims adjuster, dated June 17, 2019, which provides some additional details. It explains that the Notice of Examination was intended to be a file review regarding three treatment plans, and that the scheduling of the in-person assessment was “inadvertent and unintentional.”¹⁰ I found some of this evidence somewhat confusing and was still not able to understand how these events were allowed to transpire or, at a minimum, why the assessment was not re-scheduled and a new proper notice provided to CB. I also do not agree with the respondent’s submissions that this is something that is “reasonably explained by Ms. Chumney” or that merely violated “technical grounds.”

22In this case, expert evidence will be critical in determining whether CB is “catastrophically impaired”. As a result, this was not a trivial or technical mistake that can somehow be cured. This was a substantial error that went to the core of the main issue in dispute as Dr. Tuff’s December 13, 2018 Catastrophic Impairment determination, which was a paper review report, apparently relies on his September 28, 2017, in-person assessment. Therefore, it appears that it potentially has a significant impact on CB’s case because CB was denied the opportunity to make an informed decision about whether to attend the September 28, 2017 IE or not. As a result, key medical evidence was likely obtained by the respondent without CB’s full knowledge that he did not have to attend the assessment and could in fact decline.

23Informed consent to attend an IE can only occur when the notice is substantially accurate and the claimant is provided the required information in s. 44(5) which I suggest should also include: i) that he or she has a right to provide to the assessor relevant or necessary information or documents regarding his condition; and ii) by which specific date this information is due. In my view, the date that the information is due is important for two reasons. First, it avoids any confusion which date applies as the wording used in s. 44(9) can easily be misinterpreted or confused depending on whether it is an in-person or ‘paper review’ (i.e. five business days before the day scheduled for the examination vs. within five business days after the day the notice is received). Second, it avoids any potential delays in having to reschedule the IE if a person who was not aware of the date that the documents were due misses the deadline.

24Section 44 assessments are not an automatic right of an insurer and are subject to them being reasonably necessary. Medical examinations are inherently intrusive and an invasion of privacy.¹¹ A three-and-a-half-hour examination with a specialist doctor in another city¹² appears to be very intrusive and of itself prejudicial. However, I also want to make clear that I am not making any determination or finding regarding the reasonableness of this IE.

25In considering this issue, s. 44(9)2(ii) of the Schedule is also helpful as it governs the conduct of in-person examinations. Section 44(9)2(ii) places a positive duty upon the parties, including the applicant, to submit relevant or necessary information to the assessor five days before the date for the assessment. This allows both parties (prior to the assessment taking pace) an opportunity to provide the assessor with any information they deem relevant to the issues in dispute. For example, it could not be impossible for an assessor to reach an accurate diagnostic formulation, or conclusion to the specific questions posed, if there is significant relevant medical information withheld from them in providing their opinion. I think that both parties would agree that in conducting any independent IE assessment it is important for any assessor to have a complete picture of the insured person to be able to conduct a thorough and objective evaluation.

26Strictly speaking s. 44(9)2(ii) (or the companion s. 44(9)1)¹³ is not an actual notice requirement under s. 44(5) (what has to be contained in the notice itself), but it is a practical rule that governs the conduct of examinations themselves. This provision is especially important since section 44(1) of the Schedule allows for the insurer to choose its own assessors so this is an opportunity for the applicant to ensure that whatever assessor was chosen, that person, also has documents that the insured person deems important to his or her case. In this case, as the examination was scheduled as a ‘paper review’ regarding three treatment plans only, s. 44(9)2(ii) was never triggered or invoked as it should have been.¹⁴ As support, I note that neither the Enclosure Letter or Notice of Examination refer to this section or reference the ability of the applicant to provide documents or information to the assessor. More importantly perhaps (because it appears to me from the record that applicant’s counsel believed that Dr. Tuff’s assessment related to three treatment plans only, and by extension would not be relied upon by Dr. Tuff to formulate the December 13, 2018 Catastrophic Impairment determination), CB was denied the opportunity to provide Dr. Tuff with any documentation to assist in his assessment. The clear wording of s. 44(9)2(ii) requiring information by a certain time prior to the start of in person assessment together with the interplay with s. 44(5) requiring the insurer to specify the reasons for conducting the examination in the notice itself (so the insurer knows what information they may have to provide) demonstrates the critical importance of ensuring that the notice of examination is accurate and contains the required information.

27In the end, there was a violation of s. 44(9)2(ii) as a result of the deficient notice which prejudiced the applicant in denying him, or his counsel, the opportunity to provide relevant and necessary information to Dr. Tuff not later than five days before the scheduled examination. In my view, it would be unfair in these circumstances to allow Dr. Tuff’s evidence without the applicant having an opportunity to avail himself of his right under s. 44(9)2(ii).

28I also do not agree with the respondent’s submissions that the “relevant notices of examinations were compliant with the SABS…”¹⁵ The Schedule’s mandatory language is clear and required Allstate to provide a “notice setting out” the required information including “medical and any other reasons for the examination” that required Allstate to refer to the specific benefit or determination at issue (i.e., the catastrophic determination).¹⁶ As well, “whether the attendance of the insured person is required at the examination”. Here, the unambiguous Notice of Examination indicated that it was to be a paper review and that CB’s attendance was not required for the purpose of assessing three treatment plans. There was no mention of any catastrophic assessment or that CB was required to attend in person. There could not have been any more flagrant non-compliance with s. 44(5) than this.

29As a result, applying s. 44(5) to the facts at hand, I find that Allstate’s notice was deficient. More specifically, I find that the that the Notice of Examination did not comply with s. 44(5)(a) of the Schedule because the notice did not state that CB’s attendance was required and merely stated that this was to be a ‘paper review’ when, in fact, the applicant was assessed in-person by Dr. Tuff. It also did not specify that the purpose of the assessment was to rely upon it later in preparing another paper review report regarding a catastrophic determination – thus not providing the requisite “reasons for the examination“. Lastly, it did not comply with s. 44(5)(d) as there was no day or time of the examination included in the notice.

30Therefore, based on a clear non-compliance with the Schedule, I find that the Notice of Examination was invalid, and the Dr. Tuff should have sent the applicant away when he arrived and not conducted an in-person examination. However, the assessment was conducted, and this is what brings us to the next issue - the remedy for the non-compliance in these unique circumstances.

Non-Compliance with s. 44(5)(a)(d) – What is the appropriate remedy?

31Typically, where an insured person alleges that an insurer has not complied with the requirements of s. 44, they consequently refuse to attend the medical examination (as a result no evidence is ever obtained). In turn, if the insurer disagrees, they may request a preliminary issue hearing asking that the application be dismissed in accordance with s. 55(2) of the Schedule. However, as explained above, the facts of this case are quite different as the applicant did attend the in-person examination with Dr. Tuff and certain evidence was obtained.

32Unfortunately, the Schedule does not provide a specific remedy for non-compliance with the IE notice provisions in a situation where an insured person did proceed with an examination. However, I do note that the Tribunal has the power, pursuant to section 23(1) of the Statutory Powers Procedures Act,¹⁷to control it’s own process to ensure a fair hearing.

33Augustin v. Unifund Assurance Co.,¹⁸ provides some additional guidance regarding compliance with s. 44(5). I agree that the notice provisions in s. 44(5) should be strictly construed and the insurer’s notice should be closely examined to ensure it complies. As s. 44(5) was enacted to ensure that insurers provide insured claimants with the information required to enable them to make a determination if the IE requested is “reasonably necessary”, then s. 44(5) should be construed to require insurers to completely and clearly provide that information to insured persons. As a result, in my view, these statutory safeguards are vital to ensuring the rights of accident victims are protected and must be applied strictly.

34I find that the only fair and appropriate remedy would be to exclude any evidence of Dr. Tuff that relates to the clinical examination that took place on September 28, 2017. This follows from a plain reading of s. 44(5) that, if an insurer requires an examination, the insurer shall give the insured person a notice setting out the required information. The use of the word “shall” means that these requirements are mandatory. Put simply, the insurer cannot proceed to conduct any IE, at any time, without first providing proper notice. Otherwise, what would be the point of the notice requirements if evidence could be obtained in such circumstances. The understandable purpose is to make sure that claimants have notice of what’s to come and, more specifically, can object to it prior to the completion of any medical assessment.

35It is also clear to me that Allstate should never have conducted this examination on September 28, 2017 in the first place when it knew, or ought to have known, that CB was not provided with proper notice. I would go so far as to say that Dr. Tuff, or Benchmark, as an agent of the respondent, ought to have ensured that proper notice was provided to CB prior to beginning their assessment and that CB was informed of his right to submit to Dr. Tuff relevant or necessary information.

36The Schedule must be followed, particularly regarding mandatory notice obligations to give claimants certain information ensuring fairness in the scheduling of IEs. When it is not followed, there should be real consequences. This is also consistent with the analogous remedy that if the insured person does not attend an IE his/her ability to attend before the Tribunal is essentially denied (i.e., application will be dismissed, or statute barred). This is a severe remedy and I believe a similar type relief is required in this case where evidence was obtained without proper notice to the applicant.

37Finally, although Dr. Tuff’s reports appears to be relevant, and indeed the applicant in his own submissions concedes this point,¹⁹ I am persuaded that there would be demonstrable prejudice to the applicant by the admissions of these reports into evidence. I am mindful that normally relevant evidence should not be excluded on mere technical grounds. However, in my view, the potential prejudice to the applicant of not having proper notice outweighs that of any prejudice to the respondent in excluding the reports. I also note that the Schedule allows for multiple assessments by more than one health professional and nothing prevents the respondent from re scheduling another necessary assessment and providing proper notice or relying on perhaps other assessments or reports. Therefore, the exclusion of these reports causes minimal prejudice to the respondent.

38In my view, it would be unfair for the respondent to rely on this evidence as a direct result of their own conduct when they have never provided any formal notice to CB that he was to undergo an in-person assessment by Dr. Tuff. Looked another way, what would be the point of s. 44(5) if an insurer could simply ignore these requirements, whether inadvertently or not, and later, after obtaining medical reports, argue that they are relevant. An insurer can not simply override or dispense with the notice provisions under the guise of trying to obtain relevant evidence.

39The prejudice to the applicant is that he has been unilaterally denied any practical opportunity to object to the non-compliant notice prior to the examination taking place. More to the point, it deprived CB the only opportunity to make an informed decision about whether to attend the IE or not. I also do not see how this can not be cured. The right of an insured to conduct examinations is not unfettered. It may be that CB would not have attended the IE and argued that it was not “reasonably necessary”, and Dr. Tuff’s reports would never have been produced. Or it may be that he would have. From a fairness perspective, the main point is that he was denied that opportunity. Also, I am bolstered in my position that because of the defective notice, s. 44(9)2(ii) was never formally triggered, and CB was denied his right to provide information to the assessor prior to the start of the assessment. It may be that CB would never have provided any further information as everything necessary may have already been before Dr. Duff, but again from a fairness perspective, he was denied this right enumerated in the Schedule.

40Finally, I believe admitting Dr. Tuff’s evidence would not instill public confidence and a sense of fairness in these proceedings as it was obtained without proper notice to the insured. Fairness is fundamental to any administrative law process. Allowing the evidence would not result in a fair process. This was an egregious breach of the notice provisions in the Schedule and it would be manifestly unfair for the respondent to rely on that evidence. As a result, I will exercise my discretion and not allow the respondent to produce and rely on the impugned evidence or reports from Dr. Tuff’s in person assessment on September 28, 2017.

Whether further s. 44 examinations are reasonably necessary prior to the hearing?

41The applicant explains that, if the disputed evidence is excluded (as I have done), it is anticipated that the responded will request further s. 44 IEs from a neuropsychologist and such examinations are not reasonably necessary. For this reason, he asks that I make an order that the respondent not be able to conduct any further IEs. Correspondingly, the respondent requests an order that it be allowed to schedule further examinations.

42I decline to make either order at this time because no examination has yet been scheduled. In these circumstances because of the lack of specificity I do not have ability to make such an order currently. This follows from a plain reading of s. 44(1), which provides that: “If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out [the items in a-d].”

43At this time, I do not have any clear confirmation that the respondent does in fact require an IE, how many, and with whom. This is because the respondent has not provided the applicant with notice in accordance with this provision that it requires an examination under section 44. In other words, no IE has been arranged. It also follows that the applicant has not yet refused to attend any scheduled IE and there is no record or proof of non-attendance. As a result, I am unable to proceed to a full inquiry, based on all of the circumstances, to apply the guiding criteria in assessing the reasonableness of a proposed insurer examination including: the timing of the insurer’s request; the number and nature of the previous insurer’s examinations; the nature of the examination being requested; and whether there are any new issues being raised in the applicant’s claim that require evaluation.²⁰

44This ruling on this issue is without further prejudice to either party to seek a further ruling from the Tribunal on this issue if and when any further IE is scheduled, notice provided to the applicant in accordance with the Schedule and proof of non-attendance.

ORDER:

45For the reasons above, I order that:

i. Dr. L. Tuff’s evidence as it relates to the examination of the applicant that took place by him on September 28, 2017 is inadmissible at the in-person hearing; and

ii. the balance of the relief sought related to the scheduling of further IEs is denied.

46All remaining terms of the previous Orders remain in full force and effect.

Released: October 31, 2019

___________________________

Cezary Paluch

Adjudicator

Footnotes

1. 1The hearing was adjourned pursuant to Order released August 23, 2019.
2. 2The Applicant’s Motion Record Dated June 3, 2019, including the Notice of Motion at para.’s 1 and 2 also sets out the relief being sought.
3. 3On June 3, 2019, the Tribunal ordered that this motion be heard in writing with written submissions submitted in advance of the motion hearing. A further case conference took place on July 30, 2019 addressing a request by the respondent to extend submissions dates. See Motion Order of August 23, 2019.
4. 4See Respondent’s Responding Motion Submissions originally dated June 17, 2019 and re-dated August 26, 2019 at para. 1 and 47. Although no formal cross motion has been brought.
5. 5The hearing has been adjourned so there is no need to address this ground.
6. 6Para. 45 of Respondent’s Responding Motion Submissions.
7. 7Affidavit of C. Chumney dated June 17, 2019, para. 22.
8. 8S. 44(8) of the Schedule also requires that if notice was verbal written confirmation be provided as soon as practicable.
9. 9Applicant’ Motion Record dated June 3, 2019, Written Submissions para. 23.
10. 10Affidavit of C. Chumney dated June 17, 2019, para. 17.
11. 11See 16-003144 v Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT) para. 36.
12. 12Applicant resides in Brantford and examination took place in Hamilton.
13. 13Conversely s. 44(9)1 still does allow for information to be provided to the assessor when conducting a paper review and this right is not only limited to in person assessments.
14. 14I do note that if
15. 15Responding Motion Submissions, para. 1 and 16.
16. 16See 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) at para. 19.
17. 17Statutory Powers Procedure Act, RSO 1990, c S.22
18. 182013 CarswellOnt 15809, [2013] OFSCD No. 211, para. 51.
19. 19Applicant’ Motion Record dated June 3, 2019, Written Submissions para. 24. Clarified further in reply.
20. 20See 17-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT), para. 19.```