Released Date: 01/06/2021
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:
Kak-Sang Choi
Applicant
and
Aviva General Insurance Company
Respondent
DECISION ON A PRELIMINARY ISSUE
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
Stefan Juzkiw, Counsel
For the Respondent:
Michelle Friedman, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1The applicant, Kak-Sang Choi (“Mr. Choi”), was injured in an automobile accident on July 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 from Aviva General Insurance Company (“Aviva”), the respondent.
2On April 15, 2020, Mr. Choi submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine whether he sustained a catastrophic impairment as a result of the accident and his entitlement to chiropractic treatment, an award under O. Reg. 664 and interest.
3At the case conference held on August 20, 2020, Aviva raised a preliminary issue regarding the jurisdiction of the Tribunal and, as a result, a written preliminary issue hearing was scheduled.
4Aviva filed a notice of motion on September 24, 2020 requesting a dismissal of Mr. Choi’s application without a hearing. Aviva argued that Mr. Choi abandoned his application as he failed to serve and file his written submissions for the preliminary issue hearing in accordance with the deadline set out in the Tribunal’s August 24, 2020 Order. The Tribunal denied Aviva’s motion but extended the deadline for Aviva to file its written preliminary issue hearing submissions.
PRELIMINARY ISSUE
5The following preliminary issue is to be decided:
(a) Pursuant to s. 55(1) of the Schedule, is Mr. Choi precluded from proceeding with his application to the Tribunal to determine whether he sustained a catastrophic (“CAT”) impairment as a result of the accident?
RESULT
6I find that Mr. Choi is not precluded from proceeding with his application to the Tribunal to determine whether he sustained a CAT impairment as a result of the accident.
FACTS
7Mr. Choi submitted his first Application for Determination of Catastrophic Impairment (“OCF-19”) to Aviva on January 4, 2019.
8Aviva wrote to Mr. Choi on January 8, 2019 and requested a legible copy of the OCF-19 along with additional medical documentation in order to respond to the OCF-19.2
9On January 9, 2019, Mr. Choi resubmitted the OCF-19 and certain medical documentation to Aviva.3
10Aviva acknowledged the resubmission of the OCF-19 by way of correspondence to Mr. Choi dated January 16, 2019. This correspondence advised Mr. Choi that Aviva had insufficient medical documentation to make a determination in response to the OCF-19 and that it required an examination of him pursuant to s. 45(3)(b) of the Schedule. Aviva, however, did not provide notice to Mr. Choi of any scheduled insurer’s examinations (“IEs”) in this correspondence. Instead, Aviva requested additional documentation from Mr. Choi and stated, “once we have received all these records we will provide you with the details of your insurer's examination, i.e. date, time, place.”4
11Aviva made at least ten additional written requests for documentation from Mr. Choi between January 2019 and December 2019 as it was Aviva’s position that the requested information was required prior to scheduling any IEs in response to Mr. Choi’s OCF-19.
12Mr. Choi submitted a second OCF-19 to Aviva on March 25, 2020. On this same date, Aviva advised that it was not scheduling any IEs at that time due to COVID-19 restrictions.
13Aviva sent notice to Mr. Choi on April 1, 2020 advising that it was requesting an examination under s. 45(3)(b) of the Schedule in response to the second OCF-19. This correspondence also stated, “once I receive the outstanding documentation, I will schedule the insurer examinations to address the submission for Catastrophic Determination.”5
14On April 15, 2020, Mr. Choi submitted his application to the Tribunal.
15On May 28, 2020, Aviva first notified Mr. Choi of his required attendance at the following IE assessments to determine if he sustained a CAT impairment:
(a) A physical medicine and rehabilitation specialist assessment with Dr. Zeeshan Waseem on July 6, 2020;
(b) An ADL functional assessment with Amanda Garnett, occupational therapist, on August 5, 2020;
(c) A community functional assessment with Ms. Garnett (the date of the assessment was cut off in the copy of the correspondence in the Applicant’s Written Submissions);
(d) A neurocognitive assessment with a neuropsychologist (the name of the Regulated Health Professional conducting the assessment was cut off in the copy of the correspondence in the Applicant’s Written Submissions) on August 11, 2020; and
(e) A psychiatry assessment with Dr. Stephanie Wiesenthal, psychiatrist, on September 14, 2020.
16Aviva also provided notice on this date of an OCF-19 Musculoskeletal Assessment with Dr. Mohamed Khaled, general practitioner, which Mr. Choi was not required to attend.6
17On July 27, 2020, Aviva provided notice to Mr. Choi of the following rescheduled IE assessments to determine if he sustained a CAT impairment:
(a) A neurological assessment with Dr. Konstantine Zakzanis, neuropsychologist, on August 11, 2020;
(b) A psychiatry assessment with Dr. Wiesenthal on September 14, 2020;
(c) An ADL functional assessment with Ms. Laura Youm, occupational therapist, on September 28, 2020; and
(d) A community functional assessment with Ms. Youm on September 30, 2020.
18On July 27, 2020, Aviva also provided notice to Mr. Choi that an integrated impairment rating was scheduled with Dr. Khaled for September 30, 2020. Mr. Choi’s attendance, however, was not required at this assessment.
19There is no information before me as to why the initial IE assessments were rescheduled.
ANALYSIS
20In raising the preliminary issue, Aviva relies upon s. 55(1)2 of the Schedule. This section precludes an insured person from applying to the Tribunal if an insured person has failed to comply with s. 44 of the Schedule following receipt of a notice of IE assessments from the insurer that complies with the notice requirements under the Schedule.
21Under s. 44(1) of the Schedule, an insurer has the right to require an insured person to attend IE assessments to be examined by a regulated health professional of its choice to determine initial, or continuing, entitlement to benefits.
22Section 44(9)2.iii of the Schedule requires an insured person to attend the IE and to submit to all reasonable examinations requested by those conducting the IE assessment.
23Aviva maintains that Mr. Choi’s application cannot proceed because, “to date, the Section 44 reports have not been completed. There has been no final determination whether or not the claimant has sustained a catastrophic impairment. This Application was premature and should be dismissed.”7
24There is no evidence before me that Mr. Choi failed to attend any of the rescheduled IE assessments as set out in paragraph [17] above as required by s. 44(9)2.iii of the Schedule. This information would have been available to Aviva prior to the completion of its written submissions for the preliminary issue hearing as its submissions were dated October 15, 2020 and all of the dates of the rescheduled IE assessments that required Mr. Choi’s attendance were prior to October 2020.
25It appears from Aviva’s submissions that its position is that the reports from the IE assessments had not yet been completed at the time of its written submissions for the preliminary issue hearing rather than the IE assessments themselves not being completed. Aviva has failed to direct me to any authority that would support its position that an insured person is precluded from applying to the Tribunal because IE assessment reports have not been completed. Moreover, waiting for the completion of the IE assessment reports prior to applying to the Tribunal would prejudice Mr. Choi resulting in further delay in this matter especially when the IE assessments were not scheduled until after Mr. Choi applied to the Tribunal. I also find that there is no prejudice to Aviva of Mr. Choi applying to the Tribunal prior to the completion of the IE assessment reports because it is always open to Aviva to reconsider its position upon receipt of the reports while the file moves forward at the Tribunal.
26I also find that there is no evidence before me that Mr. Choi failed to comply with his obligations under s. 44 regarding any documentation requests from Aviva.
27Throughout its numerous correspondences to Mr. Choi requesting documentation, the only sections of the Schedule referred to by Aviva, if Aviva referenced any sections of the Schedule at all, were s. 44, s. 44(9) and s. 44(9)2.ii.
28Sections 44(9)1. and 2.ii of the Schedule only require Mr. Choi to provide documents that are relevant or necessary for the review of his medical condition to the person or persons conducting the IE assessment:
(a) within five business days after the day Mr. Choi received the notice of the IE assessments that he was not required to attend; and
(b) not later than five business days before the day scheduled for the IE assessments that he was required to attend.
Therefore, Mr. Choi could not have failed to comply with his obligations to provide documentation under s. 44(9) of the Schedule until the IE assessments were in fact scheduled.
29The first notice that Aviva sent to Mr. Choi regarding the IE assessments in response to his OCF-19s was dated May 28, 2020 and the first rescheduled IE assessment that Mr. Choi was required to attend was on August 11, 2020. Aviva has failed to specify what, if any, information was outstanding from Mr. Choi on either of these dates that was relevant or necessary for the review of Mr. Choi’s medical condition by the IE assessors.
30For all of the reasons set out above, I find that Aviva has failed to prove on a balance of probabilities that Mr. Choi failed to comply with his obligations under s. 44 of the Schedule, in either failing to attend IE assessments or failing to provide documentation, that would preclude Mr. Choi from proceeding with his application regarding whether he sustained a CAT impairment under s. 55(1) of the Schedule.
CONCLUSION
31I find that Mr. Choi’s application to the Tribunal to determine whether he sustained a CAT impairment as a result of the accident is not precluded from proceeding under s. 55(1) of the Schedule.
OTHER PROCEDURAL ISSUES
32The majority of Mr. Choi’s submissions focus on allegations of bad faith conduct by Aviva. In fact, Mr. Choi sought to reframe the preliminary issue to the following:
(a) Is Aviva’s delay in scheduling the catastrophic determination a bad faith conduct?
(b) If Aviva’s conduct is deemed as a bad faith conduct, does the Tribunal have jurisdiction to hear the dispute over Aviva’s bad faith conduct during the catastrophic determination process?8
33The issue of any alleged bad faith conduct is not properly before me as a preliminary issue and is more appropriately addressed as part of the substantive hearing given that Mr. Choi has included in his application a claim for an award under O. Reg. 664. As such, I decline to address Mr. Choi’s submissions of alleged bad faith conduct by Aviva as part of this preliminary hearing.
34As the next step following the decision on the preliminary issue was not addressed in the Tribunal’s August 24, 2020 order, I order that within 30 days of the release of this preliminary hearing decision, the parties shall contact the Tribunal to schedule a resumption of the case conference that will determine the remaining substantive issues in dispute and schedule the hearing.
Released: January 6, 2021
__________________________
Lindsay Lake
Adjudicator
Footnotes
- O. Reg. 34/10 (the “Schedule”).
- Written Submissions of the Respondent on a Preliminary Issue, tab 3.
- Applicant’s Written Submissions, tab 8.
- Applicant’s Written Submissions, tab 9.
- Applicant’s Written Submissions, tab 17.
- The date of Dr. Khaled’s OCF-19 Musculoskeletal Assessment was also cut off in the copy of the May 28, 2020 correspondence in the Applicant’s Written Submissions.
- Written Submissions of the Respondent on a Preliminary Issue, para. 31.
- Applicant’s Written Submissions, para. 21.