P.G. v. Economical Mutual Insurance Company, 2019 CanLII 22217

Tribunal File Number: 18-001369/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:

P.G.

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR:

Lindsay Lake

Appearances:

For the Applicant:

Michael Ianni, Counsel

For the Respondent:

Marc Smith, Counsel

Heard IN WRITING ON:

November 26, 2018

OVERVIEW

1P.G., a 70-year old man, was involved in an automobile accident on March 7, 2017 (the “accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). P.G. was denied certain benefits by Economical Mutual Insurance Company (“Economical”) and, for that reason, applied to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2An in-person hearing is currently scheduled to commence on March 19, 2019 and to continue as required on March 20, 21 and 22, 2019 to determine P.G.’s entitlement to certain benefits, including non-earner benefits (NEBs).

3As explained below, Economical raises a preliminary issue. It submits that pursuant to section 55(1) of the Schedule, P.G. is barred from proceeding with his application for a determination of his initial entitlement to NEBs because P.G. has not attended three insurer’s examinations (“IE”) as required under section 44.

4P.G. admits that he did not attend the IEs. He argues that he was not required to since Economical’s notice for the IEs was deficient and also because the IEs were not “reasonably necessary.”

PRELIMINARY ISSUE

5The following is the preliminary issue to be decided:

1. Pursuant to section 55(1) of the Schedule, is P.G. precluded from proceeding with his application to the Tribunal to determine his initial entitlement to NEBs due to his failure to attend an occupational therapy, psychological and phsyiatry IE requested by Economical under section 44 of the Schedule?

RESULT OF THE PRELIMINARY ISSUE

6I find that:

(i) P.G. is non-compliant with section 44 of the Schedule;

(ii) Section 37(1)(b) of the Schedule does not apply in this matter;

(iii) Economical’s notice is compliant with section 44(5)(a) of the Schedule as it contained sufficient information to allow P.G. to make an informed decision on whether he would attend the IEs;

(iv) The unexplained acronyms and inaccurate area of expertise in the notice were not an excuse for P.G.’s non-attendance at the IEs as there was no evidence that he was actually misled or confused by the notice or that he was unable to understand it;

(v) P.G. failed to advise Economical that the location of the psychological and physiatry IEs were inconvenient to him and, therefore, is not able to rely upon section 44(9)2.i. of the Schedule as a reasonable excuse for not attending the IEs; and

(vi) The three IEs were reasonably necessary to assess P.G.’s initial entitlement to NEBs.

7As a result, P.G.’s application for NEBs is dismissed. The remaining issues in his application will proceed on the previously scheduled hearing date.

ANALYSIS

P.G.’s Non-Attendance at the Section 44 IEs

8Under section 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 initial, or continuing, entitlement to benefits.

9Section 44(9)2.iii of the Schedule requires an insured person to attend the IE and submit to all reasonable examinations requested by those conducting the IE.

10P.G. admits that he is non-complaint with section 44(1) of the Schedule, as he did not attend the following three IEs in relation to his application for NEBs:

(i) An occupational therapy in-home assessment scheduled for April 10, 2018 with Mr. Tony Jung, Occupational Therapist;

(ii) A psychological assessment scheduled for April 16, 2018 with Dr. Shahrier Moshir, Clinical Psychologist; and

(iii) A physiatry assessment scheduled for April 28, 2018 with Dr. Ryan Williams, Physician.

11In raising the preliminary issue, Economical relies upon section 55(1)2 of the Schedule, which states that if an insured person fails to attend an IE, the insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act until the insured person has complied with section 44 of the Schedule.

12P.G. submits that he was not required to attend the three IEs and, therefore, he is not barred from commencing his application to the Tribunal for NEBs for two reasons. First, P.G. argues that Economical’s Notice of Examination of March 26, 2018 for the three IEs (the “Notice”) was deficient and, second, that the three IEs were not “reasonably necessary” as required by section 44(1) of the Schedule.

13Therefore, in order for Economical to successfully argue that P.G. is barred from commencing his application for NEBs, the Notice must not be deficient and the IEs must be “reasonably necessary.”

Was the Notice Deficient?

14Both parties submitted and relied upon the Tribunal’s decision in 17-002921 v Aviva Insurance Canada,¹ in which Adjudicator Ferguson compiled a “compliance checklist for IE notices” following a review of a significant body of case law. The relevant portions of the checklist for this preliminary hearing are as follows:

1. Required content: all particulars required prescribed by section 44(5) [of the Schedule] must be provided in the notice;

2. Clarity: the language in the notice must be straightforward and clear, explicit, unambiguous and understandable to an unsophisticated person; for example, it should be free of unexplained acronyms;

3. “Medical and any other reasons” should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires in order to determine the claim;

4. The information must be overall sufficient for the reader to decide if he or she wants to submit to the requested IE; and

5. A standard of perfection is not to be expected; the overall sufficiency of notice is what should be assessed.²

15In his submissions, P.G. alleges that the Notice was deficient for the following reasons:

(i) It failed to state that the IEs were being requested pursuant to section 44(1) of the Schedule, which is required by section 37(1)(b) of the Schedule;

(ii) It failed to set out the following particulars as required by section 44(5) of the Schedule, namely:

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

(b) the name of the person(s) 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 using straightforward and clear language directed toward an unsophisticated person;

(iii) the location of the psychological and physiatry IEs were not convenient for P.G.; and

(iv) the information contained in the Notice was not sufficient for P.G. to decide if he wanted to attend the IEs.

a) Failure to refer to Section 44(1)

16Section 37(1)(b) of the Schedule provides that if an insurer wishes to determine if an insured person is still entitled to a specific benefit, the insurer may, but not more often than is reasonably necessary, notify the insured person that the insurer requires an examination under section 44 of the Schedule.

17I find that section 37(1)(b) does not apply to the Notice because the IEs that Economical scheduled in this case were to determine P.G.’s initial entitlement to NEBs, not whether or not he was still entitled to NEBs.

b) Medical and Any Other Reasons for the Examination and Sufficient Information to Determine Attendance at the IEs

18Section 44(5)(a) of the Schedule requires the Notice to set out the medical and any other reasons for the examination.

19P.G. argues that the Notice failed to comply with section 44(5)(a) of the Schedule because Economical failed to acknowledge new medical information that P.G. provided to it on June 5, 2017, February 15, 2018 and March 6, 2018, as Economical used the same explanation for the reasons for the IEs on its first correspondent to P.G. dated February 22, 2018 and later in the Notice.

20P.G. also argues that the Notice fails to contain sufficient information for him to decide if he would attend the IEs. No further particulars were provided by P.G. as to what information was specifically lacking to help him make this determination.

21Economical maintains that the Notice complies with section 44(5)(a) of the Schedule because it meets the requirements set out by Executive Chair Lamoureux in M.B. v. Aviva Insurance Canada³ for the insurer’s “medical and any other reasons,” which include:

1. Specific details about the insurer’s condition forming the basis for the insurer’s decision or information that the insurer does not have about their condition;

2. The specific benefit or determination at issue; and

3. The sections of the Schedule being relied upon.⁴

22The Notice states that Economical arranged the IEs for the following reasons:

Based on the discrepancies in the information received from Dr. Daugherty’s Disability Certificates dated June 26, 2017, please be advised that we require an Insurer’s examination to determine your initial entitlement to the Non-Earner benefit as per Section 36(4). This is based on the injuries noted in your file as being minor, the length of time since the accident, Dr. Daugherty indicated that your disability was anticipated to be 9-12 weeks and his assessment was completed June 26, 2017.

23I find that the medical and any other reasons as set out by Economical in the Notice could have been more straightforward and clearly worded. For example, the reference to section 36(4) is made without reference to the Schedule. Also, the reference to the “discrepancies in the information” between Dr. Daugherty’s Disability Certificates (OCF-3s), both dated June 26, 2017, could have included what the discrepancies actually were.⁵ The further explanation that has been provided for the purposes of this hearing, which is that Economical required the IEs because it did not receive any documents from P.G. to support the change on the OCF-3s or information as to when the change was made, would have also been helpful to understand more fully the reasons for the IEs.

24Nevertheless, I am also guided by Executive Chair Lamoureux’s reasons in M.B. v. Aviva that, “ultimately, an insurer’s ‘medical and any other reasons’ should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”⁶ P.G. did not identify these two portions of the Notice as being at issue for him, and I find that, although the Notice could have been clearer, it was clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IEs.

25I am not persuaded by P.G.’s arguments that the reasons for the IEs were somehow deficient because of additional medical documents provided to Economical. I also find that the Notice refers to the specific benefit at issue (NEBs), contains the sections that Economical was relying upon in requesting and scheduling the IEs and the adjuster’s contact information for any questions that P.G. had. Therefore, I find that the Notice complies with section 44(5)(a) of the Schedule.

c) Information of the Person(s) Conducting the IEs

26Section 44(5)(c) of the Schedule requires the Notice to set out, “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.”

27P.G. submits that the Notice did not comply with section 44(5)(c) of the Schedule because:

(i) The Notice does not set out the regulated health profession to which Dr. Ryan Williams, one of the IE assessors, belongs to;

(ii) The Notice uses “O.T.,” which has been found by the Financial Services Commission of Ontario (FSCO) to not be a “health professional” within the meaning of the Regulated Health Professionals Act, 1991,⁷ and that an unsophisticated person may not know what an OT is;⁸

(iii) The Notice failed to identify the title of each assessors in straightforward and clear language directed toward an unsophisticated person because “O.T.” and “C. Psych” were used; and

(iv) The notice states “physiatry,” which is not a regulated health profession within the meaning of the Regulated Health Professionals Act, 1991.⁹

28Economical submits the Notice provided the assessors’ names, and credentials, specialty/professional designation and the contact information of the assessors. Economical argues that “OT” and “Psych” refer to the IE assessors’ credentials and that their titles and specialties are clearly set out in the Notice. Economical also submits that Dr. Ryan Williams, the IE assessor for the physiatry examination, is a physician who is registered with the College of Physicians and Surgeons of Ontario (“CPSO”) and who is regulated by the Medicine Act, 1991,¹⁰ which is a regulated health professional under the Regulated Health Professionals Act, 1991.¹¹

29I find that there are deficiencies in the Notices but that they are minor in nature and did not confuse P.G. I note that the Notice does not reflect Dr. Williams being a “physician,” as his credentials are listed as “MD, FRPCP,” and his specialty/professional designation is listed as physiatry. Dr. Williams’ area of specialization with the CPSO is listed as “physical medicine and rehabilitation,” and not “physiatry.”¹² I also find that Dr. Williams is a regulated health professional but for “medicine,” not physiatry, and I agree with P.G. that “physiatry” is not a regulated health profession within the meaning of the Regulated Health Professionals Act, 1991.¹³

30While the Notice was not free from unexplained acronyms and incorrectly identified Dr. Williams’ area of expertise, I am mindful of Adjudicator Ferguson’s statement in 17-002921 that:

The purpose of notice and disclosure requirements is to ensure that claimants are provided the information they need to make good decisions. Alleged deficiencies or omissions in notices should not be accepted as excuses for an insured’s own complete inaction or non-compliance without evidence that he was actually misled or confused by the documents or was unable to understand them.¹⁴

31In this matter, P.G. submits that he is 70 years old and his highest level of education is High School. P.G. also submits that the medical records show that he suffers from a brain injury involving memory loss and that he “remained unclear as to what an OT and Psych were.”¹⁵

32While P.G.’s age and highest level of schooling are not likely contentious issues between the parties, I have not been provided with any evidence, such as a sworn affidavit, to confirm that P.G. was unclear as to what an “OT” and “Psych” were. There is also no evidence before me that confirms that P.G. was confused as to Dr. Williams’s speciality and/or his professional designation. While I agree that Dr. Raymond Lo determined on May 24, 2017 that P.G. “has significant memory loss,” I have no evidence that P.G.’s cognitive abilities were reduced or affected. Additionally, Dr. Lo’s comments were made 10 months prior to the Notice being sent to P.G and, therefore, I do not have any evidence of P.G.’s memory that is contemporaneous with the timing of the Notice. I agree with Economical that P.G. provided no evidence that he was misled or confused by the Notice or was unable to understand it.

33Furthermore, Adjudicator Ferguson also found in 17-002921 that a reasonable person would respond to alleged deficiencies and/or omissions in any notices for IEs by asking for more information about the examinations.¹⁶ In this case, there is no evidence before me that P.G. ever asked for clarification or notified Economical of his specific issues with the Notice. The only response to the Notice from P.G. was an e-mail dated March 26, 2018 from P.G.’s counsel which simply stated, without any further explanation, as follows:

Please be advised that you have provided deficient notice. You failed to comply with s. 44(5)…In addition, my client is not required to attend your assessments.¹⁷

34For all of these reasons, I find that P.G. is not absolved from attending the three IEs because there is no evidence that he was confused by these minor deficiencies in the Notice. I also find that these minor deficiencies do not absolve P.G. from taking action to clarify the deficiencies or, at a minimum, notifying Economical of the particulars of his position on how the Notice failed to comply with section 44(5) of the Schedule to allow Economical an opportunity to respond.

d) Inconvenient Location of IEs

35Section 44(9)2.i. of the Schedule requires the insurer to make reasonable efforts to schedule the IE at a location that is convenient for the insured person.

36P.G. submits that the Notice failed to comply with section 44(9)2.i. as the location of the psychological and physiatry IEs were not convenient for P.G. P.G. submits that he would be required to travel for approximately five and a half hours in total to attend the psychological and physiatry IEs, which is not convenient for him. P.G. also submits that he is unable to travel to the IEs because of his injuries.

37Economical argued that P.G. was obliged to object to the locations of the IEs to allow it an opportunity to accommodate him.¹⁸ Economical submits that at no time did P.G. advise it that the locations of the IEs were not convenient. Economical’s position is strengthened by P.G.’s counsel only referring to section 44(5) of the Schedule in his claim that the Notice was deficient in his email dated March 26, 2018.

38As I have stated above, I am not bound by FSCO decisions. However, I find that the comments in Subramaniam relied upon by Economical are consistent with the comments by Adjudicator Ferguson in 17-002921 regarding the inaction of applicants when faced with alleged deficiencies in IE notices. Therefore, I agree with Economical that P.G. was obliged to object to the locations of the IEs to allow it an opportunity to accommodate him.

39Furthermore, I was not directed by P.G. to any evidence to support his alleged inability to travel the required distances as a result of his injuries. I also note that the Notice contained an offer by Economical to provide P.G. with transportation to the IEs.

40I find that P.G. is not able to rely upon section 44(9)2.i. of the Schedule as a reasonable excuse for not attending the IEs because P.G. failed to notify Economical that the locations of the physiatry and psychological IEs were not convenient to him and no evidence was submitted to show that he was unable to travel to the IEs as a result of his injuries.

Were the three IEs “Reasonably Necessary”?

41P.G. also takes the position that he was not required to attend the IEs because they were not reasonably necessary based on the explanation and/or justification provided by Economical and, therefore, did not comply with section 44(1) of the Schedule.

42P.G. submitted that Economical failed to identify and inform him why the three IEs were required and what medical evidence Economical had to suggest that the IEs were necessary in order for it to further investigate P.G.’s condition. P.G. did not make any further submissions or provide any additional particulars about his claim that the IEs were not reasonably necessary.

43Economical argues that the process of determining whether an IE is reasonably necessary is fact-specific and requires a thorough analysis, which must balance the interests of all parties.¹⁹ Economical also relied upon the FSCO decision of Al-Shimasawi v. Wawanesa Mutual Insurance Co.²⁰ in which Arbitrator Feldman identified several key criteria to evaluate the reasonableness of proposed IEs:

1. The timing of the insurer’s request;

2. The possible prejudice to both sides;

3. The number and nature of the previous insurer’s examinations;

4. The nature of the examination(s) being requested;

5. Whether there are any new issues being raised in the applicant’s claim is a bar from entitlement that require evaluation; and

6. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.²¹

44Economical submits that P.G. underwent eight IEs in 2016 and 2017 for various reasons. It was only following the completion of these IEs that P.G. resubmitted the second changed version of the OCF-3 with no explanation or supporting documentation. Economical then scheduled the IEs to determine if there was a change in P.G.’s status such that he would qualify for NEBs.

45Economical also submits that the physiatry examination is required because P.G. was diagnosed with WAD II and various sprains/strains, an occupational therapy assessment is required to determine P.G.’s functional status and tolerances and, finally, the psychological examination was required as a previous examination noted invalid test results. This information was not included in the Notice and was only provided in Economical’s submissions for the preliminary hearing.

46Nonetheless, there is no evidence before me that Economical was ever notified by P.G. that he was challenging the necessity of the three IEs. In fact, the evidence is quite the opposite. The email from his Counsel dated March 26, 2018 in response to the Notice only refers to section 44(5) of the Schedule.

47Again, I have difficulty with P.G. relying upon his own inaction in conveying to Economical his concerns with, or the alleged deficiencies in, the Notice and thwarting any opportunity for Economical to provide clarifications. Further, there is again no evidence before me that the alleged information in the Notice about the reasonable necessity of the IEs led to any confusion by P.G. Finally, P.G. failed to ask Economical for more information about the examinations which is what would be expected by a reasonable person in the circumstances.

48Based on all of the evidence before me, I am satisfied that the three IEs were reasonably necessary to assess P.G.’s entitlement to NEBs based on the explanation and/or justification provided by Economical in the Notice and the subsequent information that it provided in its submissions.

CONCLUSION

49Based on my reasons set out above, I find that:

(i) P.G. is non-compliant with section 44 of the Schedule for his failure to attend the three IEs;

(ii) Section 37(1)(b) of the Schedule does not apply in this matter;

(iii) The Notice contained sufficient information to allow P.G. to make an informed decision on whether he would attend the IEs and, therefore, was compliant with section 44(5)(a) of the Schedule;

(iv) The minor deficiencies in the notice (i.e. unexplained acronyms and incorrect area of expertise) in relation to the requirements under section 44(5)(c) of the Schedule are not an excuse for P.G.’s non-attendance at the IEs as there was no evidence that he was actually misled or confused by the Notice or that he was unable to understand the Notice;

(v) P.G. failed to advise Economical that the location of the psychological and physiatry IEs were inconvenient to him and, therefore, is not able to rely upon section 44(9)2.i. of the Schedule as a reasonable excuse for not attending the IEs; and

(vi) The three IEs were reasonably necessary to assess P.G.’s initial entitlement to NEBs based on the explanation and/or justification provided by Economical in the Notice and the further explanation provided in Economical’s submissions.

50Therefore, P.G.’s application for NEBs is dismissed. The remaining issues in his application will proceed on the previously scheduled hearing date.

Footnotes

1. 12018 CanLII 76416 (ON LAT)(“17-002921”).
2. 2Ibid. at para. 19.
3. 32017 CanLII 87160 (ON LAT) (“M.B. v. Aviva”).
4. 4Ibid. at para. 26.
5. 5Both of the OCF-3s that were completed by Dr. Daugherty are dated June 26, 2017. The first version of the OCF-3 was submitted to Economical in July 2017 and noted that P.G. did not suffer a complete inability to carry on a normal life whereas the second version submitted in February 2018 noted that P.G. did suffer a complete inability to carry on a normal life.
6. 6Supra note 3 at para. 26.
7. 7S.O. 1991, c. 18.
8. 8Quinones v. Unifund Assurance Company, FSCO A12-000866 (“Quinones”).
9. 9Ibid.
10. 10S.O. 1991, c. 30.
11. 11Supra note 7.
12. 12Reply Submissions of the Respondent, dated November 15, 2018, tab H.
13. 13Supra note 7.
14. 14Supra note 1 at para. 22.
15. 15Submissions of the Applicant, dated November 12, 2018, page 8 at para. 15.
16. 16Supra note 1 at para. 22.
17. 17Submissions of the Respondent, dated October 25, 2018, tab G.
18. 18Subramaniam v Wawanesa Mutual Insurance Co., 2016 CarswellOnt 20657, [2016] O.F.S.C.D. No. 351 [FSCO] at para. 25 (“Subramaniam”).
19. 19Volpe v. Co-operators General insurance Company, 2017 ONSC 261 at para. 30.
20. 202007 CarswellOnt 3473, [2007] O.F.S.C.D. no. 82.
21. 21Ibid. at para. 19.