Robertson v. The Co-operators General Insurance Company, 2022 CanLII 45270

Citation: Robertson v. The Co-operators General Insurance Company, 2022 CanLII 45270

Licence Appeal Tribunal File Number: 20-010086/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:

Brian Robertson

Applicant

and

The Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Brandon Murphy, Counsel

For the Respondent: Bruce Keay, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on May 22, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on February 1, 2021. A written preliminary hearing was scheduled for July 5, 2021.

3A videoconference hearing was scheduled for April 25-29, 2022 to address the substantive issues in dispute. These issues include a claim for non-earner benefits (“NEB”), eight treatment plans, an award, and interest.

4In a Motion Order dated May 3, 2021, the written preliminary hearing was rescheduled for June 7, 2021.

PRELIMINARY ISSUES

5The respondent raised the following preliminary issue:

i. Is the applicant statute-barred from filing this application with the Tribunal, with respect to the treatment plans dated February 19, 2020, April 8, 2020, and July 28, 2020, because he failed to attend the scheduled insurer examinations pursuant to s. 55(1)2 of the Schedule?

RESULT

6The request to bar this application, pursuant to s. 55(1)2 of the Schedule, is denied.

7This application shall be stayed for a period of 120 days to permit the respondent to conduct the outstanding IEs.

PARTIES’ POSITIONS

8The respondent submits that the applicant has failed to attend three in-person insurer examinations (“IEs”). These include a psychological assessment, a physiatry assessment and an in-home occupational therapy assessment. The applicant failed to provide any explanation for his failure to attend these IEs. The respondent submits these IEs were “reasonably necessary”, pursuant to s. 44(1) of the Schedule. Similarly, the Notices of Examination were all compliant with s. 44(5)(a) of the Schedule, as they contained straightforward, clear wording, including the medical and other reasons for the examinations. Further, the applicant never challenged the wording of the Notices, nor advised they led to confusion and never asked for additional information regarding the examinations.

9The applicant submits the respondent is non-compliant with s. 44 of the Schedule, so he cannot be statute-barred as a result of his non-attendance at these examinations. The applicant provided correspondence from his Family Physician stating that he has difficulty riding in a motor vehicle due to chronic back pain, post-concussion symptoms, anxiety, fatigue, and post-traumatic symptoms due to the accident. These impairments are why he was unable to attend the IEs as scheduled. Despite these symptoms, the respondent requested five IEs and an Examination Under Oath. The applicant submits the respondent requested more IEs than are “reasonably necessary”, as he has already undergone a significant number of previous examinations. By their very nature, these examinations are inherently intrusive and an invasion of individual privacy. Otherwise, the applicant has provided an overwhelming amount of medical information that supports his claim for ongoing counselling and support for his Post-Traumatic Stress Disorder and heightened anxiety.

ANALYSIS

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 44(5) states that a Notice of Examination shall set out the medical and any other reasons for the examination, whether the insured is required to attend the examination, the name of the person conducting the examination and their profession, including their titles and designation, as well as the date, time, and location of the examination.

12Section 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.

13Rule 3.1 of the Common Rules of Practice and Procedure (the “LAT Rules”) requires the Tribunal to conduct its proceedings in a manner that balances fairness and efficiency, all while allowing disputes to be addressed on their merits.

Request to Dismiss the Application

14The respondent’s motion to dismiss this application, pursuant to s. 55(1)2, is denied.

15Due to the high level of prejudice facing an applicant when such a remedy is granted, the Tribunal will rarely dismiss an application prior to a hearing on the merits. Therefore, when considering the prejudice to both parties, I must conclude that the scales tip in favour of the applicant. Put another way, denying the applicant’s ability to adjudicate the claim for NEB and the eight treatment plans in dispute would be unduly prejudicial and contrary to procedural fairness, pursuant to Rule 3.1(a) of the LAT Rules. I am also satisfied that there is another adequate remedy for the applicant’s breach, namely, a stay of proceedings.

Notices of Examination

16Before an insurer can rely on s. 55(1) due to a missed IE, it must first be determined whether the applicant was properly served with a compliant Notice of Examination. Once again, the applicant submits the respondent’s Notices of Examination were deficient. After reviewing the Notices provided, I am satisfied the correspondence provided on January 29, 2020, March 4, 2020, April 23, 2020 and April 27, 2020 collectively comply with s. 44(5) of the Schedule.

17The correspondence (dated January 29, 2020) outlines the findings from previous IE Reports. Specifically, the physiatry and occupational therapy assessors deferred to the opinion of Dr. Cobrin, Psychologist, who will require an additional IE conducted via paper review.¹

18The correspondence (dated March 4, 2020) outlines the denial for a treatment plan (“OCF-18”) related to corrective glasses and an adjustable bed. It refers to the previous IE reports that include a diagnosis of concussion/post-concussion syndrome, but no diagnoses related to difficulties with focusing, nausea, and photophobia. Also referenced were the results of the cranial nerves test. The applicant was informed this treatment would be addressed at the upcoming IEs and once the examinations were arranged, details would be provided.²

19The correspondence (dated April 23, 2020) relates to a treatment plan submitted regarding treatment at an Intensive Chronic Pain Outpatient Program. This OCF-18 is denied based on the applicant’s pre-existing mental and physical health issues, including chronic low back and anxiety. A chronic pain assessment was not mentioned in the previous IE conducted by Dr. Marchuk, nor in the Psychological IE Report provided by Dr. Corbin. Psychotherapy was recommended, but not completed, thus this treatment plan appears premature. Based on the information provided, a second medical opinion is required related to the applicant’s pre-existing conditions. IEs would be arranged and more details provided.³

20The April 27, 2020 correspondence directs the applicant to the medical and other reasons laid out in the previous letters from the Co-operators, dated January 29, March 4, and April 23, 2020. The letter enclosed the Notices of Examination forms for a Psychological Examination, an In-Home Assessment and Form 1, and a Physiatry Assessment. All of these examination forms indicate the applicant is required to attend in-person for the assessments. A further Notice of Assessment indicates a Neurological Examination would be conducted via paper review.⁴

21The Notices of Examination forms all comply with section 44(5) of the Schedule. In each, the applicant is referred back to the medical any other reasons laid out in each correspondence dated January 29, March 4, April 23, 2020. Together the letters provide the basis for the respondent’s reasons for not only denying the disputed benefits, but they point to information that it hopes to obtain from additional assessments. The requirement for medical and any other reasons as specified in s.44(5)(a) reinforces the consumer protection mandate of the Schedule and forms the standard for evaluating whether sufficient information has been provided to the applicant in order to make an informed decision related to the denial of benefits.

22Appended to each of the three letters cited above was a Right to Dispute Form. This form included clear and straightforward information with regard to the dispute resolution process and a filing an application with the Tribunal. This included information regarding the two-year limitation period, how to file an application, an electronic link to the application form, contact information for the Tribunal, including the hours of operation, information related to the filing fee for an application, and an excerpt of s. 55 of the Schedule.

23The applicant submits the correspondence and notices are non-compliant yet fails to particularize how they contravene the Schedule. I am persuaded the correspondence cited above, along with the Notices of Examination Forms provided with the April 27, 2020, collectively comply with s. 44(5)(a) of the Schedule.

Are the IEs Reasonably Necessary Pursuant to the Schedule?

24Although not a specific form of relief requested, I am prepared to stay this application for a period of 120 days. This period should permit the respondent to schedule and complete the “reasonably necessary” psychology, physiatry, and occupational therapy IEs at issue.

25In 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, e.g., the timing of the request, the potential prejudice to both sides, the number of previous IEs requested, the nature of the examinations, new issued raised that require further evaluation and whether there is a reasonable nexus between the IEs requested and the applicant’s injuries.⁵

26To start, the timing of the request is not a determining factor with regard to these assessments in dispute. There is no allegation that these IEs were scheduled in close proximity to the substantive hearing in dispute, nor solely for the purpose of bolstering the respondent’s case. Rather, the correspondence and notices provided indicate they are required to further assess and adjust the file in light of subsequent treatment plans provided, or second opinions required from assessors regarding disputed treatment.

27Centrally tied to the question of whether the disputed IEs are “reasonably necessary” is the potential prejudice wrought to the parties as a result of additional IEs. As detailed above in its letters, the respondent requires these additional IEs to clarify a number of questions that remain outstanding regarding the treatment in dispute. Dr. Marchuk, and Ms. Wood, both deferred to the opinion of Dr. Corbin, Psychologist, in their reports regarding diagnoses that were beyond the scope of their expertise. Their opinions may change depending on Dr. Corbin’s findings. Similarly, the respondent requires additional IEs to address causation and the applicant’s alleged chronic pain, and whether it is tied to the accident at issue. Furthermore, the respondent requires an opportunity to determine if the social work intervention proposed in the treatment plan (dated August 11, 2020) is “reasonable and necessary”, pursuant to the Schedule. While I do not dispute that the applicant has provided clinical notes and records and s. 25 expert reports with regard to these matters, the respondent has a right to obtain independent medical opinions related to this disputed treatment—a right clearly established in s. 44(1).

28After having reviewed the evidentiary record tendered, I am aware of the applicant’s potential barriers to attendance regarding anxiety, post-concussion symptoms, and post-traumatic symptoms as identified by his Family Physician, Dr. Onishenko, in September 2019.⁶ However, as of late October 2019, the applicant was seeking prescriptions for additional medications to calm his anxiety in order to attend the IEs.⁷ Despite Dr. Onishenko’s initial opinion that the applicant was unable to travel in a motor vehicle in order to attend these IEs, I am persuaded these IEs can proceed in the least intrusive means possible, pursuant to the respondent’s obligations under s. 44(9)(2)i. These accommodations should lessen any potential impact on the applicant and permit the respondent to conduct an effective s. 44 assessment so that it may continue to adjust this file.

29I would add that the COVID-19 pandemic has posed challenges in arranging these IEs, specifically in relation to pre-screening procedures. In conducting these assessments, the respondent shall refer to the FRSA guideline (dated June 3, 2020) entitled “Statutory Accident Benefits Claims during the COVID-19 Outbreak”.⁸ The respondent shall otherwise ensure there is flexibility in arranging these assessments and ensure that preventative measures are in place to protect the applicant from the spread of COVID-19 during the conduct of these three assessments.

30Neither party has provided clear evidence with regard to the previous number of IEs conducted. However, from the respondent’s correspondence dated January 29, 2020, it appears that at least five previous IEs have been conducted. This includes previous IEs for physiatry, a psychological assessment, a neurological assessment, a functional abilities evaluation, and an in-home occupational therapy assessment.⁹ I do not consider the three additional IEs proposed by the respondent to be excessive at this juncture, especially given the additional treatment plans have been submitted and the additional s. 25 assessments for social work and neuropsychology.

31Finally, I am satisfied there is a nexus between the issues in dispute and the three additional IEs proposed. Issues related to causation, chronic pain, the quantity of social work intervention required, and whether the treatment plans are reasonably necessary go to the very heart of the issues in dispute. These aspects of the applicant’s condition and proposed care can be reasonably assessed with the proposed IEs.

32When I consider the totality of the circumstances, I must conclude the three IEs at issue are “reasonably necessary”, pursuant to s. 44(1) of the Schedule. There will be clear prejudice wrought to the respondent if these IEs are not completed, particularly in light of the additional treatment plans and the subsequent expert reports provided. Similarly, there is a nexus between the disputed IEs and the issues in dispute. Thus, psychological, physiatry, and occupational therapy in-home assessment are “reasonably necessary”, pursuant to the Schedule.

ORDER

33I order the following:

i. The request to bar this application, pursuant to s. 55(1)2, of the Schedule is denied;

ii. The application shall be stayed for period of 120 days to permit the respondent to conduct the outstanding, “reasonably necessary” IEs;

iii. The substantive hearing previously scheduled for April 25-29, 2022 is adjourned;

iv. The parties shall contact the Tribunal to schedule a case conference for case management purposes, and to set a hearing date, if necessary, by September 30, 2022.

Released: May 26, 2022

__________________________

Ian Maedel Vice-Chair

Footnotes

1. 1Written Submissions of the Respondent on the Preliminary Issue, Tab 1.
2. 2Written Submissions of the Respondent on the Preliminary Issue, Tab 2.
3. 3Written Submissions of the Respondent on the Preliminary Issue, Tab 3.
4. 4Written Submissions of the Respondent on the Preliminary Issue, Tab 4.
5. 5[2007] O.F.S.C.D. No. 82 (FSCO).
6. 6Applicant’s Written Submissions Tab 7.
7. 7Applicant’s Written Submissions Tab 8.
8. 8Statutory Accident Benefits Claims during the COVID-19 Outbreak (fsrao.ca)
9. 9Written Submissions of the Respondent on the Preliminary Issue, Tab 1.