R.W. v. The Co-operators, 2019 CanLII 94056

RECONSIDERATION DECISION

Before: Chloe Lester, Adjudicator

Date: August 30, 2019

File: 17-005447/AABS

Case Name: R.W. v. The Co-operators

Written Submissions by:

For the Applicant: Joelle Briggs-Sears, Counsel

For the Respondent: David Reposo, Counsel

OVERVIEW

1The respondent seeks a reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) March 7, 2018 decision. The Tribunal held that the applicant was entitled to income replacement benefits (“IRB”) during a period of time where the respondent suspended his benefits because of non-attendance of an insurer’s examination.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal. For the reasons below, I have denied the respondent’s request for reconsideration.

BACKGROUND

3Based on the evidence, I find the series of events took place as this. The applicant was injured in a motor vehicle accident on December 9, 2014. As a result of the accident the applicant could no longer attend work and the respondent began paying IRB beginning January 24, 2015 in accordance with the Schedule.¹ In late of 2016 the respondent requested that the applicant attend several insurer’s examinations to determine ongoing entitlement to the benefit. The applicant’s wife was present for the first set of those assessments. One of those examinations was a neuropsychological assessment with Dr. Kumchy scheduled for January 19, 2017. The applicant’s representative wrote to the respondent before the examination and advised that the wife would be present at the assessment. On the day of the examination the applicant was told by Dr. Kumchy of her policies that his wife would not be allowed in the room with him and that a transcriptionist was going to be present. This caused a significant amount of discomfort for the applicant and he wanted to phone his representative to get advice on how to proceed. The law clerk from the firm representing the applicant, phoned the respondent’s adjuster but the adjuster was not available. The law clerk then spoke to Dr. Kumchy where she was advised of the doctor’s assessment policies. The law clerk told Dr. Kumchy that she was going to call the assessment company. At that point, Dr. Kumchy believed that both the applicant and the law clerk seemed adamant that the applicant was not going to comply with being examined. The law clerk then called the assessment company to clarify Dr. Kumchy’s policies and the fact that a transcriptionist was going to be present. In the meantime, the applicant advised Dr. Kumchy that he and his wife would be waiting outside until they heard back from their law clerk. Dr. Kumchy waited for about 40 minutes, looked for the applicant, could not find him and left the assessment facilities. The assessment company tried calling Dr. Kumchy who had already left the building. The law clerk phoned back the applicant and advised the doctor had left and the examination would not be proceeding.

4The respondent, upon notification that the applicant did not participate in the examination suspended the IRB from the date of the non-attendance of the assessment with Dr. Kumchy, on January 19, 2017. The neuropsychological assessment was rescheduled and completed on April 6, 2017. The assessment found that the applicant was entitled to IRB and the benefits were reinstated.

5The applicant appealed the suspension of the benefit to this Tribunal and the matter was heard in writing. The Tribunal ultimately found that the applicant was entitled to the benefits during the period of suspension because the applicant had a reasonable excuse for non-attendance. The Tribunal found that the applicant attended the neuropsychological examination on January 19, 2017, requested that his wife be present, and the examiner refused to allow her to be present. This caused discomfort for the applicant. The applicant called his representative for advice. The law clerk tried to get in contact with the adjuster and assessment facility to assist in dealing with the situation. The examiner left the building before the applicant.

6The respondent filed for a reconsideration and requests that under Rule 18 of the Tribunal’s Rules of Practice and Procedure that I vary the Tribunal’s decision and find that the applicant is not entitled to the benefit claiming the Tribunal made significant errors of law or fact. The applicant disputes the respondent’s position and submits that the request for reconsideration be dismissed and that the Tribunal’s decision be upheld. I find the Tribunal’s decision be confirmed and the respondent’s request for reconsideration is dismissed.

THE LAW

7Section 44(1) of the Schedule states in order for an insurance company to determine entitlement or continued entitlement to benefits, they are allowed to require the applicant to attend an examination by a regulated health professional.² Under section 44(9)(2)(iii) the applicant shall submit to all reasonable examination requests by the person conducting the examination. This decision turns on this very section.

8Section 37(7) states that if the applicant refuses to comply with the reasonable examination requests from the assessor, the insurance company may, in section 37(7)(b), refuse to pay the benefit during the period the applicant fails to comply with the request.

9Lastly, in section 37(8)(b)(ii), once the applicant complies with the request, and if the insurance company determines the applicant is still entitled to the benefit, the insurance company shall pay for all amounts withheld during that period of non-compliance if the applicant has a reasonable explanation for not complying with the original request.

DECISION AND REASONS

10The respondent’s submissions can be summarized in this way:

I. The Tribunal failed to provide sufficient reasons for his decision and materials facts surrounding the circumstances that led to the non-compliance.

II. The Tribunal failed to properly apply the test in Horvath v. Allstate.³

III. The Tribunal erred by concluding the insured person is not required to provide medical substantiation for his assertion that he needed the presence of a support person at the examination and the history of refusals to participate in insurer’s examinations.

IV. The Tribunal failed to consider that the applicant’s refusal to have a transcriptionist present during the examination was unreasonable.

11The applicant submits:

I. The Tribunal provided sufficient reasons in his decision and therefore has not made an error in law.

II. The Tribunal did not make any errors and if there are any, they do not change the outcome of the decision. In addition, a decision is not required to deal with every minor argument made by the parties.

Did the Tribunal fail to provide sufficient reasons and did he consider the events leading up to the refusal to attend the examination?

12The respondent relies on two decisions to define what constitutes an error and how a decision must provide sufficient reasons.⁴ To summarize, although the decision does not have to deal with every submission, or piece of evidence, there must be sufficient reasons to explain how an adjudicator reached their conclusion and enough information for a review on appeal.

13This hearing involved fact-specific details of events that led to the failure to comply with the examination. I find the adjudicator failed to give sufficient reasons in his decision to explain how he arrived at his conclusion. The details of the events were summarized in five very short bullet points. Many of the very relevant details of the events were omitted and/or were mis-interpreted from the evidence. For example:

(A) In paragraph 10 (iv) of the decision, the adjudicator writes “the parties and the IE providers were unable to resolve the applicant’s concerns and eventually departed the premises.” This is not accurate -the evidence shows that the doctor had already left the premises prior to being contacted directly by the assessment company. The applicant’s representative was already trying to address the applicant’s concerns prior to the examination taking place with the facility. One reason the assessment did not take place was because the examiner left before the applicant’s concerns were resolved.

(B) Some relevant details that were omitted were the law clerk spoke to Dr. Kumchy and advised that she would be phoning the assessment centre and the applicant advised Dr. Kumchy that he would be outside while he was waiting for a phone call back from his representative.

14The main reasons for the adjudicator finding the applicant has a reasonable explanation are based on the fact specific events. Because many of the relevant details of the events were omitted from the background section of the Tribunal’s decision it is difficult for the parties to understand how the findings support the conclusion and order. For example: in paragraph 18 (iv)(c) the adjudicator writes that the applicant was not the first one to leave the premises yet that is in contradiction to what is indicated in paragraph 10 (iv) “…the IE providers were unable to resolve the applicant’s concerns and eventually departed the premises”. The decision fails to look at the relevant section 37 and 44 and apply it to the facts of this case. That being said, I find that that the lack of sufficiency in the reasons does not lead to a different result. The Tribunal’s ultimate finding was correct.

Did the Adjudicator make other significant errors?

15The respondent claims the Tribunal failed to follow the test set out in Horvath. I find the adjudicator was not obligated to follow Horvath. Horvath is a Financial Services Commission of Ontario decision and is not binding on the Tribunal. In the present case, the Tribunal relied on Horvath and followed its reasoning, but there was no obligation to rely on it exactly as the respondent argued he should. This is not considered an error.

16The respondent claims the Tribunal failed to comment on the history of the applicant’s non-compliance. I find that even though the Tribunal did not comment on the history of the applicant’s refusals to attend other assessments, they are not relevant to the issues in this dispute. The reason why the respondent was holding the applicant in a period of non-compliance was not for previous non-attendance of assessments, it was only for the one contemplated in the decision. In writing a decision, the Tribunal does not have to comment on every argument brought forward by the parties. Therefore, this omission does not equate to an error.

17The respondent submits that the applicant should have been compelled to provide medical evidence to support his position that the assessment could not proceed without his support person (his wife). The Tribunal did not agree and provided his reasons at paragraph 18 iv. The Tribunal found the applicant complied with his obligations. I find Tribunal also considered the non-binding case law in his decision on whether the applicant was required to provide a medical substantiation and differentiated it based on the specifics of this incident. This is not an error.

Would the insufficiency of reasons have led to a different result?

18The answer is no.

19According to the Schedule the applicant is obligated to comply with all reasonable examination requests by the examiner. And if the applicant does not comply then the respondent can refuse to pay the benefit during the time of the applicant’s fails to comply with the request. In this case, the examiner requested that an unknown, unannounced individual participate in the medical examination of the applicant and that his wife could not be present in the room. The examiner did say that she could interview the applicant’s wife after. These policies and requests were unexpected and made the applicant feel uncomfortable. While the applicant was seeking advice from the law clerk, the doctor only waited for about 40 minutes, claims the applicant seemed like he was not going to participate, and left the facility.

20In review of the affidavits and the letter from the examiner, I find the applicant did not fail to attend or refuse to submit to the examination requests. The applicant was simply trying to see whether the requests and policies from the examiner were reasonable. The letter from the examiner stated that the conversation with the law clerk and applicant made it seem that the applicant would not comply. Therefore, the examiner assumed that the applicant would not comply. The examiner’s opinion does not decide the issue in this hearing because factually, the applicant did not actually refuse to comply. It was the examiner who first left the facility and precluded the possibility of the assessment going forward on that day.

21I find the respondent had no right to rely on section 37(7) to suspend the benefits because the applicant did not refuse to submit to the requests. Therefore, the outcome of the Tribunal’s decision with respect to the suspension of benefits was correct.

22Even if, while the applicant was waiting for advice, somehow constitutes a refusal to comply with the examiner’s request as per the Schedule I still find that the Tribunal correctly found that the applicant had a reasonable excuse. The applicant had a reasonable expectation that his wife could attend the examination. She had done so in the past and the representative sent the adjuster an email advising him of this arrangement. The adjuster never responded to that part of the email. It was only on the day of the examination that the examiner advised the applicant that he could not bring his wife into the room. Had the adjuster responded to the email advising the applicant could not have a support person present, there would have been enough time to seek advice and to make the applicant comfortable before the day of the examination. The respondent argues that deciding in favour of the applicant sets an obligation on the insurance company to advise applicants whether they can have a support person. I disagree. An insurance company needs to assess each applicant and case on its merits. Some may warrant accommodation such as the attendance of a support person and others may not. This case only pertains to whether the applicant refused to submit to the request of the examiner and whether the applicant had a reasonable excuse. The applicant took a short period of time to contact with his legal representative and inquire how to proceed. The applicant had no control over the examiners decision to leave the facility.

23The respondent claims the adjudicator failed to consider whether the applicant’s refusal to participate to have a transcriptionist in the room was reasonable. Although, the adjudicator does not comment on this, I find the applicant did not refuse to participate in the examination and therefore it is not an error.

24Since the applicant did not violate section 44(9)(2) of the Schedule the respondent had cannot invoke section 37(7) and suspend his benefits. The Tribunal’s order stands, and the respondent is obligated to pay the income replacement benefits during the period the benefit was not paid with interest as per the Schedule.

CONCLUSION

25For the reasons noted above, the respondent’s request for reconsideration is denied.

Chloe Lester

Adjudicator

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Statutory Accidents Benefits Schedule, O.Reg. 34/10 (the “Schedule”)
2. 2The exact wording of the Schedule has been paraphrased to fit the circumstances of this hearing.
3. 3“Horvath”
4. 4Financial Services Commission of Ontario in Ansari v State Farm (Appeal P16-00006) and R. v. Sheppard (2002 SCC 26)