F.S. v. Unica Insurance Inc., 2020 CanLII 14477

Citation: F.S. vs. Unica Insurance Inc., 2020 ONLAT 19-001537/AABS

Tribunal File Number: 19-001537/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:

F.S.

Applicant

and

Unica Insurance Inc.

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Sarah Jamshidimoghadam, Counsel

For the Respondent:

Domenic D. Nicassio, Counsel

HEARD:

In Writing : October 15, 2019

OVERVIEW

1F.S. was injured in a motor vehicle accident on September 24, 2015 and sought various benefits from the respondent, Unica, which denied payment for benefits beyond the Minor Injury Guideline (“MIG”) based on its belief that F.S.’s injuries were predominately minor, as defined by the Schedule.

2F.S. continued to submit OCF-18s for treatment beyond the MIG, as well as a claim for post-104 income replacement benefits (“IRB”). Unica scheduled F.S. to attend for various s. 44 Insurer’s Examinations (“IEs”) in order to assess his entitlement to the benefits. F.S. failed to attend seven properly scheduled IEs, initially refusing to attend because the IEs were not reasonably necessary to determine whether he was subject to the MIG or his entitlement to other benefits, and later claiming he was unwell and could not participate.¹

3Following the case conference, Unica sought a motion order dismissing the application under s. 55 of the Schedule for F.S.’s failure and refusal to attend validly scheduled s. 44 IEs. With an in-person hearing already scheduled, the Tribunal set the matter down for a preliminary issue hearing to determine whether F.S. could proceed with his application.

4Following the motion and on agreement with F.S.’s counsel, Unica rescheduled two of the s. 44 IEs F.S. had missed previously for September 2019. F.S. did not attend either of the rescheduled IEs due to allegedly being evicted from his home.² To date, F.S. has failed to attend nine s. 44 IEs.

ISSUES

5The preliminary issue listed in the Case Conference Order is as follows:

i. Is the application statute-barred pursuant to s. 55(1)2, as the applicant has failed to attend insurer examinations scheduled pursuant to s. 44 of the Schedule?

RESULT

6F.S. may proceed with his application on MIG determination, the cost of a chronic pain assessment and the cost of chiropractic treatment, as he attended the s. 44 IE related to these claims and is in compliance with the Schedule.

7F.S. is statute-barred pursuant to s. 55 of the Schedule on the remaining issues in dispute, including his IRB claim, for failing to attend multiple s. 44 IEs that were reasonably necessary and properly scheduled.

ANALYSIS

Is F.S. barred from proceeding with his application because he refused to attend the requested IEs?

8Section 44 of the Schedule gives Unica the right to conduct IEs, but limits that right to IEs that are considered “reasonably necessary.” At issue is whether the IEs for neurological, psychological, and functional assessments proposed by Unica were reasonably necessary to determine whether F.S. is entitled to the benefits he is claiming in his application, notably post-104-week IRBs, psychological and chiropractic treatment, and removal from the MIG. If so, F.S. is statute-barred under s. 55 of the Schedule from proceeding with his application until he attends the proposed IEs.

9In raising this preliminary issue, Unica’s position is relatively straightforward: F.S. has now failed to attend nine separate IEs and has not provided reasonable or credible excuses for his non-attendance. Further, Unica argues that its notices and reasons were proper, that its requests for the IEs were reasonably necessary based on the medical evidence and F.S.’s claims and, ultimately, that F.S.’s excuses for non-attendance were not reasonable and denied Unica of its right to secure a full answer and defence. Unica submits that F.S. should not be permitted to pick and choose the IEs he attends and still be allowed to proceed with his application, and that his entire application should be barred as a result.

10In submissions, F.S. withdrew 10 of the issues listed in his application.³ F.S. now argues that, since he attended the physiatry IE on March 8, 2019 that concerned the remaining issues in dispute, that he should be permitted to proceed with his application at the Tribunal on those issues, which he identifies as follows: 1) the applicability of the MIG; 2) the cost of the chronic pain assessment in the amount of $2,486.00; and 3) chiropractic treatment in the amount of $3,271.00. F.S. submits that his attendance at the physiatry IE, which was scheduled to address MIG, the chronic pain assessment, chiropractic treatment and post-104 IRBs, is evidence that he complied with his statutory obligations and should be allowed to proceed on those issues. F.S. further argues that he should be permitted to proceed with his IRB claim and that Unica should reschedule the psychological and neurological IEs from September 2019—even though he missed the rescheduled IEs due to an alleged eviction—because he is “still willing to attend.”

11In its submissions, Unica addresses the principles outlined in the Tribunal’s jurisprudence⁴ that concern whether a s. 44 IE is “reasonably necessary,” including: the timing of its request; the possible prejudice to both sides; the number and nature of previous IEs; the nature of the IEs being requested; whether there are any new issues being raised in the claim that require evaluation; whether there is a reasonable connection between the examination requested and F.S.’s injuries, etc.

12In response, F.S. does not address any of these factors. Instead, he frames the issue as a proposal that his application be allowed to proceed on three issues only, on the basis that he attended one s. 44 IE on March 8, 2019 and has withdrawn all issues not addressed by that IE. F.S. does not address whether the s. 44 IEs he missed were reasonably necessary or whether Unica’s notices were in compliance with s. 44(5) of the Schedule.

F.S. is not statute-barred under s. 55(2) on three issues

13Having voluntarily withdrawn all of his claims related to seven of the missed s. 44 IEs, I find evidence that F.S. complied with his statutory obligations under the Schedule when he attended the physiatry IE with Dr. Marchuk on March 8, 2019 that addressed the remaining issues in dispute. The physiatry IE was scheduled to address MIG, the two OCF-18s (chronic pain assessment and chiropractic treatment) and IRB. Here, F.S. proposes that his application proceed on MIG, the two OCF-18s and, once he attends the IEs, IRB.

14According to the report, Dr. Marchuk found that there was no compelling evidence of a pre-existing medical condition that would negatively impact treatment and recovery from the injuries sustained if treatment was limited to the MIG. As such, the report concluded that two treatment plans dated December 6, 2018, completed by Dr. Getahun (chronic pain assessment) and Dr. Pirnia (chiropractic), in the amount of $2,486.00 and $3,271.81, respectively, were not reasonable or necessary. Unica relied on this report to maintain its denials. In its denial letter, Unica does not indicate that it required further assessment or addendum on the issue of MIG or the two OCF-18s, only that it required two more s. 44 IEs to address IRB.

15On this basis, I see no reason why F.S. cannot proceed to the Tribunal to dispute Unica’s denial. He submitted valid claims, attended the s. 44 IE scheduled by Unica, a report from this IE was furnished and Unica maintained its denial based on this report. Unica did not identify any issues with the IE or the report. Having withdrawn the other issues on which he is non-compliant, F.S. now has tidy, narrow application that requires resolution of a dispute between the parties. That is this Tribunal’s function and mandate.

16Contrary to Unica’s position, s. 55 of the Schedule does not state that non-compliance with one—or in this case, several—s. 44 IE requests for certain benefits statute-bars an applicant from proceeding with other benefits on which they are compliant. Further, Unica has not directed the Tribunal to authority that bars F.S. from proceeding on issues where he complied, despite the fact that he remains non-compliant on other, since withdrawn, issues. Indeed, s. 55(2) provides support for F.S. to proceed on these facts, as the Tribunal may permit an insured to apply despite non-compliance with a s. 44 IE under s.55(1)2.

17In my view, F.S. has effectively cured his own statutory defect as well as any potential prejudice to Unica by withdrawing his non-compliant claims and asking to proceed on three narrow issues. Accordingly, I find F.S. may proceed with his application to the Tribunal on the issues of MIG determination, the chronic pain assessment and the chiropractic treatment, as he attended the s. 44 IEs on these issues and reports were furnished for same. It is a valid dispute that should not be barred, and, in any event, the Tribunal permits F.S. to proceed with his narrow application under s. 55(2).

The remaining two missed IE’s statute-bar F.S.’s claim under s. 55

18However, I find F.S.’s failure to attend the psychological and neurological IEs proposed by Unica in order to address entitlement to IRB do statute-bar him from proceeding with his application on that issue.

19Unica’s letter of March 25, 2019 is clear. It stated that the determination of F.S.’s ongoing entitlement to IRB “will be addressed upon the completion of your remaining Insurer’s Examination to follow. Once the reports are received, we will forward a copy of these reports along with our letter advising our position with respect to your entitlement to the Income Replacement Benefit.” Here, Unica was unable to take a position due to incomplete medical opinions based on F.S.’s alleged impairments. To date, F.S. has not attended either IE and both have been rescheduled on two occasions, with Unica incurring significant costs.

The timing of the request and notice

20I find Unica’s request for the IEs was timely and reasonable, made in good faith and appropriate given its rights under the Schedule. I do not find that this is a situation where Unica was attempting to schedule IEs long after it was appropriate to do so, or that it was attempting to secure more evidence for a hearing. Again, F.S. does not seem to take issue with any of the notices.

Prejudice

21Unica submits that it will be prejudiced if F.S. is not required to attend the IEs and can proceed to the Tribunal because it would be left without the ability to provide a full answer and defence and “would convey the message that a claimant can ignore valid requests under section 44 of the Schedule and still proceed to a LAT Arbitration. This would be unfair to [Unica] and it would be contrary to the purpose of section 44 of the Schedule.”

22F.S. does not make specific arguments for the prejudice he will face by being statute-barred. Other than further delay and having to attend the IEs, there was no compelling evidence provided by F.S. of actual prejudice if he were required to attend the IEs proposed.

The number and nature of previous examinations, reasonable connection

23Unica argues that there is a clear nexus between the need for the IEs and F.S.’s IRB claim. It argues that the psychological and neurological IEs are required to assist its assessors in delivering a complete opinion on IRB entitlement. F.S. does not address the nexus between the number and nature of previous IEs. I find that the proposed IEs are not excessive considering F.S. has failed to attend nine out of the 10 IEs that have been arranged to assess his claims and the blame for the number of examinations can largely be placed at F.S.’s feet.

24On the facts, I find there is also a reasonable connection between the IEs requested and F.S.’s claims. Given F.S.’s complaints and how his impairments affect his day to day and work function, I find the IEs proposed constitute a reasonable evaluation of impairment. As a result, and in the absence of arguments from F.S. stating otherwise, I agree with Unica that the IEs are an important and necessary component to assess the IRB aspect of F.S.’s claim.

25Finally, I find F.S.’s excuses for non-attendance to be unreasonable and unsupported by evidence. At the motion, F.S. promised to attend the already re-scheduled IEs in order to address IRB that he was seeking. He did not attend, seemingly telling the taxi company that he had housing issues. In the documentation before the Tribunal, there is no evidence to suggest this was the case, why this allegedly prevented him from attending or how his non-attendance at these IEs was somehow different from the other seven instances of non-attendance. F.S. now brazenly claims in submissions that Unica should reschedule the proposed IEs because he is “still willing to attend.” In my view, this is not reasonable.

26For these reasons, I find F.S. is statute-barred from proceeding with his claim for IRB under s. 55.

Costs for non-attendance

27In submissions, Unica indicated that it has now paid $4,900.81 in non-attendance fees due to F.S. failing to show up for the properly scheduled IEs. Unica argues that F.S.’s decision to refuse attendance at nine assessments, in the absence of any reasonable explanation, can reasonably be interpreted as an attempt to frustrate Unica’s rights and to cause it expense and inconvenience. Unica requests that the incurred expenses of $4,900.81 be reimbursed by F.S.

28While I agree that the number of assessments F.S. has missed is alarming, that the expenses incurred by Unica are unfair and that F.S.’s excuses for non-attendance are, frankly, uncompelling, I find no statutory authority to make a determination on this issue at the preliminary stage.

ORDER

29F.S. may proceed with his application for MIG determination and entitlement to treatment plans for a chronic pain assessment and chiropractic services, as I find he attended the s. 44 IEs scheduled by Unica and is therefore in compliance with his statutory obligations for these issues.

30F.S. is statute-barred from proceeding with his application for IRB under s. 55 of the Schedule for failure to attend the psychological and neurological s. 44 IEs scheduled by Unica, as both were reasonably necessary. Having withdrawn the other issues listed in his application, it follows that F.S. is also statute-barred from proceeding with those issues.

31The parties shall contact the Tribunal so a case conference may be scheduled in order to address how to proceed. If the parties are able to resolve the issues, they shall immediately notify the Tribunal.

Footnotes

1. 1F.S. failed to attend IEs scheduled for February 8, 2016 and March 18, 2016 (no reasons given); September 6, 2016, September 7, 2016 and September 23, 2016 (refusal based on MIG); May 21, 2019 and June 4, 2019 (F.S. alleging he was ill).
2. 2F.S. failed to attend IEs re-scheduled for September 5 and 10, 2019, allegedly informing the taxi that he would not attend due to alleged housing issues characterized as being evicted.
3. 3F.S. withdrew the following claims in his responding submissions: $2,000 for a psychological assessment; $200 for the cost of a physiotherapy examination; $3,701.88 for psychological treatment; $2,819.08 for physiotherapy; $1,803.76 for chiropractic treatment; $1,386.82 for physiotherapy; $2,394.50 for physiotherapy; $1,995.50 for a psychological assessment; $1,696.25 for physiotherapy; $2,000 for a psychological assessment (duplication).
4. 4See, for e.g., 17-005291 v. Travelers Canada, 2018 CanLII 13172 (ON LAT) and 17-001138 v. CAA Insurance, 2018 CANLII 76420 (ON LAT).```