C.L. v. TD Home and Auto Insurance Company, 2019 CanLII 126182

Citation: C.L. vs. TD Home and Auto Insurance Company, 2019 ONLAT 19-002670/AABS

Tribunal File Number: 19-002670/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:

C.L.

Applicant

and

TD Home and Auto Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Erin Murray, Counsel

For the Respondent:

Nicholas Voight, Counsel

HEARD:

In Writing on: December 17, 2019

OVERVIEW

1C.L. was injured in an ATV accident on July 18, 2015. He sought benefits from the respondent, TD Home and Auto Insurance Company, and was later deemed to be catastrophically impaired ("CAT") by TD as a result of the accident. After C.L. returned to work and indicated that he did not need assistance with his daily tasks, TD denied further income replacement benefits ("IRBs") and housekeeping benefits. C.L.'s condition deteriorated after the denial and he requested post-104-week IRBs and housekeeping benefits. TD relied on its initial denials of same and C.L. applied to the Tribunal for resolution of the dispute.

2After receiving C.L.'s application, TD requested that C.L. attend for various s. 44 Insurer's Examinations ("IEs") in order to assess his ongoing entitlement to the benefits. C.L. refused to attend any of the IEs, arguing that they were not reasonably necessary to determine his entitlement to the benefits, that the IEs were only scheduled to bolster TD's evidence and, in any event, that TD did not provide proper medical reasons for the IEs. TD disagreed and raised this preliminary issue to determine whether C.L. is barred from proceeding with his application until he attends the IEs.

ISSUES

3The preliminary issue listed in the Case Conference Order is as follows:

i. Is the applicant barred from commencing a proceeding because he failed to comply with section 44 of the Schedule by not attending the insurer's examinations?

RESULT

4C.L. is statute-barred from proceeding with his application at the Tribunal until he attends the IEs scheduled by TD.

ANALYSIS

Is C.L. barred from proceeding with his application because he refused to attend the requested IEs?

5Section 44 of the Schedule confers the right to TD to conduct IEs, but limits that right to IEs that are considered "reasonably necessary." At issue is whether the IEs for orthopaedic, neurology, neurocognitive, psychological, and a Functional Abilities Evaluation proposed by TD are reasonably necessary to determine whether C.L. is entitled to post-104 week IRBs and housekeeping benefits where he is already CAT. If so, C.L. is statute-barred under s. 55 of the Schedule from proceeding with his application until he attends the proposed IEs. I find on the facts and evidence that TD's proposed IEs are all reasonably necessary for a determination on C.L.'s continuing entitlement and that C.L. is barred from proceeding with his application until he attends the IEs.

6In raising this preliminary issue, TD's position is relatively straightforward: the crux of its request is based on the fact that C.L.'s own position on his entitlement has changed and TD does not have any medical opinion on the benefits he seeks. More specifically, TD submits C.L. was not entitled to an IRB because he went back to work and was not entitled to housekeeping benefits on his own admission that he did not need any. TD argues that since C.L. has resiled from those positions—as he now claims a reduction in his working hours, an impact on his day to day function and a need for help at home—that TD is entitled to secure a medical opinion on entitlement because there is no documentation to speak to this deterioration in his impairments. Further, TD argues that its notices and reasons were proper, that its request for the IEs was reasonable because C.L. has never attended any IEs to address IRBs or housekeeping benefits and, ultimately, C.L.'s excuse for non-attendance was not reasonable and denied TD of its right to secure a full answer and defence.

7In response, C.L. contends that the IEs are not reasonably necessary because TD only scheduled the IEs once litigation was commenced and this timing amounts to "trial brinkmanship" where the process should not be adversarial. Second, C.L. argues that TD should have scheduled IEs to address these benefits in 2015 when they were first denied and TD had C.L.'s OCF-1, OCF-2 and OCF-3 in hand. Third, that TD's notices were improper under s. 44 because they did not contain valid medical reasons for the examinations. Finally, C.L. submits that s. 44 of the Schedule does not permit an insurer to schedule IEs just to generate evidence for a hearing and that TD can rely on the evidence it had at the time of the denial.

8In submissions, the parties address many of the principles outlined in the Tribunal's jurisprudence¹ that concern whether a s. 44 IE is "reasonably necessary," including: the timing of TD's request; the possible prejudice to both sides; the number and nature of previous IEs; the nature of the IEs 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 CL.'s injuries, etc. I will address each of these considerations in turn.

The timing of the request and notice

9I find TD's request for the IEs was timely and reasonable, made in good faith and appropriate given its rights under the Schedule. I agree that C.L.'s claim that he is entitled to benefits that were denied by TD several years earlier because of his return to work and his own admission that he did not need housekeeping, likely came as a surprise to TD. Contrary to C.L.'s position, I do not find that this is a situation where TD was attempting to schedule IEs long after it was appropriate to do so, or that TD was attempting to secure more evidence for a hearing or engaging in trial brinkmanship. Indeed, on the facts, TD scheduled the IEs almost immediately after receiving notice of C.L.'s application to the Tribunal that his circumstances had changed.

10On the facts, I find C.L. returned to work for over three years prior to his Tribunal application being filed. During this time, TD had suspended the IRB and when C.L. sought to litigate the benefit, despite having returned to work, TD scheduled the post-104-week IE to assess his entitlement to IRBs. In a similar vein, C.L. unequivocally reported that he was able to perform pre-accident housekeeping duties. Once that position changed, and he sought to litigate the benefit, TD scheduled the IEs to address his entitlement to housekeeping benefits. I find TD did not anticipate C.L. commencing litigation and could not reasonably have anticipated same. In my view, both of those decisions—and the timing of those decisions—were entirely reasonable.

11While I am alive to C.L.'s submissions, based on the documents before the Tribunal, I fail to see how any of the notices provided by TD were deficient, especially since C.L. was able to decide whether or not he should attend and chose not to. I find his non-attendance to be somewhat misguided. Given the time that had elapsed, C.L.'s seeming deterioration and the fact that no IEs were conducted previously, I find it reasonable that TD would not have the medical documentation available to specifically cite the medical reason it required IEs. Rather, the request for the IEs was to investigate its position that C.L.'s injuries did not entitle him to IRBs or housekeeping benefits and that IEs were required to assess whether or not he was entitled to the benefits.

Prejudice

12TD submits that it will be prejudiced if C.L. is not required to attend the IE's and can proceed to the Tribunal because it would be left without the ability to provide a full answer and defence. Without IEs to comment on the benefits claimed, TD argues it would be at a disadvantage from an adjusting standpoint and in the proceedings before the Tribunal because there has never been IEs to address these specific benefits. C.L. submits there is no prejudice to TD because it could have chosen to conduct IEs when it first denied the benefits and it can rely on the medical evidence it had from that point in time.

13I disagree. Other than an unfortunate delay in the proceedings and having to attend the IEs, there was no compelling evidence provided by C.L. of actual prejudice if he were required to attend the IEs proposed. Indeed, the IEs may very well confirm that he is entitled to post-104 week IRBs and housekeeping benefits. In such a case, C.L. would not be subject to an arduous hearing. Alternatively, if the IEs determine he is not entitled to the benefits, then the parties return to the same course they are currently on, better informed and on equal footing, each with relevant medical documentation 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 updated medical opinions that speak to specific benefits 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.

The number and nature of previous examinations

15TD argues that there is a clear nexus between the need for the IEs and C.L.'s claims and that no IEs for IRB or housekeeping have been conducted in the history of the file. C.L. argues that the IEs are for an improper purpose.

16While I am alive to C.L.'s argument that IEs are intrusive, I do not agree that the slate of IEs proposed is unnecessary given the alleged decline in C.L.'s condition and increased need in recent years. Further, I agree that the proposed IEs are not excessive considering C.L. has not been subject to IEs for these benefits previously. While it is always preferable to limit the number of IEs an applicant is required to attend, contrary to C.L.'s submission, it is not unordinary for an applicant to attend some combination of IEs to determine continuing entitlement where there is a gap in the medical opinions and their condition has deteriorated. This is especially so with CAT applicants.

Reasonable connection between the IEs and benefits

17On the facts, I find there is a reasonable connection between the IEs requested and C.L.'s CAT-related impairments and ongoing need. While C.L.'s alleged deterioration is a result of impairments which cannot be identified as substantively "new", I do find that there are "new" issues that IEs should address, namely: the decline in C.L.'s condition such that he now believes he is entitled to post-104-week IRBs and housekeeping benefits. In my view, the connection is obvious, and C.L.'s deterioration requires evaluation. Given C.L.'s current complaints and how his impairments affect his day to day and work function, I find the IEs proposed—being orthopaedic, neurology, neurocognitive, psychological and the functional abilities evaluation—constitute a thorough and reasonable evaluation where there has not been one to date. Therefore, I find it is reasonably necessary to conduct the IEs to ensure that the CAT picture—and C.L.'s entitlement to benefits years removed—is complete for all of the parties involved. As a result, I agree with TD that the IEs are an important and necessary component to assess C.L.'s application before the Tribunal.

18For these reasons, I find, on a balance of probabilities, C.L. is statute-barred from proceeding with his application before the Tribunal until he attends the IEs requested by TD to determine entitlement to IRB and housekeeping benefits.

ORDER

19C.L. is statute-barred from proceeding with his application under s. 55 of the Schedule until he attends the s. 44 IEs scheduled by TD. The parties shall contact the Tribunal so a case conference may be scheduled in order to address how to proceed. If the parties are able to resolve the issues, they shall immediately notify the Tribunal.

Footnotes

1. 1See, for e.g., 17-005291 v. Travelers Canada, 2018 CanLII 13172 (ON LAT) and 17-001138 v. CAA Insurance, 2018 CANLII 76420 (ON LAT).