Licence Appeal Tribunal File Number: 20-005804/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:
Jean Boileau
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant: Elvis Viskovic, Paralegal Carlos Bernal, Paralegal
For the Respondent: Aviva General Insurance Company Marcin Panasewicz, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on August 13, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). Aviva scheduled s. 44 Insurer’s Examinations (“IEs”) to assess the applicant’s claims but the applicant did not attend. The applicant applied to the Tribunal for resolution of the dispute and Aviva raised the preliminary issue giving rise to this hearing.
PRELIMINARY ISSUES
2The issues in dispute are as follows:
a. Is the applicant barred from proceeding with his claim for the neurological assessment in the amount of $2,486.00 as he failed to submit to an IE under section 44 of the Schedule?
b. Is the applicant barred from proceeding with his claim for the sleep study assessment in the amount of $2,486.00 as he failed to submit to an IE under section 44 of the Schedule?
c. Is the applicant barred from proceeding with his claim for the neuropsychological assessment in the amount of $7,006.60 as he failed to submit to an IE under section 44 of the Schedule?
RESULT
3The applicant is statute-barred from proceeding with his claims under s. 55(1)2 as he failed to attend properly scheduled s. 44 IEs.
ANALYSIS
Section 55
4Section 55(1)2 of the Schedule provides that an insured shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance. Section 44 provides that an insurer may require an insured person to be examined to assess entitlement to a benefit but not more than is reasonably necessary. A notice under s. 44(5) must state the medical reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time and location of same.
5There is no dispute that the applicant failed to attend the IEs. Aviva submits that there is no medical opinion on record supporting the applicant’s request for the sleep study, or either of the neurological or neuropsychological assessments in dispute. Aviva submits that it requested the s. 44 IEs in order to ascertain whether the requested assessments were reasonable and necessary, that its notices complied with all of the provisions under the Schedule, and that its requests were not more than are reasonably necessary.
6As I understand it, the applicant’s position is that despite denying his claims for the assessments in dispute, Aviva arranged s. 44 IEs to address whether his claims are reasonable and necessary, which it argues is inconsistent with the previous iteration of the Schedule, being O. Reg. 403/96. Further, the applicant submits that Aviva’s notices did not provide proper medical reasons for the IE, and incorrectly referred to his claims as “treatment” instead of “assessments.” In addition, he submits that there was medical evidence in his file to support his claims, and that the IEs are not reasonably necessary because they are a duplication of services, and it would be more reasonable and efficient to conduct the IEs via paper review. Finally, he offered submissions on the six factors to assess whether IEs are reasonably necessary, arguing that he should be permitted to proceed with his claim.1
The IEs were properly scheduled
7As a threshold issue, as this accident occurred on August 13, 2016, O. Reg. 403/96 has no applicability to this dispute. The applicant provided no authority or evidence to support the brazen position that the elimination of IE paper reviews in the current version of the Schedule was somehow an oversight by the drafters. Contrary to the applicant’s position, the Tribunal does not have the “power to restore the initial intent and purpose of the legislation” and it cannot read in language from an old regulation simply because it would assist the applicant.
8Further, it is well-settled that an insurer may conduct an in-person IE of an insured, if it is necessary to determine entitlement to a medical benefit, but only as often as it is reasonably necessary. The applicant’s contention that allowing insurers to conduct in-person IEs via s. 44 “always leads to an unreasonable outcome” remains unclear and is unsupported. It is not a duplication of services when an insurer schedules an IE to determine entitlement to a benefit the applicant has claimed. Indeed, it is the very mechanism, entrenched in the Schedule, that allows insurers to assess claims where there is a paucity of medical evidence to support the claims. Often, it may be the only mechanism available to an insurer to assess the merits of a claim, as the applicant fails to appreciate that a paper review may not always be possible.
9On review of the notices, it also cannot reasonably be said that Aviva’s use of the word “treatment” in place of the more accurate “assessments” somehow resulted in confusion on the applicant’s part over the type of benefit that was being addressed or whether his attendance was required at an IE. Indeed, the terms “treatment plan” and “assessment plan” or “treatment and assessment plan” are often used interchangeably, and it is well-settled that perfection is not the applicable standard.
10The focus of the analysis is instead on whether the applicant was able to appreciate that their attendance was required at an IE. I find the notices identified the relevant OCF-18s in dispute and provided all of the information required for proper notice under s. 44(5) of the Schedule, as they provided the type of IE, the location, date, time and the assessor’s name and credentials. I agree with Aviva that this argument is a matter of semantics and does not remotely salvage the applicant’s non-attendance at the IEs. In any case, the applicant did not advise Aviva of any deficiencies or missing information at the time.
11Next, I find the notices provided a perfectly valid reason to support the scheduling of the IEs. Namely, that the “type of treatment proposed does not appear consistent with the patient’s diagnosis” and that Aviva was “unable to determined whether the recommendations are reasonable and necessary for the injuries sustained in the accident.” As Aviva notes, the applicant did not provide an updated opinion with respect to his psychological health since February 2017 and the post-accident medical records concern opinions from orthopaedic surgeons, a physiatrist and the applicant’s family physician.
12While the applicant relies heavily on his March 2017 reporting to Dr. Efala, orthopaedic surgeon—who recommended that he be referred to a neurologist, neuropsychologist and a sleep study clinic—Dr. Efala made no diagnoses to support these referrals and also acknowledged that these complaints were beyond the scope of his expertise. It does not appear that the applicant acted on these recommendations at the time. Instead, the most recent clinical notes of the applicant’s family physician available to Aviva were from December 2017, or two years before the OCF-18s in dispute were submitted. The clinical notes do not make a referral for neurological, neuropsychological or sleep study to support the OCF-18s. On these facts, I agree with Aviva that, given the gap in the medical documentation, it would have been unable to fairly determine whether the recommendations were reasonable because of the accident.
Were the IEs reasonably necessary?
13As the applicant failed to attend, the only remaining consideration is whether Aviva’s requests to conduct the IEs were reasonably necessary pursuant to s. 44. The six factors are as follows: the timing of the request; the possible prejudice to either side; the number and nature of previous IEs; the nature of the IE requested; whether there are any new issues raised; and, whether there is a reasonable connection between the IE and the impairments.
14On these factors, I find Aviva’s IE requests were reasonably necessary. First, there was no delay, as the IEs were scheduled within two months of receipt of the OCF-18s. In addition, the applicant provided no evidence to support his assertion that Aviva “took no initiative to re-schedule” the IEs to accommodate him or that he even requested that the IEs be rescheduled. There is no evidence that the applicant indicated that he would attend.
15Second, where Aviva has not been afforded the opportunity to assess entitlement and where there is a gap in the medical documentation, I find there is prejudice to Aviva in allowing the applicant to proceed to a substantive hearing on the merits. In addition, and again, it is not a duplication of services for Aviva to schedule a s. 44 IE to determine entitlement as the costs of same are born by the insurer. Regarding the applicant being prejudiced by delay, I find the delay in this matter falls entirely at the applicant’s feet, as he has refused to attend properly scheduled IEs to assess entitlement to benefits claimed. Allowing the applicant to proceed would rob Aviva of its right to present a case and would put the Tribunal in a position where it was assessing evidence from only one party.
16Third, the applicant has never attended a neurological or general practitioner IE and has attended at one psychological IE, in February 2017. While he has attended at several orthopaedic IEs, it cannot be said that the number and nature of the IEs relevant to the issues here is excessive. Fourth, and in a similar vein, the nature of the IEs requested by Aviva are clearly related to the OCF-18s in dispute, as Aviva schedule a neurological IE, a psychological IE and an IE with a general practitioner to assess the sleep study claim.
17Fifth, while Dr. Efala made his recommendations in March 2017, the applicant never made a claim for neurological, neuropsychological or sleep study assessments stemming from that assessment until the OCF-18s in dispute were submitted nearly three years later, and with seemingly no medical updates in between. While I would not classify these as “new” issues, I agree with Aviva that the claims for same were “new”, as they were the first OCF-18s of their kind. Finally, the parties agree that there is a reasonable nexus between the IEs requested and the applicant’s impairments.
18For these reasons, I find that Aviva’s IE requests were reasonably necessary to assess the applicant’s claims and that its notices were proper under the Schedule. Where the applicant failed to attend, he is statute-barred from proceeding with his claim under s. 55(1)2.
Award
19In submissions, the applicant sought an award pursuant to s. 10 of O. Reg. 664. Under s. 10, the Tribunal may award up to 50 percent of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed the payment of benefits. As an award was not identified as an issue in dispute and, as there are no benefits payable, it follows that the Tribunal cannot award 50 percent of zero. In any case, the applicant offered no substantive submissions and was unsuccessful in this hearing. An award is not appropriate.
ORDER
20The applicant is statute-barred from proceeding with his claims under s. 55(1)2 as he failed to attend properly scheduled s. 44 IEs.
Released: November 4, 2021
Jesse A. Boyce, Vice-Chair
Footnotes
- See: 17-005291/AABS v. Travelers Canada, 2018 CanLII 13172 (ON LAT).