Tribunal File Number: 19-002077/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:
M.A.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: David S. Wilson, Counsel
For the Respondent: Rose Bilash, Counsel
Written Hearing: August 26, 2019
OVERVIEW
1The applicant, M.A., was injured in an automobile accident on November 20, 2009. She sought benefits from the respondent, Certas, and now alleges that her impairments have resulted in a catastrophic impairment (“CAT”). Certas disagreed and asked that M.A. attend for various s. 44 Insurer’s Examinations (“IE”) in order to assess her CAT claim. M.A. attended all but one of the IEs, arguing that the IE she did not attend, a neuropsychological exam, was not reasonably necessary to determine CAT and, in any event, that Certas waived its right to conduct the IE and that the IE was not properly requested by Certas. Certas disagreed and insisted that M.A. should attend.
2M.A. then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute. An in-person CAT hearing was set down pending the outcome of this written preliminary issue hearing, raised by Certas, to determine whether M.A. is statute-barred from proceeding with her application for failure to attend the IE.
ISSUES
3The preliminary issue listed in the Case Conference Order is as follows:
(a) Is the applicant restricted by section 55 of the Schedule to apply to the Tribunal under section 280(2) of the Insurance Act because the applicant refused to attend the insurer examination under section 44 for a psychiatry assessment to determine catastrophic impairment?
RESULT
4M.A. is statute-barred from proceeding with her application at the Tribunal until she attends the neuropsychological IE.
ANALYSIS
Is M.A. barred from proceeding with her application under s. 55 of the Schedule because she refused to attend the requested IE?
5Section 44 of the Schedule confers the right to Certas to conduct IEs, but limits that right to IEs that are considered reasonably necessary. At issue is whether the IE for neuropsychology as proposed by Certas is reasonably necessary to determine whether M.A. is CAT impaired. If so, M.A. is statute-barred under s. 55 from proceeding with her application until she attends the proposed IE. I find on the facts and evidence that Certas’ proposed IE is reasonably necessary for a CAT determination and that M.A. is barred under s. 55 from proceeding with her application until she attends the neuropsychological IE.
6In raising this preliminary issue, Certas’ position is relatively straightforward: the crux of its request is based on the report of Dr. Waisman, psychiatrist, who found that M.A.’s cognitive issues, including memory issues and concentration, required specialized testing and assessment from a professional qualified to do so in order to deliver a proper mental/behavioural rating for CAT. Further, Certas argues that its notices were proper, that it did not “waive” its right to conduct the IE and that its request for the IE was reasonable.
7In response, M.A. offers several arguments. First, she contends that she never objected to the IE per se, but rather objected to the necessity of two mental health IEs and wanted to put Certas to an election of just one. Second, M.A. argues that, by its conduct and correspondence, Certas withdrew the IE request and therefore waived its right to conduct the IE. Third, that there is no support for the need for a neuropsychological IE and that Certas is overreaching and acting in bad faith. Fourth, that Certas’ notice was improper under s. 44. Finally, that an adverse inference should be drawn due to Certas not providing an affidavit from Dr. Waisman to address the issues in dispute, like the affidavit submitted from Ms. Buchanan, and as was contemplated during the case conference.
8In submissions, the parties address many of the principles outlined in the Tribunal’s jurisprudence1 that concern whether a section 44 IE is reasonably necessary, including: the timing of the Certas’ request; the possible prejudice to either side; the number and nature of previous examinations; the nature of the examination being requested; whether there are any new issues being raised in the claim that require evaluation; whether there is a reasonable connection between the examination requested and M.A.’s injuries, etc.
The timing of the request and notice
9I find Certas’ request for the IE was timely and reasonable, made in good faith and appropriate given its rights under the Schedule and M.A.’s claim that she is CAT. The IE was part of the original batch of IEs requested on May 28, 2018, although the notice does indicate the IE was for “Psychology/Neuropsychology”. I do not find that this is a situation where Certas was attempting to schedule an IE long after it was appropriate to do so. While I agree with M.A. that the subsequent notice provided with the OCF-9 was not typical because Certas’ request did not have the date, time and location, I do not find that it was deficient. It instructed M.A. that a neuropsychological IE was required.
10Similarly, while Certas’ initial reason for the IE was tenuous—a reference to M.A.’s use of psychotropic drugs was made by the adjuster—I find it difficult to overlook its base argument that it required specialized testing and an assessment from a professional qualified to do so in order to deliver a proper mental/behavioural rating for CAT, which is the basis of the dispute.
11Indeed, based on the correspondence before the Tribunal between the parties, M.A.’s admission that she was attempting to force Certas into an election between the two mental health IEs, the actual notices of examination dated May 28, 2018 and Certas’ correspondence indicating an IE was required, I find M.A. was very much in possession of all of the information she may have needed in order to determine whether to attend the IE or not. As we know, she was able to make that decision without some of the technical details—date, time, location—based on her incorrect belief that two “mental health” IEs were not reasonably necessary in a CAT case.
Prejudice
12Certas submits that it will be prejudiced if M.A. is not required to attend the IE and can proceed to the Tribunal because it will be without completed CAT assessments to rebut her claim. Without a complete CAT assessment, Certas would be at a disadvantage from an adjusting standpoint and in the proceedings before the Tribunal. M.A. submits there is no prejudice to Certas because it could have chosen to send her to the neuropsychological IE in the first place and there would be no issue. Further, she argues that Certas’ request is an overreach and made in bad faith. I disagree.
13Other than an unfortunate delay in the proceedings and having to attend another assessment, there was no compelling evidence provided by M.A. of actual prejudice if she were required to attend the outstanding IE. Indeed, the IE may very well concur that she is CAT. In such a case, M.A. would not be subject to an arduous hearing. Alternatively, if the IE disagrees on CAT, then the parties return to the same course they are currently on, better informed and on equal footing, each with relevant reports in hand that speak to the issues in dispute.
14Although this does not affect my analysis, from an adjudicative perspective and in the interest of a fair and just proceeding, a potential hearing where one party has complete CAT reports and the other does not would result in a difficult decision on the merits of an application without the opportunity to hear fully from both sides. In my view, it would also prevent the possible prejudice to Certas of its CAT determination being assigned less weight due to an incomplete rating in the mental/behavioural sphere.
The number and nature of previous examinations
15Certas argues that there is a clear nexus between the need for the IE and M.A.’s CAT claim and that it is the only neuropsychological IE it has requested in the ten years the file has been active. M.A. argues that another assessment would be invasive to her and unnecessary, given that Certas chose to withdraw the IE initially, waived its right to conduct the IE and has not demonstrated why it is needed or could not have been completed with the first batch of IEs.
16While I am alive to M.A.’s argument that IEs are intrusive, I do not agree that a neuropsychological IE is unnecessary given that a CAT determination is at issue. Neuropsychological reports are often the most contested but also the most informative reports before the Tribunal in CAT cases. Further, I agree that a single additional IE is not excessive given the fact that M.A. is seeking CAT and has not been subject to one previously. While it is always preferable to limit the number of IE’s an applicant is required to attend, contrary to M.A.’s submission, it is not unordinary for an applicant to attend some combination of psychiatric, psychological, neurological and neuropsychological assessments when CAT is at issue. Put another way: it is not unreasonable or unusual to conduct two IEs that have a psychological or mental health component.
17I also disagree with M.A.’s argument that Certas at any point “waived” its right to conduct the neuropsychological IE. While Certas admits that it withdrew its initial request, there is no authority to suggest that this automatically results in an insurer also waiving its right to conduct the IE at a later time or, for example, to change the scope of an assessment while adjusting its file or in response to reports filed by an applicant. Here, I agree that, despite M.A.’s contention otherwise, there is no evidence that Certas expressly or unequivocally “waived” its right to conduct an IE.
Reasonable connection between the IE and CAT; affidavits
18On review of the reports, I find there is a reasonable connection between the IE requested and M.A.’s CAT impairments and therefore it is reasonably necessary to conduct the neuropsychological IE to ensure that the CAT picture is complete for all of the parties involved. Based on Dr. Waisman’s admission, I see no reason to doubt his contention that, as a psychiatrist, he was unable to arrive at a CAT determination on the information before him. As a result, I agree with Certas that the IE is an important component to assess M.A.’s CAT application before proceeding to the Tribunal.
19Finally, in her reply, M.A. relied heavily on the affidavit of Ms. Buchanan—M.A.’s counsel’s legal assistant—to corroborate M.A.’s arguments and, seemingly, as an authority on cognitive impairments and the types of assessments required for a proper evaluation of M.A.’s condition. The affidavit opines on a number of issues, including the qualifications of IE assessors, the Guides, the timeline of events in this matter and, over thirteen pages, offers extensive argument in support of and in line with M.A.’s submissions. To be frank, I found this affidavit to be very inappropriate, as the affiant demonstrated no qualifications, expertise or standing to justify assigning weight to the majority of the document.
20For these reasons, I find, on a balance of probabilities, M.A. is statute-barred from proceeding with her application before the Tribunal until she attends the neuropsychological IE requested by Certas.
ORDER
21M.A. is statute-barred from proceeding with her application before the Tribunal under s. 55 until she attends the neuropsychological IE scheduled by Certas.
22If the IE, accompanying report and CAT determination cannot be completed in advance of the scheduled hearing dates, the parties shall notify the Tribunal immediately, so a case conference may be scheduled in order to canvass alternative available hearing dates as required.
23If the parties are able to resolve the issues in dispute, they shall immediately notify the Tribunal.
Released: November 29, 2019
___________________________
Jesse A. Boyce
Adjudicator
Footnotes
- See, for e.g., 17-005291 v. Travelers Canada, 2018 CanLII 13172 (ON LAT) and 17-001138 v. CAA Insurance, 2018 CANLII 76420 (ON LAT).```