McCormick v. Allstate Canada, 2022 CanLII 1144

Citation: McCormick. v. Allstate Canada 2022 ONLAT 21-001362/AABS - M

Licence Appeal Tribunal File Number: 21-001362/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Tyler McCormick

Applicant

and

Allstate Canada

Respondent

MOTION DECISION

ADJUDICATOR: Ian Maedel, Vice Chair

APPEARANCES:

For the Applicant: Christopher Collins, Counsel

For the Respondent: Nawaz Tahir, Counsel

Motion heard in Writing on: September 27, 2021

BACKGROUND

1The applicant was injured in an automobile accident on January 22, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the "Schedule").

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

3The substantive issues in dispute include post-104 income replacement benefits, an award, and interest.

4A case conference took place on July 15, 2021 before Adjudicator Grieves. The respondent raised a preliminary issue and was given until July 23, 2021 to file a preliminary issue motion.

MOTION

5On July 28, 2021, the respondent filed a Notice of Motion requesting that the Tribunal issue a decision regarding the following preliminary issue:

i. Should the application be dismissed or stayed pursuant to s. 55(1)2, as the applicant has failed to an insurer's examination pursuant to s. 44 of the Schedule?

Respondent's Position

6The respondent submits the applicant failed to attend four insurer's examinations ("IEs") in January 2021 pursuant to his claim for post-104 income replacement benefits. These assessments included: a vocational assessment, a kinesiology assessment (functional abilities evaluation), a psychiatric assessment, and an orthopaedic assessment. Given the applicant's serious injuries¹, these IEs are "reasonably necessary", pursuant to the standard under s. 44(1) of the Schedule. The applicant has failed to provide any reasonable explanation for his non-attendance at these examinations.

7Further, to date, there have been no IEs completed that address whether the applicant suffers a complete inability to resume any reasonably-suited employment, pursuant to the standard for post-104 income replacement benefits under s. 6 of the Schedule. As such, the respondent lacks sufficient and compelling medical evidence regarding the applicant's continued eligibility for income replacement benefits. The number and nature of the proposed IEs is not unusual in the circumstances, and they are all related to the applicant's physical, mental, emotional and psychological ability to successfully re-enter the workforce. This evidence is highly relevant and the inability to complete these assessments would be highly prejudicial to the respondent.

Applicant's Position

8The applicant submits a sole orthopaedic IE is sufficient to determine the applicant's entitlement to post-104 income replacement benefits. One IE appropriately balances the respondent's right to conduct an IE with the applicant's privacy rights. There is no reasonable nexus between the nature of the applicant's injuries and the request for a psychiatric IE. The request for additional IEs is not "reasonably necessary", pursuant to s. 44(1) of the Schedule, as the probative value of these redundant IEs is outweighed by the prejudice to the applicant.

9The applicant proposes a "stepwise" examination process which would permit the respondent to conduct an orthopaedic IE, and then, if additional medical evidence is required, further IEs may be requested. This approach not only accords with the grammatical and ordinary wording of the Schedule, but it also meets the legislative intent of the regulation, i.e., its consumer protection mandate. The only conceivable prejudice to the respondent is the potential of a minimal delay in the proceedings, which does not otherwise justify an unnecessary intrusion into the applicant's privacy rights.

RESULT

Relevant Legislation and Rules

10Section 44(1) of the Schedule defines an insurer's ability to require an insured person to attend an IE as follows [emphasis added]:

For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

11Section 55(1) disallows applicants from pursuing a benefit if they did not attend an IE when a proper notice has been filed in accordance with the Schedule. Section 55(2) provides the discretion to allow non-compliant insured persons to still proceed with their applications.

12Rule 3.1 of the Common Rules of Practice & Procedure (the "Rules") requires the Tribunal to conduct its proceedings in a manner that balances fairness and efficiency, all the while allowing disputes to be addressed on their merits.

The Motion to Dismiss

13The respondent's motion to dismiss this application is denied.

14The Tribunal will rarely dismiss an application prior to a hearing on the merits. When considering the prejudice to both parties, I must conclude that the scales tip in favour of the applicant. Concerns regarding the applicant's lack of a reasonable explanation for failing to attend the previous IEs is, ultimately, outweighed by procedural fairness considerations. Put another way, denying the applicant's ability to adjudicate his claim for post-104 income replacement benefits would be unduly prejudicial and contrary to procedural fairness, as required under pursuant to Rule 3.1(a).

The Motion to Stay

15The respondent's motion to stay this application, pursuant to s. 55(1), is granted. This application shall be stayed for a period of 120 days. This period should permit the respondent to schedule and/or complete the vocational assessment, kinesiology assessment (functional abilities evaluation), and the orthopaedic assessment.

16I am not persuaded a psychiatric examination is "reasonably necessary" pursuant to s. 44(1) of the Schedule.

17In assessing whether the insurer's examination is "reasonably necessary", pursuant to s. 44(1) of the Schedule, I considered the criteria laid out in Al-Shimasawi v. Wawanesa Mutual Insurance Company, including the potential prejudice to the parties and the nexus between the requested examinations and the applicant's injuries.²

18Given the applicant's extensive physical injuries, neither party disputes that an orthopaedic examination is "reasonably necessary" in the circumstances.

19Instead, this matter turns on the potential prejudice wrought to the respondent. The respondent has been totally unable to assess the applicant with regard to his claim for post-104 income replacement benefits. Not only has this situation prejudiced the respondent by leaving it without contemporaneous, expert evidence, but the applicant specifically requested funding in order to complete a vocational assessment in an OCF-18 (dated October 1, 2020). The respondent shall have the ability to obtain a responding report utilizing its own practitioner.

20Further, I am not persuaded that the requests for vocational and kinesiology (functional abilities evaluation) assessments are otherwise redundant or an effort to round up the "usual suspects"³ as the applicant submits. These evaluations will speak directly to the applicant's level of functioning in relation to the applicant's return to work in reasonably suited employment, distinct from the orthopaedic examination. The applicant's ability to resume employment is squarely at issue with the claim for post-104 income replacement benefits, therefore, I am persuaded these additional IEs are "reasonably necessary" pursuant to s. 44(1).

21Finally, as the respondent submits, the test for post-104 income replacement benefits is a significant one and will speak to the applicant's ability to work across a spectrum of education, training, and experience – and the benefit could be payable for life. The vocational and kinesiology assessments will permit the respondent to obtain this critical functional information pursuant to the post-104 test in s. 6 of the Schedule. To otherwise deprive the respondent the ability to obtain this information would be contrary to procedural fairness given the circumstances of this matter.

22The respondent has the onus of establishing insurer's assessments are "reasonably necessary". In my view, it has failed to do so in regard to the disputed psychiatric assessment.

23To start, the applicant has not placed his psychiatric or mental health at issue. Similarly, I do not have any evidence before me to support any diagnosis related to potential depression or chronic pain tendered by a psychiatric or mental health professional. I am also not persuaded that the presence of ethanol and cannabis in the applicant's body at the time of the accident lends itself to a conclusion that he has psychiatric or mental health issues requiring assessment.

24I am further satisfied that the evidence put forward by the respondent is compelling enough to establish the "reasonably necessary" nature of this proposed testing. That is, the prescription of cannabis for alleged "chronic pain"⁴, comments by the applicant's mother related to her son's mental health, and the occupational therapist's diagnosis of "severe depressive symptoms"⁵ do not provide a sufficient factual basis for a psychiatric examination.

25In sum, I am persuaded by the applicant's submissions that these are otherwise trivial incidents related to his emotional state that bear no causal relation to the applicant's accident-related injuries. When examining the totality of this request, I cannot conclude there is a reasonable nexus between the psychiatric examination requested and the applicant's injuries.

26Additionally, I accept the applicant's submissions regarding the prejudice caused by this psychiatric testing. Examinations by their very nature are inherently intrusive. Parties must always consider the most appropriate and least intrusive means of assessing an applicant's impairments. This is further complicated by the current public health crisis related to Covid-19 and the wider restrictions currently in place. Therefore, considering the lack of a reasonable nexus, I do not find that this inherent prejudice has been overcome as it relates to the psychiatric IE.

27As an aside, in conducting these other "reasonably necessary" assessments, the respondent shall refer to the Financial Services Regulatory Authority of Ontario's (FRSAO) guideline (dated June 3, 2020) entitled "Statutory Accident Benefits Claims during the COVID-19 Outbreak".⁶ The respondent shall otherwise ensure that an in-person assessment is reasonably required and that all necessary preventative measures are in place to prevent the spread of Covid-19 during assessments.

28The applicant has proposed a "stepwise" examination process which would permit the respondent to conduct an orthopaedic IE, and then, if additional medical evidence is required, further IEs may be requested. While in theory the rationale for this approach does balance the respondent's right to conduct "reasonably necessary" assessments with the applicant's privacy interests. However, in practicality, this could lead to extensive delay which may, ultimately, compromise hearing efficiency and lead to increased costs. The Covid-19 pandemic has already created extensive months-long delays in scheduling and obtaining s. 44 IE reports. If the parties were forced to wait while successive rounds of IEs were conducted, this could result in additional months of delay. These delays would likely be compounded by institutional scheduling delays at the Tribunal, resulting in a delay that spanned months, if not years. Overall, the practical reality of this approach make it unworkable in these circumstances.

29To conclude, I am satisfied the following insurer's examinations are reasonably "necessary pursuant" to s. 44(1) of the Schedule: vocational assessment, kinesiology assessment (functional abilities evaluation), and the orthopaedic assessment. This matter shall be stayed for a period of 120 days to permit the respondent to schedule and conduct these three assessments.

30I am not persuaded a psychiatric examination is reasonably necessary pursuant to s. 44(1) of the Schedule.

OTHER PROCEDURAL MATTERS

31Unfortunately, the Tribunal is not currently scheduling any case conferences until late summer of 2022 at the earliest. This matter shall be scheduled for a motion hearing on May 16, 2022 at 11:00 am via teleconference. The parties shall be prepared to conduct further case management and set hearing dates if necessary.

32Except for the provisions contained in this Motion Order all previous orders made by the Tribunal remain in full force and effect.

33If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1The applicant's injuries included two broken legs (including a broken femur and shin), a bruised lung, a broken collarbone. He was placed in a medically induced coma following the accident.
2. 2[2007] O.F.S.C.D. No. 82 (FSCO), Tab "O", Submissions of the Respondent.
3. 3T.(H) v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., as quoted at para. 39 of G.P. and Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT) at Tab 8 of Applicant's Document Brief & Book of Authorities.
4. 4Medical Report of Dr. Michael Hart, November 5, 2019, Tab "I", Submissions of the Respondent.
5. 5Occupational Therapy Progress Report Cristin Bowie, November 21, 2019, Tab "J", Submissions of the Respondent.
6. 6Statutory Accident Benefits Claims during the COVID-19 Outbreak (fsrao.ca)