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:
RT
Applicant
and
Coseco Insurance
Respondent
DECISION
ADJUDICATOR:
Christopher A. Ferguson
Appearances:
For the Appellant:
Imtiaz Hosein, Counsel
For the Respondent:
Shirline Apiou, Counsel
Heard: In Writing
Hearing: June 14, 2019
REASONS FOR DECISION
OVERVIEW
1RT was involved in an automobile accident on November 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, Coseco, denied his claims
2Coseco has raised a preliminary issue that could prevent the Tribunal from hearing RT’s appeal of its decision to deny his claim for non-earner benefits (NEBs. It asserts that RT is barred from appealing its refusal to pay NEBs because RT failed to file his claim within the time limits prescribed in the Schedule and failed to provide information required by Coseco to assess and adjust his claim.
3On May 10, 2018, the Tribunal ordered a written hearing on the preliminary issue for August 7, 2028 and further ordered that “within 30 days of the written decision on the preliminary issues being released, parties will contact the Tribunal to schedule a case conference resumption to address the substantive issues.”
4On October 15, 2018 the Tribunal ordered that an adjournment of the preliminary issue hearing to January 14, 2019. That hearing was stayed pending determination of an interlocutory motion by SC. The Tribunal issued its final decision on that motion on June 11, 2019 and denied any further adjournment. Accordingly, I will proceed to determine the preliminary issue.
5I note that in addition to the disputed claims for NEBs, RT and Coseco are disputing his claim for attendant care benefits (ACBs) and that RT has claimed an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits.
PRELIMINARY ISSUES
6The issues to be decided by the Tribunal are:
Is RT barred from proceeding with his appeal on the issues of CAT impairment and ACBs, because he failed to he failed to attend an IE as required by the Schedule?
Is RT barred from proceeding with his claim for NEBs and medical benefits set put in a treatment plan (“OCF-18”) dated January 29, 2018, because he failed to he failed to attend an IE as required by the Schedule?
Orders Requested
7Coseco requests that the Tribunal order the following:
RT and his counsel are to refrain from communicating with Coseco’s insurer’s examiners or the IE facility until after IEs are completed, reports issues and determinations made by Coseco on benefits claimed.
RT is to produce all medical documentation to Coseco and to its IE provider Focus Assessment and others for the purposes of the CAT multidisciplinary assessment pursuant to s.44(9)2ii of the Schedule.
Costs
8Coseco seeks costs of $10,000 pursuant to Rule 19.1 RT asks for an order diecting how to seek costs.
RESULT
9RT’s appeal may not proceed. It is statute-barred.
10The Tribunal has no authority to order RT or his counsel to refrain from communicating with anybody. This request is dismissed for lack of jurisdiction.
11The parties’ cost requests are denied.
ANALYSIS
12Section 44(1) of the Schedule governs IEs, and among other things prescribes as follows:
i. S. 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals determine whether the insured continues to be entitled to a benefit.
ii. S.44(5) sets out the notice required for IEs, which includes the medical and other reasons for the examination and the name(s) of the person(s) who will conduct the examination, with their medical credentials.
iii. S.44(9)2.ii. requires the insurer to make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured person.
iv. S.44(9)iii. requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
v. While the Schedule does state that the respondent has “to make reasonable efforts to schedule examinations for a day, time and location that are convenient for the insured person” that does not place an obligation on the respondent to provide several dates and times for each IE. There is no legislative requirement to comply with the applicant’s demands ….
13Section 37(1)(b) provides that if an insurer wishes to determine if an insured person is still entitled to a specified 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.
Consequences of Non-Compliance
14Section 37(7) of the Schedule prescribes the consequences to the insured person if he 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).
15Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if an insured person provides a reasonable explanation for not complying with s.44(9).
16The onus is on the insured person to establish a reasonable explanation.2
17Section 55(1)2. of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him that it requires an examination under s.44, but the insured person has not complied with that section.
Chronology of Events
18It is undisputed that Coseco issued a s.44 notice dated February 5, 2019. The notice covered a psychiatric assessment (scheduled for March 5, 2019) and a neuropsychological assessment (for March 8 and 25, 2019). These IEs were the final two assessments in three-part multidisciplinary assessment (MDA) to determine whether or not RT is CAT impaired.
19I note that the s.44 notice also covered a claim by RT for NEBs.
20Coseco has acknowledged that RT attended the first two MDA IEs, the above-noted psychiatric assessment and an in-home occupational therapy CAT assessment on July 9, 2018.
Coseco’s Position
21Coseco submits that RT has simply failed to attend an IE CAT Neuropsychological assessment scheduled for March 8 and 25, 2019.
22Coseco asserts that RT has “severely misconstrued the applicable sections of the Schedule including sections 44(1), 44(9) 2 ii, 45(5) and 33” and that he “has also refused to acknowledge insurmountable evidence and case law to the contrary.”
23Coseco details RT’s legal representative’s efforts to reach out to IE providers with large volumes of requests for information and asserts that this has impeded efforts to carry out the IEs with allegations that the IE providers are not independent.
24Coseco also submits that RT has refused to provide it and it agent Focus Assessments (“Focus”) medical documentation as requested under s.33 of the Schedule.
RT’s Position
25RT submits that:
No s.44 IE was arranged by Coseco. RT asserts “The Respondent has provided no evidence in its materials to prove that the insurer has arranged for an examination at its expense. A review of section 44(5) of the SABS indicates that a pre-requisite or co-requisite to an insurer giving an insured person a notice of examination is that the insurer shall arrange for the examination at its expense.” [emphasis RT’s]
“Additionally, the Respondent has provided no evidence to prove that the insurer has chosen a regulated health professional to examine its insured in accordance with the SABS. Under section 44(1) of the SABS, the Respondent may require the Applicant to be examined under this section by persons ‘chosen by the insurer.’" [emphasis RT’s]
Coseco’s s.44 Notice dated February 5, 2019 was “not valid” because it did not indicate whether RT’s attendance was required at the IE as prescribed by s.44(5)(b) of the Schedule.
Coseco prevented RT from attending the IE because it failed to comply with s.44(9)2ii by failing to provide to its IE assessors information and documents relevant or necessary for assessing RT’s medical condition.
26To support submission 4 (see previous paragraph), RT submits an affidavit from PM, a lawyer with the law firm handling his appeal. In the affidavit, dated April 1, 2019:
i. PM details a number of calls and other contacts from his firm to Focus Assessments (a third party medical assessment provider, “Focus”) and to Dr. Gayle Karmy, neuropsychologist seeking to establish their role in the IE process and their contractual relationship with Coseco.
ii. PM asserts that RT was prevented from sending medical information directly to Dr. Karmy because Focus insisted that his information be send through them.
iii. PM sets out his position that Coseco, Focus and Dr. Karmy have a contractual arrangement that effectively prevent RT from sending relevant information directly to Dr. Karmy “as he is required to do under s.44(9)2ii “ – a position he acknowledges is unsupported by any “confirmatory knowledge” because “the underlying contracts that would substantiate or repudiate this have not been provided”;
iv. PM accuses Coseco, Focus and Dr. Karmy of entering into an “unlawful contract” and collaborating in the “unlawful” collection, “usage” [sic] and storage of RT’s personal information for the purposes of bolstering Coseco’s position in litigation against him.3 The term “unlawful” is PM’s.
v. PM states that corporate searches indicate that Focus is not licensed or registered with the Financial Services Commission of Ontario (FSCO) as a “public adjuster” and therefore is a third party with no legitimate role to play in the IE scheduling or coordinating process.
Findings
27I find RT’s submission 1 bewildering. Coseco’s notice of February 5, 2019 sets out a time, place, location (street address), estimated duration and the name of a licensed health service provider for each of the IEs required. Absent some kind of contrary evidence, that is all I need to find that Coseco arranged a s.44 IE. I find also that RT’s attendance at the psychiatric IE covered by this notice is compelling evidence that the IEs were indeed arranged. RT’s submission 1 is baseless.
28RT’s submission 2 is unsupportable. My review of the evidence gives me no reason whatsoever to find that any of the licensed providers engaged by Coseco to coordinate or carry out IEs fall short of the Schedule’s definition of “regulated health professional”. RT’s submissions offer no explanation whatsoever for the allegation that they are not independent. RT does not claim to have questioned anyone’s medical credentials or expertise. Accordingly, I reject RT’s contention that there was any reason to doubt the qualifications or the independence of any of the providers engaged by Coseco to carry out IEs, and no reason for him to balk at attending the neuropsychological IE.
29RT’s submission 3 is without any merit. My reading of the February 5, 2019 notice of examination is that it is fully compliant with the Schedule and leaves no room for doubt that RT was required to attend the IE in person. It very clearly sets out the details of an in-person IE (see para. 32 above), and in the first paragraph on page 2 expressly states “it is important that you [RT] attend the IE” and clearly warns of the consequences of not attending, including the possible restriction of RT’s right to dispute Coseco’s denial. I find it telling as well that RT fails to explain why this notice sufficed to get him out to the psychiatric IE and not to the neuropsychological one.
30PM’s affidavit lacks credibility and in my opinion its allegations amount to nothing more than scandalous innuendo on the affiant’s part; PM states plenty of “beliefs” with a paucity of proof. It is true that Coseco confirms that the calls and contacts PM says were made to Dr. Karmy and Focus were indeed made, to the point of vexing Dr. Karmy and leading her to back out of performing further IEs on RT. However, the explanation for these calls – their basis in unsubstantiated suspicions – has no persuasive value to me at all.
31I agree with Coseco that that assessment companies, such as Focus, “are contemplated as participants” in the s.44 IE process. They are "service providers" licensed by FSCO pursuant to sections 288.1-288.7 of the Insurance Act and section XVIII of the Schedule. Corporations, partnerships, limited partnerships, and sole proprietors are permitted to register as service providers. Accordingly, I dismiss the suggestion by RT that there is anything improper in health professionals providing s.44 IE assessments through Focus, and I dismiss it as any basis or explanation whatsoever for failing to attend an IE.
32RT provides no evidence at all for its submission 4. Coseco did not prevent him from providing information from the IE assessors; in fact, the evidence indicates that RT simply refuses to send the information to Coseco or its agent, Focus. In addition, RT provides no basis for me to find that any failure by Coseco to provide his information to Dr. Karmy would absolve him of the obligation to attend the scheduled IE.
33As a result of the foregoing findings, I have determined that RT’s appeal is barred from proceeding because he failed to attend a s.44 IE
Discretionary Permission to Proceed
34Section 55(2) of the Schedule allows the Tribunal to permit an appeal to proceed despite non-compliance with s.44, and 55(3) allows the Tribunal to impose terms and conditions on a permission granted under s.55(2).
35I have decided not to permit this appeal to proceed because RT has persisted in resisting his obligation to comply with the Schedule:
i. RT has not confirmed his commitment to attend an in-person IE neuropsychological assessment scheduled for dates in July, 2019 with a “new” examining practitioner.4
ii. RT has not complied with information requests from Coseco seeking medical information that it requires to assist it in determining his entitlement to claimed benefits and a CAT determination.5
iii. RT’s explanations for his refusal to attend the neuropsychological IE are notably devoid of merit. I find them implausible. Coupled with his continued intransigence they provide me with no confidence that an extension of his time to comply would result in his complying with the Schedule and moving his case forward.
RESTRAINT ORDER REQUEST
36Coseco asks the Tribunal to order RT and his representatives to stop contacting its IE providers. It argues that RT is undermining the IEs with demands for information and explanations that amount to “cross-examination” outside the proceeding.
37I am unable to find any authority on my part to restrain or restrict RT or his counsel from contacting anyone. My authority is confined to determining issues and ruling on procedural issues. Accordingly, Coseco’s request is denied for lack of jurisdiction.
COSTS
38Rule 19.1 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
39Rule 19.5 sets out criteria that I must consider when deciding whether to make an award.
40RT asks the Tribunal to provide him an order on how he “should proceed with respect to claiming costs.” Having found that he is barred from proceeding with his appeal, I have extinguished any claim he might have for costs under Rule 19 and I have no jurisdiction over costs in any other context. I found nothing in RT’s submissions to suggest that Coseco has engaged in any of the conduct contemplated by Rule 19.1
41Coseco asks the Tribunal to impose $10,000 in costs on RT under Rule 19.
42Rule 19.6 prohibits any costs above $1,000.00 for each full day of attendance at a motion, case conference or hearing. Coseco lists five case conferences, two motions commenced and this preliminary issue hearing as the foundation for its cost award.
43Coseco cites the following in urging me to make an award:
i. RT refused to comply with ss.33 and 44(9)2ii of the Schedule in failing to provide requested and required medical information.
ii. RT refused to comply with ss.44 IEs.
iii. RT “submitted a treatment plan proposing a neuropsychological assessment following the Insurer's Notice of the scheduled IE CAT Neuropsychologist assessment and engaged in the section 25 assessment prior to the IE CAT Neuropsychologist to circumvent the same”.
iv. RT contacted the IE assessors directly to question findings in advance of completion of the Insurer's Examinations and determination on catastrophic impairment.
v. RT contacted the IE assessors directly to circumvent Focus Assessments, a known agent of the Insurer for the Insurer's Examinations.
44I also note that Coseco’s submissions indicate that RT has failed to comply with production orders made by case conference adjudicators in this proceeding.
45I have decided not to impose costs in this matter because:
i. The alleged vexatious conduct by RT’s legal representatives with respect to occurred outside this proceeding, and I do not interpret Rule 19 as authorizing me to sanction or penalize the last three actions cited by Coseco, which involve persons who are not a party to this proceeding.
ii. The consequences for non-compliance with s.33 and s.44 the Schedule are set out therein (and described above) and I do not interpret Rule 19 as a form of enforcement tool authorizing me to further sanction or penalize non-compliance as suggested by Coseco in its first two reasons. I am in fact imposing the intended consequence, a severe one, by barring RT’s appeal.
iii. While it is uncontested that RT has failed to comply with production orders from the Tribunal, it is unclear to me that this has seriously prejudiced Coseco’s defence of RT’s claim. It certainly has not affected the outcome of this preliminary hearing.
iv. Rule 19.5 requires me to consider the impact of an order for cost on individuals accessing the Tribunal system. In my view, the imposition of costs on top of a statute bar would be unfairly prejudicial to him and have the effect of unfairly restricting his access to the Tribunal system for dispute resolution.
CONCLUSION
46Coseco’s motion to bar RT’s appeal under s.55 of the Schedule is allowed.
47RT’s appeal may not proceed.
48Coseco’s request for an order restraining RT and his legal representatives from contact with Coseco’s insurer’s examiners or the IE facility is denied for lack of jurisdiction.
49Both parties’ costs requests denied.
Released: June 24, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- All references to a “Rule” in this Decision are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (October 2, 2017)
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086 – submitted by the applicant
- PM offers no evidence to support this accusation. He cites “knowledge as a personal injury lawyer” and implies that he has information from other cases that he cannot share due to unwaived solicitor-client privilege in other cases.
- The s.44 notice of IE is dated May 31, 2019, and gives a deadline of June 17, 2019 for response.
- The most recent information request is included in the May 31, 2019 notice of IE, and it references s.33 of the Schedule, which requires RT to provide the requested information.