JC v. Western Assurance Company, 2019 CanLII 94031

Citation: JC vs. Western Assurance Company, 2019 ONLAT 18-009726/AABS

Date: July 22, 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:

JC

Appellant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Appearances:

For the Appellant: Jackie Calderon, Counsel

For the Respondent: Jonathan Tatner, Counsel

HEARD in Writing: April 15, 2019

OVERVIEW

1The appellant, JC, was injured in an automobile accident on March 9, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2JC applied for accident benefits (ABs) from the respondent, Western Assurance Company (“Western”), and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

3JC’s appeal includes a claim for weekly income replacement benefit (IRB) in the amount of $177.80 from October 14, 2016 to date and ongoing.

4The appeal also includes disputed claims for a number of medical and rehabilitation benefits, cost of examination, and an award under Regulation 664.

5Western has raised a preliminary issue which could prevent JC’s appeal of its refusal to pay her IRBs. Western argues that JC’s appeal should be barred because of her failure to attend an insurer’s examination (IE) as required by the Schedule. The preliminary issue pertains only to IRBs.

6A five-day hearing of the substantive issues in this appeal is scheduled to commence on July 29, 2019 in Toronto.

PRELIMINARY ISSUE

7The preliminary issue before me is:

1. Is JC barred by section 55(1)2 of the Schedule from proceeding with her appeal of Western’s refusal to pay IRBs as a result of her failure to attend a section 44 IE?

FINDINGS

8I find that JC is barred from her appeal of Western’s denial of her IRB claim. That part of her appeal may not proceed.

REASONS

Requirement to Attend s. 44 IEs

9Section 44(1) of the Schedule governs IEs, and among other things prescribes as follows:

i. 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 must not be done more often than is reasonably necessary.

ii. Section 44(9)2iii. requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

10Section 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.

Consequences of Non-Compliance with s. 44 IE

11Section 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

12JC was a full-time student and a part-time employee at the time of the accident. She indicates that she has been unable to return to work since the accident. She does not dispute Western’s assertion that she has returned to full-time studies.

13Western paid JC IRBs from March 16, 2016 to October 18, 2016 at the weekly rate of $177.80.

14Western terminated JC’s IRB payments on October 14, 2016 and confirmed its decision in a second explanation of benefits (“OCF-9”) dated December 21, 2016. Western’s decision to terminate was based on two IE reports, which both concluded that JC did not meet the prescribed test for IRBs.²

15After the OCF-9 of December 21st, JC sent Western nine sets of clinical notes and records (CNRs) from treating clinics and medical specialists, an MRI, a prescription summary and nine medical or medical/legal assessment reports (“s.25 reports”). The documents alleged a wide range of symptoms and medical issues and created a multidisciplinary perspective. The dates of these records range from January 2017 to October 2018.

16Western responded to this information by seeking an additional paper review by Dr. Saplys, orthopedic surgeon, and two in-person IEs. The two Notices of Examination (“OCF-25”) were dated September 27, 2017 and required JC to attend a neurology examination by Dr. Jamsheed Desai on October 16, 2017 and a psychology examination by Dr. Alan Chan, psychologist, on October 24, 2017. They were sent to JC and to her legal counsel.

17JC did not attend the IEs of October 16 and October 24, 2017.

18JC’s appeal to the Tribunal is dated October 1, 2018.

JC’s position

19JC acknowledges that her non-attendance was a deliberate choice, and that her legal counsel communicated her refusal to attend the disputed IEs to Western, and the reasons for that decision.

20JC contends that she had a right to refuse to attend the disputed IEs because they were unnecessary and by implication unreasonable. Her reasons are as follows:

i. The IEs were unnecessary because Western already had all the information on JC’s neurological and psychological issues that it was seeking through the proposed IEs. This was provided by way of Disability Certificates (“OCF-3s”), an OCF-18 for a neurological assessment plan (rejected by Western) and a series of assessments conducted by Western in relation to medical benefits.

ii. JC also asserts that the disputed IEs were unreasonable because Western “already has the information it needs to defend IRBs at the July 29, 2019 LAT.”

iii. The IEs were unreasonable because Western failed to use previous opportunities for an IE on IRBs when conducting seven other assessments in relation to medical benefits. It did this “while withholding” IRBs.

iv. There was no change in JC’s medical condition between October 2016 (when IRBs were stopped) and October 2017 (when the IEs were requested) that would justify the need for psychological or neurological IEs. Western knew about JC’s psychological and neurological condition for a year before it requested the IEs “yet chose not to conduct any assessments in this matter.”

v. The IEs were prejudicial to JC because of her vehicular anxiety and the undue strain that travelling from her home town to the IE venue would place on her.

Western’s Position

21Western points out that JC’s refusal to attend the IEs was a deliberate choice.

22Western requests that the Tribunal bar JC’s appeal from proceeding because of her flat refusal to attend the IEs. Western urges me to reject JC’s arguments and asserts:

i. Western has the right to require IEs in light of new medical information, as part of its ongoing right (and obligation) to adjust AB files.

ii. There is no basis for JC’s contention that Western cannot require IEs in relation to benefits that it has already denied.

iii. There is no basis in law for JC’s contention that it is somehow barred from conducting neurology and psychology IEs because it had “enough information” to know such examinations were required before stopping JC’s IRBs.

iv. There was nothing unreasonable about the number, frequency or type of IEs requested.

v. Western would be severely prejudiced in its ability to adjust JC’s IRB claim or to defend it without the IEs. This remains the case even if the IEs were conducted in the future, because of the time elapsed since the accident.

Was Western’s request for neurological and psychological IEs reasonably necessary?

23This case turns on whether Western’s IE requests, dated September 27, 2017 were reasonably necessary. To make that determination, I have been helped by factors for “reasonableness” set out in a decision called Al-Shimasawi³, which were cited by both parties in their submissions. These 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.

24Using the agreed-on factors from Al-Shimasawi, I will set out my findings on the reasonableness of Western’s 2017 IE requests and the impact of those findings on JC’s request to be exempted from attending.

25Factor 1 -- the timing of Western’s 2017 IEs requests is reasonable: there is no suggestion that the timing creates any unnecessary inconvenience to JC, nor was the timing associated with any proceeding going on at that time.

26I agree with Western that neither the Schedule nor any case law creates a timeline within which an insurer must schedule IEs after receiving new medical information. I see little merit in JC’s argument that Western’s 2017 IE requests were somehow “too late” or otherwise “untimely” because of some delay in responding to medical information. Al-Shimazawi specifically states, in para.19.4.b that “the [IE] request can be made even if there is a delay from the time that the insurer knew or ought reasonably to have known about the particular impairment in question.” Even if Western could or should have scheduled the disputed IEs earlier, there is no basis that I can see here for a refusal to attend an IE on the basis that it is unreasonable.⁴

27I reject the idea that an insured person can in effect decide the appropriate nature and timing of IEs, especially when she has amassed large volumes of medical evidence and shipped them to the insurer.

28Factor 2 -- the possible prejudice to Western of not conducting IEs is obvious, given the stream of expert medical evidence, especially the psychological and neurological evidence, directed at it by JC. First, Western would be denied the right prescribed by s. 44 to probe JC’s medical information in order to determine her entitlement to IRBs. Second, now that an appeal is underway, Western is at a sharp disadvantage on issues of neurological and psychological factors affecting IRB eligibility. I find this level of prejudice against Western contrary to the stated purpose of s.44 examinations and I find that to determine that Western should accept it would be unfair.

29JC’s submissions do not include any concerns about prejudice in terms of her ability to prove entitlement to IRBs.

30JC argues that she would be prejudiced by the “immense inconvenience” of having to attend the two IEs. She argues that the half-hour drive from her home town to the IE venues in another city would impose undue hardship due to her vehicular anxieties (both driver and passenger). I find this unconvincing because JC provides no medical evidence to suggest that the short trip would harm her, and she did not raise this objection with Western at the outset when perhaps some accommodation might have been arranged. Further, JC does not explain how this barrier reconciles with her ability to get to s. 25 assessments such as the psychological assessment by Dr. Gladshteyn, which was conducted in the same city as the requested 2017 IEs⁵.

31Factor 3 -- the number (two) and nature of previous IEs is unobjectionable, and JC does not argue that the total number of IEs would be excessive or oppressive.

32Factor 4 -- the nature of the IEs being requested is unchallenged: they do not duplicate previous IEs and JC clearly does not object to in-person assessments, as evidenced by her own reports and attendance at the 2016 IEs.

33Factor 5 – the evidence indicates that JC had already manifested psychological and neurological issues at the time benefits were denied, and in that sense, she raised no new issues. However, I find that the large volume of expert reports⁶ sent by JC to Western after December 21, 2016 are the qualitative equivalent to new issues that require evaluation. I find it was reasonable for Western to respond to new, improved, detailed and on-point expert evidence with appropriate IEs. In addition, JC does not show that any of the pre-OCF-9 neurological and psychological evidence addresses her entitlement to IRBs⁷, whereas Western has concluded that the new information submitted by JC after December 21, 2016 does.

34Factor 6 -- the reasonable nexus between the IEs requested and JC’s neurological and psychological injuries is well-established and uncontested.

Was there any other basis to support JC’s refusal to attend the IEs?

35Moving on to other arguments by JC, I agree with Western 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 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.

36JC cited a case called Travelers⁸ in which the Tribunal determined that disputed IEs were not “reasonably necessary” because of the information already in the insurer’s possession, and because of the insurer’s previous opportunities to assess the applicant’s entitlement to a specific benefit, namely non-earner benefits (“NEBs”). I find Travelers unpersuasive because it is distinguishable in important ways from the case before me:

i. First, in Travelers, the disputed IEs involved three previously completed IEs by the same doctors with the same medical specialties, on the same medical conditions. The adjudicator stated at para. 23 of his decision that this was “especially concerning because it is duplicative”. No such duplication is suggested here: Western did not ask for a redo of previous orthopedic or functional abilities evaluaton (FAE) IEs, despite JC’s provision of related information to it. Western requested IEs in areas of medical condition that it has not assessed for IRB eligibility before.

ii. In Travelers, the information already in the insurer’s possession referred to its previous IEs – found to be duplicative of the proposed IEs – and not refer to the applicant’s reports relating to treatment plans as in this case.

iii. Second, the disputed IEs in Travelers were triggered by an OCF-5 and unspecified CNRs, which were deemed insufficient to meet the “new information” factor. In this case, JC sent Western much more detailed expert evidence that I find is enough to constitute new information.

iv. Third, in Travelers, the adjudicator’s decision was influenced by the timing of the request, which followed the case conference in that proceeding. While the scheduling of an IE during a proceeding is not precluded, it does warrant close scrutiny the closer its proximity to a hearing.⁹ There is no such issue in this case, as the IE request precedes the filing of JC’s appeal by over a year.

37I find that determining this issue on the bases that JC argues would suggest that the Schedule should be interpreted to prevent an insurer from continuing to adjust an accident benefit file fairly and to respond to new information as it becomes available through the IE process prescribed by s. 44. This is an insupportable result.

38Taken together, my findings lead me to decide that JC’s appeal respecting IRBs is barred because of her refusal to comply with s. 44(9) 2.iii of the Schedule, pursuant to s.55(1)2.

Permission to Proceed under s. 55 denied

39Section 55(2) allows the Tribunal to permit an appeal to proceed despite non-compliance and 55(3) allows the Tribunal to impose terms and conditions on a permission granted under s. 55(2).

40JC submits that if she is determined not to have complied with s. 44, the Tribunal “must exercise this discretion and allow her to apply.” JC further submits that she should not be required to attend the two requested IEs as a condition of proceeding with her appeal. She supports this by continuing to argue that the IEs are unnecessary and by indicating that she is prejudiced by personal difficulty in getting to the IE venues. Her submissions do not include any concerns about prejudice in terms of her legal case.

41Western argues that JC should not be permitted to proceed because her explanations for not complying with s. 44 are not reasonable and because Western’s is prejudiced by its ability to extract optimally useful information from IEs conducted more than 18 months after they were originally scheduled.

42I have decided not to permit JC’s appeal to proceed at this time because, in these circumstances, allowing the IRB appeal to proceed would effectively sanction her non-compliance by setting aside the consequences for it. In reaching this decision, I considered that:

i. I find that JC has not offered a reasonable explanation for her failure to comply with s.44. The non-compliance was a deliberate choice on her part, based on insupportable interpretations of the Schedule.

ii. Western’s right to conduct IEs to determine entitlement has been effectively stymied by JC’s non-compliance. In my view, the long delay in getting to the requested IEs prejudices Western’s ability to obtain optimal evidence with which to adjust JC’s file and, now that a proceeding is underway, defend its position.

iii. The long period of time between Western’s denial of IRBs for s. 44 non-compliance and JC’s appeal, her frankly weak rationale for her non-compliance and her implausible explanations for seeking to avoid the IEs even if found in non-compliance – after a protracted pile-on of her own medical evidence – lead me to agree with Western that JC’s position seeks to gain tactical advantage in this proceeding. Even if that is not her intent, it would be the result of allowing JC’s IRB appeal to proceed.

CONCLUSIONS

43JC’s appeal of Western’s denial of her IRB claims is barred. That portion of her appeal is not to proceed.

Footnotes

1. 1O. Reg. 34/10
2. 2The IEs were an orthopedic assessment by Dr, Saplys, orthopedic surgeon, dated October 12, 2016 and a functional abilities evaluation (FAE) by Abbey Thawer, registered physiotherapist (RPT) dated October 12, 2016. Dr. Saplys issued an addendum report dated December 20, 2016, confirming his initial findings.
3. 3Al-Shimasawi and Wawanesa Mutual Insurance Company, 2007 CarswellOnt 3473 [2007] O.F.S.C.D No. 82
4. 4In Al-Shimasawi, at para. 24, the arbitrator found that the insurer “probably should have requested a psychological assessment sooner” but nevertheless found the request reasonable, because there was no evidence that the delay prejudiced the applicant. The delay in that case, from the time the insurer became aware of psychological injury to the date of its IE request, was approximately a year.
5. 5Psychological Assessment Report, January 26, 2017, Dr. Ilya Gladshteyn, psychologist and Ivan Staroversky, registered psychotherapist.
6. 6Examples include a psychiatric evaluation report dated October 10, 2018 (Dr. Z. Waisman), a neurology report dated April 2, 2018 (Dr. M.N. Slegr), a psychovocational/rehabilitation planning report dated August 8, 2018, among others.
7. 7My own review of documents submitted by JC is that they did not speak directly to a prolonged inability to work as the result of neurological or psychological injury. For example, the psychological report by Dr. Gladshteyn and Mr. Staroversky does not address ability to work issues at all: the focus is properly on need for treatment. Medical evidence in support of neurological or psychological treatment plans does not, in my view, support requiring an insurer to investigate whether the test for IRBs has been met. Western’s decision to confine its 2016 IEs to orthopedic issues and an FAE was not unreasonable.
8. 818-005291 v. Travelers Canada, 2018 CarswellOnt 4063
9. 9See 17-004358 v. Economical lnsurance (2018 CanLII 112110 ONLAT) led by Western