K.B. v. Aviva General Insurance, 2020 CanLII 19583

Citation: K.B. vs. Aviva General Insurance, 2020 ONLAT 18-011950/AABS

Tribunal File Number: 18-011950/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:

K. B.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Alina Kaganovich, Counsel

For the Respondent: Sonya M. Katrucz, Counsel

HEARD: In writing on August 26, 2019

OVERVIEW

1The applicant was injured in an automobile accident on January 25, 2017 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The respondent has raised three preliminary issues in response to the application to the Tribunal. They are the subjects of this hearing.

THE ORDER INCORRECTLY LISTS THE ISSUES IN DISPUTE

3The Order dated May 23, 2019 (“the order”) listed the issues as whether the respondent is entitled to repayment of income replacement benefits (“IRBs”) and repayment for certain missed examinations. Instead, the parties’ submissions address the issues as they are listed below. As a result, I consider the issues in the order to be listed incorrectly and I have focused the decision on the issues the parties addressed.

ISSUES

4The preliminary issues in dispute are:

1. Is the applicant statute barred from proceeding with his application to claim entitlement to a chronic pain assessment as a result of a failure to attend an insurer’s examination pursuant to sections 44 and 55 of the Schedule?

2. Is the applicant statute barred from proceeding with his application to dispute entitlement to IRBs as a result of a failure to comply with the respondent’s request pursuant to section 33 of the Schedule, as well as a failure to attend an insurer’s examination pursuant to sections 44 and 55 of the Schedule?

3. Is the respondent entitled to a repayment of income replacement benefits in the amount of $1,027.85?

RESULT

5The applicant is barred from disputing entitlement to the chronic pain assessment because he failed to attend a properly scheduled section 44 examination. As a result, this issue is struck from his application.

6The applicant may proceed with his application to dispute entitlement to IRBs and medical benefits.

7The issue of repayment of IRBs is deferred and will be addressed by the substantive hearing adjudicator because the applicant’s ongoing entitlement to IRBs remains in dispute.

8Neither party is entitled to costs as no party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.

BACKGROUND

9The applicant was injured in an accident and claimed benefits from the respondent. The respondent paid the applicant IRBs effective January 31, 2017 after the applicant submitted a disability certificate and some pay stubs.

10Although the respondent accepted the applicant’s claim for IRBs, around the same time it requested the applicant provide a completed Employer’s Confirmation Form (“OCF-2”). The request was made pursuant to section 33. The applicant eventually produced one about a year later, on March 22, 2018.

11The applicant also claimed entitlement to funding for a chronic pain assessment plan dated July 16, 2018. In response, the respondent requested the applicant attend insurer’s examinations on August 8, 2018 (physiatry) and September 25, 2018 (psychological) to determine whether a chronic pain assessment is required. The applicant did not attend the August 8, and September 25, 2018 examinations.

12On September 26, 2018, the day following the second scheduled IE, the applicant advised the respondent that he was not available for the IE due to “family circumstances”. He also apologised for not providing notice earlier and asked the respondent to reschedule both assessments.

13The IEs were rescheduled for November 7 and 27, 2018. The applicant did not attend the first IE and wrote to the respondent on November 26, 2018, advising he was unavailable for the November 7, 2018 assessment due to “school commitments and psychological distress” and would not be able to attend the IE on the following day for the same reasons. He advised he is “ready and willing to attend on future dates”.

NON-COMPLIANCE WITH SECTION 33 DOES NOT BAR AN APPLICATION

14The applicant’s failure to timely comply with the respondent’s section 33 request for an OCF-2 does not bar him from filing an application.

15The remedy for non-compliance with section 33 requests is addressed in section 33(6). This section provides the respondent is not liable to pay a benefit during a period which the applicant fails to comply with the request. Contrary to the respondent’s claims, there is no legislative authority in section 33 to bar the application as a result of a failure to comply with a section 33 request. I have previously addressed this issue in M. M. and Aviva Insurance Company¹, which the applicant submitted in support of his submissions.

AN OCF-2 IS NOT REQUIRED TO APPLY FOR IRBs

16The respondent also submits the applicant is barred from disputing ongoing entitlement to IRBs because he failed to produce an OCF-2 in a timely manner. The respondent submits an OCF-2 is a requirement for an application for IRBs and, therefore, the applicant has not properly applied for IRBs and should be barred pursuant to section 55(1)1. I disagree.

17The submission, or lack thereof, of an OCF-2 does not impact the applicant’s ability to make an application with the Tribunal pursuant to section 55(1)1. An OCF-2 is an excellent tool to glean information and determine the quantum of an insured person’s IRB; however, I find it is not required to initiate a claim for IRBs. There is no mention of an OCF-2 (or employer’s confirmation form) in the Schedule and I have been provided no jurisprudence to support this position. As outlined in section 36 of the Schedule, the only requirement for an application for IRBs is the submission of a completed disability certificate. Whether or whenever the applicant provided an OCF-2 is immaterial when considering whether the application for IRBs was made.

IS THE APPLICANT COMPLIANT WITH SECTION 44?

18I find the applicant failed to attend a properly scheduled IE and is not compliant with section 44. Consequently, the applicant may not proceed with his application to dispute entitlement to a chronic pain assessment.

19The applicant does not dispute the validity of the respondent’s IE notices, nor does he dispute whether the respondent made reasonable efforts to schedule the IE for a day, time and location that are convenient for him. Rather, he suggests the respondent has requested IEs more than reasonably necessary and submits the respondent has failed to cooperate with him to reschedule them.

20The applicant does not need to attend a third psychological IE. The applicant has attended four IEs in total: two orthopaedic IEs with reports dated May 30, 2017 and January 26, 2018, and two psychological IEs with reports dated December 1, 2017 and August 1, 2019. None of these assessments were conducted for the purpose to determining whether a chronic pain assessment was reasonable and necessary. I see no reason why the applicant should participate in a separate psychological IE for the purpose of determining whether the chronic pain assessment is reasonable and necessary when the respondent could have had the issue addressed in the August 1, 2019 IE.

21However, the applicant has not yet participated in a physiatry IE. I find it reasonable for the respondent to seek this IE to obtain an opinion on the applicant’s medical condition, specifically an opinion on chronic pain, from a physiatry perspective. Considering this, I find the respondent’s request for one physiatry IE is made not more than reasonably necessary.

22Section 55(1) bars the applicant from applying to the Tribunal if, pursuant to section 55(1)2, the applicant has not complied with a properly scheduled IE. This language is compulsory, though there is an exception to the rule outlined in section 55(2).

23With respect to the disputed chronic pain assessment, I choose not to exercise my authority provided by section 55(2). Section 55(2) allows me to permit an application despite the applicant’s failure to comply with section 44. The applicant agrees he did not attend the properly scheduled physiatry IEs and provides no reasonable explanation for this. Consequently, the applicant is barred from proceeding with the application to dispute entitlement to the chronic pain assessment. The issue is struck from his application.

IRBs ARE NOT RELATED TO THE MISSED IE

24The IE notices only refer to the chronic pain assessment. Despite this, the respondent submits the applicant’s failure to attend the IEs also bars him from applying for adjudication on the entitlement to the other benefits in dispute. It submits the reconsideration decision I. K. v. Primmum Insurance Company² held the applicant could not bring an application regarding any benefits after failing to attend IEs for different benefits. I disagree.

25While I agree the initial decision³ found the applicant was barred from applying for adjudication on any benefits due to a failure to attend IEs, I find the reconsideration did not consider this issue. My interpretation of I. K. is that the position that the applicant should not be barred entirely for failure to attend IEs was a new argument raised in his request for reconsideration and the Tribunal declined to address it.

26In any event, I am not bound by previous Tribunal decisions and I find barring the entire application would be a disproportional remedy for the applicant’s failure to attend an IE for one discreet issue, entitlement to a chronic pain assessment.

27If I am wrong on this, I find section 55(2) provides me with the authority to permit the applicant to proceed to a substantive hearing on the remaining issues despite a failure to attend a properly scheduled IE. I choose to exercise this authority.

REPAYMENT

28The respondent claims entitlement to a repayment of IRBs in the amount of $1,027.89 pursuant to section 52(1) of the Schedule. It submits the applicant was aware of the overpayment and has not complied with the repayment request dated October 8, 2018. The applicant does not expressly dispute he was overpaid. Instead, he submits the notice of repayment is insufficient and was made more than one year following the overpayment, disentitling the respondent to it.

29Despite the submissions on the issue, I find the issue of repayment is best addressed in the substantive hearing. This is because the applicant’s ongoing entitlement to IRBs remains at issue and the outcome of that issue may impact the determination of whether the respondent is entitled to a repayment. Considering this, I decline to provide an opinion on the issue and defer it to the substantive hearing adjudicator.

COSTS

30In responding submissions, the applicant requested costs. He claims the respondent was disrespectful of the Tribunal’s process by maintaining its position on the applicant’s entitlement despite the evidence in its possession, by making requests for medical and employment records the applicant believes are redundant and intrusive, and by raising the preliminary issues (which he submits are redundant). The respondent did not address the cost request in reply submissions.

31Pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

32I find no evidence of such behaviour by either party and dismiss the applicant’s request. Costs may only be awarded on account of behaviour during the proceeding and two of the three reasons cited by the applicant relate to behaviour which occurred prior to the proceeding. Considering the outcome, I conclude the preliminary issue hearing was not unnecessary as the applicant suggests.

CONCLUSION

33The applicant failed to attend a properly scheduled insurer’s examination and, as a result, is barred from adjudicating entitlement to the chronic pain assessment. For this reason, the issue is struck from his application.

34The applicant is not barred from adjudicating entitlement to IRBs.

35The issue of repayment is deferred to the substantive hearing where IRBs remain at issue.

36The Tribunal will schedule a case conference as soon as reasonably possible to address the substantive issues in dispute.

Footnotes

1. 12017 CanLII 147725 (ON LAT)
2. 22018 CanLII 13162 (ON LAT)
3. 32017 CanLII 59511 (ON LAT)