Released Date: 10/21/2020
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:
N.A.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Joshua A. Lindzon, Counsel
For the Respondent:
Frank A. Benedetto, Counsel
Danielle J. Ralph, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[N.A.] (the “applicant”) was involved in an automobile accident on March 13, 2018 and sought benefits from Aviva General Insurance (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent raised a preliminary issue seeking to bar the applicant’s application pursuant to s. 55(1) of the Schedule for her failure to attend multiple s. 44 insurer examinations (“IEs”) to assess her entitlement to various benefits. The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this preliminary issue hearing.
PRELIMINARY ISSUE
3I have been asked to decide the following preliminary issue:
i. Does s. 55 of the Schedule prohibit the applicant from applying to the Tribunal for dispute resolution because she failed to attend IEs arranged by the respondent under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
4A determination on the preliminary issue will determine whether the applicant can proceed on the following issues in dispute. I will not determine any of these issues, but simply lay them out to make clear the substantive issues that hang in the balance:
i. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185 per week from April 10, 2018 to date and ongoing?
ii. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted June 6, 2018 denied by the respondent on June 11, 2018?1
iii. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted October 5, 2018 and denied by the respondent on October 19, 2018?
iv. Is the applicant entitled to an attendant care benefit in the amount of $3,026.81 per month from September 6, 2019 to date and ongoing?2
v. Is the applicant entitled to the following medical and rehabilitation benefits for chiropractic and psychological treatment and assessments recommended by Mount Dennis Weston Physiotherapy and Chiropractic Clinic (“Mount Dennis”):
a. $4,013.68 for chiropractic services submitted on October 31, 2018, and denied on November 14, 2018;
b. $2,134.04 chiropractic services submitted on September 13, 2018 and denied on September 27, 2018;
c. $2,200 for psychological services submitted on May 23, 2018 and denied on May 24, 2019;
d. $2,522.75 for chiropractic services submitted on June 29, 2018 and denied on July 5, 2018;
e. $178.63 for chiropractic services submitted on June 1, 2018 and denied on June 4, 2018 being the balance owing on a partially approved treatment plan after the respondent stopped payment because the $3,500 minor injury limit had been reached;
f. $3,835.13 for chiropractic services submitted on January 2, 2019 and denied on January 16, 2019; and
g. $4,262.85 for unspecified medical treatment submitted on October 31, 2018 and denied on November 14, 2018?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5After reviewing the parties’ submissions and all of the evidence, I find as follows:
i. The applicant is not precluded from proceeding with her claim for interest3 and an award on the following issues as the respondent approved the benefits in advance of the hearing without the need for an insurer examination (“IE”):
a. $2,134.04 chiropractic services submitted on September 13, 2018 and denied on September 27, 2018;
b. $2,200 for psychological services submitted on May 23, 2018 and denied on May 24, 2019; and
c. $178.63 (partially approved) for chiropractic services submitted on June 1, 2018 and denied on June 4, 2018.
ii. The applicant is precluded pursuant to s. 55 of the Schedule from proceeding with her application on the following issues for failing to attend an IE:
a. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted June 6, 2018 denied by the respondent on June 11, 2018;
b. Is the applicant entitled to an attendant care benefit in the amount of $3,026.81 per month from September 6, 2019 to date and ongoing; and
c. $2,522.75 for chiropractic services submitted on June 29, 2018 and denied on July 5, 2018;
iii. The applicant is not precluded from proceeding with her application on the following issues as I find the insurer’s notice did not comply with s. 44(5) of the Schedule:
a. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185 per week from April 10, 2018 to date and ongoing?
b. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted October 5, 2018 and denied by the respondent on October 19, 2018?
c. $4,013.68 for chiropractic services submitted on October 31, 2018, and denied on November 14, 2018; and
d. $3,835.13 for chiropractic services submitted on January 2, 2019 and denied on January 16, 2019.
iv. The applicant can proceed with her application disputing her entitlement to the following benefit as neither party addressed this issue in their submissions:
a. $4,262.85 for unspecified medical treatment submitted on October 31, 2018 and denied on November 14, 2018?
PROCEDURAL ISSUE
Order re: Applicant’s Motion to Exclude IE of Dr. Oshidari and Request for Costs
6The applicant filed a motion seeking to exclude the IE of Dr. Oshidari and sought costs against the respondent for bad faith. This motion was dismissed by Vice Chair Hunter as premature in an order dated November 12, 2019. The order indicated that the applicant’s request to exclude the IE and request for costs and an award would be dealt with by the hearing adjudicator on the substantive issues in dispute. Despite the Tribunal’s order, the applicant made the same request on this preliminary issue hearing anyway. The last five pages of the applicant’s submissions address her allegations against the respondent that it acted in bad faith in adjusting her claim and inappropriately requisitioned the IE of Dr. Oshidari without her consent, as well as her request for costs. It is important to note that the respondent did not even obtain an IE from Dr. Oshidari.
7In addition, the applicant’s submissions did not comply with the Tribunal’s initial order dated August 21, 2019, which allotted the parties 30 pages for their written submissions on this preliminary issue hearing. The applicant’s submissions totalled 33 pages. The respondent argued that the applicant’s submissions in excess of 30 pages should be excluded on the basis that she was in non-compliance with the Tribunal’s order. Further, the applicant referred to a number of issues that were not listed in any of the Tribunal’s orders and are not relevant to the preliminary issue hearing.
8I am not determining the applicant’s claim for an award or costs, as a decision was already made by Vice Chair Hunter that this would be addressed by the hearing adjudicator, along with the substantive issues in dispute. In addition, I will not address any issues not properly identified by the Tribunal’s case conference report and order. Lastly, given that the applicant’s submissions beyond the 30-page limit deal with issues that I am not determining, the respondent’s request that I ignore these submissions is moot.
ANALYSIS
9Section 44(1) of the Schedule provides an insurer with the right to have an insured examined to assess whether they are entitled to benefits.
10Section 44(5) provides that the insurer shall provide the insured with adequate notice stating why it requires an IE, and that such notice shall provide the medical and any reasons for the assessment.
11Section 55(2) of the Schedule provides that an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if the insured person was provided with notice in accordance with the regulation that it requires an examination under s. 44, but the insured person has not complied.4
12The respondent argues that the applicant’s failure to comply with its requests for her to attend IEs has prevented it from properly assessing her claims for various benefits. Further, the respondent argues, the applicant’s conduct has interfered with its right to procedural fairness as she has requisitioned her own medical reports and deprived the respondent of the right to meet the case against it. Thus, the respondent asserts that it would be procedurally unfair to allow the applicant to proceed to a hearing without allowing it to have its own assessments completed. In addition, it asserts that the applicant has not provided a reasonable explanation for her failure to attend the IEs.
13The applicant submits that the respondent had compelling medical evidence to properly adjust her file and that the IEs were not required to determine whether each benefit was reasonable and necessary. Further, she argues, the respondent sent insufficient notices regarding its requests for IEs, in particular by failing to provide proper medical reasons for its requests pursuant to its obligation under s. 44(5) of the Schedule.
14In considering the parties’ positions, I found the Tribunal’s reconsideration decision in MB v. Aviva5 helpful in determining what criteria to consider in assessing whether an insurer has satisfied its responsibility to provide sufficient medical and other reasons in support of its requests for IEs. In that decision, the Executive Chair stated as follows:
an insurer satisfies its obligation to provide its "medical and any other reasons," by explaining its decision with reference to the insured's medical condition and any other applicable rationale. That explanation will tum on the unique facts at hand…an insurer's "medical and any other reasons" should, at the very least, include specific details about the insured's condition forming the basis for the insurer's decision or, alternatively, identify information about the insured's condition that the insurer does not have but requires. These reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule's consumer protection goal.
15The Executive Chair also highlighted that an insured’s claim cannot be barred if the respondent failed to provide proper notice as per s. 44(5) of the Schedule. In addition, the notice requirements set out in s. 44(5) should be strictly construed and the insurer's notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with s. 44(5), an insurer cannot rely on the severe remedy available in s. 55 of Schedule to bar an insured’s application.
Notice of IE to Assess Claim for NEBs
16The applicant is not precluded from proceeding with her application disputing her entitlement to NEBs as I find the respondent’s notice requesting an IE did not comply with s. 44(5) of the Schedule.
17The applicant submitted a disability certificate (“OCF-3”) to the respondent dated March 19, 2018, stating that she sustained a complete inability to carry on a normal life, thus supporting her entitlement to an NEB. The OCF-3 listed the following accident-related impairments: tension type headaches; other sleep disorders; muscle strain, shoulder region; strain and sprain of the lumbar spine; whiplash disorder; radiculopathy, lumbar region; and state of emotional shock and stress. The duration of disability listed on the OCF-3 was nine-to-twelve weeks.
18The respondent sent the applicant an Explanation of Benefits (“EOB”) dated March 27, 2018, acknowledging receipt of the OCF-3, setting out the test for entitlement to NEBs, and requesting the applicant’s family doctor’s clinical notes and records (“CNRs”) to assess her entitlement to the benefit. The applicant submits that her family doctor’s CNRs were provided to the respondent on April 28, 2018. A summary of the applicant’s family doctor’s CNRs support that the applicant had significant pre-accident medical issues, such as depression and chronic pain, for which she had been receiving physiotherapy pre-accident.
19On May 17, 2018, the respondent sent the applicant another EOB advising that it was unable to determine whether the recommendations made on the OCF-3 met the disability requirements for NEBs. The EOB then requested the applicant to attend two IEs with an occupational therapist and general practitioner to assess her entitlement to the benefit. The medical reason provided for the assessment was “the disability period appears to be inconsistent with the diagnosis or mechanism of the injury.”
20On the same day, counsel for the applicant wrote to the respondent, refusing its request for the applicant to attend the IEs. The applicant took the position that the respondent had the medical documentation it required in order to assess the benefits claimed.
21As a starting point, I find that the respondent’s request for the applicant to attend both IEs was reasonable and necessary, as it had a right to assess the applicant to determine the extent of her accident-related impairment in order to address her entitlement to NEBs. At this point, the respondent had in its possession an OCF-3 which, although it noted primarily soft-tissue minor injuries as a result of the accident, it stated that the applicant had a complete inability to carry on a normal life. In addition, the respondent had the applicant’s family doctor’s pre-accident CNRs which documented that the applicant had significant pre-accident health issues. Therefore, I find the IEs requested to be reasonable and necessary to assess the conflicting information on the OCF-3 and, in light of the family doctor’s CNRs, to determine the extent to which the accident caused the applicant’s impairments.
22The applicant maintains that the respondent’s notice was deficient as it failed to specify the diagnosis or injury that influenced its decision in its medical reasons. Further, the applicant argues that the medical reason provided – “the disability period appears to be inconsistent with the diagnosis or mechanism of the injury” – is boilerplate, made no reference to her medical condition and did not reference the family doctor’s CNRs. The applicant maintains that the medical reasons provided would not be understood by a lay person. I agree.
23The May 17, 2018 notice complied with the technical components of setting out the date, time, location and the name and qualifications of the assessors and the benefit to be assessed. However, I find that it did not comply with s. 44(5) of the Schedule. I agree with the applicant that the medical reason was boiler plate and I find that an unsophisticated person would not understand why the IE was being requested. In addition, I agree with the applicant that the respondent did not refer to the applicant’s medical condition or, likewise, respond to the information in her family doctor’s CNRs in any way.
24While I agree that an adjuster or someone with experience dealing with accident benefits may be able to interpret what this medical reason means, I do not believe that a lay person could. As highlighted by M.B. v. Aviva, the medical reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the IE. In my view, the respondent’s notice should have been clearer in explaining in a meaningful way why it really needed the IE. For example, that the OCF-3 listed soft-tissue injuries yet supported a more serious impairment. Further, that the family doctors CNRs demonstrated that the applicant had significant pre-existing medical issues. Therefore, the IEs are required to assess the extent to which the accident caused the applicant’s current impairments.
25The respondent relied on three decisions of this Tribunal which accepted the medical reason “the disability period appears to be inconsistent with the diagnosis or mechanism of injury” as a valid medical reason.6 While I respect the decisions rendered by my fellow members, I am not bound by them. I also disagree that an unsophisticated person would understand what this medical reason means. I disagree that this medical reason is sufficient and agree that the respondent did not identify the applicant’s medical condition or the medical documents it had received in accordance with the principles outlined in M.B. v. Aviva. The next issue to be determined is whether to date, the respondent has cured its deficient notice in relation to the applicant’s entitlement to a NEB.
26The applicant submitted two updated disability certificates dated August 19, 2019 and September 4, 2019 supporting her entitlement to NEBs.
27The respondent sent the applicant two letters dated September 10 and 25, 2019, which were identical and provided the following response:
Based on a review of your complete file and the documentation we have received to date, we are unable to determine whether you sustained an impairment as a result of the motor vehicle accident that prevents you from engaging in substantially all of the activities which you were engaged in prior to the accident, and therefore are unable to determine whether you meet the disability requirement(s) for the Non-Earner Benefit you are claiming.
28Both notices then advise the applicant that it would not pay her NEBs and that her attendance at IEs is required to review the recommendations made on the disability certificates. Further, the letters state that, to date, the applicant had not been cooperative and asked her to provide her availability in writing to attend an IE to address her entitlement to the benefit. To date, the applicant has not complied with the respondent’s request.
29I do not find the respondent’s correspondence dated September 10 and 25, 2019 cured its defective notice as neither letter makes any reference to the applicant’s medical condition. I agree that these notices are boilerplate and did not communicate in any meaningful way why the respondent required the IEs in light of the medical documentation that it had received. I find that based upon the above rationale the applicant was left to speculate about why she was being asked to attend the IEs. Therefore, I do not find the respondent’s notice was sufficient.
30While I find the respondent’s request for the IEs to be reasonable and necessary, I find the medical and other reasons provided in its notices non-compliant with s.44(5) of the Schedule. Therefore, the applicant is not precluded with her application disputing her entitlement to the NEB for failing to attend an IE.
Notice of IE to Assess Claim for In-Home Assessment
31The applicant is precluded from proceeding with her application disputing the in-home assessment submitted on June 7, 2018.
32On June 7, 2018, the applicant submitted a treatment plan (OCF-18) for an in-home attendant care assessment in the amount of $2,200.00.
33On June 11, 2018, the respondent sent the applicant an EOB denying the assessment pending her attendance at an IE so that the recommendations outlined in the treatment plan for the in-home attendant care assessment could be reviewed. In its letter, the respondent stated that “the documentation on file suggest that your injuries are minor and fall within the MIG. Further, that attendant care is not payable for injuries that are minor.” The medical reason provided for the IE stated as follows: “upon review of the minor injury guideline (MIG) and the treating practitioner's medical opinion, we have concluded the health practitioner has not provided compelling evidence that the impairment sustained is not predominantly a minor injury.” The notice set out the details as far as the date, time, location and the name and qualifications of the assessors and the benefit to be assessed. The applicant again refused to attend the IE.
34The applicant argues that the respondent’s medical reason for denying the in-home assessment and requesting an IE was deficient because the respondent later removed the applicant from the MIG based on medical information it had in its possession at the time of the denial. The applicant contends that she had requested on numerous occasions to be removed from the MIG so that she could be assessed for attendant care benefits. In an email dated May 16, 2018, counsel for the applicant advised the respondent that the applicant suffers from fibromyalgia and needed to be removed from the MIG and that she requires attendant care.
35The applicant maintains that her accident-related impairments and subsequent functional limitations were reflected in the post-accident CNRs of her family doctor. In a CNR dated March 19, 2018, it notes that the applicant cannot do housework, is not shopping, and is experiencing pain with range of motion of her neck, shoulders, and mid and low back. Despite having this information, the respondent still requested that the applicant attend an IE.
36The respondent argued that it provided a valid medical reason in its notice. It submitted the Tribunal’s decision in S.L. v Certas Home and Auto Insurance Co.7 in support of its position that the medical reason it provided in its notice has previously been determined by this Tribunal as sufficient. Second, as cited in the Financial Services Commission of Ontario’s decision in Augustin v. Unifund,8 the same medical reason provided in this case was considered a sufficient medical reason. I agree with the respondent that the medical reason it provided met the requirements of s.44(5).
37First, I find that the respondent’s request for the applicant to attend an IE to assess her entitlement to an in-home attendant care assessment was reasonable and necessary based on the same rationale noted above in relation to the NEB. However, in this case I find that the respondent’s notice was sufficient as it identified that it believed the applicant’s impairments were minor and fit within the MIG. Furthermore, in order for the applicant to be entitled to the in-home attendant care assessment, the respondent had a right to an IE to assess the applicability of the MIG. I find the notice sufficient enough that an unsophisticated person would understand why the IE was being requested. As set out in M.B. v. Aviva, the medical reasons provided by adjusters are not held to a standard of perfection as adjusters are not medical experts. It’s the overall sufficiency of the notice that is to be assessed. In this case, I find that, overall, the respondent’s notice complied with its obligation to provide the medical and other reasons for its request for an IE.
38Much was made by the applicant about the fact that the respondent later removed her from the MIG without an IE. I find the fact that the respondent later removed the applicant from the MIG irrelevant to the present analysis. Further, whether or not it was reasonable to keep the applicant in the MIG at that time is not the issue before me. The issue before me is to determine whether the applicant is barred from proceeding with her application pursuant to s.55 and whether the respondent’s notice complied with s. 44(5) of the Schedule. I find the respondent’s request for the IE reasonable and necessary as it had the right to have the applicant assessed to determine whether her impairments were minor as the outcome of that IE would affect the applicant’s entitlement to the in-home attendant care assessment. I also find the medical reason the respondent relied upon in its denial and request for an IE to be sufficient as it provided a medical reason: first, that it believed the applicant’s accident-related impairments were minor; and second, that the applicant’s health practitioner had not provided compelling medical evidence that would remove the applicant from the MIG. By depriving the respondent of that right, the respondent was unable to properly respond to the applicant’s entitlement to the benefit being claimed.
39The applicant is precluded from proceeding with her application disputing her entitlement to the in-home assessment.
Notice of IE to Assess OCF-18 for Chiropractic Treatment in the amount of $2,522.75 dated June 29, 2018
40The applicant is precluded from proceeding with her application disputing her entitlement to this treatment plan.
41The applicant submitted an OCF-18 dated June 29. 2018 in the amount of $2.522.75 for chiropractic treatment and massage therapy.
42In an EOB dated July 5, 2018, the respondent denied the treatment plan on the basis that the applicant’s impairments meet the definition of a “minor injury” and the policy limit of $3,500.00 has been reached and requested that the applicant attend an IE. The medical reason provided was “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.” The notice set out the details as far as the date, time, location and the name and qualifications of the assessors and the benefit to be assessed. Once again, the applicant refused to attend the assessment. Other than the applicant’s argument that the respondent provided insufficient medical reasons for denying the benefit the applicant did not provide a further explanation for her refusal to cooperate with the respondent’s requests to attend this IE.
43The medical reason provided by the respondent is identical to the one discussed in the previous issue for the in-home attendant care assessment. For the reasons highlighted above, I find the medical reason the respondent provided in its notice to be sufficient.
44The applicant is barred from proceeding with her application disputing her entitlement to this treatment plan for failing to attend the IE.
Notice of IE to Assess Second Claim for In-Home Attendant Care Assessment
45The applicant submitted a second OCF-18 dated October 5, 2018 requesting funding for a second in-home attendant care assessment in the amount of $2,200.00.
46The respondent sent the applicant an EOB dated October 19, 2018, denying the assessment. The respondent provided the following explanation “upon review of the treatment plan, we are unable to determine whether the recommendations are reasonably required for the injuries you sustained in the accident.” It provided the following medical reason: “Diagnostic studies appear to be ordered or repeated without objective clinical documentation for their necessity.” The notice then stated that the applicant would receive a notice shortly with the details of an examination.
47The applicant maintains that this medical reason is deficient, as the respondent did not reference the specific medical condition that formed the basis for its decision, and an unsophisticated person would not be able to understand the reasons for this denial. For example, what diagnostic studies are being referred to? As set out in M.B. v. Aviva, an insurer’s notice needs to make specific reference to the injuries and medical documentation in order to satisfy its obligation to provide a valid medical reason. Hence, without it the notice is deficient.
48The respondent argued that the Tribunal has previously held that a notice of a denial of a treatment plan is valid in situations where it is a duplication of a treatment plan that was previously denied based on an insured’s failure to attend an IE. The respondent relied on 17-000020 v. State Farm9 to support same. I find this decision distinguishable from the present case as, in that decision, the adjudicator determined that the insurer’s notice clearly stated that the treatment plan was a duplication of a previous one submitted and that an insurer examination was required.
49I agree with the applicant that the respondent’s notice in relation to this issue was deficient as the respondent made no reference to the applicant’s medical condition. Further, I agree that the language used by the respondent was confusing and would not easily be understood by an unsophisticated person. In my view, the respondent should have stated that the applicant’s request for a second in-home assessment was a duplication of an assessment requested in a previous treatment plan and it should have restated the medical reason it provided on the first denial for the in-home assessment. However, it failed to do so. Therefore, I agree that the respondent’s notice was deficient.
50The applicant is not precluded from proceeding with her application on this issue as I find the respondent’s notice was deficient.
Notice of IE to Deny Form 1 in the amount of $3,026.81 per month
51The applicant is precluded from proceeding with her application disputing her entitlement to a monthly attendant care benefit in the amount of $3,026.81 per month from September 25, 2019 to date and ongoing.
52On February 6, 2020, the applicant submitted a Form 1 supporting her entitlement to an attendant care benefit in the amount of $3,026.81 per month, from September 25, 2019 to date and ongoing. Prior to this point, the applicant had already refused to attend multiple IEs involving her entitlement to attendant care.
53On February 12, 2020, the respondent denied the applicant’s entitlement to an attendant care benefit and notified her that her attendance at an IE was required and asked for her availability to attend. In its notice the respondent provided the following reasons:
i. Your accident occurred almost two-years ago, and this is the first Form 1 received; and
ii. No proof of incurred expenses has been submitted.
54The respondent then provided a summary of the medical documentation it had received to date with specific reference to the applicant’s pre-accident medical condition. It then stated that an IE was required to address the extent to which the applicant’s impairments were accident-related and would necessitate attendant care.
55The applicant maintains that the respondent ignored medical information and inappropriately kept her in the MIG preventing her from applying for attendant care. I do not have enough evidence before me to make a determination regarding the applicant’s entitlement to an attendant care benefit. The purpose of this preliminary issue hearing is to determine whether the applicant is precluded from proceeding with her application for non-attendance at an IE and whether adequate notice was provided.
56First, I find the respondent’s request for an IE was reasonable and necessary as the applicant did not comply with any of its prior requests and the respondent had a right to assess the applicant’s accident-related impairments to determine her entitlement to attendant care. I find the respondent’s notice in response to this issue complied with the requirements of s. 44(5) of the Schedule as it specifically referred to the applicant’s pre-accident medical condition as she suffered from depression and chronic pain prior to the accident. Further, it indicated that it was unable to determine the extent to which the applicant’s impairments and functional limitations were accident-related. I find the respondent had valid reasons for requesting an IE to address causation based on the pre-accident CNR summary of the applicant’s family doctor. Therefore, I find the medical reasons it provided for its request for the IE satisfied its requirements. As per the requirements set out in M.B. v. Aviva, I find the respondent made specific reference to the applicant’s medical condition with specific reference to the medical records it reviewed. It also listed the other reasons for its denial as it referenced the timing of the submissions of the form 1 and the fact that it did not receive any proof of incurred expense.
57The applicant is precluded from proceeding with her application disputing the respondent’s denial of her entitlement to a monthly attendant care benefit in the amount of $3,026.81 per month from September 25, 2019 to date and ongoing.
Notice of IEs to assess two OCF-18s in the amount of $4,013.68 and $3,835.13
58The applicant submitted an OCF-18 dated October 31, 2018 in the amount of $4.013,68 for physiotherapy and massage. A second OCF-18 in the amount of $3,835.13 for chiropractic treatment was also submitted on January 2, 2019. Since the respondent used the same medical reason to deny both treatment plans, I have addressed these two issues together.
59In two EOBs dated November 14, 2018 and January 16, 2019, the respondent denied both OCF-18s and requested that the applicant contact the respondent to provide her availability to attend an IE. The medical reason provided was “The types of treatment do not appear consistent with the patient's diagnosis. Dr. David Lipson MD, FRCPC indicated in his September 19, 2018 consult note that a comprehensive chronic pain management program would be more appropriate and that he has made the referral.”
60The notice then states that the applicant’s attendance at an IE is required and indicates that it had not received a treatment plan for a chronic pain program and that the treatment plans submitted were for passive treatment. Further, it requested information regarding whether the applicant was attending a chronic pain program and whether it was covered by OHIP. The notice then requested the updated CNRs of the applicant’s family doctor and clinic.
61The applicant argues that the medical reasons listed in this notice is deficient as the respondent made no reference to her medical condition at all. Further, the respondent does not explain what “diagnosis” it is relying on, nor does it explain why physiotherapy or massage is not consistent with it. Of significance, the applicant maintains that Dr. Lipson recommended that she receive physiotherapy and massage to treat her accident-related impairments. In addition, the respondent’s reason for denying these plans was superficial because in a denial of another treatment plan for a chiropractic assessment it indicated that it was unable to tell whether the applicant needed a chronic pain program because of pre-existing medical issues or because of the injuries sustained in the accident. Therefore, using this as the medical reason to deny these treatment plans was deficient and inappropriate.
62The applicant relied on the Tribunal’s decision in 18-000467 v Aviva Insurance10 in support of her position that the respondent’s notice was not sufficient. The applicant contends that this case involved a similar medical reason for the denial of the benefit and the adjudicator held that the letter was deficient, as the respondent provided no specific details about the insured's condition that formed the basis for its decision.
63I agree with the applicant that the respondent’s medical reason for denying these two treatment plans was deficient as it did not refer to the applicant’s medical condition. Further, I agree that it did not specify what diagnosis it was relying on and why physiotherapy and massage was not consistent to treat it. Consequently, I agree with the applicant that using Dr. Lipson’s recommendation to justify the denial of these two treatment plans for physiotherapy and massage was misleading. I agree with the applicant that based on the facts before me this was not a sufficient medical reason that an unsophisticated person would understand.
64The applicant also submitted 16-003316/AABS v. Peel11 in support of her argument that insurers cannot rely on notices with medical reasons that are incongruous and contrived in denying a benefit. While I do not doubt that the respondent was frustrated by the applicant’s failure to cooperate with attending past IEs, I find the medical reason it provided in these notices confusing and unclear. I also agree with the applicant that the respondent did not provide an explanation regarding which diagnosis it was relying upon or refer to specific details about the applicant’s condition which informed its decision in relation to its denials regarding these treatment plans.
65Since I have determined that the respondent’s notice was deficient, the applicant is not precluded from proceeding with her application in relation to the denial of these two treatment plans.
Is the applicant precluded from proceeding with her application disputing her entitlement to a treatment plan in the amount of $4,262.85 for unspecified medical treatment submitted on October 31, 2018 and denied on November 14, 2018?
66The applicant may proceed with her application disputing her entitlement to this treatment plan.
67Neither party addressed this issue in their submissions on this preliminary issue hearing. It is not clear whether this issue was resolved in advance of the preliminary issue hearing, nor was it apparent what evidence was relevant to make a determination on this issue.
68Since the respondent raised the preliminary issue, the onus was on it to prove that the applicant is precluded from proceeding on this issue for failing to attend an IE. Therefore, I do not find the applicant is precluded from proceeding on this issue for failing to attend and IE.
ORDER
69For all of the above-noted reasons I order as follows:
i. The applicant is not precluded from proceeding with her claim for interest and an award on the following issues as the respondent approved the benefits in advance of the hearing without the need for an insurer examination (“IE”):
a. $2,134.04 chiropractic services submitted on September 13, 2018 and denied on September 27, 2018;
b. $2,200 for psychological services submitted on May 23, 2018 and denied on May 24, 2019; and
c. $178.63 (partially approved) for chiropractic services submitted on June 1, 2018 and denied on June 4, 2018.
ii. The applicant is precluded pursuant to s. 55 of the Schedule from proceeding with her application on the following issues for failing to attend an IE:
a. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted June 6, 2018 denied by the respondent on June 11, 2018;
b. Is the applicant entitled to an attendant care benefit in the amount of $3,026.81 per month from September 6, 2019 to date and ongoing; and
c. $2,522.75 for chiropractic services submitted on June 29, 2018 and denied on July 5, 2018;
iii. The applicant is not precluded from proceeding with her application on the following issues in relation to her claim as I find the insurer’s notice did not comply with s. (44) 5 of the Schedule:
a. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185 per week from April 10, 2018 to date and ongoing?
b. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an in-home attendant care assessment submitted October 5, 2018 and denied by the respondent on October 19, 2018?
c. Is the applicant entitled to $4,013.68 for chiropractic services submitted on October 31, 2018, and denied on November 14, 2018; and
d. $3,835.13 for chiropractic services submitted on January 2, 2019 and denied on January 16, 2019.
iv. The applicant can proceed with her application disputing her entitlement to the following benefit:
a. Is the applicant entitled to $4,262.85 for unspecified medical treatment submitted on October 31, 2018 and denied on November 14, 2018?
Released: October 21, 2020
__________________________
Rebecca Hines
Adjudicator
Footnotes
- This was incorrectly listed in the Tribunal’s order dated August 21, 2019 as a monthly attendant care benefit.
- This issue was added as an issue in the Tribunal’s order dated February 20, 2020.
- In her submissions the applicant confirmed that these issues had previously been approved by the respondent without the need for an IE. It is not clear to this writer why these issues were listed as issues in the Tribunal’s order to be addressed in this preliminary issue hearing.
- Insurance Act, R.S.O. 1990, c.1.8.
- MB. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).
- 17-007683 v. Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT). 16-000693 v. Aviva Insurance, 2018 CanLII 19192 (ON LAT). E.G. v. Aviva Insurance, 2019 CanLII 126103 (ON LAT).
- S.L. v Certas Home and Auto Insurance Co. 2016 CanLII 60726.
- Augustin v. Unifund Assurance Co., [2013] OFSCD No 211.
- 17-000020 v. State Farm Insurance Company, 2017 CanLII 46354 (ON LAT).
- 18-000467 v Aviva Insurance, 2018 CanLII 112135 (ON LAT).
- 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).