Release date: 06/08/2021
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:
Danielle Hardy-MacDonald
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Joshua Lindzon, Counsel
For the Respondent:
Jason Goodman, Counsel
HEARD:
By way of written submissions
OVERVIEW
[1] The applicant, Danielle Hardy-MacDonald, was involved in an automobile accident on July 15, 2018. She sought benefits from the respondent, Wawanesa Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
[2] In the first nine months after the accident, the respondent approved all of the applicant’s claims for medical, income replacement, and attendant care benefits without requesting Insurer’s Examinations under s. 44 of the Schedule. On May 14, 2019, the respondent denied two of the applicant’s claims for medical benefits, requesting her attendance at three Insurer’s Examinations.
[3] On May 17, 2019, the applicant refused to attend these examinations on the grounds that the requests were made in bad faith and were an abuse of process. The applicant then made additional claims that the respondent denied, requesting additional Insurer’s Examinations. The applicant did not attend.
[4] The applicant applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute. On October 7, 2020, the Tribunal held a case conference. The respondent raised a preliminary issue that would dispose of the application. This hearing is to consider that preliminary issue.
PRELIMINARY ISSUE
5The sole issue to be decided in this hearing is:
a. Is the applicant barred from commencing a proceeding because she failed to comply with section 44 of the Schedule by not attending insurer’s examinations?
RESULT
6Section 55 of the Schedule bars the applicant from commencing a proceeding before this Tribunal because she failed to attend Insurer’s Examinations properly requested by the respondent under s. 44. The application is accordingly dismissed. There is no basis for a costs award.
PROCEDURAL ISSUES
7At the October 7, 2020 case conference, the parties agreed that the preliminary issue dispute relates to six treatment and assessment plans (OCF-18s). The applicant raises two additional issues in her submissions (a claim for an income replacement benefit and a claim for vision therapy). The October 13, 2020 case conference order states that these issues are to be added to the dispute pending the outcome of this preliminary issue hearing. They are not currently before me.
8I am bound to consider only those issues identified in the October 13, 2020 case conference order. I limit consideration to the following six OCF-18s and the related requests for Insurer’s Examinations:
Date of OCF-18
Claim amount
Goods and services proposed
Notice of Examination date
Date and nature of requested examination
April 30, 2019
$3,210.73
Psychological treatment
May 14, 2019
June 14, 2019 (Psychiatry)
April 30, 2019
$2,232.65
Chiropractic and massage treatment
May 14, 2019
June 5, 2019 (Orthopaedic)
June 19, 2019 (Neurology)
August 1, 2019
$1,197.00
Vision therapy
August 15, 2019
September 11, 2019 (Optometry)
August 1, 2019
$7,464.61
Assistive devices
August 16, 2019
September 10, 2019 (Occupational Therapy)
September 17, 2019
$4,144.61
Medical cannabis expenses
October 2, 2019
October 22, 2019 (Physiatry)
August 27, 2019
$1,638.50
Nutritional assessment
September 9, 2019
September 19, 2019 (Family physician)
ANALYSIS
9Section 44 of the Schedule grants insurers the right to request an insured person’s attendance at an examination by a regulated health professional of the insurer’s choosing to assist in determining entitlement to a benefit. Section 44(1) limits that right insofar as requests can only be made “not more often than is reasonably necessary.”
10The purpose of an Insurer’s Examination is to allow the insurer to obtain an independent medical opinion on the insured person’s accident related impairments so that it may fairly and properly assess claims made against it. Insurer’s Examinations are the insurer’s only means of obtaining independent medical opinions.
11Insurer’s Examinations are inherently intrusive. To guard against insurers requesting Insurer’s Examinations “more often than is reasonably necessary,” s. 44(5) requires that notice be given setting out the “medical and any other reasons for the examination.”
12Both parties rely on this Tribunal’s decision in M.B. v. Aviva Insurance Canada.2 M.B. held that the requirement to give “medical and any other reasons” for a request under s. 44 required an insurer to refer in its notice to the insured’s medical condition and any other applicable rationale for the request. At para. 26 of M.B., the Tribunal held that:
a notice under s. 44 should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires;
an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies;
an insurer’s “medical and any other reasons” should be clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
13The applicant concedes that she failed to attend every Insurer’s Examination in question. She submits that she was not required to attend them because the requests were made improperly and in bad faith and were an abuse of process. She justified her non-attendance to the respondent in a letter dated May 17, 2019.
14The applicant raises two arguments: that that the Insurer’s Examinations were not reasonable or necessary and that the reasons given for the requests failed to comply with s. 44(5) of the Schedule.
15I have reviewed the Notices of Examination the respondent sent to the applicant and find, in every case, that the respondent’s reasons for requesting Insurer’s Examinations satisfy the requirements of the Schedule. I will address each request in turn.
Psychological treatment
16On May 14, 2019, the respondent sent an Explanation of Benefits to the applicant denying her claim for psychological treatment and requesting an Insurer’s Examination because:
a. 10 months had passed since the accident and the applicant had received a significant amount of psychological treatment;
b. There was insufficient medical documentation on file to support ongoing entitlement to ongoing facility-based treatment; and
c. An Insurer’s Examination was necessary to determine
i. the status of the applicant’s treatment and
ii. whether there were any other treatment recommendations to aid in the applicant’s recovery.
17I find that the reasons given in the notice satisfy the requirement to provide “medical and any other reasons” for the request. The reasons identified information the respondent did not have about the applicant’s condition that it required in order to properly assess the applicant’s claim. The Notice referred to the specific benefit in issue. The respondent’s rationale was clearly set out in straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request.
18The applicant makes detailed submissions about the medical documentation she made available to the respondent in support of her claim for psychological treatment. She submits that the May 14, 2019 Notice of Examination was invalid and deficient for suggesting that the respondent had “insufficient medical documentation” to determine her entitlement to the benefit.
19The applicant’s position is without merit. Nothing in the Schedule requires insurers to accept at face value the medical documentation an insured person provides in support of a claim. Section 44 establishes a broad right to request Insurer’s Examinations by a regulated health professional of the insurer’s choosing. This is an insurer’s only means of obtaining an independent medical opinion to properly adjust an insured person’s file and to fairly assess a claim made against it. The respondent’s request complied with the Schedule. The applicant’s refusal to attend the examination triggers the bar on Tribunal proceedings contained in s. 55 of the Schedule.
Chiropractic and massage treatment
20On May 14, 2019, the respondent sent an Explanation of Benefits to the applicant denying her claim for chiropractic and massage treatment and requesting an Insurer’s Examination because:
a. 10 months had passed since the accident and the applicant had received a significant amount of chiropractic treatment and massage therapy;
b. There was insufficient medical documentation on file to support ongoing entitlement to ongoing facility-based treatment; and
c. An Insurer’s Examination was necessary to determine if there were any other treatment recommendations to aid in the applicant’s recovery.
21I find that the reasons given in the notice satisfy the requirement to provide “medical and any other reasons” for the request. The respondent identified information it did not have about the applicant’s condition that it required in order to properly assess her claim. The Notice referred to the specific benefit in issue. The respondent’s rationale was clearly set out in straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request.
22The applicant submits the Notice is deficient because the respondent did not reference a specific medical condition, which she submits M.B. requires, and did not refer to specific medical documentation upon which the respondent was basing its request.
23M.B. requires reference to a medical condition or, alternatively, reference to information the insurer requires. The latter requirement is met here. The applicant has failed to identify any authority, either in the Schedule or the case law, establishing a requirement for reference to specific medical documentation. Insurance adjusters are not medically trained and cannot be expected to analyze medical documentation in an insured person’s file. This is not a prerequisite for requesting an examination under s. 44. The request complied with the Schedule and the applicant’s refusal to attend triggers the bar on Tribunal proceedings under s. 55.
Vision therapy
24On August 15, 2019 the respondent sent an Explanation of Benefits to the applicant denying her claim for vision therapy and requesting an Insurer’s Examination because:
a. The respondent’s understanding was that an adjunct to appropriate care is a reduction in treatment and services;
b. At that time the applicant continued to require care at the same level as suggested at referral; and
c. An Insurer’s Examination was necessary to determine:
i. what, if any, alternative mode of treatment would be reasonable and necessary for her rehabilitation; and
ii. whether the applicant continued to require vision therapy as a direct result of her accident-related injuries.
25The applicant submits that the reasons given in the Notice are incongruous and contrived and the respondent should not be permitted to rely upon them: 16-003316/AABS v. Peel Mutual Insurance Company.3 She submits that the fact the respondent had previously approved vision therapy makes the reasons difficult for an unsophisticated person to understand. She submits that there was no reference to specific injuries or medical documentation and that this renders the Notice deficient.
26I find that the reasons given in the notice satisfy the Schedule’s requirement to provide “medical and any other reasons” for the request. The reasons identified information the respondent did not have about the applicant’s condition that it required in order to properly assess the applicant’s claim. The Notice referred to the specific benefit in issue. The respondent’s rationale was clearly set out in straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request. There is no requirement to refer to specific medical documentation in a Notice of Examination.
27I see no incongruity in the reasons provided in the Notice. The fact that vision therapy had previously been approved does not detract from the clarity and sufficiency of the rationale provided in the Notice. It is clear from the reasons offered that the respondent expected appropriate care to lead to a reduction in treatment and services, and that since treatment was being provided at the same level as it was at the point of referral, an Insurer’s Examination was necessary. There is nothing contrived about this rationale. The Notice complied with the Schedule and the applicant’s refusal to attend the examination triggers the procedural bar under s. 55.
Assistive devices
28On August 16, 2019 the respondent sent an Explanation of Benefits to the applicant denying her claim for an assistive device (a La-Z-Boy couch) and requesting an Insurer’s Examination because:
a. The respondent had insufficient medical documentation to substantiate that a La-Z-Boy is reasonably required as a direct result of the applicant’s accident-related injuries.
29The applicant submits the Notice is deficient because it makes no specific reference to medical documentation. This is not required under the Schedule. The applicant directs me to no case law to support an interpretation of s. 44(5) that such a requirement can be read in.
30I find that the reasons given in the notice satisfy the Schedule’s requirement to provide “medical and any other reasons” for the request. It is clear from the rationale provided that the support for the claimed assistive device in the medical documentation available was inadequate for the respondent to fully and fairly assess the claim. An insurer is not required to rely solely on the medical documentation provided to it by an insured person; the approach set out in s. 44 of the Schedule makes this abundantly clear. The respondent’s rationale was clearly set out in straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request. The notice complied with the Schedule. The applicant’s refusal to attend triggers the procedural bar in s. 55.
Medical cannabis expenses
31On October 2, 2019, the respondent sent an Explanation of Benefits to the applicant denying her claim for chiropractic and massage treatment and requesting an Insurer’s Examination because:
a. The applicant had a history of using medical cannabis for her pre-existing impairments before the accident; and
b. An Insurer’s Examination was required to determine whether medical cannabis was needed in the amount claimed as a direct result of the accident.
32The applicant submits that these reasons are insufficient because they make no reference to a specific medical diagnosis. She submits that the rationale is not clear enough for an unsophisticated person to understand. I disagree. The rationale is expressed in direct, straightforward language capable of being understood by an unsophisticated person. The insurer lacked sufficient medical information to properly assess a medical cannabis claim. Again, an insurer is not required to take at face value the medical documentation provided to it by an insured person and is entitled under s. 44 to request an Insurer’s Examination. Citing the insufficiency of the medical documentation from the insurer’s perspective does not render a Notice deficient, incongruous, or contrived.
33The notice complied with the Schedule. By refusing to attend, the applicant triggered the procedural bar in s. 55 of the Schedule.
Nutritional Assessment
34On September 9, 2019 the respondent sent an Explanation of Benefits to the applicant denying her claim for a Nutritional Assessment and requesting an Insurer’s Examination because:
a. The respondent possessed insufficient medical documentation to support the need for the proposed assessment as a direct result of the accident.
35The applicant submits the Notice was deficient because it gave reasons that were incongruous and contrived. I do not accept that argument. Though brief, the reasons in the September 9, 2019 notice comply with the Schedule. They point to information about the applicant’s condition that the respondent required, namely medical documentation establishing the necessity of a Nutritional Assessment due to the applicant’s accident-related impairment. The rationale is expressed in direct, straightforward language capable of being understood by an unsophisticated person. The notice complied with the Schedule, and by refusing to attend the examination, the applicant triggered the procedural bar in s. 55.
The number of Section 44 requests
36The applicant asks me to find that the respondent made excessive requests for Insurer’s Examinations. She submits that the sheer number of requests alone is evidence that the requests were made more often than is reasonably necessary. I reject that argument. Setting aside the fact that several of the sixteen requests cited by the applicant pertain to issues not properly before me, the record shows that each of the respondent’s requests for examination were reasonable.
37The applicant issued a blanket refusal to attend Insurer’s Examinations a mere three days after the respondent made its first requests. As I have found, those requests were accompanied by clear, comprehensible rationales. Each examination request specifically identified the benefit in dispute and fully complied with the Schedule.
38The applicant submits that the respondent’s requests were abusive, excessive and not reasonably necessary. I find this argument unpersuasive considering the applicant’s refusal to attend a single Insurer’s Examination. Before denying the benefits in issue, the respondent approved the applicant’s claims for income replacement, attendant care, and medical benefits without requesting a single Insurer’s Examination. After the applicant’s May 17, 2019 refusal to attend Insurer’s Examinations, the respondent continued to appropriately adjust her file and to make further requests under s. 44 of the Schedule to attempt to obtain the information it needed to determine her entitlement to benefits. I see nothing unreasonable in the frequency of the respondent’s requests for examination. The record does not support a finding that the requests were made more often than was reasonably necessary.
COSTS
39The applicant requests an order for costs in the amount of $10,000.00 pursuant to Rule 19 of the Common Rules of Practice and Procedure (Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission) October 2, 2017, as amended. Rule 19 permits the Tribunal to order costs where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
40The applicant submits that raising this preliminary issue is an act of frivolous, vexatious, bad faith conduct on the part of the respondent. She submits that it is a meritless attempt to delay her application and deny her treatment. She submits that the respondent failed to produce her entire accident benefits file as ordered by the Tribunal, including adjuster’s log notes.
41The applicant has failed to establish a basis for a costs award. Just as it is within the statutory rights of the respondent to request Insurer’s Examinations to properly evaluate a claim, it is open to the respondent to rely on the procedural bar in s. 55 of the Schedule. As these reasons demonstrate, the s. 55 issue has merit and the respondent raised it appropriately.
42The parties have had an opportunity to make submissions on the preliminary issue and lead evidence within the timelines established by the Tribunal. The applicant’s assertion that the respondent failed to comply with the terms of the October 13, 2020 production order is unsupported by evidence. I have no basis to conclude that the respondent has engaged in vexatious, frivolous, or bad faith conduct in this proceeding.
43I therefore decline to issue costs.
CONCLUSION
44The applicant failed to attend Insurer’s Examinations properly requested by the respondent under s. 44 of the Schedule. Section 55 of the Schedule bars the applicant from commencing a proceeding before this Tribunal. The application is dismissed without costs.
Date of Issue: June 8, 2021
Theresa McGee, Vice-Chair
Footnotes
- O. Reg. 34/10.
- 2017 CanLII 87160 (ON LAT) [M.B.].
- 2018 CanLII 39373 (ON LAT) at para. 29.