R.B. v. Aviva Insurance Company of Canada, 2020 CanLII 12704

R.B. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-011209/AABS

Citation: R.B. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-011209/AABS Date: February 12, 2020

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:

R.B. Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Robert Jones, Counsel

HEARD: In writing on: July 15, 2019

OVERVIEW

1R.B. (“the applicant”) was injured in an automobile accident (“the accident”) on February 2, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent. The respondent determined that he had sustained a predominantly “minor injury” and is subject to the $3,500.00 limit for medical benefits under the Minor Injury Guideline² (“the MIG”).

2The respondent brought a preliminary issue hearing for a determination that the applicant is barred by s. 55 of the Schedule from disputing its denials because he failed to attend several insurer’s examinations (“IEs”) required under s. 44.

PRELIMINARY ISSUE

3The preliminary issue to be determined is:

i. Whether the applicant is barred from proceeding with his application to the Tribunal pursuant to s. 55(2) of the Schedule as the respondent has provided the applicant with notice that it requires an examination under s. 44, but the applicant has not complied?

RESULT

4I find that the IE notices for the attendant care assessment and the psychological assessment did not comply with the Schedule. I also find that the respondent did not provide an IE notice in relation to the physiotherapy treatment plan.

5Therefore, I find that s. 55(1)2 does not apply because the respondent’s IE notices did not comply with the Schedule. The applicant is not precluded from applying to the Tribunal for failing to attend the IEs.

ANALYSIS

6The respondent denied the applicant’s claims for attendant care benefits, a psychological assessment and physiotherapy treatment on the basis that the applicant had sustained a predominantly “minor injury” and was subject to the MIG limit of $3,500.00.

7In doing so, the respondent scheduled IEs to determine whether the applicant’s injuries fell within the MIG and whether the benefits claimed were reasonable and necessary.

8The applicant did not attend any of these IEs as scheduled. The applicant submits that the respondent failed to comply with the Schedule in scheduling or requesting his attendance at the IEs.

9The respondent submits that its notices were proper and, pursuant to s. 55 of the Schedule, this application should therefore be dismissed since the applicant failed to attend the IEs.

10I will first address the sufficiency of the notices.

Sufficiency of notices

11Section 55(1)2 sets out that, if an insurer gives an insured notice in accordance with the Schedule that it requires an insurer’s examination, and if the insured does not comply with that notice, then the insured shall not apply to the Tribunal. Section 55(2) permits the Tribunal to allow an insured to apply despite any such non-compliance.

12Section 44 of the Schedule permits an insurer to have an insured examined by a regulated health professional for the purposes of helping it determine if the insured is or continues to be entitled to a benefit. It cannot do so more often than is reasonably necessary. Section 44(5) sets out the notice requirements for an examination, which states that the insurer shall give the insured person a notice setting out the following:

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

13The specific wording that satisfies the requirement of “medical and any other reasons” was considered in M.B. v. Aviva Insurance Canada.³ I agree with the reasoning in the decision that an insurer’s “medical and any other reasons” for denying a plan should include the specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

14In this case, I find that the IE notices for the attendant care assessment and psychological assessment did not comply with the Schedule. I also find that the respondent did not provide an IE notice in relation to the physiotherapy treatment plan.

15The respondent submits that it sent the applicant IE notices dated April 10, 2017; August 18, 2017 and January 9, 2018.

Notice dated April 10, 2017 – attendant care assessment

16The notice, dated April 10, 2017, in relation to attendant care benefits, did not comply with the Schedule. The notice advised that the applicant is required to attend an attendant care assessment conducted by Ms. Sarah Lee, occupational therapist, on May 25, 2017 (1:00 pm).

17Regarding the “medical reasons” requirement, the notice states the following:

Medical reason – The amount or type of care recommended does not appear to be in line with the documented injuries or impairments.

The notice also adds the following:

We’re unable to determine whether the recommendations for attendant care are reasonable and necessary as your injuries appear to be predominantly a minor injury. Attendant care is not payable for a minor injury.

18The notice indicates that the respondent was of the view that the applicant had only a minor injury and, as such, did not qualify for attendant care benefits. Although the notice indicates that the respondent reviewed the recommendations for attendant care and concluded that the recommendations do not appear to be in line with the applicant’s documented injuries or impairments, the respondent did not provide a meaningful explanation for its decision to deny the benefit. This does not follow the requirements set out in the reconsideration decision noted above. Therefore, I find that this notice did not comply with the Schedule.

Notice dated August 18, 2017 – psychological assessment

19The notice, dated August 18, 2017, in relation to the psychological assessment, did not comply with the Schedule. The notice advised that the applicant is required to attend a psychological assessment conducted by Dr. Alfonso Marino, psychologist, on September 20, 2017 (9:00 am).

20Regarding the “medical reasons” requirement, the notice states the following:

Medical reason – Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.

21The OCF-18 for the psychological assessment was prepared by Dr. Fahimeh Aghamohseni (psychologist), who conducted a pre-screening assessment on July 24, 2017. Dr. Aghamohseni opined that the applicant should be removed from the MIG and that a formal psychological assessment is warranted.

22Although the notice indicates that the respondent reviewed the treating health practitioner’s opinion and the MIG, the respondent did not provide a meaningful explanation for its decision to deny the benefit. This does not follow the requirements set out in the reconsideration decision noted above. Therefore, I find that this notice did not comply with the Schedule.

Notice dated January 9, 2018 – in relation to a treatment plan that is not in dispute

23I find that the respondent did not provide any notice letter in relation to the physiotherapy treatment plan. Both parties submit that a treatment plan for physiotherapy treatment dated May 23, 2017, in the amount of $1,564.36, is in dispute in this matter. I find that the parties’ submissions and evidence indicate that there is no notice letter in relation to this treatment plan for physiotherapy.

24There is a notice letter dated January 9, 2018, in relation to a treatment plan dated December 9, 2017, recommended by Health Pro Wellness in the amount of $2,747.00. Neither party has made submissions that this treatment plan is in dispute in this matter; however, the respondent submits that this letter informed the applicant that an IE assessment was required to determine whether his injuries fell within the scope of the MIG. I find that the wording of the letter clearly refers to scheduling an IE for the treatment plan in the amount of $2,747.00.

25Although I find that the respondent did not provide any notice letter in relation to the physiotherapy treatment plan in dispute, I also find that this notice dated January 9, 2018, did not comply with the Schedule. The notice did not advise the applicant about the details of the assessment. There is no insurer’s examination assessor listed or a date, time and location for the appointment.

26The notice did not comply with the “medical reasons” requirement, by stating the following:

Reason – This claims adjuster has reviewed the Minor Injury Guidelines and the treating heath practitioner’s medical opinion, and has concluded that the health practitioner has not provided compelling evidence that your injuries are outside the Minor Injury Guidelines, or the treatment claimed is reasonable or necessary.

27Although the notice indicates that the respondent reviewed the treating health practitioner’s opinion and the MIG, the respondent did not provide a meaningful explanation for its decision to deny the benefit. This does not follow the requirements set out in the reconsideration decision noted above.

CONCLUSION

28I find that the IE notices for the attendant care assessment and the psychological assessment did not comply with the Schedule. I also find that the respondent did not provide an IE notice in relation to the physiotherapy treatment plan.

29Therefore, I find that s. 55(1)2 does not apply because the respondent’s IE notices did not comply with the Schedule. The applicant is not precluded from applying to the Tribunal for failing to attend the IEs.

COSTS

30As part of their submissions, both the applicant and the respondent requested costs. The respondent also requested repayment of cancellation fees it incurred due to the applicant’s failure to attend the scheduled IE for the psychological assessment. Neither side has provided sufficient evidence that either side’s conduct was unreasonable, frivolous, vexatious or in bad faith, so I cannot make an order for costs in this matter. Therefore, no costs will be awarded.

31Regarding the respondent seeking a repayment of incurred cancellation fees, it did not direct me to any authority or provision of the Schedule or Insurance Act that would allow me to make such an order. Accordingly, I decline to order repayment to the respondent.

CONCLUSION

32The respondent’s preliminary issue is dismissed. The applicant may proceed with his application before the Tribunal.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (Reconsideration).