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:
A.U.
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Peter Cimino, Counsel
For the Respondent:
Jillian Beaulieu, Counsel
HEARD: In Writing
September 3, 2019
OVERVIEW
1A.U. was involved in an automobile accident on June 9, 2014 and, as a result, sustained various injuries, including but not limited to the following: a mild head injury and whiplash neck injury, concussion without loss of consciousness, headache, low back pain, nonorganic sleep disorders, mild cognitive disorder, generalized anxiety disorder, and problems related to life-management difficulty.
2TD Insurance initially advised A.U. that she qualified for benefits under the MIG. Upon further review of A.U.’s medical records, TD Insurance advised A.U. that it was unlikely she would achieve maximum medical recovery under the MIG, and now has access to the medical limit of $50,000.
3TD Insurance approved, or partially approved, subsequent treatment plans and assessments but denied the most recent treatment plan for a chronic pain assessment, and gave notice to A.U. of the requirement of in-person assessments to determine if the denied treatment plan is reasonable and necessary.
4During the case conference, TD Insurance raised a preliminary issue. Specifically, it argued that A.U. was restricted from advancing her application due to her non-attendance at the requested insurer’s examinations. I must decide if A.U. can proceed with her claim for denied benefits.
ISSUE TO BE DECIDED
5Has A.U. failed to comply with s. 44 of the Schedule? TD Insurance moves that A.U. is restricted from proceeding with her application to the Tribunal pursuant to s. 55 of the Schedule.
SUBSTANTIVE ISSUES
6Is the cost of examination expense in the amount of $2,460.00 for a chronic pain assessment, recommended by Recovery Rehab, in a treatment plan dated December 30, 2016, and denied on January 13, 2017, reasonable and necessary?
7Is A.U. entitled to interest on any overdue payment of benefits?
RESULT
8A.U.’s appeal is barred from proceeding under s. 55(1)(2) of the Schedule because she failed to attend IEs as required by s. 44(9)2.iii of the Schedule. There are no overdue payments and therefore no interest owing to A.U.
ANALYSIS
A.U.’s duty to attend s. 44 IEs and the consequences of non-compliance
9Section 44(1) of the Schedule governs IEs and, among other things, prescribes as follows:
a. Section 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals to determine whether the insured is or continues to be entitled to a benefit. The section stipulates that this must not be done more often than is reasonably necessary.
b. Section 44(9)2.iii requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
c. Section 37(7) of the Schedule prescribes the consequences to the insured person if he or she fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with s. 44(9).
d. Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if an insured person provides a reasonable explanation for not complying with s. 44(9).
e. The onus is on the insured person to establish a reasonable explanation.1
Consequences of Non-Compliance with s. 44 IE Request
10Section 55(1)(2) of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him or her that it requires an examination under s. 44, but the insured person has not complied with that section.
TD Insurance’s Position
11TD Insurance submits that it received the disputed OCF-18 on December 30, 2016 and responded with a denial as it had been more than two years since A.U. last received treatment. The denial notice advised A.U. that three IEs would be scheduled to help determine whether the proposed OCF-18 was reasonable and necessary given the elapse in time since she last received treatment.
12TD Insurance states that it sent A.U. a Notice of Examination (NOE) dated January 17, 2017 advising A.U. of the details for three assessments she was required to attend: neurology (January 31, 2017), psychology (February 7, 2017), and physiatry (February 16, 2017).
13TD Insurance states that A.U.'s counsel advised Centric Health, the independent assessment provider, by telephone that A.U. was unable to attend any of the scheduled assessments because she was out of the country, and they did not know when she would be returning. TD Insurance further submits that at no time did A.U.'s counsel advise TD of this information.
14TD Insurance contends that its request for IEs is reasonable, given the time elapsed since the accident and since previous requests for treatment, a lack of any updated medical information from A.U. Further, in June 2015, A.U. discontinued her approved treatment in order to move to Singapore to attend school, so it was difficult to understand the report that she had difficulties with her cognitive functioning.
15TD Insurance argues that the Tribunal should bar A.U.’s appeal from proceeding because:
a. A.U. did not attend the IEs and at the date of its response, had offered no explanation or indeed any response whatsoever to the IE requests; and
b. Its notices of assessment (“IEs”) complied with the Schedule.
A.U.’s Position
16A.U. states that the January 17, 2017 letter does not include any medical reasons to support the request for s. 44 assessments. She submits:
“There is no reference to medical records. There is no reference to having reviewed the treating practitioner’s opinion”.
17In support of her position that TD Insurance failed to comply with the requirements under s. 44, A.U. relied on previous Tribunal decisions. I am not bound by previous Tribunal decisions. Further, I find that the requirements under s. 44 are not as A.U. would suggest.
18While I agree that s. 44 requires “the medical and any other reasons” from the insurer in notifying an insured of attendance at a s. 44 examination, I do not agree that the requirement must include specific references to medical records or having reviewed the treating practitioner’s opinion.
19Not every request for a s. 44 examination will necessitate specific references to medical records or a review of the treating practitioner’s medical opinion. The “medical and any other reasons” is an intentionally broad provision, which, could include the references, however I disagree that the s. 44 notice must include those specific references. I find that such specific considerations would be restrictive and counter to the purpose of the Schedule being consumer protection legislation.
20I find that the wording under s. 44(5) does not include the requirement of reference to medical records or a review of the treating practitioner’s medical opinion. The interpretation of the “medical and any other reasons” provide the opportunity for the insurer to indicate in its notice, any references to medical records or review of the treating practitioner’s medical opinion, should the circumstances require. There is no requirement under s. 44(5) that an insurer must include those specific references.
21I find that A.U. has failed to meet the onus on her to provide a reasonable explanation for failing to attend the s. 44 IE scheduled by TD Insurance. The following are my reasons:
a. I agree with TD Insurance that its decision to request an IE was reasonable under the circumstances of a lengthy period between treatment requests and the lack of up-to-date medical documentation from A.U.;
b. TD Insurance’s notice contained the following reasons in support of its section 44 request:
i. It had been more than two and a half years since the accident;
ii. A.U. last attended for treatment in May of 2015, and had not received any updated medical documentation since then;
iii. A.U. moved to Singapore;
iv. It was difficult to understand reports of difficulties with A.U.'s cognitive functioning, such as memory, studying/learning, concentrating, etc.; and
v. It was difficult to understand the lack of activity and treatment and/or assessment requests for such an extended period of time, if in fact A.U. was still experiencing accident related physical and psychological impairments.
22TD Insurance’s notices were clear and contained all of the information required. In my view, the notice created an obligation for A.U. to comply with s. 44 or to raise any objections upon receipt of the January 17, 2017 notice. I find that in the absence of an objection from A.U., this obligation and the consequences for non-compliance should be enforced in the manner prescribed by the Schedule in order to maintain its integrity and purpose.
23There is no evidence that A.U. claims that she provided an explanation or raised any concerns with TD Insurance about the IE requests. I find that this failure undermines the credibility of her claim and weakens any claim that the reasons she provides in this proceeding explain her non-attendance.
COSTS
24Rule 19.1 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
25TD Insurance requested costs in this matter. For the reasons that follow, I find costs are not appropriate in this proceeding. The basis of the request for costs flows from A.U. filing an application to the Tribunal despite her non-compliance pursuant to s. 44 of the Schedule.
26TD Insurance submits that as a result of the commencement of this proceeding A.U. acted unreasonably.
27A.U.’s only response to TD Insurance’s claim for costs, is that she did not act unreasonably, and therefore no costs should be awarded. I agree.
28I deny Aviva’s cost request because I am not convinced that A.U.’s actions in this case meets the level of conduct contemplated by Rule 19.1 for a cost remedy.
CONCLUSION
29A.U.’s appeal is barred because of her failure to attend IEs requested by TD Insurance under s. 44 of the Schedule. Accordingly, a determination of the substantive issues in dispute is not necessary, and A.U.’s appeal is dismissed.
Released: March 5, 2020
__________________________
Derek Grant
Adjudicator