PRELIMINARY ISSUE DECISION
Tribunal File Number: 18-008443/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:
[The Applicant]
Applicant
and
Economical Insurance Company
Respondent
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Eric Winkworth, Counsel
For the Respondent:
Marc E. Smith, Counsel
HEARD:
In Writing on: April 29, 2019
OVERVIEW
1[The applicant] was injured in an automobile accident on May 8, 2015. She sought various benefits from the respondent, Economical, and now alleges that her injuries constitute a catastrophic impairment (“CAT”).
2To that end, she applied to Economical for a catastrophic determination (“OCF-19”), dated February 15, 2018. Her application relied on multiple reports prepared by Omega and Associates based on the following assessments: physiatry, neurology, neuropsychology, mental/behavioural and occupational therapy. The resulting CAT report determined that [the applicant] met the criteria for CAT. Economical disagreed and requested that [the applicant] attend various s. 44 Insurer’s Examinations (“IEs”) in order to assess her CAT claim.
3On May 31, 2018, Economical advised [the applicant] that an IE had been arranged with Dr. Khaled to conduct a paper review assessment of her CAT application. Unfortunately, Dr. Khaled concluded that in-person assessments were required to make a CAT determination. Dr. Khaled opined that the six in-person assessments required included the following: orthopaedic surgery or physiatry, neurology, psychiatry, neuropsychological, and an occupational therapy in-home assessment and situational assessment.
4On September 7, 2018, prior to the IEs being scheduled, [the applicant] applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
5By letter dated November 14, 2018, Economical advised [the applicant] that IEs had been arranged pursuant to s. 44 in order to determine her ongoing entitlement to income replacement benefits (“IRB”) and whether she was CAT. The letter explained that Economical wanted to re-assess her entitlement to IRBs given that Dr. Kiraly previously opined in July 2017 that she could attempt a return to work in 9-12 months following psychiatric treatment. The letter also explained that, with respect to her CAT designation, Dr. Khaled had opined that in-person assessments were reasonably necessary to determine CAT.
6[The applicant] failed to attend IEs for the functional abilities’ evaluation, psychiatric, neuropsychology and neurology assessments scheduled for November 26, 2018, January 3, 2019, January 15, 2019 and January 31, 2019. [the applicant] advised that she would not attend the IEs if re-scheduled, arguing that they were not reasonably necessary and citing privacy concerns. By letter dated January 15, 2019, Economical advised [the applicant] that it would no longer pay IRBs and could not determine CAT due to her non-attendance at the s. 44 assessments.
7Following the case conference on January 15, 2019, the issue of post-104 week IRB was added on consent. [the applicant] now argues that the remaining IEs requested by Economical that she did not attend—being the withdrawn functional abilities evaluation1, a psychiatric evaluation, a neuropsychological examination and a neurology examination—are not reasonably necessary to determine CAT. In addition, [the applicant] argues that Economical’s IE notices were deficient, and it cannot rely on s. 55 to bar her application. Economical disagreed and insisted that [the applicant] attend the IEs as they are reasonably necessary.
8An in-person hearing on the CAT and IRB substantive issues was set down pending the outcome of this written preliminary issue hearing, raised by Economical, to determine whether [the applicant] is statute-barred from proceeding with her application for failure to attend the IEs.
ISSUES
9The preliminary issue listed in the Case Conference Order is as follows:
i. Is the applicant barred by section 55(1)2 of the Schedule to commence a proceeding to the Tribunal as the applicant is non-compliant with a section 44 insurer examination request for catastrophic impairment assessments and post-104 week income replacement benefit assessments?
RESULT
10[The applicant] is statute-barred from proceeding with her application pursuant to s. 55.
ANALYSIS
Is [the applicant] statute-barred from proceeding with her application under s. 55 of the Schedule because she refused to attend the requested s. 44 IEs?
11Section 44 of the Schedule gives Economical the right to conduct IEs, but limits that right to IEs that are considered “reasonably necessary.” Section 44(5) sets out the notice requirements for the examinations, which includes the medical and other reasons for the examination, and the names of the persons who will conduct the examination, with their medical credentials.
12In raising this preliminary issue, Economical’s position is straightforward: its request for [the applicant] to attend IEs is based on the opinions of medical assessors who determined that she could return to work and did not qualify for CAT. It argues that the outstanding IEs are reasonably necessary to assess her CAT entitlement and IRB eligibility based on the opinions of Dr. Khaled and Dr. Kiraly. Further, Economical argues that its notices were proper and its request for the IEs was reasonably necessary.
13In response, [the applicant] offers several arguments. First, she contends that the notices provided by Economical were deficient and outside of the timeline provided by the Schedule. Second, [the applicant] submits that she will not attend a psychiatric assessment unless it is conducted again by Dr. Kiraly, citing an unnecessary invasion of privacy and principal four of PIPEDA.2 Third, she argues that the IEs were not properly scheduled due to Economical’s failure to provide certain documentation to its assessors, along with its failure to provide her with a "secure mailing address" to provide assessors with relevant documents and information. Fourth, she argues the neuropsychological assessment is not reasonably necessary. Finally, she argues that the Tribunal should allow her to proceed with her application under s. 55(2).
14In its submissions, Economical addresses the principles outlined in the Tribunal’s jurisprudence concerning whether a s. 44 IE notice is proper: that all particulars required by s. 44(5) are provided; the language is clear, unambiguous and understandable to an unsophisticated person; that the notice clearly states the insured's obligation to attend and the consequences of non-compliance; that the notice must include contact information for the insured to respond and the information must be sufficient for the reader to decide if she wants to submit to the requested IE. Further, it addressed the factors in the “reasonably necessary” analysis: timing of the request, number and nature of previous IEs, reasonable nexus to the impairments and prejudice to the parties.3
15I find on the facts and evidence that Economical’s proposed IEs are reasonably necessary, that it complied with all of the requirements under the Schedule, and is permitted to choose its own IE assessors. Accordingly, I find that [the applicant] is statute-barred under s. 55 from proceeding with her application.
The timing of the requests and sufficiency of the notice
16[The applicant] submits that the notices provided by Economical were deficient. I find Economical’s denial was timely and its request for IEs reasonable, made in good faith and appropriate given both its rights under the Schedule and [the applicant]’s claims. Further, I find the notices provided to [the applicant] complied with the requirements of the Schedule.
17On review of the IE notice, I find that it states the assessors' names and credentials, professional designations, the date and time of the IEs, the location, and the contact information of the assessors in a clearly formatted table. The notice further provides that [the applicant] was required to attend the assessments. I concur with Economical that the notice provided reasons: that Dr. Kiraly had opined that the applicant required 9-12 months of recovery prior to returning to work, and that Dr. Khaled had indicated that the IEs were required to determine CAT. While [the applicant] was represented by counsel during this period, I also find that the language used in the notice was straightforward, clear, unambiguous, and understandable to an unsophisticated person. I agree that [the applicant] has not demonstrated how she was confused or misled by the notice or was unable to understand it.
18Further, I do not find that this is a situation where Economical was attempting to schedule IEs long after it was appropriate to do so, as [the applicant] alleges. I find Economical acted timely in denying CAT and requesting a paper review within nine business days of [the applicant] submitted her OCF-19, as its correspondence is dated May 23, 2018. Once it was notified, on June 12, 2018, that Dr. Khaled’s paper review could not provide a CAT diagnosis, Economical requested more information from [the applicant] pursuant to s. 33(1) and moved to schedule in-person IEs in response to [the applicant]’s OCF-19, which is its right under the Schedule.
19Here, [the applicant] argues that s. 55 should not apply because “insureds should not be barred from applying to the Tribunal to resolve their disputes just because their Insurer sends notice of examinations 2 months after the fact.” Contrary to [the applicant]’s argument, I do not find the purported delay—which [the applicant] argues led to her filing her Tribunal application prior to the scheduling of and her refusal to attend the IEs—was deficient, unreasonable or prejudiced her rights. I find Economical attempted to obtain its CAT determination through a less intrusive paper review, but Dr. Khaled determined that CAT could not be determined on the basis of the file material alone.
20I find [the applicant]’s argument is undermined by Economical’ s correspondence dated June 25, 2018, notifying [the applicant] that in-person s. 44 IEs would be required in order to assess her claims due to Dr. Khaled’s inability to provide a CAT determination via paper review. I find this correspondence was sent to [the applicant] within 10 business days after Economical received Dr. Khaled’s report on June 12, 2018 and that the correspondence included Dr. Khaled’s report for [the applicant] to review. I find this to be clear evidence that [the applicant] was provided with notice that in-person IEs were required several months prior to her application to the Tribunal on September 7, 2018. Accordingly, since Economical provided notice that IEs were required but not yet scheduled, I find Economical may rely on s. 55 because it made the request prior to [the applicant]’s application to the Tribunal.
[The Applicant]’s requests for clarification
21[The applicant] also argues that initial notice did not identify which assessments were for what purpose and that her requests for clarification from Economical went unanswered. Economical refers the Tribunal to the email of its adjuster, Ms. Reid, dated December 6, 2018, addressed to [the applicant]’s counsel, which states as follows:
I spoke with Mr. Carranza [[the applicant]’s representative] on 31 Oct 2018 at which time we discussed that we would conduct post-104 examinations in conjunction with the CAT IEs. He was agreeable to this as it would result in less assessments overall than completing separate CAT and Disability IEs.
Economical argues that this correspondence not only provides evidence of the requested clarification, it also notes that [the applicant], through her representative, was aware of the purpose of the IEs before the notice of examination was provided. Given [the applicant]’s representative’s response of December 13, 2018 stating there was no consent on the IRB IE and proposing different CAT assessors, I agree with Economical that [the applicant]’s requests for clarification were answered, even if [the applicant] was not agreeable to the clarifications. Further, based on the correspondence in evidence between the parties, I find there was no point of confusion. The correspondence makes clear that [the applicant] understood the nature and purpose of the proposed IEs, that she was able to consider whether to attend them, and that she eventually elected not to do so. [The applicant] certainly disagreed with their need. But she was not confused.
Assessor documentation and secure mailing address
22With regards to [the applicant]’s arguments concerning documentation that was allegedly not provided to assessors, I find no evidentiary basis for these claims and it is unclear how these arguments assist her in demonstrating that the IEs are not reasonably necessary. I follow Economical’s point that s. 44(9)2.ii requires that all relevant documents and information shall be provided to an assessor no later than five business days before the IE. Since [the applicant] advised Economical of her refusal to attend the IEs on December 5, 2018 and requested that her medical documentation not be provided to assessors “pending resolution of her refusal to attend the assessments,” I find it clear that this instruction was provided before any documents were even required to be provided to assessors.
23In addition, [the applicant] alleges that Economical failed to provide her with a secure mailing address to submit documentation to assessors. I agree with Economical that the Schedule makes no mention of providing a "secure mailing address" to insureds for document delivery to IE assessors. While [the applicant]’s privacy concerns are well-documented, I was not directed to a legal basis for this assertion and the Tribunal cannot fault Economical for not providing something that is not expressly contained within the Schedule.
Choice of assessor – psychiatric evaluation, PIPEDA and reasonably necessary
24Section 44(1) provides that an insurer may require an insured person to attend an assessment by one or more persons chosen by the insurer who are regulated health professionals. Here, [the applicant] submits that she will not attend the psychiatric IE unless it is scheduled with Dr. Kiraly—Economical’s previous psychiatric assessor—on the basis that submitting to a new assessor is an unnecessary invasion of her privacy. [The applicant] argues that she “is merely requesting that [Economical] balance her right to privacy by limiting the number of assessors it is requiring her to attend highly invasive and personal examinations with, by using assessors whom [Economical] had relied on previously. These assessors are of the same specialization as the new assessors, are more familiar with [[the applicant]], have built a rapport with [[the applicant]], and have been previously used by [Economical] for previous post-104 IRB assessments.” [The applicant] also cites her psychological impairments as reason for her non-attendance.
25I disagree. While it is a fundamental consideration to balance the privacy concerns of an applicant against an insurer’s need to secure medical opinions, given [the applicant]’s claims and Dr. Khaled’s determination that IEs are required, I consider the IEs proposed to be reasonably necessary to achieve Economical’s goal of securing CAT and IRB opinions. First, as an insurer, Economical has unfettered discretion to choose its assessor as long as it does not require an IE more often than is reasonably necessary. The same discretion is extended to applicants in selecting their assessors, as [the applicant] did in securing opinions from Omega. Second, while privacy concerns and the well-being of an insured are factors to consider in determining whether IEs are reasonably necessary, they are not the only factors, and to assign more weight to this one factor would unfairly allow an insured to dictate the identity of those performing an IE, which is the purview of the insurer. Third, [the applicant]’s preference not to share her personal information with a new assessor, while understandable, is not, in my view, a compelling reason for non-attendance at an IE where she has not demonstrated that Economical collected more personal information than was necessary for the purposes of assessing her injuries previously in order to warrant prospective concern that a breach could occur.
26While I am alive to [the applicant]’s concerns about the collection of her private information and that attending a psychiatric IE with a new assessor could violate her right to privacy under PIPEDA, I find she has not demonstrated that her privacy rights have been affected or will be affected under principle four of PIPEDA because she does not provide any supporting analysis. In my view, non-attendance at an IE based on a theory that one’s privacy rights could be affected unreasonably frustrates an already arduous process. [The applicant] submits that allowing Economical to schedule IEs with new assessors “would amount to an unnecessary collection, use and disclosure of [the applicant]’s personal information.” In turn, [the applicant] submits that, “[I]n essence, [Economical] is asking the Tribunal to assist in unlawful activity.” Again, while the Tribunal takes privacy matters seriously, I find the suggestion that obligating [the applicant] to attend IEs constitutes “assisting in unlawful activity” to be without merit.
27While I am sensitive to [the applicant]’s psychological impairments, I note that many CAT applicants at the Tribunal have similar diagnoses and remain obligated to attend properly scheduled IEs. [The applicant] has not provided the Tribunal with case law or analysis for her contention that requiring an applicant who is seeking a CAT determination to attend an IE not of their choosing violates the Ontario Human Rights Code or the Schedule, as she alleges. While the presence of a psychological impairment is certainly a factor in the “reasonably necessary” analysis, it does not shift the right to select a s. 44 assessor to the applicant or justify halting the s. 44 rights of an insurer on its own, and especially so when the IEs are reasonably necessary and based on a medical opinion.
28Putting all of this aside, and at any rate, Economical notes that, as a result of allegations of professional misconduct sometime after the initial assessment with [the applicant], it removed Dr. Kiraly from its roster of assessors. Economical submits that “even the appearance of bias or partiality is detrimental to Economical's good-faith obligation to its insureds,” and that this formed the basis for its decision to remove Dr. Kiraly from its roster. In turn, this decision led to the need for a different assessor to conduct [the applicant]’s psychiatric IE. [The applicant] takes issue with the timing of Economical’s explanation in reply, arguing that Dr. Kiraly continues to conduct IEs. While Dr. Kiraly may still be conducting assessments for other insurer’s despite the allegations of professional misconduct, I find no evidence to suggest that Dr. Kiraly continues to conduct assessments for Economical or remains on Economical’s roster of assessors and is therefore a candidate to re-assess [the applicant] In any event, I find this issue is moot considering it is Economical’s right to choose its assessor.
The nature of the IEs, reasonable connection and neuropsychological assessment
29It is necessary to achieve balance between Economical’s right to impose the IEs and the prejudice suffered by [the applicant], as well as [the applicant]’s right to privacy. Economical argues that there is a clear nexus between the need for the IEs and [the applicant]’s claims. While I agree that IEs can be intrusive and that, like anyone, [the applicant] has a right to privacy, I agree that the IEs proposed are reasonably necessary given that CAT and IRB determinations are at issue and because it is necessary for Economical to have the ability to assess the validity of [the applicant]’s ongoing claims.
30While it is always preferable to limit the number of IEs an applicant is required to attend, contrary to [the applicant]’s submission, it is not out of the ordinary for an applicant to attend psychiatric, neurological and neuropsychological assessments when CAT determinations under both Criterion 7 and 8 are at issue, as they are here. Indeed, according to the opinions of Dr. Becker and the Omega Medical Associates evaluators, [the applicant] suffers from a combination of physical and mental/cognitive injuries, which supports her CAT designation. I fail to see how Economical’s chosen assessments are somehow inconsistent with the impairments identified by the Omega evaluators on which [the applicant] relies, especially so considering Economical’s withdrawal of the Functional Abilities Evaluation, which, in my view, was a reasonable concession. Further, in submissions, [the applicant] concedes that she is willing to attend the psychiatric IE, which confirms that she also considers it reasonably necessary.
31In addition, I find there is evidence to suggest the IEs are reasonably necessary due to an important change in [the applicant]’s condition since the last assessments, chiefly that she has now been deemed CAT and more than 104 weeks have elapsed since her initial assessment. This new information provided by [the applicant] suggests that updated medical investigation is required. I find the purpose of the new IEs being requested are in response to the new information that [the applicant] is CAT and not to bolster Economical’s case or subject [the applicant] to unreasonable and intrusive examinations. Further, I do not find that the IEs are duplicative but rather in direct response to those conduct by Omega.
32Last, [the applicant] argues that a neuropsychological IE is not reasonably necessary and that she did not attend for the IE because it was scheduled for the same day as the case conference, being January 15, 2019. Here, I note that Omega conducted both a neurology assessment and two examinations conducted by neuropsychologists (a cognitive screen and a mental/behavioural evaluation) in arriving at its CAT determination, yet [the applicant] argues that a similar assessment is not reasonably necessary for Economical. In my view, procedural fairness dictates that the parties be on equal evidentiary footing and where [the applicant] relies on a neuropsychological report—in fact, two neuropsychological reports—I find that Economical is equally entitled to rely on the same type of report. As noted, I find a connection to [the applicant]’s claim and the need for the assessment. Further, with regards to [the applicant]’s scheduling concern, I find in evidence an email from Ms. Reid to [the applicant], dated January 11, 2019, indicating that due to the scheduling conflict between the neuropsychological IE and the case conference, that the IE would be rescheduled, allowing [the applicant] to attend both.
[The Applicant]’s secondary arguments
33In a sur-reply, [the applicant] offers several alternative arguments, including a lengthy section critiquing Economical’s reply submissions. While these arguments were based on the facts of this preliminary issue dispute and the Tribunal was alive to the sur-reply, I find most of the arguments tangential to the actual issue before the Tribunal and largely unhelpful.
34[The applicant] focused again on the document requests made by Economical under s. 33 and the instructions provided to Dr. Khaled by Economical. Suffice it to say, while perhaps relevant to the substantive issues, it is unclear how these details affect the preliminary issue before the Tribunal. [The applicant] continued her argument that the relationship between Economical, HVE and the third-party assessors must be clarified in order to determine whether the IEs were proper under the Schedule. She cites Rule 9.1 of the Tribunal’s Common Rules of Practice and Procedure that the Tribunal may request further particulars or disclosure it considers necessary for a full and satisfactory understanding of the issues. Having determined that Economical’s denial, notices and the s. 44 IEs were all proper in accordance with the Schedule and reasonably necessary given [the applicant]’s claims, the Tribunal did not require further particulars for a full and satisfactory understanding of the sole issue before it.
35[The applicant] also offered the following accusations in her materials: First, “though not specifically stated, it appears that the insurer instructed Dr. Khaled to describe what duplicative assessment could be done to mimic the assessments that had previously been carried out without indication as to whether duplicative assessments were reasonably necessary based on the historical information that was available.” Second, that “[Economical] failed to provide relevant documents to Dr. Khaled contrary to its obligation under section 44.(9)2.ii.” Third, “[Economical], despite being aware that there was no pre-accident treatment from Dr. Bodenstein, required the applicant to jump through hoops for records that were not requested by Dr. Khaled.” [The applicant]’s contentions here appear to insinuate bad faith conduct on Economical’s part. However, I find there is no evidence of bad faith and, in any event, a s. 10 award under O. Reg. 664 is not at issue in this preliminary hearing.
Affidavit evidence
36In responding submissions, [the applicant] also submitted an affidavit of Cesar Carranza, paralegal. The affidavit was submitted as purported evidence that Dr. Kiraly continues to conduct IEs and is seemingly available to re-asses [the applicant] Economical objected to the inclusion of this affidavit, arguing that the Case Conference Order did not permit affidavit evidence. [The applicant] submits that the Case Conference Order of Adjudicator Hines was ambiguous. On review of the Order, I agree with [the applicant] that the Order contains a typographical error leaving the submission of affidavit evidence open to interpretation. The Tribunal ultimately admitted the affidavit and, given the reasons identified above concerning Dr. Kiraly’s availability as an Economical assessor, I assigned it limited weight.
Section 55
37Section 55(1)2 provides that an insured shall not apply to the Tribunal if the insurer has notified the insured that it requires an examination under s. 44, but the insured person has not complied with that section. Section 55(2) states that the Tribunal may permit an insured to apply despite non-compliance.
38For the reasons outlined above, I find, on a balance of probabilities, [the applicant] is statute-barred from proceeding with her application before the Tribunal. Economical has a right to a full answer and defence where a CAT claim has been made and to be on equal evidentiary footing. To date, I find [the applicant] has frustrated that right due to her non-attendance at properly scheduled s. 44 IEs. Accordingly, I decline to exercise the discretion afforded by s. 55(2) to permit [the applicant] to proceed to the Tribunal with her application despite her non-attendance.
[The Applicant]’s motion
39[The applicant] submitted that a motion for “production of third-party records to clarify if the purported s. 44 assessments were proper s. 44 assessments as contemplated by the Schedule would be required.” Economical submits and [the applicant] agrees, that Adjudicator Johal ruled during the Case Conference on January 15, 2019 that motions for production could be dealt with after the preliminary issue was decided. I see no reason to interfere with this ruling at the preliminary stage.
ORDER
40[The applicant] is statute-barred from proceeding with her application under s. 55.
41The parties shall contact the Tribunal so a case conference may be scheduled in order to canvass how to proceed. If the parties are able to resolve the issues in dispute, they shall immediately notify the Tribunal.
Released: February 6, 2020
___________________________
Jesse A. Boyce
Adjudicator
Footnotes
- Following [the applicant]’s submissions, Economical submitted that the s. 44 physiatry assessor, Dr. Marchuk, and vocational assessor, Mr. Rositano, advised that they could complete their assessments without a Functional Abilities Evaluation. Therefore, Economical withdrew its request for [the applicant] to attend that IE.
- Protection of Personal Information and Electronic Documents Act, S.C. 2000, c. 5.
- See, for e.g., 17-002973 v. Aviva Insurance Company, 2018 CanLII 13391 (ON LAT); P.G. v. Economical Insurance Company, 18-001369 (ON LAT); Al-Shimasawi v. Wawanesa Mutual Insurance Co., 2007 CarswellOnt 3473.