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:
NH
Applicant
and
Coachman Insurance Company
Respondent
DECISION
PANEL: Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant: Stanley Razenberg, Counsel
For the Respondent: H. Jason Hickman, Counsel
HEARD In Writing on June 28, 2019
OVERVIEW
1. The appellant, NH, was injured in an automobile accident on April 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010[^1] (the ''Schedule'').
2. NH applied for accident benefits from the respondent, Coachman Assurance Company (“Coachman”), and then applied to the Licence Appeal Tribunal (“the Tribunal”) when the disputed benefits were denied.
3. On July 26, 2018 NH filed his application with the Tribunal, which included income replacement benefits (IRBs), attendant care benefits (ACBs), medical and rehabilitation benefits (MRBs) and an award under Regulation 664.2
4. On June 3, 2019 the parties agreed to add the issue of whether or not NH is catastrophically impaired as a result of the accident. This is called a “CAT determination.”
5. Coachman has raised a preliminary issue which could prevent NH’s appeal of its refusal to pay benefits. Coachman argues that NH’s appeal should be barred because of his refusal to attend insurer’s examinations (IEs) as required by the Schedule: it expressly argues for a bar on NH’s entire appeal.
6. I note that the disputed IE was proposed at the June 3, 2019 case conference (CC) between the parties.
7. The Tribunal ordered the preliminary issue to be heard before scheduling a hearing on the substantive issues in dispute.
PRELIMINARY ISSUE
8. The preliminary issue before me is:
1. Is NH barred by section 55(1)[^2] of the Schedule from proceeding with his appeal as a result of her failure to attend a section 44 IE?
FINDINGS
9. I find that NH’s appeal may proceed.
REASONS
Requirement to Attend s. 44 IEs
10. Section 44(1) of the Schedule governs IEs, and among other things prescribes as follows:
1. Section 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. The section stipulates that this most not be done more often than is reasonably necessary.
2. Section 44(9)2iii. requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
11. Section 37(1)(b) of the Schedule 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.
12. The onus is on the insurer to show that IEs are reasonably necessary.[^3]
13. The parties agree that this case turns on whether Coachman’s IE requests, dated June 3, 2019 were reasonably necessary. To make that determination, I have been helped by factors for “reasonableness” set out in a decision called Al-Shimasawi, which was used by both parties in their submissions.[^4] These factors are:
1. the timing of the insurer's request
2. the possible prejudice to each side
3. the number and nature of the previous IEs
4. the nature of the IEs being requested
5. whether there are any new issues being raised in the applicant's claim that require evaluation
6. whether there is a reasonable nexus between the IE requested and the applicant's injuries.
Consequences of Non-Compliance with s. 44 IE
14. Section 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.
Background
15. NH was self-employed as a consultant to a machine and tool company at the time of the accident. He indicates that he was already limited to sedentary management and administrative duties because of pre-existing degenerative disc disease. NH indicates that he has been unable to return to work at all since the accident.
16. NH began his claim with Coachman on May 26, 2016.
17. NH attended five IEs between June 27, 2016 and August 16, 2017, relating to medical and rehabilitation benefits. These included physiatry, psychology and occupational therapy (OT) assessments. Six paper reviews were also conducted.
18. NH attended a physiatry IE with Dr. Sukhinder Bhangu on September 21, 2016. Dr. Bhangu’s IE report dated October 11, 2016 concluded that NH did not meet the test for IRBs. It was on the basis of this report that Coachman denied NH’s IRB claim.
19. Following the September 2016 IE, Dr. Banghu produced three physiatry paper review IE reports to address NH’s entitlement to various medical and rehabilitation benefits.[^5]
20. At no time after the September 2016 IE did Coachman retain Dr. Banghu to provide further opinion on NH’s IRB claim. Coachman continued to rely on the September 2016 IE to maintain its denial of the IRB.
21. As noted, on July 26, 2018 NH filed his application with the Tribunal. At no time between that date and the CC of June 3, 2019 did Coachman express any desire or intent to schedule further IEs to assess NH’s eligibility for IRBs, despite numerous interactions on NH’s appeal, including a CC on January 30, 2019 and the scheduling of a hearing for August, 2019.
22. At the Insurer's request, NH attended two IEs respecting his CAT determination claim: a psychiatry assessment with Dr. Velan Sivasubramanian, psychiatrist, on May 15, 2019 and an Occupational Therapy In-Home Assessment with Hadassah Lebovic, occupational therapist, on May 22, 2019. I will call these “CAT IEs”.
23. The Case Conference was resumed via teleconference on June 3, 2019. At this time, Coachman provided NH with t h e first notice of its desire to conduct further IRB IEs. NH objected on the basis that the requested IEs are neither reasonable nor necessary, especially given the fact that the hearing is just 2.5 months away. I will call these “the disputed IEs.”
24. By letter dated June 7, 2019, Coachman gave NH the first written notice of its request for four further IRB-related IEs:
(i) June 24, 2019 -- Functional Abilities Evaluation (FAE) and Physical Demands Analysis (PDA)
(ii) June 26, 2019 – Physiatry Assessment (with Dr. Banghu)
(iii) July 2, 2019 -- Vocational/TSA/Labour Market Survey Assessment
(iv) Psychiatry Paper Review [^6]
25. NH’s counsel wrote a letter dated June 12, 2019, to Coachman advising it that NH would not attend these IRB IEs. The letter asserted that the requested IEs are neither reasonable nor necessary in the circumstances.
NH’s position
26. As of the date of submissions, NH has attended seven IEs at Coachman’s behest, not including the two CAT IEs.
27. NH contends that he had a right to refuse to attend the disputed IEs because they were unnecessary and unreasonable. NH applies the criteria in Al-Shimazawi in providing his reasons as follows:
(i) Coachman already has all of the medical information it reasonably needs to determine his eligibility for IRBs and to defend NH’s IRB claim in this proceeding.
(ii) The timing of Coachman’s request – well into this proceeding -- is unreasonable, given the mere 2½ months before the scheduled hearing and given the many opportunities that Coachman has had to request a further IRB IE. This amounts to “an 11th hour” attempt by Coachman to bolster its case in the appeal.
(iii) There has been no change in NH’s medical condition since six months post accident and now. Coachman has been aware of NH’s condition for years before it requested the disputed IEs, yet chose not to conduct any further IRB assessments. The lack of evidence of any change in NH’s condition also makes a further IRB-related IE duplicative.
(iv) The disputed IEs are prejudicial to NH because they will significantly delay his appeal due to the time required to conduct, report and assess them – and additional time needed for NH to respond to them.
Coachman’s Position
28. Coachman asks that the Tribunal bar NH’s appeal from proceeding because of his refusal to attend the disputed IEs. Coachman asserts:
(i) Coachman has the right to require the disputed IEs in light of new medical information, as part of its ongoing right (and obligation) to adjust claims. Coachman asserts that NH provided it with numerous productions and updates since Dr. Banghu’s original report: it lists these in a chart of medical records submitted to it between January 2018 and June 2019. Furthermore, many of these were not provided until after this proceeding began, and some of them not until after the first CC in this mater in January 2019.
(ii) In addition, Coachman points out that NH’s application is for IRBs to date and ongoing. Since the test for IRBs changes 104 weeks after the accident, NH’s move to “post-104” status represents new information requiring IEs, especially the FAE/PDA and the Vocational/TSA/Labour Market Survey Assessment, which related to the post-104 test for IRBs.
(iii) There was nothing unreasonable about the number, frequency or type of IEs requested. In determining the number and nature of IRBs in this matter, Coachman urges me to count only the original physiatry IE by Dr. Banghu in September 2016, as it was the only IE focused on IRB issues. Requiring follow-up IEs almost three years after the first is reasonable.
(iv) Coachman would be severely prejudiced in this proceeding by being unable to get updated expert opinions on NH’s current condition.
Are the disputed IEs reasonable?
29. Using the agreed-on factors from Al-Shimasawi, I will set out my findings on the reasonableness of Coachman’s 2019 IE request and the impact of those findings on JC’s request to be exempted from attending.
30. Factor 1 - the timing of Coachman’s 2019 IEs requests is unreasonable. I agree with NH that this is an 11th hour request that smacks of seeking information for use at the hearing. While the scheduling of an IE during a proceeding is not precluded, it does warrant closer scrutiny the closer its proximity to a hearing. . The prescribed purpose of IEs is to determine whether or not an insured person continues to be entitled to a benefit and not to gather or strengthen evidence for a hearing.[^7] Because of the length of time and delay involved in getting to the disputed IE requests, all of the earlier opportunities to act on incoming medical information and the fact that the post- 104 mark was over a year before the disputed IE request , I am not persuaded on the evidence that the timing of the disputed IEs was primarily motivated by the prescribed purpose. The timing suggests litigation rather than adjustment as the main motivator here.
31. Factor 2 - the possible prejudice to Coachman of not conducting the disputed IEs is primarily the loss of opportunity to strengthen its case in time for the hearing in this matter. I find that this is outweighed by the prejudice to NH in delaying this matter and by extension his access to benefits if successful, including benefits that were not the subject of the disputed IEs. I reject Coachman’s argument that it is NH’s refusal that occasions this delay. I am unmoved by Coachman’s position on this factor because I find that it could easily have managed the IE scheduling to avoid it.
32. Factor 3 - I do not agree with Coachman that only Dr. Banghu’s original IRB-related IE should be counted in assessing this factor. The prescribed standard of “not more often than reasonably necessary” does not in my reading exclude any IE from the assessment of frequency. I read s.44 as requiring insurers to manage their IE requests with a decent regard for the applicant’s convenience and well-being, recognizing that IEs are inherently intrusive. Coachman didn’t do so, in my opinion, and loading three in-person IEs in June 2019 atop the two CAT IEs conducted in May 2019 is excessive in the absence of persuasive evidence of new information or a new claim.
33. Factor 4 - the nature of the IEs being requested is essentially unchallenged. Although NH refers to duplication, I am mindful that periodic IEs are clearly contemplated by the Schedule, and this case a prescribed change in IRB eligibility criteria could fairly warrant an IE request, including one in a medical discipline already “covered”.
34. Factor 5 – Coachman fails to persuade me that “new information” has arisen that requires it to schedule the disputed IEs. Coachman does not specify how or why the CNRs and other medical records (such as prescription summaries) or the CCP Disability file provided by NH from January 2018 to June 2019 would rebut NH’s assertion that his medical condition was essentially stable since September 2016. I find that the mere existence of such records, unexplained with any detail or analysis of content, are insufficient to meet the “new information” factor.[^8]
35. NH’s IRB claim became subject to the post-104 test on April 15, 2018. I don’t consider this to be “new information” for the purposes of a June 2019 IE request, especially as this change can be easily forecast and planned for.
36. Factor 6 - the reasonable nexus between the IEs requested and NH’s injuries as they relate to his IRB claim is uncontested.
Was there any other basis to support NH’s refusal to attend the IEs?
37. Moving on to other arguments by NH, I find that there is no persuasive basis for any general proposition that an insured person may refuse to attend a s. 44 IE because he or she believes that the insurer has “enough information” to adjust or to defend itself against his or her claims, or that it failed to avail itself of “previous opportunities” to conduct IEs. Neither the Schedule nor any case law brought to my attention support these contentions, accordingly, I give these arguments no weight.
38. Taken together, my findings lead me to decide that NH’s appeal may proceed. In my view, the disputed IEs requested on June 3, 2019 were not reasonably necessary within the meaning of s.44(1), and accordingly, NH was entitled to refuse to attend without violating s. 44(9)2.iii of the Schedule.
Costs
39. Rule 19.1[^9] 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”. There is a $1,000.00 cap on cost awards.
40. [39] NH asked for a cost award in submissions but provided no basis for his claim. His cost request is dismissed.
CONCLUSIONS
41. NH’s appeal of Coachman’s denial of her IRB claims may proceed.
42. NH’s cost request is dismissed.
Released: July 22, 2019
Christopher A. Ferguson
Adjudicator
Footnotes
- O. Reg. 34/10
- i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
- Manolakos v. Royal Insurance, 1998 CarswellOnt. 2198, paragraph 8. Led by NH.
- Al- Shimasawi and Wawanesa Mutual Insurance Company, 2007 CarswellOnt 3473 [2007] O.F.S.C.D No.
- A paper review consists of a review and analysis of medical documentation by a medical assessor, without an in-person examination of the patient. Dr. Banghu’s reports were dated December 1, 2016, February 7, 2017 and August 25, 2017 respectively.
- Attendance not required.
- I share the view of other adjudicators, as for example in 18-005291 v. Travelers Canada, 2018 CarswellOnt 4063, (“Travelers”), paragraph 27, led by NH.
- I found Travelers helpful as the fact situation for this factor was similar, and CNRs were found not – on their face – to constitute new information.
- All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (October 2, 2017)