Released: January 26, 2021
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:
GWR
Applicant
and
Commonwell Mutual Insurance
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Jane Conte, Counsel
For the Respondent:
Linda Matthews, Counsel
HEARD
By way of written submissions
OVERVIEW
1GWR (“applicant”) was involved in an automobile accident on October 8, 2015 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2Commonwell Mutual Insurance (“respondent”) denied the applicant’s claim for certain medical benefits. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
3The respondent requested a preliminary issue hearing to determine whether the applicant is precluded from proceeding with her application because she failed to attend s. 44 insurer’s examinations (“IEs”) without reasonable explanation.
PRELIMINARY ISSUE TO BE DECIDED
4The preliminary issue to be decided is:
i. Whether the applicant is barred from proceeding with her claim for the disputed benefits as she failed to submit to insurer’s examinations under s. 44 of the Schedule?
RESULT
5I find that the applicant is barred from proceeding with her application because she failed to attend s. 44 insurer’s examinations without reasonable explanation.
LAW
6Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
7The requirements for the notice of examination are set out in s. 44(5) of the Schedule:
(i) the medical and any other reasons for the examination.
(ii) whether the attendance of the insured person is required at the examination.
(iii) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(iv) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
9Section 55(2) of the Schedule provides that the Tribunal may permit an insured person to apply despite paragraph 2 or 3 of s. 55(1). Section 55(3) provides that the Tribunal may impose terms and conditions on a permission granted under s. 55(2).
10The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.2
ANALYSIS
Is the Applicant’s Application Barred Because She Did Not Attend s. 44 IEs?
11The respondent submits that the applicant’s application should be dismissed under s. 55 (1)(2) of the Schedule because the applicant has not complied with notices given to her to attend IEs on four treatment plans and has put forward no reasonable explanation for non-attendance. The four treatment plans are:
a. Treatment plan in the amount of $8,376.90 dated June 29, 2017 by Emilia Radovini and Drew Schmitt, the applicant’s physical therapists seeking funding for a rehabilitation support worker (“$8,376.90”).
b. Treatment plan in the amount of $3,292.30 dated November 21, 2017 by Emilia Radovini seeking funding for occupational therapy (“3,292.30”).
c. Treatment plan in the amount of $5,606.04 dated December 7, 2017 by Emilia Radovini seeking funding for an embroidery machine and muse mediation headband, storage bins, shipping costs and services ($5,606.04”).
d. Treatment plan in the amount of $1,251.20 dated July 18, 2018 by Emilia Radovini seeking funding for aqua therapy and gym membership.
12The applicant submits that the respondent’s assessor did not show up for the scheduled assessment on the $8,376.90 treatment plan. The applicant also submits that the proposed IE’s are not reasonable and necessary for the $3,292.30 and $5,606.04 treatment plans. The applicant submits the applicant has attended eight IEs and the respondent’s August 30, 2017 notice is legally deficient. Lastly, the applicant submits that an IE is not required at this time on the $1,251.20 treatment plan as she has withdrawn her appeal of the respondent’s denial of this plan.3
13I find that the applicant is barred from proceeding with her application because she failed to attend s. 44 IEs without reasonable explanation. My reasons are as follows.
14On December 8, 2017 the respondent gave notice of an EI with Jeff Ford, the respondent’s occupational therapist, on December 22, 2017. December 21, 2017 Ms. Radovini wrote to the respondent and requested that the assessment be cancelled. No reason for the request was given. The applicant did not attend the assessment with Mr. Ford on December 22, 2017.
15On December 29, 2017 the respondent wrote to the applicant advising that the assessment with Mr. Ford was rescheduled to January 26, 2018. On January 17, 2018 the applicant wrote to the respondent requesting that Ms. Radovini accompany her during the assessment and the next day Ms. Radovini requested to be present during the IE on January 26, 2017. The respondent’s assessor advised the respondent that Mr. Ford would allow an advocate to be present with the applicant for 20 to 30 minutes prior to the assessment but the advocate would have to leave when the assessment started. On January 18, 2018, the applicant’s counsel advised the respondent that the applicant was uncomfortable with having a male assessor in her home without a female chaperone and a chaperone would not be necessary if a female occupational therapist conducted the IE. The respondent cancelled the January 26, 2018 IE and rescheduled it for March 26, 2018 with a female occupational therapist. On March 23, 2018 the respondent rescheduled the March 26, 2018 IE to Monday, April 23, 2018 because it’s assessor could not attend. Friday, April 20, 2018 the applicant’s counsel asked to cancel the IE. In response the respondent asked that the applicant attend on April 23, 2018 to avoid a cancellation fee. The applicant’s counsel emailed asking that the IE be cancelled and that she would be available to discuss on Monday. The respondent’s assessor advised that the applicant missed the in-home assessment on April 23, 2018. The respondent wrote to the applicant asking for a reasonable explanation for non-attendance at the December 22, 2017 and April 23, 2018 IEs by letter dated January 8, 2019. The applicant’s counsel was copied with the letter.
16The applicant’s submission that the respondent’s assessor did not show up for the April 23, 2018 IE regarding the $8,376.90 treatment plan is not supported by any evidence. The notice filed by the applicant in support of this statement relates to another IE regarding a different treatment plan, not the $8,376.90 treatment plan.
17The applicant’s submission that her counsel emailed the respondent before the April 23, 2018 IE indicating she was available to discuss on Monday and the respondent failed to reschedule the IE is also not persuasive. Given that the applicant failed to attend the IE on December 22, 2017 without any explanation and again on April 23, 2018 without any explanation, counsel indicating her availability to discuss does not constitute a reasonable explanation for the applicant’s non-attendance.
18I find unpersuasive the applicant’s suggestion that her counsel cancelled the April 23, 2018 IE because she did not yet have a copy of the complete accident file. By April 23, 2018 the applicant’s counsel had not yet provided an authorization signed by the applicant confirming her retainer. It is not a reasonable explanation that counsel not yet on record requested a cancellation of the IE scheduled for the next business day when the IE had already been rescheduled several times over a four month period, a cancellation fee would be incurred and the applicant already had other counsel on record with the respondent. Importantly, no reason was given at the time for the requested cancellation.
19On January 8, 2018 the respondent gave notice of an EI with the respondent’s neuropsychologist, Dr. Ladowsky-Brooks, on March 12, 2018 to address both of these treatment plans. The applicant confirmed by email dated January 17, 2018 that she would attend. The applicant did not attend the assessment with Dr. Ladowsky-Brooks on March 12, 2018.
20In May and June 2018, the respondent wrote to the applicant asking for her availability to reschedule the IE. The June 13, 2018 letter from the respondent confirms the applicant’s non-attendance at the December 22, 2017 and April 23, 2018 IEs regarding the $8,376.90 treatment plan as well as the March 12, 2018 IE regarding these two treatment plans. This letter explains s. 44 and the applicant’s duty to participate in the IEs, the applicant’s onus to establish a reasonable explanation for non-attendance and the principles of whether or not an explanation is “reasonable. The letter asks the applicant to provide availability for rescheduling the IE by June 20, 2018 or “…we will conclude that you did not make yourself reasonably available and refused to submit to a reasonable examination…”. This letter was copied to the applicant’s counsel. Two other letters were sent by the respondent in June 2018 to the applicant’s counsel explaining why an IE was required for these two treatment plans.
21The respondent wrote to the applicant asking for a reasonable explanation for non-attendance at this IE by letter dated January 8, 2019. The applicant’s counsel was copied with the letter.
22The applicant’s submission that this IE was not reasonable or necessary as this was only the second treatment plan from this occupational therapist is also not persuasive. The respondent’s evidence shows that Ms. Radovini had previously submitted six treatment plans, five of which were approved by the respondent.
23The applicant’s submission that the respondent never provided an explanation as to the reasonableness of a neuropsychologist to comment on a treatment plan recommending occupational therapy, despite a request for same, is also not persuasive and is not supported by the evidence. The respondent’s letters dated December 6, 2017 and December 12, 2017 explain the basis for the requested IE. After the applicant failed to attend March 12, 2018, the respondent sent letters on June 14, 2018 and June 18, 2018 explaining why this IE was required.
24The applicant also submits that this proposed IE is not reasonable and necessary especially because the applicant has already attended eight IEs. Both parties agree that the criteria to be used to assess the reasonableness of a proposed IE are: 1) the timing of the insurer’s request; 2) the possible prejudice to both parties; 3) the number and nature of the previous IEs; 4) the nature of the IE being requested; 5) whether there are any new issues being raised in the applicant’s claim that require evaluation; 6) whether there is a reasonable nexus between the IE requested and the applicant’s injuries.4 The applicant also submits that the Tribunal must consider whether an insurer requires the IE to assess the claim rather than for purposes of trial brinkmanship or an attempt to bolster the insurer’s position. Here the applicant submits that the timing of the IE requests demonstrates that the respondent “simply wants to bolster its denials for the purposes of litigation”.
25I find nothing in the evidence before me which demonstrates that the respondent has requested this IE for “brinkmanship” or “purposes of litigation” as opposed to assessment of the applicant’s claim. The respondent has given reasons for the IE and explanation of the applicant’s duty to attend IEs in correspondence and has offered to reschedule this IE up to June 20, 2018. There has been little co-operation forthcoming from the applicant. The applicant argues that the respondent did not raise the non-attendance argument until shortly before the hearing, but the respondent raised the non-attendance issue in it’s March 2019 Response as well as in correspondence.
26Having considered the evidence and the submissions of both parties, my analysis with respect to the criteria above is as follows:
27I find the timing of the insurer’s requests reasonable. All of the missed IEs were requested soon after receipt of the treatment plans and before the applicant applied to the Tribunal.
28I find that the respondent has been prejudiced in the ability to defend itself by being prevented from obtaining relevant IE medical opinions. The respondent has been prevented from obtaining an IE report for the $5,606.04 treatment plan. The respondent obtained two IE reports for the $8,376.90 treatment plan which are of little assistance in understanding the applicant’s proposed treatment as Jack Kugelmass, respondent’s social worker, did not have an accurate understanding of the proposed treatment. Dr. Margaliot, the respondent’s neurologist, addressed the $8,376.90 and $3,292.30 treatment plans which is no longer sufficient in view of the applicant’s claims to have suffered physical, neurological and psychological injuries as a result of the accident in the context of a complex pre-accident medical history and social situation. Further, the respondent has conceded in its submissions that the limitation period to dispute a denial of the $8,376.90, $3,292.30 and $5,606.04 treatment plans has not begun to run5 so the applicant still may dispute denial of these three treatment plans. More importantly, any prejudice to the applicant has been brought about by her refusal without reasonable explanation to attend the IE’s as set out above.
29I find the number and nature of the previous IEs do not make the requested IEs unreasonable. The evidence shows that the applicant attended six in-person IE’s, four of which occurred in April 2016 and addressed entitlement to a non-earner benefit and two of which are no longer adequate as discussed above. The missed IE’s are not an unreasonable number given that to date the applicant has submitted 42 treatment plans seeking $137,191.87 in medical and rehabilitation benefits and the respondent has paid $71,526.92.
30I find the IEs being requested to be reasonable in nature. The respondent is requesting an in-person IE with an occupational therapist to address the $8,376.90 treatment plan. The respondent obtained one IE report from it’s occupational therapist Heather Golden on May 13, 2016 which it is reasonable to update given that this treatment plan is dated June 29, 2017, more than one year later. The respondent is also requesting an in-person IE with it’s neuropsychologist, Dr. Ladowsky-Brooks, to address the $3,292.30 and $5,606.04 treatment plans. The respondent does not have any IE report from a neuropsychologist. It is reasonably necessary that the respondent have an opportunity to have its assessors conduct an IE given that the applicant alleges she suffered neuropsychological injuries in the accident, and she relies on reports from her own two neuropsychologists Dr. Meusel and Dr. Lad.
31I find that the applicant has raised new issues in her claim that require evaluation through the reports of Drs. Meusel and Lad because these reports provide new diagnoses, raise issues of the applicant’s pre-accident medical history and do not address causation. Although the respondent has a 2016 report from it’s psychologist Dr. Saunders, it does not have any reports since it received the reports of Drs. Meusel and Lad and has no report from a neuropsychologist. It is reasonable and necessary that the respondent be given an opportunity to examine the applicant in these circumstances.
32I find that there is a reasonable nexus between the IEs requested and the applicant’s injuries. It is reasonable and necessary that the numerous injuries described in the $8,376.90 and $3,292.30 treatment plans be addressed by in-person assessments given that injuries are described by the physical therapists who are not qualified to diagnose; and suggest, among other injuries, psychological and/or cognitive issues that the respondent’s neuropsychologist should have an opportunity to review and assess.
33I find unpersuasive the applicant’s submission that the respondent’s notices failed to provide “medical and any other reasons for the examination” and specifically that the respondent’s August 30, 2017 notice is legally deficient because it only confirms receipt of a treatment plan and does not provide any medical or other reasons. The applicant submits that as a result, she did not have sufficient information to make an “informed decision”6 about attending the examinations.
34Having reviewed the respondent’s notices for all requested IEs, I do not find the notices to be unclear and find that they substantially meet the Schedule’s requirements. The notices sent by the respondent give the medical and other reasons for the IEs. The respondent’s correspondence dated August 30, 2017 to the applicant is not “notice” of an IE but is correspondence explaining why the IE is required and states that “…details of the examination and further instructions will follow…”. Notice of the IE for this treatment plan dated December 8, 2017 was sent following further explanatory correspondence dated December 1, 2017 which confirms that the applicant has clarified that “RSW” in the treatment plan refers to rehabilitation support worker and not registered social worker and therefore an occupational therapist is the proper health practitioner to evaluate this treatment plan.
35I find that none of the arguments put forward by the applicant constitute a reasonable explanation for the applicant’s non-attendance. This is the applicant’s burden to prove and I find that she has not done so.
36I find that the applicant is barred from proceeding with her application because she failed to attend s. 44 IEs without reasonable explanation.
37As the applicant has withdrawn her appeal of the respondent’s denial of this plan no further analysis is necessary.
38Although s. 55(2) of the Schedule permits the Tribunal to allow an insured to apply despite being barred and s. 55(3) provides that the Tribunal may impose terms and conditions on any permission granted, I decline to exercise my discretion under these sections. The applicant has not put forward any reasonable explanation for her non-attendance at the IEs and has made no submissions on s. 55(2) or on any terms and conditions that might be made.
ORDER
39The applicant is barred from proceeding with her application pursuant to s. 55 of the Schedule because she failed to attend IEs.
Released: January 26, 2021
Avril Farlam, Vice Chair
Footnotes
- O.Reg. 34/10.
- State Farm Mutual Automobile Insurance Company v. S.R. and Financial Services Commission of Ontario, 2013 ONSC 2086.
- Applicant’s Submissions, para 22.
- 17-005291/AABS v. Travelers Canada, 2018 CanLII 13172 (ON LAT); 17-001138 v. CAA Insurance, 2018 CanLII 76420 (ON LAT).
- Respondent’s submissions para 33.
- M.M. v. Aviva Insurance Company, 2020 CanLII 37673 (ON LAT).