Licence Appeal Tribunal
Released Date: 03/20/2020
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:
[M. G.]
Applicant
and
Certas Direct Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Lori Marzinotto, Vice Chair
APPEARANCES:
For the Applicant:
Frank Mercurio, Paralegal
For the Respondent:
Brittanny Tinslay, Counsel
HEARD in writing:
July 29, 2019
OVERVIEW
1The applicant was injured in an automobile accident on December 26, 2016. The applicant applied for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and subsequently submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the issues in dispute.
2The parties could not resolve the issues in dispute at a case conference and a preliminary issue was raised regarding adding an issue in dispute to the application. The parties could not reach an agreement and this preliminary issue written hearing was scheduled.
PRELIMINARY ISSUE
3The preliminary issue is as follows:
i. Should the applicant be permitted to have a treatment plan for the costs of a physiatry report in the amount of $2,460.00, which was denied by the respondent on January 4, 2019, added as an issue in dispute (the “Physiatry Assessment”?
RESULT
4I find that the applicant is entitled to add the Physiatry Assessment to the issues in dispute to be heard at an in-person substantive issue hearing to be scheduled.
BACKGROUND & ANALYSIS
5The issue before me is solely whether the Physiatry Assessment be added as an issue in dispute at the substantive hearing.
6I am not deciding whether the Physiatry Assessment is reasonable and necessary. That will be determined at the substantive hearing.
7Outlining the procedural history is necessary in order to demonstrate why adding the Physiatry Assessment to the substantive issues hearing is warranted.
8On January 23, 2017, the applicant applied for accident benefits seeking income replacement benefits (“IRB”). IRBs were paid by the respondent until December 20, 2017 after insurer examinations (“IE”) concluded the applicant was not substantially disabled.1
9The applicant disputed the termination of IRBs and filed an application dated July 19, 2018, with the Tribunal.
10The parties participated in a case conference and the Tribunal issued an Order dated December 3, 2018 scheduling an in-person hearing to be held on April 24-26, 2019. The issues in dispute for the substantive hearing were with respect to IRB and interest.
11The applicant submits that the respondent was advised at the case conference that he intended to obtain a physiatrist report. I accept that submission given the Order dated December 3, 2018 provides for that contingency. The applicant was ordered to provide the respondent with any physiatry expert report he intends to rely upon by January 30, 2019.2
12If the respondent wished to file any addendum reports they were to be provided by March 15, 2019.
13On December 18, 2018, the applicant submitted a treatment plan (OCF-18) for the approval of the Physiatry Assessment.
14On January 4, 2019, the respondent denied the OCF-18 for the Physiatry Assessment. The denial letter indicated that the respondent was unable to consider the proposed assessment because
…it does not appear medically reasonable and necessary due to the time elapsed and the injuries sustained in the subject accident and as you were involved in a subsequent motor vehicle accident in February 2018. The clinical notes and records from your family physician to date do not indicate you have complained of accident related psychological impairments.3
15The denial letter further indicated that a medical examination was being arranged to determine what treatment would assist the applicant’s recovery.
16The respondent denied the applicant’s OCF-18 for the Physiatry Assessment yet, in the same denial letter, indicates that the applicant is required to attend a s.44 examination the details of which would follow in a separate letter.
17The applicant received a notice of examination dated January 16, 2019 from the respondent requiring the applicant to attend a s.44 physiatry assessment on February 25, 2019. The respondent required the applicant to be assessed to “determine if the proposed treatment and assessment plan is medically reasonable and necessary…”4
18Despite his OCF-18 for the Physiatry Assessment being denied, on January 28, 2019, the applicant attended the assessment he had scheduled.
19On January 29, 2019 at the age of 38, the applicant died.
Respondent’s s.55 Argument
20In its submissions, the respondent submits that pursuant to s.55 of the Schedule, the applicant should not be able to proceed with his application before the Tribunal because he did not comply with the s.44 request.
21There is little to no merit in the respondent’s s.55 argument and I decline to prohibit the applicant from continuing with the application before the Tribunal
22At paragraph 22 of its submissions, the respondent indicates that the “applicant [w]as not able to attend” the initially scheduled s.44 assessment. I have not been provided with any evidence regarding an assessment scheduled before the one scheduled to take place on February 25, 2020. Given that the notice for the February 25, 2020 assessment was provided on January 16, 2019, there does not appear to have been an earlier assessment scheduled.
23In reply, it was indicated that the applicant had requested an earlier IE because he was scheduled to be out of the country to be with his father who was scheduled to have surgery. Applicant’s counsel submits that the respondent failed to take any steps to do so.5 Applicant’s counsel further indicated that the applicant would have attended a s.44 IE but for his death prior to the scheduled IE.
24There is no evidence before me to suggest that the applicant would not have attended a s.44 IE. The barrier to his attendance was his death.
25The respondent appears to take issue with the fact that the applicant proceeded with his physiatry assessment before the respondent could conduct an IE. However, the applicant’s physiatry assessment was scheduled in advance of the respondent’s assessment.
26It is clear that the respondent was aware that the applicant had intentions of conducting a physiatry assessment as early as the first case conference but did not schedule its IE until several months later.
Procedural Fairness / Prejudice
27The respondent submits that it is procedurally unfair to allow the OCF-18 Physiatry Assessment to be added to the application given the respondent is now unable to make a full answer and defence to its denial of the Physiatry Assessment or conduct an IE to assess the physiatry report.
28The respondent denied the OCF-18 Physiatry Assessment and provided its reasons on January 16, 2018. At that time, the respondent had enough evidence to make the decision to deny the Physiatry Assessment. While the applicant’s physiatry report speaks to the IRB issue, the issue here is whether the OCF-18 Physiatry Assessment should be added as an issue in dispute at the hearing of the substantive issues. It is not to assess whether the applicant is entitled to payment of the benefit, i.e. payment for the cost of the assessment in the amount of $2,460.00. That will be determined at the substantive hearing.
29The physiatry report states that the purpose of the Physiatry Assessment, was to “identify physical impairments that may impact [the applicant’s] activities of normal living and for consideration of any accident benefits.”
30Applicant’s counsel needed to obtain instructions from the applicant’s estate and requested an adjournment of the original substantive hearing. The respondent opposed the request and requested a case conference which was scheduled on April 17, 2019.
31On April 9, 2019, applicant’s counsel provided the respondent with the Authorization and Direction from the applicant’s executrix allowing counsel to proceed with the application before the Tribunal and provided the respondent with the applicant’s Physiatry report.
32While I am aware that the applicant’s Physiatry report was served beyond the January 30, 2019 deadline in the December 3, 2019 case conference Order, I do not find this to be a determinative factor in my decision. The applicant sought approval for the Physiatry Assessment soon after the December 3, 2018 Order and decided to proceed with the Physiatry Assessment after he received the denial of the Physiatry Assessment from the respondent. The applicant died the day after the Physiatry Assessment took place and instructions from the estate would be required to proceed further.
33On April 17, 2019, a case conference was conducted and the hearing dates were vacated. The applicant requested that the OCF-18 Physiatry Assessment be added as an issue at the hearing and the respondent opposed the request. The applicant was to provide the respondent with a copy of the will and another case conference was to be scheduled.
34Both the applicant and the respondent have submitted that during this case conference the adjudicator instructed the applicant to file an Amended Application to add the issue of the Physiatry Assessment. The applicant also indicated in his submissions that the adjudicator indicated that the Physiatry report was admissible. The respondent did not refute this submission. The Order for the April 17, 2019 case conference does not mention an Amended Application or the admissibility of the Physiatry report; however, I have accepted these submissions as having been made by the adjudicator given both parties refer to the Amended Application and the respondent did not refute the admissibility of the Physiatry report submission.
35Rather than file an Amended Application, a subsequent case conference on May 17, 2019 ordered this written hearing to determine whether the OCF-18 Physiatry Assessment could be added as an issue in dispute to the existing application.
36The tragic twist in this matter is that the applicant has died. The respondent will never be able to conduct a s.44 examination. This should not prevent the applicant from being able to dispute the denied OCF-18 Physiatry Assessment before the Tribunal.
37At paragraph 32 of its submissions, the respondent submits that it is apparent from the case conference Order dated December 3, 2019 that the applicant’s Physiatry Assessment was only contemplated to bolster the applicant’s IRB claim. That may very well be the case; however, the respondent had ample time from that case conference to schedule the Physiatry IE but waited to do so.
38The respondent denied the OCF-18 Physiatry Assessment based on the medical records it had at the time. It is clear from the Tribunal’s Order dated December 3, 2019, the respondent had agreed to provide the applicant with the clinical notes and records (“CNR”) from Dr. Chadda (Psychiatrist), Dr. Gwardjan (Physiatrist) and Sherri Correiro (Physiotherapist) by January 30, 2019.6
39While I have not been provided with any reports from these doctors, by the respondent agreeing to provide the above noted CNRs, the respondent must have required the applicant to have seen these doctors.
40It is important to note that Dr. Gwardjan appears to have already assessed the applicant given the respondent’s agreement to provide the applicant with Dr. Gwardjan’s CNRs. He was also the same doctor the respondent scheduled to conduct the physiatry IE on February 25, 2019.
41I do not find that there is reason to be believe that the respondent is prejudiced by adding the OCF-18 Physiatry Assessment to the issues in dispute at the hearing. The respondent denied the OCF-18 based on the medicals it had at the time yet sought an IE Physiatry Assessment conducted by a doctor, whom it appears, the applicant had already seen.
42It is not efficient to have the applicant commence a separate application for this assessment. The respondent would be faced with the same issue which I do not find persuasive with respect to adding the issue, i.e. not being able to conduct its own physiatry assessment. The actual assessment would be more relevant to the issues in dispute, that is, whether the applicant is entitled to IRB. That is a separate issue from whether the denial of the Physiatry Assessment should be added as an issue.
43Section 2 of the Statutory Powers and Procedures Act (“SPPA”) provides that any rule made by a Tribunal under s.25.1 shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
44Rule 3.1 of the Common Rules7 provides for the liberal interpretation of the Common Rules in order to facilitate a fair, efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal
45Unnecessarily bifurcating the issues and having two separate hearings, one for the denied Physiatry Assessment and one for the IRBs is not the most just, expeditious and cost-effective route and also risk inconsistent outcomes. Further, to deny the applicant’s (applicant’s estate) right to appeal the denial of the OCF-18 Physiatry Assessment due to his death is a denial of natural justice.
CONCLUSION / ORDER
46I Order that the applicant be permitted to add the treatment plan for the Physiatry Assessment in the amount of $2,460.008, which was denied by the respondent on January 4, 2019, as an issue in dispute to be heard at the substantive hearing.
47The applicant is to contact the Tribunal within 30 days of the release of this decision to schedule a case conference on a date that is mutually convenient to the parties in order to schedule the substantive issue hearing and resolve any documentary and/or witness issues prior to the hearing.
Released: March 20, 2020
__________________________
Lori Marzinotto
Vice Chair
Footnotes
- Applicant’s submissions page 1. I have not been provided with the termination of IRB notice, nor the IEs.
- Respondent’s written submissions, Tab 1.
- Applicant’s written submission, Tab 4. I note that the denial letter indicates that the total recommendation was $2,204.92, however, the issue as listed in the Order indicates it is in the amount of $2,460.00. This should be clarified at the substantive hearing.
- Applicant’s written submission, Tab 4.
- Applicant’s Reply submissions.
- On page 1 of the applicant’s submission, the applicant indicates that the IRB benefits were terminated after a series of examinations concluded the applicant was no longer substantially disabled.
- Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board (the “Common Rules”)
- Subject to clarification of the amount of the OCF-18 as indicated in para. 14, footnote 3 of this Decision.