C.B.L. v. Economical Insurance Company, 2019 CanLII 94125

Licence Appeal Tribunal

Tribunal File Number: 18-006028/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:

C B. L. Applicant

and

Economical Insurance Company. Respondent

Decision and Order

Panel: Sandeep Johal, Adjudicator

Appearances: For the Applicant: David A. Di Lella, Counsel For the Respondent: Sven H. Mascarenhas, Counsel

Heard: In Writing on: December 17, 2018

Reasons for Decision and Order

Overview

1The applicant was injured in an automobile accident on March 25, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the driver of a minivan which was involved in a rollover collision on the day of the accident. He was transported to the Brampton Civic Hospital and was diagnosed with soft tissue injuries to his hands, left flank, right shoulder and right knee. He was later found to have a subchondral fracture of the right lateral tibial plateau and other internal injuries.

3The applicant applied for a determination of whether he sustained a catastrophic impairment in accordance with the Schedule which was denied by the respondent on the basis that the respondent required additional medical documentation from the applicant. At the time of the denial, the applicant was not requested to attend an insurer examination (“IE”). The applicant disagreed with the decision on the applicant’s catastrophic determination and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4At the case conference on October 23, 2018 a preliminary issue was raised on whether the applicant must submit to an IE request from the respondent.

Preliminary Issue to be Decided

5The following is the preliminary issue to be decided as set out in the case conference order dated October 23, 2018:

i. Whether the applicant must submit to a paper review and in-person insurer’s examination pursuant to section 44 and 45 of the Schedule.

6After a review of the submissions filed by both parties the issue to be decided is more accurately described as follows:

i. Is the applicant required to attend catastrophic IE’s at the request of the respondent despite the fact that the request was not in accordance with section 45(3)(b) of the Schedule? and;

ii. Is the applicant precluded from disputing the denial with the Tribunal in accordance with section 55(1)2. of the Schedule?

Result

7It is my finding that the applicant’s appeal Application is stayed for a period of 4 months to allow for the following:

a. For the respondent to schedule the IE;

b. For the applicant to attend the IE, if necessary; and

c. For the completion and disclosure of the IE report.

Analysis

Duty to participate in IE’s

8The applicant has a duty to participate in IE assessments that are reasonably necessary and there must be a reasonable explanation provided for non-attendance.

9In the present case, the applicant submits that the respondent did not comply with the mandatory language in section 45(3)(b) of the Schedule and did not request an IE at the time of the denial and within 10 days as the section requires. Section 45(3)(b) reads as follows:

45(3). Within 10 days after receiving an application under subsection (1) prepared and signed by the person who conducted the assessment or examination under subsection (2), the insurer shall give the insured person,

45(3)(b). a notice stating that the insurer has determined that the impairment is not a catastrophic impairment and specifying the medical and any other reasons for the insurer’s decision and, if the insurer requires an examination under section 44 relating to whether the impairment is a catastrophic impairment, so advising the insured person.

10The applicant submitted an Application for Determination of Catastrophic Determination (OCF-19) dated December 18, 2017 to the respondent that concluded that the applicant met the catastrophic threshold under Criterion 2 for the loss of use of the right upper extremity, as well as under Criterion 7 with up to 74% Whole Person Impairment (WPI) based on physical impairments.

11The respondent wrote to the applicant on January 12, 2018 denying a catastrophic impairment designation as in the respondent’s opinion, there was insufficient medical documentation to support it. The respondent made a request for various medical documents and a request for an IE examination was not made until October 12, 2018 which was three months after the applicant filed his appeal Application to the Tribunal.

12The applicant submits the medical documents were provided (although no dates are provided in the submissions) and that the respondent already had the records in its possession. The applicant further submits that he has and will continue to suffer prejudice as a result of the delay in the receipt of his benefits for attendant care and rehabilitation if the respondent is allowed to request an IE which will take months to complete.

13The respondent submits the delay in scheduling an IE was a procedural error and, in any event, there is no language in the Schedule to eliminate the insurer’s ability to conduct an IE assessment as a consequence of non-compliance with the timelines set out in section 45. The respondent cites the Financial Services Commission of Ontario (“FSCO”) case of Rojas and Coachman Insurance Company² and the Superior Court of Justice case of Gray and Pilot Insurance Company³ in support of its position. In Rojas the FSCO arbitrator found that he could only interpret the actual words of the Schedule and that he did not have the authority to create and insert new words and consequences into the Schedule by arbitral decision.⁴ In Gray it was held that in the absence of any statutory authority, a catastrophic impairment designation does not automatically follow from non-compliance with the timelines set out in the Schedule.⁵

14In the present case, the applicant submits the respondent should not be able to now request an IE assessment to determine whether the applicant has a catastrophic impairment.

15I do not agree with the applicant. There is no consequence of non-compliance with section 45 of the Schedule as there is, for example in section 38(11). In section 38(11) the insurer is prohibited from taking the position that the Minor Injury Guideline applies to an applicant’s impairments if within 10 days of receipt of a treatment and assessment plan the insurer did not provide a notice of the medical and all other reasons for denying the treatment and assessment plan.

16As mentioned above, section 45(3)(b) states the respondent has 10 business days after receipt of an application to determine whether the applicant has a catastrophic impairment to either accept that the applicant has sustained a catastrophic impairment, deny the applicant’s claim specifying the medical and any other reasons and if the insurer requires, an examination under section 44.

17The Schedule does not preclude an insurer from seeking an IE examination and in this case, the insurer responded within the required 10 days denying the claim however it did not seek the IEs at the same time.

Is the applicant required to attend an IE if the respondent was not in compliance with section 45?

18The applicant is still required to attend all reasonably requested IE assessments as a matter of procedural fairness.

19On October 12, 2018 the respondent wrote to the applicant in accordance with section 44 of the Schedule to request an IE examination by way of an examination of material rather than in-person.⁶ The applicant refused the respondent’s request on the basis that the respondent did not request the IE examination within the 10 days as required by section 45 of the Schedule⁷. The 10-day requirement is not disputed by the respondent.

20The applicant submits that he cannot be compelled to attend an IE assessment at the request of the respondent for non-compliance with the timelines and the respondent submits that the applicant is attempting to eliminate the insurer’s right to assess the applicant. The respondent further submits it would be substantially prejudiced if it were unable to adjust the applicant’s claim on an ongoing basis to make a determination of whether the applicant is catastrophically impaired.

21I agree with the respondent, by not allowing the respondent an opportunity to assess the applicant would run counter to the notion of procedural fairness and would prevent the Tribunal from having available the most relevant evidence in order to arrive at a fair and just resolution of the issues in dispute. Not allowing the respondent an opportunity to respond to the applicant’s medical opinions for the purposes of a hearing would also be procedurally unfair. In my opinion, the prejudice to the respondent in terms of not being afforded a fair hearing outweighs the delay to the applicant in this situation especially since a hearing date has not yet been set.

Consequences of non-compliance by the respondent with section 45

22Although the Schedule is silent with respect to the non-compliance with the timelines in section 45, the best course for the applicant is to attend all reasonably necessary IE assessments at the request of the respondent to determine whether the applicant meets the requirement(s) to be found catastrophically impaired. If the applicant’s own catastrophic assessment(s) prevail over the results obtained by the respondent at the hearing, then there are further regulatory procedures that are available to the applicant to pursue.⁸

Restriction on proceedings

23Section 55(1) 2. of the Schedule states that the insured person shall not apply to the Tribunal if the insurer provided the applicant with notice that it requires an examination under section 44 but the applicant has not complied with that section.

24It is my finding that section 55(1) 2. of the Schedule does not apply to this fact situation for the following reasons.

25The respondent submits the applicant should be barred from proceeding with his appeal pending the completion of the IE assessments. The applicant submits that once he has applied to the Tribunal, then the respondent cannot rely on section 55(1) 2.

26On the present facts of this case, I agree with the applicant with respect to the application of s.55(1) 2. The applicant applied to the Tribunal on July 3, 2018 and the respondent’s request for an IE was made three months later, on October 12, 2018. The applicant already applied to the Tribunal and there was no issue with a section 44 non-attendance at the time of the Tribunal Application.

27Despite the fact that the IE request by the respondent was given after the Tribunal proceeding was commenced does not automatically preclude an IE assessment. The particular facts of the case must be considered, and the IE request should not solely be to bolster the respondent’s position in preparation for a hearing.

28In the present case, the catastrophic IE request is the first one the applicant would be required to attend, and the respondent has a duty to continuously adjust the applicant’s file. The adjustment process does not stop just because the applicant filed an appeal Application with the Tribunal.

29I also agree with the Adjudicator in 17-001138 v. CAA Insurance⁹ that it would be unfair and prejudicial to the respondent if the applicant did not attend the disputed insurance examinations as they are essential to the catastrophic determination.¹⁰ I would also add that procedural fairness and the rules of natural justice dictate that the respondent be provided with an opportunity to prepare for the hearing and be heard in a meaningful way. This would include being provided with the opportunity to respond to the applicant’s catastrophic impairment evidence in order to ensure a fair and just hearing on the merits of the case.

30Keeping in mind the principles of procedural fairness and natural justice and in accordance with section 25.0.1 of the Statutory Powers Procedure Act (“SPPA”) whereby the Tribunal has the power to determine its own procedures and practices, as well as Rule 3.1 of the LAT Common Rules of Practice and Procedure to facilitate a fair, open and accessible process and to allow effective participation by all parties. It is my finding that the following applies to this case.

31The applicant’s appeal Application is stayed for a period of 4 months to allow for the following:

a. For the respondent to schedule the IE;

b. For the applicant to attend the IE, if necessary; and

c. For the completion and disclosure of the IE report.

32Failure to cooperate may result in further delays by way of a motion and other consequences.

Order

33For the reasons outlined above, the applicant’s appeal Application is stayed for a period of 4 months to allow for the following:

a. For the respondent to schedule the IE;

b. For the applicant to attend the IE, if necessary; and

c. For the completion and disclosure of the IE report.

Footnotes

1. 1O. Reg. 34/10.
2. 2FSCO A16-000288. (“Rojas”)
3. 32006 CanLII 22118 (“Gray”)
4. 4Supra Note 2 at paragraphs 14-15.
5. 5Gray at paragraph 39.
6. 6Written submissions of the Respondent at TAB 2.
7. 7Ibid at TAB A.
8. 8Rojas at paragraph 16.
9. 92018 CarswellOnt 13382
10. 10Ibid at paragraph 17.