Vijaya Baskaran v. Co-operators General Insurance Company, 2020 CanLII 98730

Citation: Baskaran vs. Co-operators General Insurance Company, 2020 ONLAT 19-012169/AABS

Released Date: 10/29/2020

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:

Vijaya Baskaran vs. Co-operators General Insurance Company

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Cary Schneider, Counsel

For the Respondent:

David Raposo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, V.B. was involved in an automobile accident on July 31, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2During the case conference, Co-operators raised a preliminary issue. Specifically, it argued that V.B. was restricted from advancing her application due to her non-attendance at a requested insurer’s examination. As a result, I must decide if V.B. can proceed with her claim for denied benefits.

PRELIMINARY ISSUE

3Pursuant to s. 55(1) of the Schedule, is V.B. precluded from proceeding with her application to the Tribunal to determine her entitlement to income replacement benefits (“IRBs”) and to a psychological assessment due to her failure to attend a psychiatric insurer’s examination (“IE”) requested by Co-operators under s. 44 of the Schedule?

ISSUES

4The substantive issues in dispute to be determined are as follows:

a. Is V.B. entitled to an income replacement benefit of $400.00 per week from January 9, 2018 to date and ongoing?

b. Is the medical benefit in the amount of $2,812.00 for physiotherapy services recommended by Oshawa Physio and Rehab in an OCF-18 submitted on February 28, 2019 and denied on March 15, 2019, reasonable and necessary?

c. Is the cost of an examination expense in the amount of $2,486.00 for a psychological assessment recommended by Dr. Aghamohseni in an OCF-18 submitted on July 31, 2018 and denied on August 21, 2018, reasonable and necessary?

d. Is V.B. entitled to interest on any overdue payment of benefits?

e. Is Co-operators liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to V.B.?

5If the preliminary issue is decided against V.B., a consideration of the substantive issues will not be necessary.

RESULT

6V.B. is barred from proceeding with her dispute under s. 55(1)(2) of the Schedule because she failed to attend an IE as required by s. 44(9)(2)(iii) of the Schedule.

BACKGROUND

7V.B. was involved in a motor vehicle accident on July 31, 2017. She submitted an OCF-1 dated August 30, 2017 to Co-operators. In December 2017, Co-operators elected to have V.B. assessed under s. 44 of the Schedule by Physiatrist Dr. Sarco and Psychiatrist Dr. Debow. V.B. was assessed by Dr. Sarco on December 13, 2017, which resulted in a report dated January 5, 2018. V.B. was assessed by Dr. Debow on December 18, 2017, which resulted in a report dated January 5, 2018.

8Both Dr. Sarco and Dr. Debow concluded V.B. did not have a substantial inability to carry out the essential tasks of her pre-accident employment as a line cook. Based on these insurer examinations, Co-operators issued a letter, dated January 9, 2018, advising V.B. that she no longer had a substantial inability to carry out the essential tasks of her employment and therefore wasn’t eligible for IRBs effective January 29, 2018.

9V.B. filed a LAT application, dated February 22, 2019, bearing Tribunal file number 19-001816 disputing the issue of IRBs as well as a treatment plan. The case conference with respect to that Tribunal file took place on July 8, 2019. The case did not resolve, and a written hearing was ordered. By way of letter and Notice of Withdrawal dated October 10, 2019, V.B. withdrew that Tribunal application.

10During the course of the proceeding of Tribunal file number 19-001816, V.B. obtained several reports in support of her claim for IRBs and an OCF-18 for psychological treatment. The reports V.B. relies on are as follows:

i. Psychology Report by Dr. Aghamohseni dated August 25, 2018;

ii. Driving Anxiety Assessment by Dr. Aghamohseni dated September 29, 2018;

iii. Psychology Report by Dr. Aghamohseni dated June 13, 2019;

iv. Post-104 Psychological Report by Dr. Aghamohseni dated June 13, 2019;

v. Psychological Progress Report by Dr. Aghamohseni dated July 31, 2019; and

vi. Psychiatrist Report by Dr. Joan Quinn dated January 17, 2020.

11Co-operators requested and obtained its own expert opinion reports:

vii. Physiatrist Report by Dr. Sarco dated January 5, 2018;

viii. Psychiatrist Report by Dr. Debow dated January 5, 2018;

ix. Physiatrist Report by Dr. Marchie dated November 8, 2019; and

x. Psychiatrist Report by Dr. Hines – requested and not attended (the subject of this preliminary issue dispute).

12On October 10, 2019, counsel for the applicant wrote Co-operators and advised that V.B. does not permit Dr. Hines to consider the IRBs “in any way, shape or form”. The letter also suggested that if Co-operators wanted to have entitlement to IRBs assessed, it could reinstate the IRB in the interim. By way of letter dated October 10, 2019, counsel for the applicant also wrote to the IE facility and advised that V.B. does not permit Dr. Hines to consider the IRBs “in any way, shape or form”.

13Counsel for the applicant and respondent continued to disagree on whether Co-operators was entitled to the proposed IE with Dr. Hines, evidenced in email exchanges between October 18, 2019 and October 21, 2019. Although the IE with Dr. Hines was rescheduled to October 20, 2019, V.B. again failed to attend. As a result of her non-attendance, Co-operators notified V.B. via letter dated October 31, 2019 that she is not entitled to post-104 IRBs. Co-operators requested that V.B. provide a reasonable explanation for the non-attendance. There is no evidence that V.B. provided a reasonable explanation. I will now turn to the analysis of V.B.’s failure to comply with the s. 44 IE request.

ANALYSIS

V.B.’s duty to attend the s. 44 IE and the consequences of non-compliance

14Section 44 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; and

b. Section 44(9)(2)(iii) requires the insured person to attend the examination and to submit to all reasonable examinations requested by the examiner.

Consequences of Non-Compliance with the s. 44 IE Request

15Section 55(1)(2) of the Schedule provides that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act², where “the insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.”

16Section 55(2) allows the Tribunal to permit an appeal to proceed despite non-compliance and s. 55(3) allows the Tribunal to impose terms and conditions on a permission granted under s. 55(2).

17I am persuaded by the Divisional Court’s decision in Certas Direct Insurance Co. v. Gonsalves³. With respect to procedural fairness Justice Lederer stated at paragraph 8:

“Fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.

In the circumstances of this case, if this arbitration is allowed to proceed in the absence of a further orthopedic examination by a doctor of the insurer’s choosing, the insurer will have no practical ability to respond to the opinions with which it was provided thirty-one days before the commencement of the arbitration.

In our view, the insurer would be denied the right to make a full response and would not be heard as the dictates of procedural fairness require. It is not enough to say that the delivery of these reports was made within the permitted time frame (in this case one day before the last day the Code, clause 39.1 says is acceptable) when, as the arbitrator found, they provide new evidence supporting a new position. This is trial by ambush. This is not overcome, as counsel for Denise Gonsalves suggested by saying that we are adjusting a claim, rather than resolving a dispute between the insurer and the insured.

In understanding our concern, it is helpful to consider what is likely to happen in the absence of the adjournment. The arbitration will proceed. The most recent orthopedic reports will be presented. The insurer will have nothing current with which to respond.”

18Co-operators submits that if it were forced to proceed to the hearing without the psychiatric assessment, it would have no practical ability to fairly respond to the V.B.’s claim of eligibility to post-104 IRBs.

19The subject of this preliminary hearing is a disagreement between the parties as to whether Co-operators is entitled to “an opportunity to be heard and that it be able to respond to the position taken against it”. On the evidence, and for the following reasons, I find that Co-operators was entitled to an opportunity to be heard and respond to the position taken against it, and that by failing to attend the IE, V.B. hindered Co-operators’ right to be heard. Consequently, I find that pursuant to s. 55(1)(2) of the Schedule, V.B. is barred from proceeding with her Tribunal application.

EVIDENCE

20V.B. is claiming post-104-week IRBs. Co-operators’ position is that it has not had an opportunity to assess the post-104-week test from a psychiatric perspective. Co-operators submits that it obtained a psychiatric s. 44 opinion in January 2018, prior to the post-104 period. By contrast, V.B. has submitted four reports by a psychologist, Dr. Aghamohseni, as well as a psychiatry report by Dr. Quinn. Co-operators argues that although both doctors specifically address the issue of post-104 IRBs, it has not had any psychiatric IEs addressing post-104-week entitlement.

21Co-operators relies on the Financial Services Commission of Ontario (“FSCO”) decision of Albanese v. State Farm Mutual Automobile Insurance Co.⁴ (“Albanese”). In Albanese, the applicant claimed entitlement to IRBs. State Farm served the applicant with notices for post-104 IE assessments. The applicant did not attend the assessments. In consideration of the applicant’s refusal to attend the IEs, the arbitrator, relying on Gonsalves, stated at para 15:

i. Fairness is fundamental to any administrative process. Procedural fairness requires that a party be able to respond to the position taken against it;

ii. An assessment may be required in order to have a fair hearing; and

iii. A change in the test for entitlement to a benefit post-104 weeks is a change in circumstances, giving the insurer prima facie right to require an insured person to be assessed.

22I agree with the considerations in Albanese, the pre- and post-104-week test relies on a change in circumstances. The change in the statutory test between pre- and post-104 IRBS as well as the consideration of the loss of V.B.’s son, equate to a change in circumstances. Entitlement to pre-104 specified benefits is not a guarantee to entitlement to post-104 specified benefits. It stands to reason, then, that an insurer is entitled to reasonably assess, pursuant to the statutory requirement under s. 44(1) of the Schedule, and the criteria set out in the 3rd point in paragraph 15 of Gonsalves, the “change in circumstances”, in order to properly determine if its insured is entitled to post-104 benefits.

23Further considerations regarding s. 44 IE requests are laid out in the FSCO decision of Al-Shimasawi and Wawanesa Mutual Insurance Co.⁵ (“Al-Shimasawi”). In Al-Shimasawi, the Arbitrator set out the principles to be considered when determining if the request for an insurer examination was reasonable and necessary:

i. the onus is on the insurer to establish that the IE is reasonable;

ii. given the information already available, is the IE reasonably required to assess the validity of the claim to ongoing benefits or respond to a new claim, rather than an attempt to bolster the insurer’s position at a hearing?

iii. in considering the reasonableness of the IE request, the following circumstances must be considered:

(i) The timing of the insurer’s request;

(ii) The possible prejudice to each side;

(iii) The number and nature of the previous IEs;

(iv) The nature of the IEs being requested;

(v) Whether there are any new issues being raised in the insured’s claim that require evaluation; and

(vi) Whether there is a reasonable nexus between the IE requested and the insured’s injuries.

24I will discuss the evidence in this matter as it relates to the five criteria.

i. The timing of the insurer’s request

25Co-operators requested the psychiatric IE to address the issue of post-104-week entitlement 13 days after the 104-week mark. This is confirmed in the Explanation of Benefits letter dated August 13, 2019.

26V.B. submits that the timing of the IE was “clearly designed for the purposes of defending the case and not for the adjustment of the case”. V.B. argues that Co-operators should have put her on notice of the post-104 IRBs well in advance of the July 8, 2019 case conference. V.B.’s position is that, had she been put on notice, she would have had the opportunity to: a) determine whether to attend at the assessment; and b) schedule the hearing to account for the production of the reports. It’s V.B.’s position that the timing of requesting the assessment was designed so that the insurer would have it for its defence, not for the purposes of adjusting the file.

27I disagree with V.B.’s position on the timing of the IE request. As noted above, Co-operators initially requested a psychiatric IE with respect to the initial Tribunal case number 19-001816 that had subsequently been withdrawn. The Tribunal application for IRBs and a psychological treatment plan was submitted and Co-operators requested and obtained the reasonable and necessary expert opinions, in accordance with the Schedule.

28During the course of the proceeding, V.B. experienced a devastating event in her life - with the fatal stabbing of her youngest son in January 2018. In her August 25, 2018 report, Dr. Aghamohseni, noted that V.B. reported that she suffered from depression prior to her son’s death, which worsened after his death. In the September 29, 2018 report, Dr. Aghamohseni notes a referral from Family Physician, Dr. Manoharan to a psychologist “in response to psychological accident sequelae and bereavement from the loss of her seventeen-year-old son”.

29Similarly, to the facts in Albanese, V.B. has experienced a change in circumstances that reasonably warrants Co-operators to request a second IE to determine ongoing entitlement to post-104 IRBs. Co-operators’ initial IE was to determine pre-104 entitlement. V.B.’s request for ongoing IRB entitlement and change in circumstances warrants a request for a post-104 determination. Further, the test for pre-104 IRBs differs from post-104 IRBs. There’s a more clinical view – does V.B. suffer a complete inability to engage in any employment or self-employment which she is reasonably suited by education, training or experience? On this basis, I find that the timing of the request is valid.

ii. The possible prejudice to each side

30V.B. has obtained and relied on the post-104 psychological reports by Dr. Aghamohseni and the psychiatrist report by Dr. Quinn in support of her claim for post-104 IRBs.

31V.B.’s refusal to attend a post-104 IRB s.44 psychiatric assessment prejudices Co-operators. Co-operators cannot be expected to rely on a pre-104 psychiatric report when there has been a change in circumstances with the death of V.B.’s son (which post-dates the December 2017 psychiatric IE) and the difference in the statutory test between pre- and post-104 IRB entitlement, that warrants an additional consideration of V.B.’s accident-related psychiatric impairments.

32Co-operators also does not have the benefit of a second psychiatric assessment from Dr. Debow, as he has since retired and is not available. Co-operators would not only require a post-104 psychiatric assessment, but also the opinion of a new psychiatric expert, as its original expert is no longer available.

33I find V.B.’s position of being in possession of separate opinions from two assessors regarding her post-104 entitlement and refusal to allow Co-operators to obtain an opinion on the same issue denies Co-operators the ability to fully respond to V.B.’s claims.

iii. The number and nature of the previous IEs

34V.B. submits that Co-operators already has an assessment addressing her entitlement to IRBs. Her position is that because she refused to answer any questions related to IRBs at an IE and Co-operators declined to proceed with the assessment, that this “shows the insurer’s true interests lie with the defence of this case as opposed to an evaluation of V.B.’s actual needs”.

35There is no disagreement that Co-operators has a single psychiatric IE from Dr. Debow addressing pre-104 IRBs. Co-operators’ position is that it has not had the issue of post-104 IRBs assessed from a psychiatric or psychological perspective and the requested s. 44 assessment is reasonable.

36V.B. obtained as many reports as she felt were necessary to satisfy her onus to establish her entitlement to post-104 IRBs. The Schedule allows the insurer to conduct assessments, for the purpose of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit, limited only by a requirement that they not be more frequently than is reasonably necessary.

37It is expected that an insurer continues to adjust the file as an insured’s post-accident circumstance changes. To expect Co-operators to rely on a report that doesn’t address the circumstantial change(s) that V.B. has experienced post-accident and going forward into the post-104 period, goes against the intent of the Schedule for both an insured and insurer. The purpose of the Schedule is consumer protection and that one way by which the Schedule aims to achieve this is by ensuring that insurers can do all that is required to maintain that protection. This includes reassessing an insured person to determine if they “continue to be entitled to a benefit…. but not more than is reasonably necessary.”⁶On this basis, one post-104 IRB psychiatric assessment is not more than “reasonably necessary”.

38V.B. has not persuaded me that Co-operators’ request for a post-104 psychiatric assessment is more than reasonably necessary.

iv. The nature of the IEs being requested

39Co-operators requested V.B. attend a psychiatric IE. Based on the evidence discussed above, it is clear that a psychiatric IE is a relevant assessment. V.B. has been diagnosed by her own assessors with several impairments, including major depressive disorder, somatic symptom disorder, specific phobia and signs of post traumatic stress disorder.

40V.B. submits that the change in the test for entitlement to a benefit post-104 is a change in circumstances that doesn’t give the insurer prima facie right to require an insured person to be assessed. As noted in Gonsalves, such an approach is contrary to the principles of procedural fairness which requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it. V.B.’s position fails to take into account that there has been a change in circumstances more significant than just “a change in the test for entitlement”.

41V.B.’s approach does not consider that all the factors have not remained the same over time. There is no dispute that other intervening factors have occurred since Co-operators obtained its pre-104 assessment. If I rely solely on V.B.’s argument, I must not take into account the unfortunate event concerning her youngest son. In addition, V.B. has obtained five of her own psychological or psychiatric reports since Dr. Debow’s report. I agree with Co-operators that a change in circumstances since Dr. Debow’s report is not irrelevant (as V.B. suggests).

42For these reasons, I find that the nature of Co-operators’ request for a psychiatric report is justifiable.

v. Whether there are any new issues being raised in V.B.’s claim that require evaluation

43V.B. relies on four psychological reports and a psychiatry report obtained since Co-operators stopped payment of IRBs. Co-operators submits that it is reasonable for it to respond to the expert evidence contained in the reports with its own IE. Co-operators further submits that, as V.B. relies on reports that speak to her post-104 entitlement, Co-operators is entitled to obtain an opinion on the same issue. The evidence of V.B.’s change in circumstance since Co-operators obtained its initial IE addressing IRBs warrants evaluation.

vi. Whether there is a reasonable nexus between the IE requested and V.B.’s injuries

44V.B. has been diagnosed with several psychological and psychiatric impairments. The assessment with Dr. Hines is intended to address V.B.’s impairments.

45V.B. submits that the true purpose of this assessment is to bolster Co-operators’ defence. I disagree.

46V.B. has presented evidence that her condition has worsened over time since the accident. Co-operators submits that it is entitled to test “whether that alleged deterioration is a direct result of the motor vehicle accident”. I agree.

47With the extent of V.B.’s pre- and post-104 impairments indicated in her various reports, I find that Co-operators’ request for a psychiatric evaluation is warranted.

SUMMARY

48The consequences of non-compliance are laid out in both s. 37 and s. 55 of the Schedule. These sections clearly detail that an insured is not entitled to a specified benefit if they fail to comply with a reasonably necessary s. 44 request. Neither party made submissions on the conditions under s. 55. V.B. did not make herself available for the reasonably necessary s. 44 assessment as required by the Schedule. By virtue of s. 55, she is prohibited from applying to the Tribunal.

CONCLUSION

49V.B.’s appeal is barred because of her failure to attend the IE requested by Co-operators under s. 44 of the Schedule. Accordingly, a determination of the substantive issues in dispute is not necessary, and V.B.’s appeal is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2RSO 1990, c I.8.
3. 3Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986
4. 4Albanese v. State Farm Mutual Automobile Insurance Co, [2011] OFSCD No 87.
5. 5Al-Shimasawi v Wawanesa Mutual Insurance Co, [2007] OFSCD No 82 at para. 19.
6. 6O. Reg. 34/10, s.44(1).