O.H.A. v. Aviva General Insurance Company, 2019 CanLII 40237

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:

O.H.A.

Appellant(s)

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUES DECISION AND ORDER

VICE CHAIR: Eleanor White

Appearances:

For the Appellant: Chris Rizzo, Paralegal

For the Respondent: Mark Vella, Counsel

Heard: In Writing Hearing: November 26, 2018

OVERVIEW

1O.H.A was involved in an automobile accident on February 6, 2016 and, as a result, sustained various injuries, including predominantly sprain and strain injuries of the cervical, thoracic and lumbar spine. The applicant’s injuries were classified by the insurer as ones that could be treated under the Minor Injury Guideline (MIG). The insurer paid for some benefits under the MIG, but denied others and gave notice to the applicant of certain in-person assessments. The applicant did not comply with the requests and, in response, the insurer maintained the denials. The applicant then filed an application with the Tribunal.

2During the case conference, the respondent raised a preliminary issue. Specifically, it argued that the applicant was restricted from advancing his application due to his non- attendance at the requested insurer’s examinations. I must decide if the applicant can proceed with his claim for denied benefits.

ISSUE TO BE DECIDED

3As the applicant failed to comply with s.44 of the Statutory Accident Benefits Schedule (the ‘Schedule’), the respondent moves that the applicant is restricted from proceeding with his application to the Tribunal pursuant to s. 55 of the Schedule.

RESULT

4I find the applicant to be non-compliant with s. 44 of the Schedule. As he is non-compliant, and has been consistently so with respect to all s. 44 requests for in-person insurer’s examinations, this application is dismissed.

FACTS

5The applicant was involved in an accident on February 6, 2016. The medical records indicate that the applicant reported neck, upper and lower back pain as well as abdominal pain. The applicant submitted a claim for accident benefits on March 3, 2016 and, subsequently the insurer and the applicant corresponded regarding his various claims.

6The applicant’s appeal to the Tribunal included the issue of his being treated within the Minor Injury Guideline (MIG) limits, a claim for a special award, and claims for eight medical benefits for either treatment or assessments, three of which were withdrawn at the case conference.

7The parties agree on the underlying facts: the chronology of the submissions of treatment plans, denials of payment for the proposed treatment or assessment, requests for s. 44 examinations, and the applicant’s objection and refusal to attend the assessments.

8Using four treatment and assessment plans (OCF-18s), one of which was withdrawn at the case conference, the pattern of request for and refusal of a s. 44 insurer’s examination (IE) is established. The applicant submitted an OCF-18 for either an assessment, in three of the four examples, or an OCF-18 for treatment, as in the fourth submission. In each instance, the insurer denied the proposed assessment or treatment as it considered the applicant’s injuries to be treatable within the limitations of the MIG, or in one case that the MIG payment limits were exhausted. The insurer advised the applicant that it required an in-person section 44 examination and properly notified the applicant of the scheduled date of the in-person examination. The applicant consistently responded with a refusal to attend the examination.

Date of Notice	Scheduled Appointment	Assessor
April 29, 2016	May 13, 2016	Dr. John Lee, Psychologist
August 4, 2016	August 18, 2016	Dr. Michael Ko, Physiatrist
September 15, 2016	October 7m 2016	Due to non-compliance, insurer advised of intent to schedule IE, asked for response
October 13, 2016	Advised of need for IE	Not scheduled until applicant responded to query of intent to attend

9The applicant argued that, since he was considered to have sustained injuries that were treatable under the limitations of the MIG, primarily soft tissue or sprain/strain in nature, the insurer could not request a s. 44 examination, pursuant to s. 44(3) of the Schedule. The applicant’s correspondence to Ms. McGookin, AB claims, dated August 15, 2016 in response to a request for attendance at a s. 44 IE, is clear in that he states “As you have classified my client’s injuries as treatable within the MIG, it is our position that you are not entitled to s. 44 assessments”. The applicant further stated the he would not be allowed to attend the s. 44 IE. The applicant also argued that an IE would constitute a duplication of process, as he had applied for the medical benefit of a s. 25 assessment for similar reasons as the request for a s. 44 IE. Lastly, the applicant stated a preference for a paper review over an in-person examination.

10With each successive repetition of the request, notification and refusal process for additional OCF-18s, the insurer continued to offer a rescheduling of all requested s. 44 examinations. In the case of the first example, the OCF-18 proposing a psychological assessment denied by the insurer on April 8, 2016, the issue of rescheduling was raised on seven separate occasions over seven months. The applicant did not accept any such offer and did not attend any s. 44 examinations.

11A case conference was held on August 8, 2018 and, for the first time, the applicant offered to attend insurer’s examinations. The respondent held that the delay of two years in examining the applicant would prevent it from assessing the applicant’s condition, and the appropriateness of the treatment or assessment at the time of its submission to the insurer. The respondent opined that this would prejudice the insurer and deprive it of procedural fairness in a hearing.

ANALYSIS

12At the crux of the preliminary issue is the applicant’s consistent argument (para. 19 of his written submissions) in each of the four (one being withdrawn at case conference) disputed issues of non-compliance: that the IEs ordered and scheduled by the respondent did not require attendance as per s. 44(3) of the Schedule, because s. 44(1) does not apply with respect to a benefit payable within the MIG. I will use the first instance of non-compliance as the model of the argument.

13The applicant submitted an OCF-18 proposing a psychological assessment to be conducted by Dr. Andrew Shaul in the amount of $2000.00 on April 14, 2016, and the insurer corresponded on April 28, 2016 denying the benefit as the applicant was being treated under the MIG. It also stated it had no objective evidence to justify approving the treatment plan. The insurer advised that a s. 44 in-person psychological assessment would be scheduled to determine if the applicant could continue to be treated under the MIG. A notice was then sent to the applicant dated April 29, 2016 with a scheduled date of May 14, 2016 for the s. 44 examination. The applicant returned correspondence on May 4, 2016 advising that he would not attend.

14In this instance and in other similar disputes regarding attendance of the in-person insurer’s examination, the applicant’s consistent argument was his interpretation of the insurer’s authority to ask for an examination. The applicant maintains that, as the insurer declared the applicant’s injuries to be treatable within the MIG, they were not entitled to an IE. The additional arguments of duplicative services is raised as well as the applicant’s preference for a paper review instead of an in-person examination.

15The respondent argues that the applicant is indeed in non-compliance as he did not attend the s. 44 IEs. It argues that an insurer is not precluded from requesting an in-person IE. The respondent draws the applicant’s attention to s. 38 of the Schedule, which addresses the rules surrounding specifically the insurer’s requests for IEs. The authority for the format of these examination is argued to be the purview solely of the insurer.

16The respondent argued in its submissions and reply that, although the applicant was held to be within the MIG, the requested examinations would provide the opportunity to respond to either a submitted OCF-18 for an assessment (in 3 issues of dispute) or for treatment, and to determine if indeed the applicant should be taken out of the guideline and thus have access to further treatment. The respondent emphasizes that without the opportunity to evaluate the situation as allowed, the applicant may remain within the MIG.

Non-compliance

17Section 44(1) of the Schedule allows an insurer to require an insured person to be examined by one or more persons chosen by the insurer. Section 44(3) states that s. 44(1) does not apply with respect to a benefit payable in accordance with the MIG.

18However, I am relying upon s. 38(10) of the Schedule that specifies that in the event the insurer has not agreed to pay for elements or all of a treatment and assessment plan, or believes that the MIG applies to the insured person’s impairment, the insured person may be notified of the insurer’s requirement of his or her attendance at a s. 44 IE. This clearly allows the insurer to require the applicant to attend a s. 44 IE, whilst he or she is still considered to be covered within the MIG.

19The OCF-18s in dispute have been denied either because the proposed treatment or assessments have exceeded the MIG limits or because the insurer found them to be not reasonable and necessary due to a lack of objective medical evidence presented at the time. The insurer acknowledged that their position regarding the applicability of the MIG may require further reconsideration and attending a s. 44 IE allowed it an opportunity to re-evaluate their position. At each instance, the insurer provided proper (and unquestioned) notification of the impending scheduled s. 44 IE.

20The applicant had raised an objection to the necessity of an in-person assessment in his correspondence with the insurer regarding the psychological IE on May 13, 2016. In s. 44 of the Schedule, it is clearly stated that the insurer alone has the authority to determine if the presence of the applicant is required at an examination. This is not within the purview of the applicant.

21The applicant has not raised any issue of insufficiency of notice. He did not attend because he did not agree the respondent had the right to request a s. 44 IE if it maintained a position that the applicant’s injuries were treatable within the MIG. Clearly, the applicant is in non-compliance with s. 55(2) of the Schedule as he has repeatedly not attended the examinations. It follows that pursuant to s. 55(1) of the Schedule, the insured shall not apply to the Tribunal under subsection 280(2) of the Act.

Prejudice

22The respondent requests the applicant be restricted from proceeding with his application to the Tribunal and issue an Order that dismisses the claims remaining in the application.

23I find that the applicant is non-compliant with s. 44 of the Schedule in his refusal to attend requested IEs. At the case conference the applicant finally offered to attend an examination. The respondent objected to rescheduling any examinations, as it held that it would be prejudiced by the two year delay in compliance.

24Section 55(2) allows the Tribunal to permit the applicant to proceed with the application despite the restriction imposed in s. 55(1) and further, in s. 55(3), to impose terms and conditions on a permission granted under subsection (2). I am not inclined to allow this application to proceed due to the continued and consistent refusal to allow any and all requests for a s. 44 IE and the resultant delay in the processes.

25It is inappropriate and unnecessarily difficult for any examiner to try to address the proposals for assessment and/or treatment from as early as April 2016 at a future IE, which could result in a delay as lengthy as three years from submission. This takes any matter beyond a reasonable realm of inquiry and renders any conclusion inaccurate and of little use to either party. I find the delay does prejudice the insurer and that any allowance for such a delayed assessment would provide no remedy.

CONCLUSION and ORDER

26For the reasons I have outlined above, I find that the applicant is in non-compliance with s. 44 of the Schedule and, therefore, barred from proceeding with his application. I order that pursuant to s. 55 of the Schedule, his current application is dismissed and the Tribunal file is closed.