L.F. v. Aviva Insurance Canada, 2019 CanLII 83593

Citation: L.F. vs. Aviva Insurance Canada, 2019 ONLAT 18-008308/AABS

Tribunal File Number: 18-008308/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:

L. F.

Applicant

And

Aviva Insurance Canada

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kennedy Nolan, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: In writing on March 11, 2019

OVERVIEW

1The applicant was injured in an automobile accident on April 23, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for costs of examinations and, in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The respondent raised a preliminary issue, which is the subject of this hearing.

ISSUES

3The preliminary issue in dispute is:

1. Is the applicant statute barred from bringing this application for failure to attend scheduled s. 44 assessments pursuant to s.55 of the Schedule and s. 280 of the Insurance Act?

RESULT

4The applicant failed to attend properly scheduled s. 44 assessments and is statute barred from bringing this application. The application is dismissed.

BACKGROUND AND CHRONOLOGY

5The applicant was a front seat passenger of a vehicle which was struck by another vehicle on the passenger’s side in a perpendicular fashion. The applicant was taken to hospital, treated for a collapsed lung, rib and clavicle fractures and released with a recommendation to follow up with a fracture clinic.

6About two years after the accident, on May 30, 2018, the applicant submitted the first two treatment and assessment plans on file. The plans sought funding for two neuropsychological assessments.

7The respondent denied funding for the treatment plans and requested the applicant attend neuropsychological insurer’s examinations. The applicant refused to attend the insurer’s examinations and has applied to the Tribunal to resolve the dispute over entitlement to the proposed assessments.

8At issue is whether the applicant may proceed with the application after refusing to attend the IEs. To address this issue, I must first determine whether the respondent provided a medical reason for the IEs. If yes, I then must determine whether the IEs are being conducted more than reasonably necessary, and if they are not, I must then determine whether the applicant is barred for failing to attend the assessments.

DID THE RESPONDENT PROVIDE A MEDICAL REASON FOR THE IEs?

9The applicant submits the notice provided by the respondent is not proper pursuant to s. 38(8) because it does not include medical reasons for the IE requests. The respondent submits it provided a medical reason when the request was made.

10For the following reasons, I find the respondent provided a medical reason for the requests.

11The notice reads as follows;

The type(s) of treatment does not appear consist with the patient’s diagnosis. There appear to be gaps in treatment without documented clinical explanation” (sic)

12The applicant’s position is this is not a medical reason to deny funding for the treatment plans because the treatment and assessment plans proposed assessments, not treatment. Further, the applicant submits the assessments were proposed to determine the applicant’s diagnosis and what treatment is required, which according to the applicant, is exactly what the respondent wishes to determine.

13The respondent claims this is a medical reason and submits the applicant, prior to the submission of the proposed assessments, never mentioned any neurological or cognitive injuries to any treating practitioner. I agree. The disability certificate completed by the applicant’s family physician, Dr. S. Hose, dated May 24, 2016, lists only 3 injures: fractured clavicle, fractured rib, and a collapsed lung. None of these injuries would be addressed in neuropsychological assessments.

14The applicant’s argument that the notice is flawed for referencing “treatment” instead of “assessments” is unpersuasive. I find this is a matter of semantics and does not detract from the central message, that is; the services proposed are not related to the injuries reported and the respondent requests an IE.

15The applicant claims ongoing symptoms of neurological and cognitive injuries but did not provide evidence the symptoms are as a result of the accident. The treatment and assessment plans proposing the assessments may indicate this however, the treatment plans need to be corroborated by some other evidence. There is no reference to any neurological or cognitive symptomology in the disability certificate from 2016 or in the CNRs of the applicant’s family physician.

WERE THE IEs REQUESTED MORE THAN REASONABLY NECESSARY?

16I have found the respondent provided a medical reason to request the IEs and now must determine whether or not the IEs were requested more than reasonably necessary.

17Both parties rightfully use the principles outlined in the LAT decision 17-005291/AABS v Travelers Canada, 2018 CanLII 13172 to guide their analysis (“the Travelers decision”). According to the Travelers decision, the following are factors to consider when determining whether the respondent has requested an insurer examination more than reasonably necessary:

1. The timing of the respondent’s request;

2. The possible prejudice to either side;

3. The number and nature of previous examinations;

4. The nature of examination being requested;

5. Whether there are any new issues being raised in the claim that require evaluation; and

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

18After applying the principles in the Travelers decision, I find, on a balance of probabilities, that the proposed IEs are reasonably necessary and the applicant is required to attend them pursuant to section 44(1). My analysis and reasons are as follows.

The timing of the respondent’s request

19The timing of the respondent’s request implies that the request was made not more than reasonably necessary. This is because the IEs requested by the respondent are the first IEs to be requested during the lifetime of the applicant’s accident benefit claim. The proposed assessments are the first treatment and assessment plans submitted during the life of the applicant’s claim and were proposed more than two years after the accident occurred.

20The applicant submits the respondent should wait to see what the outcome of the assessments would be prior to making the request for IEs. While I agree this may be a reasonable position from the applicant’s perspective, I find the procedure outlined in the Schedule provides the respondent with the right to request an IE in response to the proposed treatment and assessment plan. In effect, the Schedule provides the inverse to the applicant’s position in that the applicant must wait and see what the outcome of the IEs would be prior to disputing entitlement to the proposed assessment.

The possible prejudice to either side

21The applicant claims prejudice if subject to the proposed IEs because, according to the applicant, the two-part neuropsychological assessment cannot be done within 6 months of another, separate, two-part assessment. The applicant submits this will invalidate the results of the second assessment. However, the applicant has not provided any evidence or precedent to support this position.

22The respondent submits there is no possible prejudice to the applicant for attending a s. 44 neuropsychological assessment. I agree. The applicant’s attendance at the s. 44 assessment will only provide further information about the applicant’s medical status. Conversely, I see the prejudice against the respondent in the event the respondent were forced to defend a claim without the benefit of an independent assessment by a qualified health professional.

The number and nature of previous examinations

23The lack of previous assessments reveals the IEs are proposed not more than reasonably necessary. The respondent never requested an IE prior to the 2018 request and did not have any medical information to corroborate the applicant’s neurological and cognitive health status was as outlined in the treatment and assessment plan. When it received a request for neuropsychological assessments, despite the lack of evidence of any documented neurological or cognitive symptomology, the respondent exercised its right to request IEs.

The nature of examination being requested

24The proposed IEs are not for anything out of the ordinary or unrelated to the injuries claimed by the applicant. Rather, the proposed IEs are under the exact discipline the applicant wishes to investigate. The requested IEs are to be conducted by a neuropsychologist, just like the applicant’s proposed assessments. In the written submissions, the applicant agrees the proposed assessments and IEs are essentially the same.

Whether there are any new issues being raised in the claim which require evaluation

25The applicant raised a new issue, symptomology of neurological and cognitive injuries, which the proposed IEs are to investigate. The respondent did not have any information on the applicant’s neurological and cognitive health at the time the assessments were proposed and it exercised its right to obtain information through an in-person examination by a regulated medical professional pursuant to s. 44.

26I have considered the applicant’s reported disorientation at the scene of the accident and the hospital following the accident and I find it is insufficient to determine whether the applicant required a neuropsychological assessment two years after the accident. The time lapse between the accident and the date which the assessments were proposed, coupled with limited relevant medical records, requires the respondent to investigate further to determine what the applicant’s injuries are as a result of the accident.

Whether there is a reasonable connection between the examination and injuries

27I find there is a reasonable connection between the proposed examinations and the injuries claimed by the applicant. The applicant claims to suffer from neurological and cognitive symptomology and the respondent, failing to have information on the applicant’s neuropsychological health, requested the applicant attend in-person neuropsychological IEs. As previously mentioned, the applicant agrees the proposed IEs are the same examination as proposed by the applicant.

SECTION 55

28I find that the applicant is not entitled to apply to the Tribunal to adjudicate whether the proposed assessments are reasonable and necessary pursuant to s. 55(1)2 of the Schedule because the applicant didn’t attend the s. 44 assessments. I therefore dismiss the application.

29The dismissal is procedural and does not preclude the applicant from reapplying to the Tribunal in the event the applicant becomes compliant with s.44 and the parties continue to disagree on whether or not the applicant is entitled to the costs of examination.

30I choose not to exercise my discretion under s. 55(2) because it is unnecessary to maintain the application to dispute whether the proposed assessments are reasonable and necessary as a result of the accident. The outcome of the IEs, when conducted, may determine that the applicant is suffering from neurological and/or cognitive injuries as a result of the accident and recommend the applicant proceed with the proposed assessments. If that occurs, further adjudication on this issue would be unnecessary. Likewise, in the event the respondent maintains its refusal to pay for the proposed assessments following the IEs, the applicant may still commence an application with the Tribunal following that refusal.

31Based on the information before me, I see no evidence the applicant has passed or may soon pass any time limitation which would bar another application to the Tribunal. If I am wrong and there is a pending limitation issue, the applicant may, upon participation in the requested IEs, request an extension of the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act.

CONCLUSION AND ORDER

32Considering the totality of the case law and evidence before me, I find the applicant has failed to attend properly scheduled s. 44 assessments. The applicant is required to attend the assessments prior to making an application to the Tribunal to dispute the respondent’s refusal to pay for the proposed assessments.

33The application to dispute whether the proposed assessments are reasonable and necessary is dismissed.