Citation: Kapustin vs. Aviva General Insurance 2021 ONLAT 19-013976/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:
Sofia Kapustin
Applicant
and
Aviva General Insurance
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Ben Fotia, Counsel Alon Rooz, Counsel
For the Respondent:
Adina Strom, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on October 29, 2015, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule'').
2For the purposes of this preliminary issue hearing, Aviva denied the chiropractic treatment in dispute on the basis that it could not determine whether it was reasonable and necessary, as it was submitted four years post-accident and there was indication in the medical file that the applicant had pre-existing or concurrent medical conditions. There is no dispute that Aviva provided proper notice to the applicant of its intention to schedule a s. 44 Insurer’s Examination (“IE”) to assess her entitlement to the benefit she claimed.
3Then the stand-off over photographic identification (“photo ID”) began. The applicant attended at the s. 44 IE, but the assessment was not completed as she refused to sign the consent form provided by the assessing clinic because it was not first reviewed by her counsel.
4The parties exchanged correspondence over the next few months regarding the consent form. The applicant submits that she was prepared to attend the IE but never received the requested consent form in advance, as she wanted to ensure that the form was reviewed and agreed to in advance by her counsel. Aviva provided the clinic consent form to the applicant and requested five convenient dates to re-schedule the IE.
5On October 2, 2019, the applicant wrote to Aviva and attached the consent form from the assessment clinic with her proposed changes. A significant portion of the consent form was crossed off. Notably, the applicant asserted that the requirement that she provide photo ID to confirm her identity when arriving at the assessment was crossed off.
6On October 24, 2019, Aviva wrote to applicant’s counsel and advised that it was agreeable to the changes made by the applicant, with the exception of removing the requirement that the applicant provide ID at the assessment, advising that this part was important, as there would be no other way to verify the applicant’s identification. Aviva then wrote to the applicant on November 1, 2019 to advise that it was re-scheduling s. 44 assessments for November 19, 2019 and November 24, 2019 and provided the medical reasons for same.
7The applicant did not attend the IE’s, nor did she respond to Aviva’s letters. On December 5, 2019, Aviva wrote to the applicant and advised that, as she did not attend at the assessments, her benefits were being suspended. On December 17, 2019, Aviva again wrote to the applicant to advise that the s. 44 IEs were rescheduled to proceed on January 17, 2020 and January 28, 2020. The applicant did not attend for these IEs and did not respond to Aviva’s letters.
8Instead, the applicant filed her application with the Tribunal on December 10, 2019, seeking resolution of the dispute. She submits that at all times she was willing to attend at the assessments provided her request to have the portion of the consent form pertaining to photo ID removed, which she argues was a reasonable proposal. To date, her benefits remain suspended due to her failure to attend the s. 44 IEs.
ISSUE IN DISPUTE
9The following is the sole issue in dispute:
a. Pursuant to s. 55 of the Schedule, is the applicant barred from proceeding with her application to the Tribunal for chiropractic services in the amount of $2,337.60, recommended by Downsview Healthcare Inc. in a treatment plan submitted on April 5, 2019, as a result of the applicant’s non-attendance at s. 44 IEs, as requested by the respondent?
RESULT
10The applicant is statute-barred under s. 55 of the Schedule from proceeding with her application at the Tribunal until she attends the s. 44 assessments.
ANALYSIS
The s. 44 notices
11Section 44(1) permits an insurer to schedule an examination with a health professional chosen by the insurer, to determine whether an insured is entitled to a benefit for which an application is made, so long as the assessments are not conducted more than is reasonably necessary. Under s. 44(5), a proper request for an assessment must provide a notice that sets out the medical and any other reasons for the examination, whether the attendance of the insured is required, the name of the person who will conduct the examination, any regulated health profession to which they belong and their titles and designations, indicating their specialization. The notice must be sent more than five days before the assessment and must make reasonable efforts to accommodate the applicant.
12There is no dispute that Aviva’s notices were proper in accordance with the Schedule. I find the notices in evidence provided the applicant with the type of examination, the professionals conducting same, the benefit in dispute, the medical reasons supporting the IE and that her attendance was required. All of the notices were also provided in a timely manner and Aviva invited the applicant to provide five dates that were convenient for her each time.
13Further, there is no dispute from the applicant that the IE was not reasonably necessary under s. 44 in order to assess her claim. Indeed, the applicant has never attended for an IE, so it cannot be said that Aviva’s first request was unreasonable. In this vein, I agree with Aviva that its notices provided clear medical reasons—the passage of time, the applicant’s pre-existing or concurrent conditions, concussion issues, etc.—to support its claim that the IEs were reasonably necessary. Accordingly, I find that Aviva’s notices to the applicant satisfied the requirements of the Schedule.
Photo ID
14Instead, this narrow dispute turns on the requirement for photo ID. More specifically, whether it is reasonable for the consent form provided by the clinic conducting the IE to indicate that the assessor was provided with a form of photo ID by the applicant and what form of ID that entailed. As I understand it, the applicant is not taking issue with providing identification to the assessor, but rather, her position is that the consent form itself should not indicate that photo ID was provided by her at all nor should it indicate what type of ID was provided or any of the details from same.
15Aviva submits that the contention is regarding the substance of the consent form, which the applicant’s counsel changed, and which Aviva largely agreed to. The only change that Aviva did not agree with was the requirement that the applicant show photo ID at the assessment. It submits that this is a basic requirement for an assessment, and necessary, so that the assessor and the assessment clinic, who have never met the applicant, are able to confirm the applicant’s identity.
16Aviva asserts that the applicant never advised it that she was not agreeable to attending at the assessment with this requirement and if so, why she was not agreeable to showing photo ID at the assessment or why the consent form could not indicate that she provided ID to the clinic. Instead, Aviva submits that the applicant did not attend the properly-schedule IEs and filed her application at the Tribunal without response. Aviva submits that s. 55 provides that an insured shall not apply to the Tribunal under s. 280(2) of the Insurance Act if the insurer has provided the insured with notice in accordance with the Schedule that it requires an examination under s. 44 but where the insured has not complied with that section. Therefore, on these facts, Aviva submits the applicant is statute-barred.
17The applicant submits that Aviva never agreed to remove the “extra” language which she argues “simply does not belong in a consent form.” To this end, she submits that “so long as the insurer insisted on the overly onerous form, there was no point to attend IEs only to be sent home by the IE assessor as happened previously on November 7, 2017.” She submits that there is no requirement in the Schedule that an insured sign a consent form in order to participate in a s. 44 IE, and in fact, argues that consent is implicit in the wording of s. 44(9)2.iii based on the insured’s attendance. She submits that her proposed consent form was reasonable and relies on various case law to support her position.2
Aviva’s consent form is reasonable
18I find Aviva’s insistence that the consent form signed by the applicant prior to her participation in a s. 44 IE include a check box to indicate that photo ID was provided in order to confirm that the applicant was the person attending the IE was reasonable.
19Indeed, the dispute here is not over “extra” or “overly onerous” language in the consent form, as the applicant submits. Rather, on review of the heavily modified consent form, the applicant is really disputing a small check box at the bottom of the form that states, “Photo identification was provided (TYPE: ________)” beside it. The consent form proposed by Aviva only required that once the applicant provided her photo ID to the assessor, that the box be checked, and that the blank space beside it be filled in to indicate what type of photo ID was provided. There is no “extra” or “overly onerous” language. There is simply a check box. There is also no requirement that the specific details of whatever photo ID was provided be included. There is only a blank space to indicate the type of ID. There is no indication that any private information would be recorded.
20The applicant has not provided a reason why she was willing to provide photo ID to an assessor but was unwilling to have that fact confirmed on a consent form. She does not raise any privacy issues or concerns, even though the consent form did not require any specific details that would be contained on piece of photo ID, like a driver’s license or passport, that could be used to identify her or for a malicious purpose. I agree with Aviva that requiring confirmation that photo ID was shown to prove identity is reasonable in the context of a s. 44 IE, because by virtue of their nature, s. 44 IEs require health professionals to examine an individual whom they have never met. The requirement to have a health professional confirm that they viewed a piece of photo ID on the consent form provides clarity and protects both the insurer and the insured should any issues regarding attendance or identity arise in the future.
21In Intact Insurance Company v. Beaudry, the court confirmed that consent forms must be reasonable under the circumstances and that reasonableness turned on the facts of a particular case. Here, Aviva agreed to all of the applicant’s proposed amendments to the consent form, with the exception of the check box requirement to confirm that the applicant showed photo ID. Aviva imposed no requirement that any identifying or private information be included, just the type of photo ID provided. I find that confirming the identification of an applicant through photo ID is reasonable, particularly in circumstances where there is no prior doctor-patient relationship, and therefore, I agree with Aviva that its proposed consent form meets the reasonableness test discussed in Beaudry.
22In a similar vein, in Luther v. Economical, the arbitrator found that any written consent forms requested should be simple, consistent, and in accordance with the purposes of the Schedule. After Aviva agreed to the applicant’s modifications, the remains of the consent form were simple, consistent and in accordance with the Schedule, as it only required that the applicant provide ID to the assessor so her identity could be verified, and that this be confirmed via consent form; that the assessment centre be permitted to conduct the examination; and that the final report be sent to Aviva. In my view, the line in the consent form indicating that photo ID was provided is rather routine, as it protects both parties by ensuring that the correct insured is the individual participating in the correct assessment. The applicant’s refusal to respond to Aviva’s reasonable concessions and her ultimate refusal to attend the properly scheduled IEs on this basis was unreasonable.
23While an applicant is certainly able to negotiate the language contained in a consent form, such a negotiation does not exempt an applicant from the consequences outlined in s. 55 of the Schedule when they fail to attend for a properly scheduled IE. I find clear evidence that Aviva was willing to negotiate with the applicant over the language contained in the consent form, but the applicant never responded to Aviva’s request that she provide photo ID and then unreasonably refused to attend at the IEs despite Aviva’s attempts to cooperate. As the applicant did not comply with s. 44 of the Schedule by failing to attend properly scheduled and reasonably necessary IEs, I find she is statute-barred from proceeding with her application under s. 55 until such time that she attends.
ORDER
24The applicant is statute-barred from proceeding with her application under s. 55 of the Schedule until she attends the s. 44 IEs.
Released: January 11, 2021
__________________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- See, Tanguay v. Brouse, [2002] O.J. No. 4711; Binns v. Skinner Estate, 2000 CanLII 26982 (ON SC), [2000] O.J. No. 3739; Lipovetsky v. Sun Life Assurance Company of Canada, [2018] O.J. No. 1322; Intact Insurance Company v. Beaudry, [2016] O.J. No. 5214 [“Beaudry”]; Luther v. Economical Mutual Insurance Co., [2012] O.F.S.C.D. No. 82.