V.D. v. Aviva Insurance Canada, 2019 CanLII 43892

Citation: V.D vs. Aviva Insurance Canada, 2019 ONLAT 18-007435/AABS

Date: April 30, 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:

VD

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Gina Nardella, Counsel

HEARD:

In Writing on: February 19, 2018

OVERVIEW

1The applicant, VD, was injured in an automobile accident on May 27, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2VD applied for benefits from the respondent Aviva, and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

3VD’s appeal consists of the following disputed claims:

i. A non-earner benefit (NEB) of $185.00 per week for the period November 27, 2016 to date and ongoing; ii. A medical and rehabilitation benefit for physiotherapy; iii. Payment for the cost of a psychological examination/assessment; iv. Payment for the cost of a physiatry examination/assessment; and, v. Interest on any overdue payment of benefits.

4On December 11, 2018, the Tribunal ordered that VD’s appeal be set down for a hearing of her claims for benefits to start on June 20, 2019. It also ordered this preliminary issues hearing.

5Aviva has raised preliminary issues which could prevent VD’s appeal from proceeding.

i. Aviva argues that VD’s appeal should be barred because of her failure to attend an insurer’s examination (IE) as required by the Schedule. ii. Aviva contends that the Tribunal lacks jurisdiction to consider VD’s claim for the cost of a psychological assessment listed as issue #3 above, the details of which are:

“Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for a psychological assessment, recommended by Excel Medical Diagnostic Inc. in a treatment plan submitted July 17, 2017, denied on July 24, 2017 and subsequently approved, but which remains unpaid?”

PRELIMINARY ISSUES

6The preliminary issues before me are:

1. Is VD barred by Section 55(1)2. of the Schedule from proceeding with some or all of the claims in this Application as a result of the applicant’s failure to attend a section 44 in-home occupational therapy assessment?
2. Is VD barred from proceeding with her claim for payment of a psychological assessment, on either of the following grounds: a. Does the Tribunal lack jurisdiction to consider this claim because the respondent has approved the treatment plan, where payment of the approved treatment plan remains in dispute? b. Is the applicant barred by Section 55(1)3 of the Schedule from proceeding with this claim on the grounds that the insurer has requested information from the treatment provider and the insurer is unable to determine liability for the amount payable because the provider has not complied with the insurer’s request in whole or in part?

FINDINGS

7I find that VD is not barred from her appeal. Except as noted below, her appeal is to proceed as scheduled.

8I find that the Tribunal has no jurisdiction to hear VD’s appeal on the cost of the psychological assessment, described as issue #3 above. That portion of VD’s appeal may not proceed.

REASONS

Issue 1: Is VD’s appeal barred by her failure to attend an IE as required?

9There is no dispute about the right of the insurer Aviva to conduct IEs as prescribed by s.44(1) of the Schedule and the basic requirement, prescribed by s.44(9) for an insured person – in this case VD – to attend IEs as requested by the insurer.

Consequences of Non-Compliance with s.44

10Section 37(7) of the Schedule prescribes the consequences to the insured person if she fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with s.44(9).

11Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if the insured person provides a reasonable explanation for not complying with s.44(9).

12The onus is on the insured person to establish a reasonable explanation.²

13Section 55(1)2. of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him or her that it requires an examination under s.44, but the insured person has not complied with that section. However, s.55(2) prescribes that the Tribunal may permit an insured person to apply despite paragraph s.55(1)2.

Aviva’s Position

14Aviva describes the events leading to this issue as follows:

i. In a letter dated October 13, 2016, Aviva advised VD that she might be entitled to NEB based on its initial review of her claim. ii. In a letter dated October 25, 2016, Aviva told VD that she was required to attend an examination with Dr. Hashmat Khan, physician and Ms. Susanna Pui Shan Au, occupational therapist (OT). This was Aviva’s Notice of Examination (NoE) to VD, required by s.44(5) of the Schedule. iii. VD’s representatives sent Aviva a written request dated November 7, 2016 to reschedule due to her unavailability. The IEs were rescheduled as requested. iv. In a letter dated December 15, 2016, VD’s representative advised Aviva that she would not attend the In-Home Examination with the Occupational Therapist (which I will call “the OT IHE”). v. On December 20, 2016, the Applicant was assessed by Dr. Ahmad Belfon, general practitioner (GP) who concluded in his January 18, 2017 report that the Applicant did not currently suffer from a complete inability to carry on a normal life as a direct result of the May 27, 2016, motor vehicle accident. vi. In an Explanation of Benefits letter dated January 24, 2017, Aviva told VD that it would not consider further NEBs past January 24, 2017, based upon the conclusion of Dr. Ahmad Belfon and because the Applicant had refused to attend the In-Home Assessment with an Occupational Therapist.

15Aviva requests that the Tribunal bar VD’s appeal from proceeding because:

i. Aviva asserts that claimants such as VD are not entitled to decide which types of IEs are necessary or who the assessors will be, provided that there is a reasonable nexus between the expertise of the assessors and the nature of the applicant’s injuries or impairments. ii. The OT IHE request was not unreasonable or duplicative as VD asserts. In fact, Aviva states that the two IEs were complementary: the GP assessed musculoskeletal impairment and the OT IHE was to provide a practical assessment of VD’s day-to-day functionality in her home environment. Both are, according to Aviva, relevant to assessing eligibility for NEBs, the test for which is a complete inability to carry on a normal life. VD’s objections are without merit. iii. VD’s eventual willingness to submit to the OT IHE, nearly two years after her initial refusal and only after this proceeding had progressed to the settlement conference stage, does not mitigate, in Aviva’s view, her non-compliance with s.44. iv. Aviva’s IE request of October 25, 2016 was clear and sufficient. The medical reason included in it, Aviva contends, covered both IEs.

VD’s position

16VD asserts that during the adjustment of her NEB claim she raised with Aviva an objection to its request for an IE in the form of an OT IHE that Aviva didn’t answer. By letter to Aviva dated December 15, 2016, VD questioned the reasonableness of attending two IEs, General Practitioner and the OT IHE to assess entitlement to NEB, because both assessors would evaluate her from the musculoskeletal and physical perspective. She suggested holding off on the OT IHE pending the outcome of the GP’s Examination. VD also questioned whether an OT is qualified to diagnose impairment, and confirmed her attendance at the GP’s IE. In its Explanation of Benefits letter of January 24, 2017, Aviva failed to acknowledge or address VD’s concerns at all.

17VD also submits that after a number of letters requesting reinstatement of NEBs, she followed up with Aviva in a letter dated December 12, 2018, seeking clarification of the need for an OT IHE to assess NEBs and further indicating that she was prepared to undergo the requested OT IHE. VD asked to schedule it as soon as possible.

18VD states that Aviva responded by letter dated December 17, 2018, and told her that it would not re-schedule the OT IHE, because VD was now beyond the 104-week eligibility period for NEBs. Aviva added that it would not consider NEBs beyond January 24, 2017, and advised VD of her right to appeal its decision to the Tribunal.

19VD asks the Tribunal to reject Aviva’s request to bar her appeal on NEBs. She argues that Aviva “cannot raise the issue of non-compliance which would prevent [VD] to [sic] proceed with the issue of NEBs because:

v. Aviva “failed to provide their reasons to have two different assessors conducting examinations with respect to the same benefit;” and vi. Aviva “did not give an explanation with respect to not providing a copy of the insurer's examination report to Dr. Kavadias,” the practitioner who submitted her OCF-3. vii. Aviva “erred in their position of advising her that they could not re-schedule the Insurer's In-Home Examination as she was outside the 104 weeks from the date of the motor vehicle accident” and thus ineligible for NEBs. The regulation relied on by Aviva was passed after the date of the accident, and is therefore inapplicable to VD – she was in fact eligible for NEBs.

20By way of relevant precedents, VD asks me to be guided by two Tribunal decisions in similar-fact cases:

i. 17-007683 and Aviva Insurance Canada,³ wherein the Tribunal allowed the applicant to proceed with an appeal, because the evidence that the applicant simply failed to attend insurer's examinations without reasonable explanation was too weak to make a case barring her from proceeding with her appeal, and added that barring the applicant from appealing would be a disproportionate response to her conduct. ii. 18- 000467 and Aviva Insurance Canada,⁴ in which the Tribunal found that the applicant was not precluded from proceeding because Aviva’s Explanation of Benefits insufficiently addressed the benefit for which they wanted the applicant to undergo an IE, and also because instead of properly addressing the applicant's lawyer's inquiry, they responded by providing no further information, but instead simply telling the applicant to comply.

Findings: NEB appeal may proceed

21VD should not be barred from proceeding with her appeal of Aviva’s refusal to pay NEBs, because Aviva’s explanation of the reasons for the OT IHE was insufficient. I have reached this conclusion for the following reasons:

i. In my view, Aviva’s IE request of October 25, 2016 fails to comply with s.44(5)(a) of the Schedule, which requires it to provide the medical and any other reasons [emphasis mine] for IEs. Aviva gave a medical reason: “The disability period appears to be inconsistent with the diagnosis or mechanism of injury.” This was clear with respect to the medical examination by the GP Dr. Belfon, and indeed VD accepted it and attended the GP IE. However, I agree with VD that this reason does not adequately explain the rationale for the OT IHE. The medical reason provided by Aviva does not speak clearly to the expertise of an OT in assessing functionality. It does not provide the cogent explanation for the OT IHE that Aviva only now provides in submissions – an explanation that is not strictly medical and which, in my view, is required by the phrase “any other reasons”. ii. I am persuaded by the reasoning in 18-000467 and Aviva Insurance Canada⁵ that an undetailed medical reason accompanied by a failure to respond to an applicant's questions or objections with further information or explanation undermines an insurer’s argument that an insured person simply rejected its IE request without explanation. The facts in that case with respect to the lack of responsive communication by the insurer about an IE request are similar to this one. Aviva does not contest VD’s assertion that it never responded to her with a clarification of its reasons for the OT IHE; accordingly, I reject Aviva’s characterization of VD’s failure to attend as unexplained. iii. Aviva offers no rationale for its refusal to discuss VD’s concerns nor does it suggest that it didn’t understand them. I find that it was reasonable of VD’s representatives to express reservations about the OT IHE, while sending her to attend the GP’s IE. I find that it was frankly unreasonable for Aviva to fail to address VD’s concerns with the same clarity as it now explains its position in submissions. It strikes me as fair to believe that had Aviva provided the same rationale in 2016 as it does now, this preliminary issue might have been resolved. This finding leads me away from a decision to impose a bar on VD’s appeal. iv. The facts and my findings in this case do not, in my opinion, support a finding that VD simply refused to attend the OT IHE without explanation, and in my view do not warrant the remedy – a bar on proceedings – prescribed by ss.55(1)2. of the Schedule. Accordingly, even if Aviva’s NoE is sufficient from a strict legal perspective, I rely on the discretion provided to me under s.55(2) of the Schedule in permitting VD’s appeal to proceed.

22As the result of my findings, VD’s appeal on the issue of NEBs may proceed.

23I note that the Order of December 11, 2018 and Aviva’s initial submission referred to the entirety of VD’s appeal submission as subject to preliminary issue 1. However, both parties’ submissions focussed exclusively on VD’s NEB claim in argument, leading me to do likewise. However, having found that VD is not barred from proceeding with her NEB appeal, I find no reason for me to apply s.55(1)2. to any of her other claims.

Issue 2a: Tribunal jurisdiction over payment of the cost of psychological examination

24Section 46.2(1)(1) of the Schedule prescribes that an insurer may request "any information required to assist [it], acting reasonably, to determine its liability for the payment."

25Under 46.2(1)(2) the insurer may request the insured person’s service provider to submit a statutory declaration as to the circumstance that gave rise to the invoice, including particulars of the goods and services provided. Under subsection 46.2(2), this information must be provided to the insurer within 10 business days of receiving the request.

26VD expressly agrees with Aviva’s description of these facts:

i. On June 26, 2017, VD submitted an OCF-18 in the amount of $2,200 for a Psychological Assessment with Dr. Fahimeh Aghmohseni. ii. This was approved in an Explanation of Benefits letter dated September 26, 2017, up to a maximum of $2000.00. Aviva advised VD that it would require a complete breakdown of all components of the assessment to be submitted with the invoice for the assessment. iii. Upon receipt of the invoice Aviva made a request on October 15, 2018 under s.46.2 of the Schedule, to Dr. Aghmohseni, Dr. Abbaszadeh, and Excel Medical Diagnostics Inc., for the OCF-18 forms, clinical notes and records (CNRs), attendance records and statutory declaration forms -- to be provided within 10 business days.

27VD does not contradict Aviva’s statement that, to date, it has not been provided with any of the above-noted documents.

28VD does not contest Aviva’s account of why the requested information is needed: there is no dispute about the reasonableness of the request.

29Aviva argues that a dispute over accident benefits must arise before the Tribunal may hear an appeal. It submits that because it has actually approved the psychological assessment sought by VD, there is in fact no dispute between itself and VD.

30VD argues that because the approved benefit has not been paid, and because she will be liable to pay it if Aviva does not, her entitlement to the benefit is effectively denied – and this makes her appeal within the jurisdiction of the Tribunal. VD relies on my decision in Aviva v.17-004258⁶ in which I decided that an appeal of the insurer’s denial of a determination of catastrophic (“CAT”) determination could proceed in the absence of a dispute over specific medical benefits.

31VD describes Aviva’s failure to alert her to its requests to her providers for information as a reason for the Tribunal to consider her appeal. This description is contested by Aviva, which states that it told VD when it approved the OCF-18 that a detailed breakdown of costs would be required when the invoice was submitted.

32I find that the Tribunal has no jurisdiction over the of cost of examination dispute because:

i. Aviva has not denied VD’s cost of psychological assessment claim. There is no dispute over VD’s entitlement to it or the amount payable. Unless such a dispute arises, the Tribunal has no jurisdiction over it. Without a dispute over entitlement or the amount thereof, the conditions for proceeding with an appeal are simply not met.⁷ ii. VD points me to no authority on the Tribunal’s part to order payment to a provider of a benefit that Aviva has approved before the information sought by Aviva – and to which it has a prescribed entitlement is provided. iii. Aviva is not required by s.46 to copy insured persons or their legal representatives on requests for information. VD’s submissions respecting Aviva’s failure to do so have no bearing on this issue. iv. VD provides no persuasive precedent to support its position. 17-007683 v. Aviva is distinguishable from this case because: a. In the cited case, the claimant’s CAT application to the insurer and by extension her entitlement to benefits beyond a prescribed limit for non-CAT medical benefits, were directly denied by the insurer. No such denial exists in this case. b. The cited case did not involve facts of non-compliance by a provider (or anyone else) with a prescribed requirement and cannot in my view be used to overcome the consequences of provider non-compliance with the Schedule.

33My decision on issue #2a. makes consideration of Aviva’s submission on issue #2b. unnecessary.

CONCLUSIONS

34VD’s appeal is not barred. Her appeal on NEBs is to proceed as ordered by the Tribunal, with the exception noted below.

35VD’s appeal on the cost of psychological exam may not proceed. The Tribunal lacks the jurisdiction to hear it.

Footnotes

1. 1O.Reg. 34/10
2. 2Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086.
3. 317-007683 and Aviva Insurance Canada 2018 CanLII 81958 (ON LAT)
4. 418-000467 v. Aviva Insurance Canada, 2018 CanLII 112135 (ON LAT)
5. 5ibid
6. 6Aviva Insurance Canada v. 17-004258/AABS, 2018 CanLII 39368 (ON LAT)
7. 7Per Walia and Certas Direct Insurance Co. 2007 CarswellOnt 6613 at page 61, led by Aviva and unanswered by VD.