E.G. v. Aviva Insurance Canada, 2019 CanLII 126103

Licence Appeal Tribunal

Citation: E.G. vs. Aviva Insurance Canada, 2019 ONLAT 18-010015/AABS

Released Date: 12/02/2019

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:

E. G. Applicant

and

Aviva Insurance Canada Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Applicant: Jonathan Mackenzie, Counsel

For the Respondent: Stanford Cummings, Counsel

HEARD: In Writing April 23, 2019

I. OVERVIEW

1On July 5, 2016, the applicant was involved in a motor vehicle accident.

2The applicant applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), including for non-earner benefits (“NEBs”) and chiropractic services. The respondent denied payment for the medical benefits as it took the position that the applicant sustained a minor injury as per the Schedule and was subject to the $3,500 monetary limit. The respondent further denied the non-earner benefit after the applicant failed to attend two Insurer’s Examinations (“IEs”), specifically, an in-home occupational therapy assessment and a general practitioner assessment.

3The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), seeking entitlement to the non-earner benefit, a minor injury guideline determination and certain medical benefits.

4At the case conference held on February 20, 2019, the respondent raised a preliminary issue seeking to dismiss the applicant’s application for non-earner benefits. The respondent asserted that the applicant was barred from pursuing her claim for non-earner benefits by operation of section 55(1) of the Schedule since she refused to attend the section 44 assessments scheduled to assess her and to determine any potential entitlement. Consequently, this written preliminary hearing was scheduled.

II. PRELIMINARY ISSUE

5The issue to be determined at the preliminary hearing is:

[i]. Pursuant to section 55(1) of the Schedule, is the applicant precluded from proceeding with her application to the Tribunal to determine her initial entitlement to NEBs due to her failure to attend an in-home occupational therapy assessment and a general practitioner assessment requested by the respondent under section 44 of the Schedule?

III. RESULT

6I find that the applicant is not in compliance with section 44 of the Schedule, and thus, per section 55(1) is precluded from proceeding with her application to determine her entitlement to a non-earner benefit until she attends the section 44 IEs. I find that the respondent properly provided notice to the applicant that she was required to attend two IEs, the IEs were reasonably necessary, and the applicant was required to attend.

IV. DISCUSSION

A. FACTS

7On July 12, 2016, the applicant provided a Disability Certificate (“OCF-3”) indicating that the applicant suffered a complete inability to carry on a normal life. By letter dated August 18, 2016, the respondent issued an explanation of benefits stating that upon review of the OCF-3, the applicant may be entitled to a non-earner benefit.

8By way of a letter dated November 17, 2016, the respondent advised that an updated OCF-3 was required within 15 business days to assist in reviewing the applicant’s continuing entitlement to a non-earner benefit.

9By a letter dated December 20, 2016, the respondent again requested the updated OCF-3 and advised that the non-earner benefit was not payable until receipt of the updated OCF-3. The respondent further requested the clinical notes and records from the applicant’s family doctor from two years prior to the accident to date, and the completion of a non-earner questionnaire.

10On September 8, 2017, the applicant submitted the updated OCF-3 completed by Dr. Patricia Porco, chiropractor. The requested family doctor’s records and the non-earner questionnaire were not submitted. The updated OCF-3 stated that the applicant suffered a complete inability to carry on a normal life. Her injuries were listed as: injury of nerve root of cervical spine; sprain and strain of cervical and thoracic and lumbar spine; muscle strain, pain in joint and limb; dislocation, sprain and strain of joints and ligaments of knee; contusion of knees, and stress, not elsewhere classified. The updated OCF-3 recommends further examination/investigations, specifically: ortho/neuro examination to monitor progress and avoid chronicity; referrals to medical doctor, orthopaedic surgeon and in-home assessment to determine functional status and determine need for attendant care and other assistance; and referral to a psychologist to address psychological healing barrier.

11In response, by letter dated September 21, 2017 (the “September 21st letter”), the respondent advised that the insurer was unable to determine whether the recommendations made on the updated OCF-3 met the disability requirement for the specified benefit claimed and the applicant was required to attend two IEs to review those recommendations. The medical reason given was that the disability period appears to be inconsistent with the diagnosis or mechanism of injury. Pursuant to section 44 of the Schedule, the respondent required the applicant to attend an occupational therapy (“OT”) in home assessment with an occupational therapist and a general practitioner assessment with a general practitioner. The September 21st letter included an explanation of benefits and a notice of examination. The in home assessment was scheduled with occupational therapist Ronald Findlay on October 17, 2017, and the general practitioner assessment with Dr. Michael Fung, general practitioner, on October 26, 2017.

12The respondent sent a further letter on September 22, 2017 reiterating that the IEs were needed in order to determine the applicant’s eligibility for the non-earner benefit.

13By letter dated October 20, 2017, the applicant advised that she believes the examination should be a paper review only, and that the examinations should be cancelled. She further sought details on the process the respondent used to determine that the assessment should be in-person, or in the alternative, a letter from the IE practitioner stating that they are unable to do a paper review and required the applicant to be assessed in person.

14By letter dated October 26, 2017, the respondent confirmed the applicant’s non-attendance and suspended her entitlement to the non-earner benefit. The explanation of benefits stated that in order for the respondent to reconsider the applicant’s entitlement to the non-earner benefit she must comply with the examination request, at which point the respondent would review the IE medical report, and advise of its determination. The respondent further advised that an in-person assessment would provide the most accurate results for the applicant, and that a physical examination is required along with a review of medical documentation to provide a wholistic assessment of her current condition and needs.

15The applicant did not attend the IEs.

B. ANALYSIS

16Based upon the evidence before me, I find that the applicant is not in compliance with section 44 of the Schedule, and therefore, per section 55(1) is precluded from proceeding to a hearing on the non-earner benefit.

17The respondent correctly notes that IEs are an important tool available to insurers to assess an insured person’s condition and is legislated into effect in section 44 of the Schedule. There are several consequences for failing to attend an IE for which proper notice is given, one of which is the preclusion of an insured person from applying to the Tribunal.

18The relevant section of the Schedule, Section 44(1) provides:

For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under the Regulation for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

19Per section 44(4), the examination may be limited by the insurer to an examination of material provided without requiring the attendance of the insured person. Section 44(5) provides the notice requirements:

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

20Section 55(1) provides that an insured person shall not apply to the Tribunal under subsection 280(2) of the Act, where “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.”

21The respondent takes the position that given the recommendation for further assessments contained in the updated OCF-3, it did its due diligence and requested that the applicant be assessed by a physician and an occupational therapist to determine the nature and extend of the applicant’s accident-related impairments. The respondent submits that consideration must be given to the recommendations made in the OCF-3 for further assessment.

22The respondent further submits that in the letter dated October 20, 2017, the applicant does not advise that the medical reasons are inadequate. Instead, she implicitly concedes she ought to be assessed but disputed only whether the assessment should be in-person or in writing.

23The respondent further states that the explanation of benefits requesting the applicant’s attendance at the IEs was proper and met all the notice requirements. I have reviewed the September 21st letter and find that the respondent meets all the requirements for proper notice as set forth in section 44. I am not convinced by the applicant’s arguments to the contrary.

24The notice gives medical and other reasons as required by advising that “the disability period appears to be inconsistent with the diagnosis or mechanism of injury.” The accident occurred on July 12, 2016 and the applicant submitted the updated OCF-3 on September 8, 2017, and based upon its review, the respondent submits that the disability period appears inconsistent with the listed diagnosis. The respondent requested the IEs in order to determine whether the applicant met the criteria for the non-earner benefit. I find that the respondent provided specific details about the applicant’s condition and the medical and other reasons are sufficient. I am not persuaded by the applicant’s submission in this regard.

25I further am not convinced by the applicant’s argument that the purported assessments were not reasonable nor necessary given that an updated OCF-3 had been provided. I note that it is reasonable on the part of the respondent to request the examination to assist in its own determination, and to gain an up to date complete picture of the applicant’s condition. An insurer has an obligation to continually adjust a file, and is permitted to gather evidence to respond to a position taken by the insured person. In addition, the updated OCF-3 lists further examinations that are contemplated or required, and those include an in home assessment to determine functional status and a referral to a medical doctor. I find that the respondent’s request for the IEs was reasonably necessary.

26I am also not persuaded by the applicant’s argument that the IEs were never arranged. The applicant argues that the respondent did not provide any documentation to prove that it has chosen a regulated health profession to examine the applicant, or that it had provided relevant documentation to the persons conducting the examination. The applicant points out that the September 21st letter directs the applicant to provide medical documentation to an assessment facility rather than a regulated health professional. I disagree and note that an occupational therapist and general practitioner are clearly the regulated health care professionals that are conducting the IEs, and reviewing the documentation to provide their findings and opinions in the eventual IE reports.

27I find that the purpose of the IEs is to assist the respondent in making a determination on the applicant’s entitlement to the non-earner benefit. By refusing to attend, the applicant denied the respondent the opportunity to make a fair assessment on the applicant’s condition, needs, and her entitlement to the non-earner benefit.

28I find that the applicant did not have a reasonable explanation for her non-attendance at the IEs. The applicant submits that she is not required to attend the IEs as the respondent had sufficient medical evidence to adjust her file without the need for an in person IE. However, the respondent can request an in person IE in order to make its own determination of entitlement to benefits irrespective of the medical evidence provided. The respondent did just that. I find that the respondent complied with section 44 in providing proper notice of IE assessments, and as a result, the applicant was required to attend to allow the respondent to make a proper determination on her medical condition, impairments, and her entitlement to the non-earner benefit.

29For the reasons stated above, I find that the applicant is not in compliance with section 44, and per section 55(1) she is precluded from proceeding to a hearing with respect to this issue until she attends the section 44 IEs.

V. ORDER

I order the following:

30The applicant is precluded from proceeding to a hearing with respect to the non-earner benefits for failing to comply with section 55(1) until she attends the section 44 IEs.

31The Tribunal will schedule a case conference to discuss the remaining substantive issues in dispute and to schedule a hearing.